Volume 141 — Tennessee Reports

<p>1. CORPORATIONS. Purchasing own stock. Recovery.</p> <p>In the absence of statutory authority, a corporation cannot purchase its own stock, and if it attempts to do so it- may recover the amount paid to the stockholder, or if it becomes insolvent its receiver or assignee may have such recovery. (Post, pp. 3, 4.)</p> <p>Cases cited and approved: Civil Service Investment Ass’n. v. Thomas, 138 Tenn., 77; Cartwright v. Dickinson, 88 Tenn., 476; Green v. Ashe, 130 Tenn., 616.</p> <p>2. BANKRUPTCY. Actions by trustee. Set-off and counterclaim. “Mutual credits and debts.’’</p> <p>Where corporation purchased its own stock and became bankrupt, its trustee having brought suit to recover the amount paid the stockholder, the latter could not set off against the recovery an indebtedness of the corporation to him, since he received the money for the stock as a trustee for the creditors; the capital stock being a trust fund, and the case not being one of mutual credits and debts within the meaning of the bankruptcy act. (Post, pp. 4-6.)</p> <p>Cases-cited and approved: Ohio L. Ins. Co. v. Merchants’ L. Ins, Co., 30 Tenn., 1; Marr v. Bank of W. Tenn., 44 Tenn., 471; Kelly Bros. v. Fletcher, 94 Tenn., 1; Shields v. Clifton Hill' Land Co., 94 Tenn., 123; Vance v. McNahb Coal & Coke Co., 92 Tenn., 47; Jennings Neff & Co. v. Ice Co., 128 Tenn., 231; Western Tie & Timber Co. v. Brown, 196 U. S., 502; Sawyer v. Hoag, 17 Wall.. 610; Kiskadden v. Steinle, 203 Fed., 375; Scoville v. Thayer, 105 U. S., 143.</p> <p>3. COURTS. Construction of Bankruptcy Act.</p> <p>In an action in State court by a trustee in bankruptcy involving the construction of the Bankruptcy Act, the decisions of the United States supreme court are controlling. (Post, p. 6.)</p> <p>Acts cited and construed: Acts 1898, ch. 546. :.</p> <p>Cases cited and approved: Trust Co. v. Bank, 91 Tenn., 336; Bank Cases, 92 Tenn., 437; Lumber Co. v.Lumber-Co., 128 Tenn., 11.</p> <p>4. APPEAL AND ERROR. Insufficient proof.</p> <p>Where both parties appealed from the judgment, and the transcript did not contain the amended record, which the judgment referred to, and which would have justified a larger recovery, the cause will</p> <p>. be remanded for the taking of further proof to establish proper amount of recovery. (Post, pp. 6, 7.)</p>

<p>1. CARRIERS. Passengers. Assisting passenger to alight.</p> <p>Where passenger is old or infirm, or place of alighting from train is dangerous, or there are other circumstances indicating need of assistance, carrier is bound to exercise highest degree of care in assisting passenger to alight; but where place-is safe, and there is nothing to indicate help is needed, carrier need not render assistance. (.Post, pp. 10, 11.)</p> <p>Case cited and approved: Southern Ry. Co. v. Mitchell, 98 Tenn., 27.</p> <p>2. CARRIERS. Passengers. Voluntary assistance to passengers in alighting.</p> <p>Carrier’s employees, who volunteer assistance to passenger in boarding or alighting, although assistance is unnecessary, are bound to exercise reasonable care in so doing, but are not held to highest degree of care. (Post, pp. 11, 12.)</p> <p>Cases cited and approved: Moody v. Boston, etc., R. Co., 189 Mass., 277; Hanlon v. Central R. Co. of N. X, 187 N. Y., 73; St. Louis, I. M. & S. Ry. Co. v. Green, 85 Ark., 117; Walker v. Quincy,- etc., R. Co., 178 S. W., 108.</p> <p>3. TRIAL. Instructions. Assumption as to facts.</p> <p>In passenger’s action for injuries sustained in alighting from train, an instruction on duty of assistance, which assumed the fact in issue that place where passenger alighted was dangerous, was erroneous. (Post, pp. 12-14.)</p> <p>Cases cited and approved: Nashville, etc., R. Co. v. Elliott, 41 Tenn., 611; Illinois Central R. Co. v. Kuhn, 107 Tenn., 106.</p>

<p>1. INSURANCE. Health and accident insurance. Extent of liability.</p> <p>Under accident policy- limiting liability to three weeks’' benefit for disability from hernia, one receiving an accidental hernia was not limited to three weeks’ recovery. (Post, pp. 16, 17.)</p> <p>Cases cited and approved: Travelers’ Ins. Co. v. Murray, 16 Colo., 296; Atl. Assurance Ass’n v. Alexander, 104 Ga., 709; Miner v. Travelers’ Ins. Co., 3 Ohio S. &. C. P. Dee., 289; Berry v. United Commercial Travelers of America, 172 Iowa, 429.'</p> <p>Case cited and distinguished: Keen y. Continental Casualty Co., 175 Iowa, 513.</p> <p>2. INSURANCE. Payment of premiums. Presumptions.</p> <p>The presumption is that the insured has paid all premiums due when he exhibits a receipt for the last month’s premium. (Post, p. 17.)</p> <p>3. ACCORD AND SATISFACION. Fraud. Pleading.</p> <p>In action at law, where accord' and satisfaction is pleaded, plaintiff may set up fraud in securing the accord. (Post, pp. 17, 18.)</p> <p>Cases cited and approved: Brundige v. Railroad, 112 Tenn., 530; Byers v. Railroad, 94 Tenn., 345; Street Railway Co. v. Giardino, 116 Tenn., 368.</p> <p>4. ACCORD AND SATISFACTION. Rescission. Return of Moneys received.</p> <p>Where insured accepted less than the amount due as accord and satisfaction, and the insurer in his action set up such accord and satisfaction, which the insured alleged was obtained by fraud, the return of the money received was not prerequisite to recovery of the true amount due, since in any event the insurer was liable for more than it had paid. (Post, p. 18.)</p> <p>Cases cited and approved: Fox v. Hudson’s Ex’x et al., 150 Ky., 113; Street Railway Co. v. Giardino, 116 Tenn., 368. " ““</p>

<p>GARNISHMENT. Implied repeal. Increase of population.</p> <p>Private Laws 1915, chapter 273, making garnishable wages of officials and employee of municipalities of not more than 44,000 population, admittedly applying to a certain city, was not, as to such city, abrogated by Private Laws 1917, chapter 97, extending the corporate limits to take in adjacent towns, the population of which, with that of the city, would exceed 44,000 according to 1910 census; such repeal being contrary to the apparent legislative intent.</p> <p>Acts cited and construed: Acts 1915, ch. 273; Acts 1917, ch. 97.</p> <p>Case cited and approved: Hall v. State, 124 Tenn., 235.</p>

<p>1. DAMAGES. Excessive damages. Personal injury.</p> <p>Where a street car conductor was knocked from the running board of his car to the paved street by striking a negligently placed road i roller, and so injured that he remained unconscious until after reaching hospital, where he remained seven days, and was unable to work for some days thereafter, but was paid wages by his employer for lost time, a judgment against the city for $500 was not excessive. (Post, pp. 26, 27.)</p> <p>2. MUNICIPAL CORPORATIONS. Streets. Obstructions. Personal injury. Evidence.</p> <p>Evidence, in an- action by a street car conductor against a city for personal injuries resulting from negligent obstruction of street by a road roller, held sufficient to support a verdict for plaintiff. (Post, pp. 26, 27.)</p> <p>3. MUNICIPAL CORPORATIONS. Streets. Obstructions. Liability for personal injury.</p> <p>Where the distance from curb to nearest street car rail was ten feet six inches, and a road roller six feet wide was unnecessarily placed three and one-half feet from curb to fill boiler with water, and the rollers fender was so close as to strike a conductor standing on the running board of his car, the city is liable for personal injury resulting therefrom. (Post, pp. 27, 28.)</p> <p>4. MUNICIPAL CORPORATIONS. Streets. Obstructions. Personal injury. Contributory negligence Evidence.</p> <p>Evidence held not to sustain defendant city’s contention that plaintiff conductor, necessarily standing on the running board of bis street car collecting fares, when struck and injured by a city’s negligently placed road roller, was 'guilty of contributory negligence. (Post, pp. 27, 28.) i</p> <p>Cases cited and approved: Conelly v. Nashville, 100 Tenn., 262; Poster v. Water Co., 71 Tenn., 42; Irvine v. Chattanooga, 101 Tenn., 291; Chattanooga v. Reid, 103 Tenn., 616; Chattanooga v. Dowling, 101 Tenn., 343; Kolb v. Knoxville, 111 Tenn., 311; Knoxville v. Klasii\g, 111 Tenn., 134; City of Nashville v. Mason, 137 Tenn., 169.</p> <p>5. TRIAL. Instructions. Refusal to instruct. Instructions already given.</p> <p>Requested charge, covered by instructions given, is properly refused. (Post, pp. 28-30.)</p> <p>6. MUNICIPAL CORPORATIONS. Trial. Streets. Obstructions. Personal injury Contributory negligence. Instructions.</p> <p>In action against city by a street car conductor, injured by being struck by a road roller left standing too close to passing street cars, an instruction on contributory negligence, in not seeing the roller, held properly refused, as confusing because containing too many diSerent suppositions of cumulative facts.- (Post, pp. 30, 31.)</p> <p>7. MUNICIPAL CORPORATIONS. Streets. Obstructions. Duty of a street car conductor.</p> <p>A street car conductor, standing on the running board of his car collecting fares and discharging passengers, is not bound to keep a constant lookout to escape from a nuisance in the form of a dangerous street obstruction. (Post, pp. 30, 31.)</p> <p>8. MUNICIPAL CORPORATIONS. Negligence of servants. Liability. Performance of strictly governmental duties.</p> <p>The rule that a city is not liable for its employees’ negligence in handling tools and applicances in the performance of a strictly governmental duty does not relieve the city where such instru-mentalities are so used as to constitute a temporary or permanent nuisance. (Post, pp. 31, 32.)</p>

<p>1. INDICTMENT AND INFORMATION. Charge against individual, Bad check law.</p> <p>Indictment for violation of Public Acts 1915, chapter 178, the had check law, held against defendant as an individual, not as president of a grocery company. (Post, pp. 36, 37.)</p> <p>Acts cited and construed: Acts 1915, ch. 178.</p> <p>2. FALSE PRETENSES. Bad check law, Gravamen of charge,</p> <p>Gravamen of charge that defendant violated Public Acts 1915, chapter 178, the bad check law, is not the issuance of a check, but is the obtaining, with fraudulent intent, of money, or other property, or credit, by means of a check. (Post, pp. 37, 38.)</p> <p>3. STATUTES. Criminal statute. Construction.</p> <p>Construction of criminal statute which in many instances would defeat legislative purpose will not be adopted unless forced by express language. (Post, p. 38.)</p> <p>4. FALSE PRETENSES. Bad check law. “Of which he is the maker or drawer.”</p> <p>Defendant violated Public Acts 1915, chapter 178, the bad check law, though he signed check for which he obtained goods as president of grocery company; statutory phrase “of which he is the maker or drawer” merely limiting application to persons obtaining money or property with fraudulent intent by check which they draw personally or in representative capacity. (Post, pp. 38-45.)</p> <p>Acts cited and construed: Acts 1915, ch. 178.</p> <p>Cases cited and distinguished: State v. Willis, 130 Tenn., 408; Kizer v. State, 140 Tenn.,-; Milbrath v. State, 138 Wis., 354; State ex reí. y. Standard Oil Co., 49 Ohio St., 137; Hempfling v. Burr, 59 Mich., 294.</p>

<p>1. JUDGMENT. Full faith and credit. Want of Jurisdiction.</p> <p>A judgment of a court of another state is not entitled to full faith and credit, under Constitution U. S. article 4, section 1, if void for lack of jurisdiction. (Post, pp. 49-54.)</p> <p>Cases cited and approved: Vorhees v. Bank, 10 Pet., 449; Miller v. White, 76 Am. St. Rep., 805; Earthman v. Jones, 10 Tenn., 484.</p> <p>Cases cited and distinguished: Paper Co. v. Shyer, 108 Tenn., 453; Penno'yer v. Neff, 95 U. S., 724; Cooper v. Reynolds, 77 U. S. (15 Wall.), 308; Brown v. Brown, 34 Tenn., 432.</p> <p>Constitution cited and construed: Art. 4, sec. 1</p> <p>2. GARNISHMENT. Validity. Collateral attack.</p> <p>In a suit to recover wages, a judgment of garnishment, rendered in another State, may he collaterally attacked, if void. (Post, pp. 49-54.)</p> <p>3. CONSTITUTIONAL LAW. Due process. Attachment.</p> <p>Where debtor’s wages were attached and impounded in another State, and judgment rendered against him, without actual or constructive service in accordance with the laws of that State, the court acquired jurisdiction, and defendant was not denied due process of law, under Constitution U. S. Amendment 14, section 1. (Post, pp. 49-54.)</p> <p>4. COSTS. Allowance. Parties entitled.</p> <p>Where plaintiff was successful in the justice court, circuit court, and court of civil appeals, and the defeádant in the supreme court secured reduction to the amount of liability admitted, held, that the defendant should pay the justice court costs, and the plaintiff the costs of appeal and of circuit court, although the question of legal tender by defendant was doubtful. (Post, p. 54.)</p> <p>Cases cited and approved: C., N. 0. & T. P. Ry. Co., v. Shelton, 123 Tenn., 513.</p> <p>5. APPEAL AND ERROR. Review. Intermediate courts. Failure to appeal.</p> <p>Where a questions, was decided adversely to the defendant in error by the court of civil appeals, he is bound thereby, where he has not brought the case to the supreme court by certiorari. (.Post, p. 54.)</p> <p>Cases cited and approved: McKay v. Railroad, 133 Tenn., 595.</p>

<p>SAIiES. Contracts. Retention of Title. Necessity of Writing. Statutes.</p> <p>A note stating consideration as “one Chalmers 6 Cyl. car,” and “it is further agreed that the title of said-shall remain in seller.” being insufficient to identify the property without resort to parol evidence, does not comply with Acts 1899, chapter 15, requiring sales contracts retaining title to he in writing.</p> <p>Acts cited and construed: Acts 1899, ch. 15.</p> <p>Cases cited and approved: Southern Ice & Coal Co. v. Alley, 127 Tenn., 173; Nance v. Piano Co., 128 Tenn., 1; McDonald Auto. Co. v.</p> <p>Bicknell, 129 Tenn., 493; Shaw v. Webh, 131 Tenn., 173.</p> <p>Cases cited and distinguished: Manufacturing Co. v. Nordeman, 118 Tenn., 384.</p>

<p>1. INSANE PERSONS. Right to appeal. Inquisition.</p> <p>A defendant, against whom there has been a judgment of lunacy in an inquisition held for that purpose, is entitled to appeal. (.Post, p. 66.)</p> <p>Cases cited and approved: Shaller v. Garrett, 127 Tenn., 665; Cooper v. Surbmers, 33 Tenn., 4.53; Fentress v. Fentress, 54 Tenn.,-428; Davis v. Norvell, 87 Tenn., 36.</p> <p>Code cited and construed: Sec. 5451 (T.-S.) ,</p> <p>2. APPEAL AND ERROR. Right to appeal. Inquisition. “Person interested.” Aggrieved person.</p> <p>A brother of a thirty-seven year old bachelor was not,'by reason of ' his contingent expectancy of inheritance, a “person interested,” nor an “aggrieved person,” who could, under Thompson’s Shannon’s Code, sections 4879, 4880, appeal from a judgment after an inquisition finding that his brother, was not of unsound mind. (Post, pp. 66-69.)</p> <p>Cases cited and approved: Glosson v. Glosson, 104 Tenn., 391; Porter v. Burton, 57 Tenn., 584; Brooks v. Fleming, 65 Tenn., 331; Goldman v. Justice, 40 Tenn., 107; Studebaker v. Markley, 7 Ind., App., 368; McKenna v. McKenna, 29 R. I., 224; Briard v. Goodale, 86 Me., 100; Tierney v. Tierney, 81 Neb., 193.</p> <p>Cases cited and distinguished: In re 'Carpenter, 140 Wis., 572; Nimblet v. Chaffee, 24 Vt, 628.</p> <p>Codes cited and construed: Secs. 4879, 4880 (T.-S.)</p>

<p>1. INSURANCE. Agents. Construction of contract. Surrounding circumstances.</p> <p>The chancellor in construing a contract between an insurance company and its agent should look to the relation of the parties, the object to be accomplished, and the general circumstances attending its execution, to determine whether the agent was entitled to renewal commissions after the termination of the contract. •(Post, pp. 74-88.)</p> <p>Cases cited and approved: Lewis v. Atlas Mutual Life Ins. Co., 61 Mo., 534; Wells v. National Life Association, 39 C. C. A., 476; Stowell v. Greenwich Ins. Co., 20 App. Div., 188; Stamper v. Venable, 117 Tenn., 557; McKay R. R. Co., 133 Tenn., 590; Perkins Oil Co. v. Eberhart, 107 Tenn., 409; Hardwick v. Can Co., 133 Tenn., 657;</p> <p>2. INSURANCE. Contract of Agency. Renewal commissions.</p> <p>U¿der a contract between an insurance company and an agent. held, that the parties meant to confine renewal commissions under former contracts to the continuance of the present contract. (Post, p. 88.)</p> <p>3. INSURANCE. Contract of agency. Construction.</p> <p>Where a representative of an insurance company draws up a contract of agency, the contract, in cases of doubt, will be construed most strongly against the company. (Post, pp. 89, 90.)</p> <p>Case cited and approved: Perkins Oil Co. v. Eberhart, 107 Tenn., 409.</p> <p>4. CONTRACTS. Construction. Practical interpretation.</p> <p>The rule concerning practical interpretation of the parties themselves only applies in cases where contract is ambiguous and intention doubtful, and even then it ought to appear with reasonable certainty that acts alleged to have been performed in the construction of the contract were voluntary acts of both parties, performed with knowledge of the terms of the contract and m view of a purpose at least consistent with that to which they are sought to be applied. (Post, pp. 90, 91.)</p> <p>Cases cited and approved: State ex rel. v. Vanderbilt University, 129 Tenn., 279; Topliff v. Topliff, 122 U. S., 121; Sternbergh v. Brock, 225 Pa. 279.</p> <p>Case cited and distinguished: Chicago v. Sheldon, 9 Wall., 50.</p> <p>5. INSURANCE. Contract of agency. Practical construction by parties.</p> <p>Mere fact that general agent of insurance company continue to pay renewal commissions to a subagent, who had terminated his contract, did not show a practical construction to effect that sub-agent was entitled to renewal commissions; it not. being shown when company first received notice of cancellation of contract. (Post, pp. 91, 92.)</p> <p>Cases cited and approved: Cerny v. Paxton & Gallagher Co., 78 Neb., 134.</p> <p>6. PAYMENT. Recovery. Burden of proof.</p> <p>To recover money paid though mistake of fact, burden i,s on plaintiff to show that payments were in fact made under a mistake of fact. (Post, pp. 92-94.)</p> <p>Case cited and approved: Dolvin v. American Harrow Co., 125 Ga., 699.</p>

<p>1. MASTER AND SERVANT. Injuries to servant. Actions. Declaration.</p> <p>In action by administrator of deceased minor brought under tbe federal Employers’ Liability Act for tbe death while obeying instructions in the operation of a freight train, declaration held sufficient in respect to allegations as to the existence of the relation of master and servant. (Post, pp. 99-101.)</p> <p>Acts cited and construed: Acts 1908, ch. 149, p. 65; Acts 1910, ch. 143, sec. 2.</p> <p>Cases cited and approved: Illinois Central Ry. Co. v. Messina, 240 U. S., 395; Southern Ry. Co. v. Linear, 138 Tenn., 543.</p> <p>2. APPEAL AND ERROR. Preservation of defenses. Federal Employers’ Liability Act. Special Damages.</p> <p>The objection that the administrator of a deceased minor servant, in his action under the federal Employers’ Liability Act for damages for the negligence of a fellow servant, failed to allege pecuniary loss must be raised at the trial. (Post, pp. 101, 102.)</p> <p>Cases cited and approved: Jones v. Cullen, 100 Tenn., 24; Carson v. Peterson, 105 Tenn., 541; Coal & Coke Co. v. Steel Co., 123 Tenn., 428; Boshwitz v. Lauhorn, 131 Tenn., 705.</p> <p>Case cited and distinguished: Railway Co. v. Anderson, 134 Tenn., 687.</p>

<p>1. TAXATION. Inheritance tax. Collection. Jurisdiction.</p> <p>Where a hill is filed in chancery to settle an estate, clerk of county court, under Acts 1893, chapter 174, section 22, can maintain petition in such suit to collect inheritance tax. (Post, p. 108.)</p> <p>Acts cited and construed: Acts 1893, ch. 174; Acts 1893, ch. 89, sec. 7.</p> <p>2. APPEAL AND ERROE. Objection not raised below.</p> <p>Question as to whether, in bill to settle estate in chancery clerk of county court can petition to collect inheritance tax, cannot be first raised on appeal. (Post, pp. 108, 109.)</p> <p>Case cited and approved: Shelton v. Campbell, 108 Tenn., 690.</p> <p>3. TAXATION. Inheritance tax. Property subject.</p> <p>The only interest that nephews and niece had in estate before intestate’s death was the possibility that they might outlive intestate, and assignment by them of rights in estate did not transmit any vested, interest, and estate would be liable to collateral inheritance and succession tax under Acts 1893, chapter 174, and Acts 1893, chapter 89, section 7. (Post, pp. 109, 110.)</p> <p>4. ASSIGNMENTS. Conveyance of expectant estate.</p> <p>An agreement or covenant to convey by an heir expectant and sui juris, if fairly made and based on a valuable consideration, will be enforced as against the grantor and privies, whenever the property comes into his possession, but not until then. (Post, pp. Ill, 112.)</p> <p>Cases cited and approved: Fitzgerald v. Vestal, 36 Tenn., 258; Steele v. Frierson, 85 Tenn., 430; Read v. Mosby, 87 Tenn., 759; McCrackin v. Wright, 14 Johns. (N. Y.), 193; Davis v. Hayden, D Mass., 514; Bayler v. Common-wealth, 40 Pa., 37; Chew v. Barnet, 11 Serg. & R. (Pa.), 389.</p> <p>Case cited and distinguished: Taylor v. Swafford, 122 Tenn., 303.</p>

<p>1. MUNICIPAL CORPORATIONS. Powers. Delegation.</p> <p>The powers possessed by municipal officers must be viewed as public trusts, and legislative powers of the board of mayor and aider-men cannot be delegated to the mayor, although mere ministerial powers may be so delegated. (Post, pp. 119-125.)</p> <p>Cases cited and approved: Dillard v. Webb, 55 Ala., 468; Bibel v. People, 67 Ill., 172; Bills v. Goshen, 117 Ind., 221; Koeppen v. Sedalia, 89 Mo. App., 648; Hengst v. Cincinnati, 9 Ohio Dec., 731; Jewell Belting Co. v. Bertha, 91 Minn., 9; People v. Mc-Wethy, 177 Ill., 334; McCrowell, v. Bristol, 89 Va., 652; Stale v. Glavin, 67 Conn., 29; Blair v. Waco, 75 Fed., 800; Johnston v. Macon, 62 Ga., 645; Curran Bill Posting & D. Co. v. Denver, 47 Colo., 221; People ex rel. Healy v. Clean Street Co... 225 Ill., 470; Whyte v. Mayor & Aldermen of Nashville, 32 Tenn., 364.</p> <p>2. MUNICIPAL CORPORATIONS. “Ministerial Act.” “Legislative Act.”</p> <p>A purely ministerial function of a municipal officer is one as to which nothing is left to discretion, while legislative acts involve the exercise of discretion and judgment. (Post, pp. 125, 126.)</p> <p>3. MUNICIPAL CORPORATIONS. Delegation of powers. Legislative powers.</p> <p>Where Acts 1903, chapter 103, under which a city was incorporated, vested in the board of mayor and aldermen all power to contract, an arbitration agreement made by the mayor with one whose property the city desired to condemn for a new city hall building was void, for, though the board of mayor and aldermen by resolution directed the mayor to enter into a written agreement of arbitration, and select arbitrators, held, that such acts involved discretion, and the power to perform the same could not he delegated, (Post, pp. 125, 126.)</p> <p>Acts cited and construed: Acts 190S, ch. 103.</p> <p>Case cited and approved: City of Biddeford v. Yates, 104 Me., 506.</p>

<p>1. HUSBAND AND WIFE. Property rights. Modification of husband’s estate. Statutes.</p> <p>The husband’s common-law estate jure uxoris has been so materially modified by legislative enactments that only a bare privilege is left to the husband to rent out his wife’s land and to collect the rents for the benefit of the family in the capacity of governor of the family and not for himself individually. (Post, P- 131.)</p> <p>Acts cited and construed: Acts 1835-36, 1849-50, 1879; Acts 1913, ch. 26.</p> <p>Case cited and approved: Abies v. Abies, 86 Tenn., 333.</p> <p>Code cited and construed: Secs. 4225, 4234, 4239.</p> <p>2. HUSBAND AND WIFE. Wife’s separate property. Rents.</p> <p>Under the Emancipation Act of 1913, a wife has a right to rent out her lands and to collect the rents accruing therefrom. (Post, p. 131.)</p> <p>3. HUSBAND AND WIFE. Wife’s separate property. Emancipation act.</p> <p>Under the Emancipation Act of 1913, fully relieving married women from all disabilities on account of coverture and giving them the same right to acquire, hold, and dispose of realty and personalty as if unmarried, a married woman can hold no separate property as such, and all her property to which she has title is subject to her debts. (Post, p. 131.)</p> <p>Cases cited and approved: Parlow v. Turner, 132 Tenn., 339; Levy v. Davis, 125 Tenn., 349.</p> <p>4. HUSBAND AND WIFE. Married women. Wife’s title to property.</p> <p>Under the Emancipation Act of 1913, a husband had no interest in a lot owned by the wife at time of her marriage, and the entire title thereto remained in the wife and might be levied upon and sold by her creditor as her property. (.Post, pp. 131, 132.)</p> <p>Case cited and approved: Day v. Burgess, 139 Tenn., 559.</p>

<p>FROM HAMBLEN.</p> <p>Appeal from the Circuit Court of Hamblen County. —Hon. John B. Holloway, Judge.</p>

<p>1. MUNICIPAL CORPORATIONS. Mayor. Eligibility. “Voter.”</p> <p>Under charter of City of Jellico embodied in Acts 1093, chapter 33G, sections 6, 9, 13, declaring no one eligible to office of mayor unless he shall be a citizen of the state and city, and a voter in the city, and shall have resided in the city for six months next preceding the election, the term “voter” means one having the qualifications entitling him to vote, and not one who has registered as a voter. (Post, pp. 140-143.)</p> <p>Acts cited and construed: Acts 1903, ch. 336.</p> <p>Constitution cited and construed: Art. 4, sec. 1.</p> <p>2. MUNICIPAL CORPORATIONS. Mayor. Eligibility. Registration as voter.</p> <p>Thompson-Shannon’s Code, sections 1012, 1014, relating to the registration of voters, as authorized by Constitution, article 4, section 1, do not prescribe qualifications of electors, but were enacted to regulate the exercise of the elective franchise, and registration is not necessary to make one a voter in a city so as to be eligible under its charter (Acts 1903, chapter 336, sections 6, 9, 19), to election as mayor. (Post, pp. 143-145.)</p> <p>Acts cited and construed: Acts 1903, ch. 336, secs. 6, 9, 13.</p> <p>Cases cited and distinguished: Moore v. Sharp, 98 Tenn., 491; State v. Weaver, 122 Tenn., 198.</p> <p>Codes cited and construed: Secs. 1210, 1214 (T.-S.).</p> <p>Constitution cited and construed: Sec. 1, art. 4.</p>

<p>1. EASEMENTS. Ways. Over railroad right of way.</p> <p>Whether a railroad company acquired its right of way by condemnation or deed is no ground for distinction in determining whether a prescription way can be acquired over such right of way, for, regardless of the mode of acquisition, a railroad company, under Shannon’s Code, section 2413, holds property only for railroad purposes. (Post, p. 150.)</p> <p>Code cited and construed: Sec. 2413(S.).</p> <p>2. EASEMENTS. Rights of way. Prescriptive easements.</p> <p>As a railroad holds its right of way for public purposes, a prescriptive way over such right of way cannot be acquired. (Post, pp. 150-152.)</p> <p>Cases cited and approved: Railroad Co. v. Port, 3 Tenn. Civ. App., 723; Magill v. Railroad, 2 Tenn. Civ. App., 656; Railroad Co. v. Telegraph Co.; 101 Tenn., 62; L. & N. Railroad Co. v. Hagan, 141 Ky., 20; L. & N. Railroad Co. v. Childers, 155 Ky., 652.</p> <p>3. EASEMENTS. Prescriptive ways. Property in possession of lessee.</p> <p>Where a railroad company was in possession of a right of way as lessee, no prescriptive way over such right of way could be acquired, for the law will not presume a grant from the apparent acquiescence of one who could not have made it. (Post, pp. 152, 153.)</p> <p>Case cited and approved: McKinney v. Duncan, 121 Tenn., 269.</p> <p>Case cited and distinguished: Sanders v. Simpson, 97 Tenn., 985</p> <p>4. EASEMENTS. Right of way. Permissive use.</p> <p>Where there was nothing to show that persons who used a path over a railroad right of way for about twenty-five years, or the public generally, did so under any claim of right adverse to the owners of the right of way, no prescriptive easement resulted. (Post, pp. 163, 154.)</p> <p>Cases cited and approved: Sharp v. Mynatt, 69 Tenn., 375; McKinney v. Duncan, 121 Tenn., 265.</p> <p>5. APPEAL AND ERROR. Change of. Theory on appeal.</p> <p>Where plaintiff was injured when she stumbled over lumber placed on a railroad right of way in such a manner that it obstructed an established path thereon, held that, where plaintifE relied on a prescriptive way, she could not on appeal change to the theory that a landowner, who expressly or by implication invites the public to come upon his land or use it as a pathway, cannot permit a snare or danger to exist thereon which results in injury to the person who accepts the invitation. ' (Post, pp. 154, 155.)</p> <p>Case cited and approved: Connor v. Frierson, 98 Tenn., 183.</p> <p>Case cited and distinguished: Clapp v. La Grill, 103 Tenn., 170.</p>

<p>1. RELIGIOUS SOCIETIES. Unincorporated religious association. Actions against.</p> <p>An unincorporated religious association should plead, and be im-pleaded through its trustees, although it is doubtless true that, where the interests of the trustees are adverse to the association, the association may be impleaded by naming its members. (Post, p. 160.)</p> <p>Cases cited and approved: Wilson v. M. E. Zion Church, 138 Tenn., 398. Headrick v. Ruble, 78 Tenn., 15.</p> <p>2. JUDGMENT. Parties. Conclusiveness. Waiver of defects.</p> <p>Where a bill against an unincorporated religious association named as defendants trustees who had gone out of office shortly before, but the association defended the suit employing counsel, held, that the judgment was binding against the association; the case being one of misnomer which was waived unless raised by plea in abatement. ■ (Post, pp. 160-163.)</p> <p>3. APPEAL AND ERROR. Review. Law of case.</p> <p>A former judgment against an unincorporated religious association held on subsequent appeal conclusive as to the authority of the association to incur the indebtedness sued for. (Post, p. 163.)</p> <p>4. RELIGIOUS SOCIETIES. Unincorporated societies, property. Indebtedness.</p> <p>Where an unincorporated religious association sold its property and delivered the proceeds to another religious society which invested the same in new property, held, that one having a claim against the association, while not entitled to enforce it against the property, might reach the proceeds of the property in the hands of the new society. (Post, pp. 163, 164.)</p> <p>Cases cited and approved: Solinsky v. Lincoln Savings Bank, 85 Tenn., 368; Williamson v. Williams, 79 Tenn., 365.</p> <p>5. RELIGIOUS SOCIETIES. Incorporation. Essentials.</p> <p>Under General Incorporation Act of 1875 Thompson’s Shannon’s Code, section 2026), declaring that, after the certificate of the Secretary of State and the fao simile of the great seal shall he registered in the register’s office of the county wherein the principal office of the company is situated, the formation of the company as a body politic shall he complete, a religious society which attempted to incorporate is not a corporation until the certificate is recorded in the office of the register, and, until such recorda-’ tion, is not a de facto corporation and may he treated as an unincorporated association by one who did not recognize its corporate character. (Post, pp. 164-167.)</p> <p>Acts cited and construed: Acts 1875; Acts 1877, ch. 23.</p> <p>Cases cited and approved: Brewer v. State, 75 Tenn., 682; Shields v. Clifton Hill Land Co., 94 Tenn., 123; Railroad v. Sneed, 99 Tenn., 1; Carpenter v. Frazier, 102 Tenn., 462; Merriman v. Magiveny, 59 Tenn., 494. Railroad Co. v. Johnson, 67 Tenn., 332; State v. Butler, 83 Tenn., .104; Manufacturing Co. v. Yertress, 72 Tenn., 75; Tennessee Automatic Lighting Co. v. Massey (Ch. App.), 56 S. W., 35; Ingle System Co. v. Norris & Hall, 132 Tenn., 472.</p> <p>Cases cited and distinguished: Anderson v. Railroad, 91 Tenn., 44; Collier v. Railroad, 113 Tenn., 96.</p> <p>6. MORTGAGES. Priority. Right to.</p> <p>Where plaintiff was entitled to subject to the payment' of his debt, incurred by the original church, funds which a second church received from the first, held that, where the second church did not complete its corporate organization until after complainant filed his bill, complainant was entitled to satisfaction out of its property prior to mortgages executed by the second church as a corporation, though such mortgages were valid as against the church; he having fixed a prior lien by attachment. (Post, pp. 167, 168.)</p>

<p>1. WILLS. “Demonstrative Legacy.’’ “Specific Legacy.’’</p> <p>Under will bequeathing to a sister the rents of a house and lot during her natural life, house and lot to he sold at sister’s death and proceeds given to an orphan’s home, the legacy to the home was not “demonstrative,” hut “specific.” {Post, pp. 175-178.)</p> <p>Case cited and approved: Manlove v. Gaut; 2 T'enn. Ch. App., 410.</p> <p>Case cited and distinguished: American Trust Co. v. Balfour, 138 Tenn., 385.</p> <p>2. WILLS. Date of taking effect.</p> <p>Will does not take effect until death of testator. {Post, p. 178.)</p> <p>3. WILLS. Sale of property. “Ademption.” Specific legacy.</p> <p>Since, under will bequeathing to a sister rents of a house and lot during her natural life, house and lot to he sold at sister’s death and proceeds given to an orphan’s home, a sale of the house and lot during testatrix’s lifetime worked an -“ademption” as to sister, it also worked an ademption-as to the home; the legacy to the sister taking precedence and priority in time and right to that of the home. {Post, pp. 179, 180.)</p> <p>4. WILLS. Ademption., Effect.</p> <p>There being an ademption of legacies by testatrix’s sale of house and lot in her lifetime, the proceeds constitute a part of general personal estate, and should-, along with other personalty, be applied to payment of debts and general legacies under the terms of the will. '{Post, pp. 180-181.)</p> <p>Cases cited and approved: American Trust Co. v. Balfour, 138 Tenn., 385; McNaughton v. McNaughton, 34 N. Y., 201; Lang v. Vaughn, 137 Ga., 671; Manlove v. Gaut, 2 Ch. App., 410; Ame-trano v. Downs, 170 N. Y., 388.</p> <p>5. WILLS. Specific legacies. Bights of legatees. Subrogation.</p> <p>Where specific legacies are consumed by payment of debts, legatees are entitled by way of subrogation to the rights of creditors to go upon the undevised real estate for reimbursement to the extent that the personalty specifically bequeathed was encroached upon or consumed. (Post, p. 181.)</p> <p>Cases cited and approved: Alexander v. Miller, 54 Tenn., 65; Hope v. Wilkinson, 82 Tenn., 21; Douglass v. Baber, 83 Tenn., 651; Overton v. Lea, 108 Tenn., 505.</p> <p>6. EXECUTORS AND ADMINISTRATORS. Payment of legacies. Debts.</p> <p>A general legacy of a certain amount of money is not to be paid until all debts are paid out of the personal estate, the latter being the primary fund or property for the payment of debts. (Post, p. 181.)</p> <p>7. WILLS. General Legacy. Payment from undevised realty.</p> <p>A general legacy of a certain amount of money cannot be paid out of proceeds from undevised real estate, unless there is an intention to do so expressly declared or clearly inferred from the language of the will. (Post, p. 181.)</p> <p>Case cited and approved: Evans v. Beaumont, 84 Tenn., 713.</p> <p>8. WILLS. Property undevised. Right of sole heir.</p> <p>Where will providing for payment of debts and for a number of general pecuniary legacies contained no residuary clause and made no mention of real estate in question, testator died intestate as to such realty and it descended to her sole heir at law. (Post, pp. 181-183.)</p> <p>9. WILLS. Payment of general pecuniary legacies. Property subject.</p> <p>Under will providing for payment of debts and personal expenses and of several general pecuniary legacies, held, that there was no intention plainly expressed and reasonably implied that lega-cíes should be provided for otherwise than from personal estate, so that court erred in holding that realty as to which testatrix died intestate was subject to payment of such legacies. (.Post, pp. 181-183.)</p> <p>10. EXECUTORS AND ADMINISTRATORS. Payment of debts, feesort to realty.</p> <p>Realty as to which testatrix died intestate could not be subjected to payment of debts, where personalty was sufficient for that purpose; a contrary intention not appearing from the will. (Post, pp. 181-183.)</p>

<p>1. JUDGMENT. Conclusiveness'. Person promoting defense.</p> <p>A prior grantee of a defendant in ejectment was not bound by the judgment, under Acts 1851-52, chapter 152 (Thompson’s Shannon’s Code, section 5000), although he was present and was allowed to control the defense as fully as if he and not his grantor had been the defendant. (Post, pp. 192, 193.)</p> <p>Acts cited and construed: Acts 1851-52, ch. 152.</p> <p>Case cited and distinguished: Boles v. Smith, 37 Tenn., 106.</p> <p>Code cited and construed: Sec. 5000 (T.-S.).</p> <p>Cases cited and approved: Chamberlain v. Pox Coal & Coke Co., 92 Tenn., 14; Cope v. Payne, 111 Tenn., 128; Hillman v. Chester, 59 Tenn., 34; Boro v. Harris, 81 Tenn., 36.</p> <p>2. TENANCY IN COMMON. Adverse possession.</p> <p>Where the possession of a tenant in common was open and notorious and he cultivated for the statutory period, removed practically all the merchantable timber, sold some fifteen tracts off of the land, deeds being recorded in the register’s office, and never made nor was asked for an accounting, the possession was adverse, and the right of the other tenants was barred. (Post, pp. 193-196.)</p> <p>Cases cited and approved: Hubbard v. Wood’s Lessee, 33 Tenn., 279; Saunders v. Hackney, 78 Tenn., 203; Moreloek v. Bernard, 83 Tenn., 169; Coal Creek Min., etc., Co. v. Ross, 80 Tenn., 1; King v. Rowan, 57 Tenn., 675.</p>

<p>1. EMINENT DOMAIN. Compensation. Improvements made by con-demnor.</p> <p>■Where railway company constructed a freight depot on lot on assumption that it was entitled to possession, held, that defendant, who thereafter was adjudged the owner, would not, in condemnation proceedings hy the railway' he entitled to recover for the improvements. (Post, pp. 200, 201.)</p> <p>Cases cited and approved: Southern Ry. Co. v. Jennings, 130 Tenn., 450; St. Johnsville v. Smith, 184 N. Y., 341; United States v. A Certain Tract of Land, 47 Cal., 516; Justice v. Nesquehon-ing Valley R. Co., 87 Pa., 28; Jones v. N. O., etc., R. Co., 70 Ala., 227; Toledo, etc., R. Co. v. Dunlap, 47 Mich., 465; Newgass v. St. L., etc., R. Co., 54 Ark., 140; St. L., etc., R. Co. v. Nyce, 61 Kan., 394; Jacksonville, etc., R. Co. v. Adams, 28 Fla., 631.</p> <p>2. EMINENT DOMAIN. Review. Scope.</p> <p>It is unnecessary for court on appeal to decide whether defendants are entitled to value of lot without improvements at the time of the condemnation proceedings, as distinguished from the value of the lot at the time of plaintiff’s entry, no distinction having been taken by defendants between the present value of the lot without the improvements and the present value of the lot with the improvements. (Post, pp. 201, 202.)</p> <p>3. APPEAL AND ERROR. Review. Damages. Concurrence of the lower courts.</p> <p>Where there is a concurrence of the two lower courts as to the amount of damages in a condemnation proceeding, the supreme court will not interfere except under very unusual circumstances. (Post, p. 202.)</p> <p>Cases cited and approved: Grant v. Railroad, 129 Tenn,, 398; Carolina, etc., R. Co. v. Shewalter, 128 Tenn., 363.</p> <p>4. EMINENT DOMAIN. Review. Matters not presented on motion for new trial.</p> <p>Assignment with reference to allowance of interest will be overruled, where the matter was not called to the attention of the trial court on motion for new trial. (Post, p. 202.)</p>

<p>1. ESTOPPEL. Inconsistency of conduct.</p> <p>While the law of judicial estoppel is ordinarily applied to one who has made an oath to a state of facts in a former judicial proceeding which in a later proceeding he undertakes to contradict, yet it is frequently applied, where no oath is involved, to one who undertakes to maintain inconsistent positions in a judicial proceeding. (Post, p. 206.)</p> <p>Cases cited and approved: Stamper v. Venable, 117 Tenn., 557; Lillard v. Porter, 39 Tenn., 177; Bristol, etc., Trust Co. v. Jones-boro Trust Co., 101 Tenn., 545; Norfolk, etc., R. R. Co. v. Consolidated Turnpike Co., Ill Va., 131; Scanlon v. Walshe, 81 Md., 118.</p> <p>2. ESTOPPEL. Judicial estoppel.</p> <p>Where defendant railway company’s charter and amended charter were on record in the county, when complainant impleaded it as duly organized corporation, complainant in a subsequent suit is estopped, whether the suits be regarded as separate or as one proceeding, from setting up that railway is not a duly organized corporation. (Post, p. 207.)</p> <p>Cases cited and approved: McLemore v. Railroad 111 Tenn., 639; Harris v. Columbia Trust Co., 114 Tenn., 328.</p> <p>3. ESTOPPEL. Reliance on former conduct.</p> <p>Where in a former suit complainant recognized the right of defendant railway to take the right of way in question, and defendant, believing that it had the right of way, extended its lines in connection therewith, complainant will not be relieved of the position taken in the former suit in subsequent suit in ejectment. (Post, pp. 208-209.)</p>

<p>MECHANICS’ LIENS. Right to lien. Materials furnished to material-man. “Mechanic, founder, or machininst.”</p> <p>Where owner ordered material .from materialman, who in turn turn ordered it from another materialman, the latter material-man has no lien for the material so furnished and used in the construction of the building, having had not special contract with owner or his agent, under Shannon’s Code, section 3531, in view of art of 1860, and being no “mechanic, founder, or machinist,” within section 3510.</p> <p>Acts cited and construed: Acts 1846, ch. 118; Acts 1860, sec. 2739.</p> <p>Cases cited and approved: Greenwood et al. v. Tennessee Mfg. Co., 32 Tenn., 130; Greenwood & Bynum, 35 Tenn., 267; Stevens v. Wells, 36 Tenn., 387.</p> <p>Cases cited and distinguished: Greenwood v. Tennessee Mfg. Co., 32 Tenn., 130; Stevens v. Wells, 36 Tenn., 387; Stone Co. v. Board of Publication, 91 Tenn., 200; Thompson v. Baxter, 92 Tenn., 307.</p> <p>Codes cited and construed: Secs. 3531, 3540(S.); Secs. 1981, 1986 (1858).</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Circuit Court of Hamilton County' to the Court of Civil Appeals, and from the Court of Civil Appeals to the Supreme Court. — Hon. Nathan L. Bachman, Judge.</p>

<p>1. APPEAL AND ERROR. Moot question. Bill to remove sheriff. Expiration of term. Costs. Statutes.</p> <p>Under the Ouster Act, appeal from decree dismissing bill to remove sheriff will be dismissed, where sheriff’s term expires pending appeal, particularly in view of Acts 1917, ch. 107, giving presiding judge discretion over costs. (Post, pp. 231-236.)</p> <p>Acts cited and construed: Acts 1915, ch. 11; Acts 1917, ch. 107.</p> <p>Cases cited and approved: State ex rel. Howse, 132 Tenn., 452; State ex rel. Crump, 134 Tenn., 121; State and County of Tenn. v. Lewis, 78 Tenn., 168; Daughtery v. Nagel, 27 Idaho, 511; Albright v. Territory, 13 N. M., 64; People ex rel. Swann v. Loomis, 8 Wend. (N. Y.), 396; Hammer v. State ex rel. Richards, 44 N. J. Law, 667; Hunter v. Chandler, 45 Mo., 452; Commonwealth ex rel. v. Smith, 45 Pa., 59; People v. Hartwell, 12 Mich., 508.</p> <p>Cases cited and distinguished: Tennessee ex rel. Maloney v. Con-don, 108 Tenn., 82; Richardson v. McChesney, 218 U. S., 487; Croker v. Sturgis, 175 N. Y., 158.</p> <p>Code cited and construed: Sec. 5175 (T.-S.).</p> <p>2. OFFICERS. Resignation. Acceptance.</p> <p>An officer’s resignation is not complete until accepted by competent authority. (Post, p. 236.)</p> <p>3. OFFICERS. Resignation. Denial of right.</p> <p>Right of officer to resign will be denied, especially where resignation is hastily made to thwart litigation. (Post, p. 236.)</p> <p>Cases cited and approved: Badger v. United States, 93 U. S., 559; State v. Rose, 74 Kan., 262; State v. McDaniel, 22 Ohio St., 354.</p> <p>4. OFFICERS. Removal. Ouster Act.</p> <p>Proceedings against officer under the Ouster Act should never be brought unless there is a clear case of official dereliction, as such a drastic statute should be invoked only in plain cases, not for purposes of inquisition. (Post, pp. 236, 237.)</p> <p>Cases cited and approved: State ex rel. v. Howard, 139 Tenn., 73; Tabor v. Hipp et al., 136 Ga., 123; Norwood v. Clem, 143 Ala., 656.</p> <p>Code cited and construed: Sec. 6176 (T.-S.).</p>

<p>1. CARRIERS. Passengers. When relation ceases.</p> <p>Where the passenger steps from the car to the street, with intention of resuming his journey immediately on foot or by means other than the car, the relation of a carrier and passenger ceases. (Post, pp. 240, 241.)</p> <p>Cases cited and approved: Street Railroad v. Boddy, 105 Tenn., 666; Keator v. Scranton Traction Co., 191 Pa., 102; Blomsness v. Puget Sound Electric R. Co., 47 Wash., 620.</p> <p>2. CARRIERS. Treatment of passengers. Contract.</p> <p>A passenger upon a street railway car is entitled on his journey to civil treatment from defendant’s servants in charge of the car as a part of the contract of carriage. (Post, p. 241.)</p> <p>Case cited and approved: Traction Co. v. Lane, 103- Tenn., 376.</p> <p>3. CARRIERS. Passengers. Termination of relation. Tort of servant.</p> <p>Where a passenger upon a street railroad car felt that he had been mistreated by the conductor after alighting from the front of the car according- to a rule of the company, necessarily passed to the rear to get the mumber of the conductor to make his complaint, and while doing so, was assaulted by the conductor and injured, the company was liable. (Post, pp. 241, 242.)</p>

<p>TAXATION. Mortgage tax. Exemption from ad valorem tax. Constitutionality.</p> <p>Acts of 1917, chapter 70, imposing tax on mortgages and deeds of trust to he levied “in lieu of all other taxes,” held unconstitutional, as exempting registered mortgages and deeds of trust from ad valorem taxation in violation of Constitution, article 2, section 28.</p> <p>Act cited and construed: Acts 1917, ch. 70:</p> <p>Cases cited and approved: Union Trust Co. v. Detroit, 170 Mich., 692; Mutual Benefit Life Ins. Co. v. Martin County, 104 Minn., 179; People v. Gass, 206 N. Y., 609; Pocahontas Consolidated Collieries v. Commonweath, 113 Va., 108; State v. Alabama Fuel & Iron Co., 188 Ala., 487; Wheeler v. Weightman, 96 Kan., 50; Keith v. Funding Board, 127 Tenn., 441; State v. Alston, 94 Tenn.., 674; Railroad v. Harris, 99 Tenn., 684; Bank v. Memphis, 101 Tenn., 154; Carroll v. Alsup, 107 Tenn., 257.</p> <p>Case cited and distinguished: Telegraph Co. v. State & County, 68 Tenn., 509.</p> <p>Constitutions cited and construed: § 168 (1902); § 28, art. 2 (Tenn.).</p>

<p>1. STATUTES. Knowledge of legislature. Presumption.</p> <p>In adopting a plan or scheme by which the city of Memphis should proceed in its local improvements, with attendant assessments for the benefits accruing, it is to be presumed that the legislature was aware of those rpethods of special assessments constantly adopted and generally in operation throughtout the States of the Union. (Post, pp. 255, 256.)</p> <p>Acts cited and construed: Acts 1907, ch. 341; Acts 1909, ch. 109; Acts 1913, ch. 244.</p> <p>2. MUNICIPAL CORPORATIONS. Improvements. Assessments. Statutes. Strict construction.</p> <p>The purpose of Acts 1907, chapter 341, as amended by Acts 1909, chapter 109, and Priv. Acts 1913, chapter 244, constituting the abutting property law for the city of Memphis being to provide for a species of taxation,- its intendment must be strictly construed against the power and in favor of the citizen affected. (Post, pp. 256-260.)</p> <p>3. MUNICIPAL CORPORATIONS. Street improvements. Assessments. Pront-foot rule.</p> <p>Under Acts 1907, chapter 341, as amended by Acts 1909, chapter 109, and Private Acts 1913, chapter 244, the city of Memphis in levying special assessment is authorized to proceed solely against property abutting the street or part of the street to be improved, and assessments are to be made by the front-foot rule. {Post, pp. 256-260.)</p> <p>Cases cited and approved: Memphis v. Bing, 94 Tenn., 644; Chattanooga v: Raulston, 117 Tenn., 569; Scovill v. City of Cleveland, 1 Ohio St., 126; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St., 159; Kendig v. Knight, 60 Iowa, 29; City of St. Louis v. Juppier, 3 S. W. (Mo.), 401; In re. Morewood Avenue, 159 Pa., 20; In re 54th Street, 165 Pa., 8; Ryan v. Town of Sumner, 17 Wash., 228.</p> <p>4. MUNICIPAL CORPORATIONS. Street improvements. Assessment. Property subject.</p> <p>Where an assessment in proportion to frontage is the mode prescribed by the legislature, property remote from the actual improvement and property not abutting upon the improvement is not subject to assessment. {Post, pp. 260, 261.)</p> <p>Cases cited and approved: Roberts v. City of Evanston, 218 Ill., 296; Shurtleff v. Chicago, 190 Ill., 473; Langlois v. Cameron, 201 Ill., 301; Chillieothe v. Henry, 136 Mo. App., 468; City of Cincinnati v. Batsche, 52 Ohio St., 324; Wilbur v. Springfield, 123 Ill., 395; Barber Asphalt Paving Co. v. Kiene, 99 Mo. App., 528; City of Springfield v. Green, 120 Ill., 269.</p> <p>5. MUNICIPAL CORPORATIONS. Assessments. Benefits. Nonabut-ing property.</p> <p>That the property of respondent or other property adjacent to the improvement is benefited by the same, and in the same manner, and to the same extent, as property abutting immediately upon the improvement, affords no reason for a construction of Acts 1907, chapter 341, as amended by Acts 1909, chapter 109 (Private Acts 1913, chapter 244), which is not clearly comprehended by its terms, {Post, pp. 261-264.)</p> <p>Cases cited and approved: Bank v. Memphis, 101 Tenn., 158; Railroad Co. v. Williams, 101 Tenn., 146; Harriman v. Yonkers, 181 N. Y„ 27,</p> <p>Cases cited and distinguished: Express Co. v. Patterson, 122 Tenn., 293; Halpin v. Campbell, 71 Mo. 493.</p>

<p>STREET RAILROADS. Contributory negligence. Presumption. Jury question.</p> <p>Where plaintiffs deceased was killed on a cloudy misty morning by a street ear, nobody seeing accident, presumption that deceased exercised due care was rebuttable, and court erred in refusing to submit contributory negligence to jury.</p> <p>Cases cited and approved: Texas & Pacific Ry. Co. v. Mary Gentry, 163 U. S., 353; Baltimore & Potomac R. R. Co. v. Landrigan, 191 U. S., 461; Wabash Railroad Co. v. Rosa De Tar, 141 Fed., 932; Tomlinson v. Chicago, M. & St. P. Ry. Co., 134 Fed 233; Rollins v. Chicago, M., St. P. Ry. Co., 139 Fed. 639; St. Louis S. F. R. Co. v. .Cundieff, 171 Fed., 319.</p>

<p>1. PRINCIPAL AND SURETY. Contract. Rules of construction.</p> <p>While the contract of an individual or voluntary surety will be strictly construed, and doubts and technicalities resolved in surety’s favor, contracts of companies acting as surety for compensation must he construed most strongly against the insurer and in favor of the indemnity. (Post, p. 276.)</p> <p>Cases cited and approved: Philadelphia, to Use, etc., v. Fidelity & Deposit of Maryland, 231 Pa., 208; American Surety Co. of New York v. Pangburn, 182 Ind., 116; Hormel & Co. v. American Bonding Co., 33 L. ft. A. (N. S.), 513; Railroad v. Fidelity & Guaranty Co., 125 Tenn., 658-690; Hunter v. Guaranty Co., 129 Tenn., 572-581.</p> <p>2. PRINCIPAL AND SURETY. Contracts. Failure of principal to sign bond.</p> <p>Where the principal or obligor is bound by law or collateral undertaking so that the rights of surety are not jeopardized, the failure to sign the bond renders the same only technically, .and not substantially, defective, and does not release the surety. (Post, pp. 276, 277.)</p> <p>Cases cited and approved: U. S. Fidelity & Guaranty Co. v. Hag-gart, 163 Fed., 809.</p> <p>Case cited and distinguished: Star Grocer Co. v. Bradford et al., 70 W. Va., 496.</p> <p>3. PRINCIPAL AND SURETY. Surety bonds. Signature of principal.</p> <p>Where a surety bond neither expressly nor by implication obligates the employee to perform any act, duty, or undertaking same affixing his signature, and his name appears thereon only as employee and his application for bonds binds him to insure surety against all loss, the employee’s failure to sign the bond does not release the surety. (Post, pp. 277-280.)</p> <p>Case cited and distinguished:. State, Use of Treasurer, v. Bowman, 10 Ohio, 445.</p>

<p>FROM SCOTT.</p> <p>Appeal from the Chancery Court of Scott County— Hugh Gr. Kyle, Chancellor.</p>

<p>1. NEGLIGENCE. Duty to invitee.</p> <p>Owner, who expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, has duty of being reasonably sure that he is not inviting them into danger, and to that end mut exercise ordinary care and prudence to render the premises reasonably safe for the visit. (Post, pp. 293, 294.)</p> <p>Case cited and' distinguished: Bennett v. L. & N. Railroad Co., 102 U. S„ 577.</p> <p>2. NEGLIGENCE. Duty to invitee. Condition of premises.</p> <p>Duty of owner to keep premises in reasonably safe condition for those impliedly invited thereon extends only to those parts of the premises where person invited is expected to go. (Post, pp. 294-296.)</p> <p>Cases cited and approved: Bedell v. Berkey, 76 Mich., 439; Murray v. McLean, 57 Ill., 378; Bennett v. Butterfield, 112 Mich., 96; Lehman v. Coffee, 146 Wis., 218; Menteer v. Fruit Co., 240 Mo„ 177; Schmidt v. Bauer, 80 Cal., 568; Parker v. Publishing Co., 69 Me., 179; Pierce v. Whitcomb, 48 Vt., 129; McCarvell v. Sawyer, 173 Mass., 540; Cowen v. Kirby, 180 Mass., 505; Phillips v. Library Co., 55 N. J. Law, 307; Ryerson v. Bathgate, 67 N. J. Law, 337; Shaw v. Goldman, 116 Mo. App., 332; Ferguson & Palmer Co. v. Ferguson (Ky.), 114 S- W., 297; Zoebish v. Tarbell, 10 Allen (Mass.), 385; Stamford Oil Mill Co. v. Barnes, 103 Tex., 409; New York Lubricating Oil Co. v. Pusey, 211 Fed., 625.</p> <p>Cases cited and disapproved: Indameur v. Dames, 19 Eng. Rul. Cas., 64; Pauckner v. Wakem, 231 Ill., 277; Glaser v. Rothschild, 221 Mo., 186; Pelton v. Schmidt, 104 Mich., 345.</p> <p>3. NEGLIGENCE. Unguarded elevator shaft. Liability of owner for injuries.</p> <p>Storage company, having adjoining building being constructed by contractor, owed concrete inspector, employed in the construction of adjoining building, no duty of keeping its wareroom- in- reasonably safe condition, though inspector frequently consulted with president of storage company, and occasionally transacted business with him in the office of the storage company, where he had never been invited into, and had no business to transact in, the wareroom. (Post, p. 296.)</p> <p>4. NEGLIGENCE. Theory of.</p> <p>The theory of all negligence cases is that the defendant has violated some legal duty he owed plaintiff. (Post, p. 296.)</p> <p>Case cited and distinguished: Williams v. Nashville, 106 Tenn., 538.</p>

<p>1. COUETS. Appellate jurisdiction. Tennessee.</p> <p>Where the principal purpose of a bill is a recovery of a money judgment in excess of $1,000,- an appeal will lie direct to the su- , preme court; but, if it have some other principal purpose, an appeal will lie only to the court of appeals, notwithstanding an incidental prayer for recovery of a money judgment in excess óf $1,000. (Post, p. 301.)</p> <p>Case cited and approved: Morris v. Railroad, 124 Tenn., 524.</p> <p>Cases cited and distinguished: Singer v. Singer, 122' Tenn., 671; Railroad v. Byrne, 119 Tenn., 278.</p> <p>2. COUETS. Appellate jurisdiction. Tennessee. Appeal from decree upon creditors’ hill.</p> <p>The main purpose of a creditors’ suit is not to obtain a money judgment, hut to impound property, enjoin the proceedings in which property has been attached, and adjudicate the interests of all claimants as to their priority rights, and appoint a receiver for preservation of property, and the appellate jurisdiction thereof lies in the court of civil appeals. (Post, pp. 301-303.)</p> <p>3. COUETS. Jurisdiction. Tennessee. Statutes.</p> <p>Acts 1907, chapter 82, creating the court of civil appeals, confers upon it appellate jurisdiction in all civil cases from the law and equity courts, with certain named exceptions, and the supreme court cannot assert jurisdiction unless a particular case falls clearly within one of the exceptions enumerated. (Post, pp. 303, 304.)</p> <p>Acts cited and construed: Acts 1907, ch. 82.</p> <p>Case cited and distinguished: Burns v. City of Nashville, 132 Tenn., 434.</p>

<p>1. ADVERSE POSSESSION. Color of title. Void tax deed.</p> <p>A tax deed under which defendants claimed the land in suit, even if void, constituted color of title in them. (Post, pp. 312, 313.)</p> <p>Case cited and approved: Iron Co. v. Schwoon, 124 Tenn., 176.</p> <p>2. LIMITATION OF ACTIONS. Removal of disabilities of married women. Effect on saving clause of disability statute.</p> <p>Acts 1913, chapter 26, removing disabilities of married women, did not repeal saving clause of Shannon’s Code, section 4448. in favor of married women, as to commencement of actions after removal of their disability, and complainant married woman had the right to sue the adverse possessors of land, under the saving clause of section 4448, within three years after chapter 26 took effect, January 1, 1914, and, not having done so, the suit, not filed until May 24, 1917, is barred. (Post, pp. 314-316.)</p> <p>Acts cited and construed: Acts 1913, ch. 26; Acts 1901, ch. 15.</p> <p>Case cited and approved: Jones et al. v. Coal Creek Mining & Mfg. Co., 133 Tenn., 160.</p> <p>Code cited and construed: Sec. 4448(S.).</p> <p>3. HUSBAND AND WIFE. Removal of disabilities of married women. Application of statute.</p> <p>Acts 1913, chapter 26, removing the disabilities of married women and giving them the right to bind themselves personally, to sue and to be sued, etc., does not apply only to property, real and personal, in the possession of such women. (Post, pp. 316, 317.)</p> <p>Case cited and approved: Mclrvin v. Lincoln Memorial University, 138 Tenn., 260.</p>

<p>STATUTES. Special laws. Discrimination. Counties.</p> <p>Pub. Acts 1915, chapter 74, creating a constabulary ior the State, and providing that expenses and compensation of members shall be paid by county or counties wherein services are rendered, but that counties having a population of ’190,000 and over, according to the federal census of 1910, are exempt from the act, is unconstitutional, since no county but Shelby comes, or ever will come, within exception.</p> <p>Acts cited and construed: Acts 1915, ch. 74.</p> <p>Cases cited and approved: Redistricting Cases, 111 Tenn., 283; State v. Burnett, 53 Tenn., 188; Sutton v. State, 96 Tenn., 696; Woodard v. Brien, 82 Tenn., 520; Burkholtz v. State, 84 Tenn., 71; Mayor v. Dearmon, 34 Tenn., 119; Moore v. State, 37 Tenn., 510; State v. Leonard, 86 Tenn., 487; State v. Maloney, 92 Tenn., 68; State v. Nine Justices, 90 Tenn., 726; Lauderdale County v. Far-gason, 75 .Tenn., 153; Burnett v. Maloney, 97 "Tenn., 697; Boul-din v. Lockhart, 62 Tenn., 279; Lindsay v. Allen, 112 Tenn., 637;' State ex rel. v. Trewhitt, 113 Tenn., 571; Morrison v. State, 116 ' Tenn., 534.</p> <p>Case cited and distinguished; Weaver v. Davidson County, 104 Tenn., 315.</p>

<p>1. COURTS. Judgment. Jurisdiction by consent or waiver. Collateral attack.</p> <p>When the court has no jurisdiction of the subject-matter, it cannot be conferred either by waiver or consent, and all of its orders and decrees are a nullity, and may be collaterally attacked. {Post, p. 329.)</p> <p>Cases cited and approved: Agee v. Dement, 20 Tenn., 332; White v. Buchanan, 46 Tenn., 32; Noel v. Scoby, 49 Tenn., 20; Ferris v. Fort, 2 Tenn., Ch. 150; Board v. Bodkin Bros., 108 Tenn., 700; Baker v. Mitchell, 105 Tenn., 610.</p> <p>2. APPEAL AND ERROR. Courts. Jurisdiction of subject-matter; Objections.</p> <p>The question of jurisdiction of the subject-matter can be raised at any time in any court, and may be considered by the supreme court on appeal. (Post, pp. 329-340.)</p> <p>Cases cited and approved: Penn. R. R. Co. v. International Coal Co., 230 U. S., 184; Southern Railway Co. v. Tift, 206 U. S., 428; Texas & Pacific R. R. Co. v. Abilene Cotton Oil Co., 204 U. S., 426; Penn. R. R. Co. v. Clark Coal Co., 238 U. S., 456.</p> <p>Cases cited and distinguished: Penn. R. R. Co. v. Puritan Coal Co., 237 U. S., 121; Ill. Cent. R. R. Co. v. Mulberry Hill Coal Co., 238 U. S., 275.</p> <p>3. COMMERCE. Interstate commerce act. Remedies of shipper.</p> <p>Interstate Commerce Act, section 22 (II. S. Comp. St. section 8595), providing that nothing in the act shall abridge existing remedies, but that the provision of the act shall be in addition thereto, reserves to the shipper his remedies existing at common law or statute, in so far as they do not conflict with the provisions of the act, so, that, where no administrative question is involved, and the shipper does not invoke the aid of the Interestate Commerce Commission,-he may prosecute his common-law or statutory remedies. {Post, pp. 340, 341.)</p> <p>4. COMMERCE. Interstate commerce commission. Procedure. Remedies of shippers.</p> <p>Where a shipper applies to the Interstate Commerce Commission in regard to discrimination, he must proceed in accordance with the Interstate Commerce Act. {Post, p. 341.)</p> <p>5. COMMERCE. Actions for damages against carriers. Interstate commerce. Procedure.</p> <p>Interstate Commerce Act, section 9 (II. S. Comp. St. section 8573), allowing persons damaged by any common carrier to complain to the Interstate Commerce Commission, or to bring suit for damages in federal courts, provides two methods for. the ascertainment of damages, which are exclusive, one to the commission, and .the other to the federal courts. {Post,p. 341.)</p> <p>6. COURTS. Shippers’ actions for damages. Action on award of interstate commerce commission. Jurisdiction of federal and state courts.</p> <p>Under Interstate Commerce Act, section 16 (U. S. Comp. St. section 8584), relating to awards of damages to shippers, when an award has been made by the Commission, but such order has not been complied with by the carrier, the shipper may institute suit either in the federal or state court. {Post, p. 341.)</p> <p>7. COURTS. Actions for discrimination, jurisdiction of state court.</p> <p>The State court has no jurisdiction of a suit by a shipper to recover damages for discrimination against a common carrier, based on a finding of the Interstate Commerce Commission reducing rates for freight shipments on the ground of discrimination; no award of damages having been made by the Commission. {Post, p. 341.)</p>

<p>1. CARRIERS. Carriage of freight. Injury. Damages. Overhead expenses.</p> <p>In an action against a carrier for damage to an asphalt plant transported by it and wrecked in transit, no recovery could be had for overhead expenses due to the enforced idleness of plaintiff’s workmen, such item of damages not being in contemplation of the parties. (Post, pp. 344-346.)</p> <p>2. CARRIERS. Action for damage to goods. Interest on amount of recovery.</p> <p>In an action against a carrier for damages to an asphalt plant in transit, it was within the discretion of the chancellor to allow interest on cost of repairs paid by complainant, rceovery of which was sought from carrier. (Post, pp. 344-346.)</p> <p>3. CARRIERS. Carriage of freight. Contract as to rate. Validity.</p> <p>Where a railroad company inspects and classifies as pitch material which is claimed to be .asphaltum, and enters'into a contract with a shipper to transport it for a given sum, the contract is binding, notwithstanding that the rate charged is less than the authorized tariff rate, in the absence of a showing of mistake. (Post, pp. 346, 347.)</p> <p>4. CARRIERS. Carriage of goods. Contract for transportation. Waiver.</p> <p>Where a shipper under protest pays a higher rate than called for by the contract under which material is shipped, in order to obtain the material which he needed, such payment is not a waiver of the contract. (Post, pp. 346, 347.)</p>

<p>1.PLEADING. Demurrer to pleas in abatement.</p> <p>On demurrer to pleas in abatement to tlie jurisdiction, tlie aver-ments of such pleas must be taken as true. (Post, pp. 351-352.)</p> <p>Acts cited and construed: Acts 1859-60, cli. 89.</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>2. PARTNERSHIP. Process. Due process of law.</p> <p>A summons to' a partnership, whose members are not resident within the state, served upon their local manager, in accordance with Thompson. Shannon Code, section 4542, is insufficient, where a merely personal judgment is sought against the parties. (Post, pp. 352-356.)</p> <p>3. CONSTITUTIONAL LAW. Due process. Service on manager of partnership.</p> <p>Thompson-Shannon Code, section 4542, is so far as it authorizes service upon a nonresident partnership, composed of nonresident partners, by delivery of summons to its local manager or agent ■within the state, is in violation of Constitution. U. S- Amend. 14, section 1, relating to due process of law. (Post, pp. 352, 356.)</p> <p>Acts cited and construed: Acts 1859-60, ch. 89.</p> <p>Cases cited and approved: Louisville, etc., R. Co. v. Nash, 118 'Ala., 477; Weaver v. Boggs, 38 Md„ 255; Moredock v. Kirby (C. C.) 118 Fed., 180; Aikmann v. Sanderson,'122 La., 265; Coughlin v. Pinkerton, 41 Wash., 500; Pennoyer v. Neff, 95 U. S., 714; Top-pins v. Railroad, 73 Tenn., 600; Railroad^v.' Walker, 77 Tenn., 481; Green v. Snyder, 114 Tenn.. 100.</p> <p>Case cited and distinguished: Flexner v. Farson et al., 268 Ill., 435.</p> <p>Code_cited and construed: Sec. 4542 (T. S.)</p>

<p>1. HUSBAND AND WIFE. Criminal responsibility of wife.</p> <p>At common law, a married woman was not responsible for crimes committed in tbe presence of her husband, except murder and treason; but for crimes committed out of her husband’s presence, she was as responsible as if single. {Post, p. 359.)</p> <p>Acts cited and construed: Acts 1917, ch. 12.</p> <p>Cases cited and approved: Shacklett v. Polk, 51 Tenn., 105; Lowry v. Naff, 44 Tenn., 370; State v. Cleaves, 59 Me., 298; Mulvey v. State, 43 Ala., 31ff.</p> <p>2. HUSBAND AND WIFE. Commission of crime by wife. Presumption of duress by husband. Rebuttal.</p> <p>Common-law presumption that wife acted under duress of her husband in committing crime, except murder or treason, was weak, and might be rebutted by very slight circumstances. {Post, pp. 359-360.)</p> <p>Cases cited and approved: State v. Cleaves, 59 Me., 298; People v. Wright, 38 Mich., 744.</p> <p>3. HUSBAND AND WIFE. Married Woman’s Act. Emancipation.</p> <p>Under the Married Woman’s Act of 1913, married women are no longer under a disability of coverture, but are completely emancipated. {Post, p. 360.)</p> <p>Acts cited and construed: Acts 1913, ch. 26.</p> <p>Cases cited and approved: Gill v. McKinney, 140 Tenn., 559.</p> <p>4.HUSBAND AND WIFE. Commission of crime by wife. Duress of husband. Married Woman’s Act.</p> <p>In view of the Married Woman’s Act of 1913, there is no longer any presumption that the wife in committing crime acts under the -duress of the husband. {Post, p. 360.)</p> <p>5. HUSBAND AND WIFE. Commission of crime by wife. Duress of husband. Rebuttal of presumption. - '</p> <p>Where husband and wife were arrested for bringing six or eight sacks of whiskey, containing twenty quarts each, into the State in an automobile, the facts were sufficient to rebut any presumption, if it existed, that wife was acting under husband’s duress. (Post, pp. 860, 361.)</p>

<p>1. INDICTMENT AND INFORMATION. Misdemeanors. Description of offense.</p> <p>In Indictment for misdemeanors, a substantial description of the offense is required to reasonably identify the offense for which the defendant is being prosecuted. {Post, pp. 3-67, 368.)</p> <p>Acts cited and construed: Acts 1913, ch. 36.</p> <p>Cases cited and approved: Bilbro v. State, 26 Tenn., 534; State v. Pennington, 40 Tenn., 119.</p> <p>Case cited and distinguished: State v. Woodson, 24 Tenn., 55.</p> <p>2. WEIGHTS AND MEASURES. Criminal prosecution. Sufficiency of indictment.</p> <p>Indictment for selling, offering, and exposing for sale a commodity by measure numerically less than the quantity represented, in violation of Pub. Acts 1913 (1st Ex. Sess.) chapter 35, not stating the names of the person or persons to whom the alleged sales or offers to sell were made, held insufficient. {Post, pp. 368, 369.)</p> <p>Code cited and construed: Sec. 6734 (T.-S.).</p> <p>3. ELECTRICITY. Use of false meter. Sufficiency of indictment.</p> <p>An indictment for'using false meter in supplying town with electrical current in violation of Thompson’s Shannon’s Code, section 6734, whies fails to state that such use was with intent to defraud, is insufficient; such intent being the gravamen of the offense. {Post, pp. 369, 370.)</p> <p>Cases cited and approved: Harrison v. State, 42 Tenn., 234; State v. Ladd, 32 Tenn., 226; Morrow v. State, 29 Tenn., 120; White-side v. State, 44 Tenn., 182.</p> <p>4. ELECTRICITY. Interference with testing of meter. Sufficiency of indictment.</p> <p>Indictment charging interference by defendant with the sealing and testing of electric meters by deputy and assistant state sealer of weights and measures, in violation of Pub. Acts 1913 (1st Ex. Sess.), chapter 49, section 9, held sufficient without stating the location of the meters alleged to have been changed or tampered with by defendant and the manner in which they had been changed or tampered with. (Post, pp. 370, 371.)</p> <p>5. ELECRICITY. Tampering with meter. Criminal prosecution. Sufficiency of evidence.</p> <p>In a prosecution for tampering with or changing electric meters before they could be tested by assistant state sealer of weights and measures, in violation of Pub. Acts 1913 (1st Ex. Sess.), chapter 46, section 9, evidence of the assistant sealer and superintendent of weights and measures that the meters had been tampered with or changed by defendant before they could be tested, where such facts were not of his own knowledge, but merely from information, was insufficient to sustain conviction. (Post, pp. 371, 372.) -.</p>

<p>1. CONSTITUTIONAL LAW. Taxation. Additional privilege tax. Foreign corporation. Impairing obligation of contract.</p> <p>Acts 1900, chapter 504, requiring corporations, which had already entered State and paid for privilege of entering, to pay a privilege tax measured hy their capitalization, and to pay difference be-tweem sum paid on entering State and amount required by statute, is constitutional. (Post, pp. 375-377.)</p> <p>Acts cited and construed: Acts 1909, ch. 504.</p> <p>Cases cited and approved: Cheney Bros. v. Massachusetts, 246 U. S., 147; Kansas City, M. & B. R. Co. v. Stiles, 242 TJ. S., Ill; St. Louis Southwestern R. Co. v. Arkansas, 235 TJ. S., 350; Baltic Min. Co. v. Massachusetts, 231 U. S., 68.</p> <p>2. TAXATION. Foreign corporations. Privilege tax.</p> <p>Act 1909, chapter 504, requiring foreign corporations to pay a privilege tax measured by their capitalization, applied to corporations that had already entered the State; the substance of the privilege being doing of business in State. (Post, p. 377.)</p> <p>3. STATUTES. Construction. Interpretation by officials.</p> <p>While an interpretation of a statute long adopted by State officials will be highly favored by the court, it will not be followed if palpably wrong. (Post, pp. 377, 378.)</p> <p>Code cited and construed: Sec. 720 (T.-S.).</p>

<p>1.CRIMINAL LAW. Jurisdiction. United State property.</p> <p>Where land is ceded to or purchased by the United States with the consent of the State under Constitution U. S., article 1, section 8, subsection 17, the federal courts have jurisdiction of the prosecution for a crime committed thereon to the exclusion of the State courts. (Post, ftp. 383-385.)</p> <p>Cases cited and approved: State v. Tully, 31 Mont., 365; Mack, 23 Nev., 359; Baker v. State, 47 Tex. Cr., 482; Kelly, 76 Me., 331; In re O’Connor, 37 Wis., 379. State v. State v.</p> <p>Constitution cited and construed: Art. 1, sec. 8, subsec. 17.</p> <p>2.CRIMINAL LAW. Jurisdiction. United States property. Constitutionality of statute.</p> <p>A State statute conferring jurisdiction on the State courts for the prosecution of a crime committed upon property ceded to or purchased by the United States government with the consent of the State under Constitution U. S., article 1, section 8, subsection 17, is unconstitutional and void. (Post, pp. 383-385.)</p> <p>3. UNITED STATES. Authority over property purchased from State. Ownership of soil.</p> <p>Where the United States purchases land without the consent of the State in which the land is situated, the mere ownership of the soil does not give the United States paramount authority over such land. (Post, pp. 383-385.)</p> <p>4. CRIMINAL LAW. Jurisdiction. United 'States property. Compliance with statute.</p> <p>Where map of land purchased by United States had been taken to office of judge of county for purpose of closing road, and was not filed in county court clerk’s office as required by Acts 1895, chapter 110, section 1, to show State’s consent to acquisition of such property by the United States, jurisdiction of offense committed on such land remains in State courts; there having been no consent to purchase by United States, as required by Constitution U. S., article 1, section 8, subsection 17. {Post, pp. 385, 386.)</p> <p>Acts cited and construed: Acts 1895, ch. 110, sec. 1.</p>

<p>1. GARNISHMENT. Property subject to. Salary of railroad employee.</p> <p>The salary of an employee of a railroad corporation being operated by tbe United States government under Act. Cong. March 21, 1918 (U. S. Comp. St. 1918, sections 3115%a-3115%p), is not subject to garnishment. (Post, pp. 388-390.)</p> <p>Cases cited and approved: Moore v. Mayor, etc., Chattanooga, 55 Tenn., 850; Board of Directors v. Bodkin Bros., 108 Tenn., 700; Baird v. Rogers, 95 Tenn., 492.</p> <p>Cases cited and distinguished: Bank of Tennessee v. Dibrell, 35. Tenn., 379; City of Memphis v. Laski, 56 Tenn., 511.</p> <p>2. RAILROADS. Governmental agencies.</p> <p>Under Act Cong. March 21, 1918 (U. S. Comp. St. 1918, sections 3115%a-3115%p), and under previous statutes and a proclamation of the President, the railroads of the country are merely agencies or instrumentalities of the United States government. (Post, pp. 390, 391.)</p> <p>3. GARNISHMENT. Municipalities. Govermental Agencies.</p> <p>It is the settled policy of the state to hold immune ffom garnishment all municipalities and other governmental agencies. (Post, p. 391.)</p>

<p>1. CONSTITUTIONAL LAW. Constitutionality of statute. Sufficiency of objection.</p> <p>Wliere a bill is bottomed on the unconstitutionality of a statute, it is duty of complainant to point out and state with particularity details of supposed invalidity. (Post, pp. 394-396.)</p> <p>Acts cited and construed: Acts 1907, ch. 141; Acts 1915, ch. 407; Acts 1917, ch. 441.</p> <p>2. EQUITY. Demurrer. Sufficiency.</p> <p>A demurred which challenges generally the legal conclusions of a bill bottomed on unconstitutionality of a statute is sufficient (Post pp. 394-396.)</p> <p>3. CONSTITUTIONAL LAW. Constitutionality of statute — Presumption.</p> <p>Every intendment is in favor of the constitutionality of a statute. (Post, pp. 394-396.)</p> <p>4. CONSTITUTIONAL LAW. Statutes. Constitutionality. Presumption.</p> <p>If any possible reason can be conceived to justify classifications in revenue statutes, they will not be held unconstitutional as discriminatory. (Post, pp. 396, 397.)</p> <p>5. LICENSES. Privilege tax. Discrimination.</p> <p>Priv. Acts 1915, chapter 407, assessing a privilege tax on automobiles used for pleasure, but not on automobiles used for business, is not unconstitutional as arbitrary and discriminatory. (Post, pp. 396, 397.)</p> <p>Cases cited and approved: State v. McKay, 137 Tenn., 280; City of Memphis v. State ex rel., 133 Tenn., 83; Motlow v. State, 125. Tenn., 547.</p> <p>6. LICENSES. “Privilege” Automobiles/</p> <p>As was done in Priv. Acts 1915, chapter 407, the use of automobiles on highways for pleasure may be declared a “privilege.” (Post, pp. 397, 398.)</p> <p>Cases cited and approved. State v. Alston, 94 Tenn., 674; State ex rel. v. L. & N. R. R. Co., 139 Tenn., 406; State ex rel. v. American Trust Co., 208 S. W., 611.</p> <p>7. STATUTES. Title. Licenses. Motor vehicles.</p> <p>The caption of Priv. Acts 1915, chapter 407, entitled “an act to provide revenue by assessing a privilege tax,” etc., “on automobiles and motorcycles used for pleasure,” etc., conforms to the body of the act. (Post, p. 398.)</p> <p>8. LICENSES Statutes. Purpose and disposal of taxes.</p> <p>Priv. Acts 1915, chapter 407, assessing a privilege tax on automobiles used for pleasure, must be construed together with Priv. Acts 1917, chapter 441, creating a board of highway commissioners, etc., and hence is not open to the attack that it contains no provision for the expenditure of such taxes when collected. (Post, p. 398.)</p> <p>9. CONSTITUTIONAL LAW. Necessity of determining question. Issues.</p> <p>In a suit to enjoin the collection of a privilege tax on automobiles under Priv. Acts 1915, chapter 407, on ground that such statute was unconstitutional, court need not pass on question as to whether or not penalty provided in section 2 was excessive and vitiated the statute, where no penalty was involved in the suit in question. (Post, p. 398.)</p> <p>10.STATUTES. Partial Invalidity. Licenses.</p> <p>Even though the penalty provided in Priv. Acts 1915, chapter 407, section 2, for nonpayment of privilege tax on pleasure autombiles should be held to be excessive and unconstitutional; it would not vitiate the remainder of the act. (Post, p. 398.)</p>

<p>ELECTIONS. Method of designating candidate. Mandatory provision..</p> <p>Shannon’s Code section 1248, as to voter designating candidate of his choice by a cross (X), is not mandatory in the sense that a voter who uses a different mark, such as a check mark, will he deprived of his vote even when the intention is clear and obvious in view of section 1255; the provision of the latter section that none but ballots provided in accordance with the article shall be counted having reference to ballots described in section 1233 et seq. and not to manner of marking ballots.</p> <p>Cases cited and approved; Parker v. Orr, 158 Ill., 609; Rail v. Potts et al., 27 Tenn., 225.</p>

<p>1. STATUTES. Title and subject-matter. Amendments. Officers’ compensation.</p> <p>Priv. Acts 1917, chapter 525, providing for the payment of salaries to fire and police departments of the city of Nashville, designated in its caption to amend the city charter, being an amendatory act, it is not unconstitutional, as violating Constitution, article 2, section 17, relating to title of statutes, since an amendment incorporating provisions germane to the original act sought to be amended need recite nothing further than a correct statement of title of the original act. {Post, pp. 409, 410.)</p> <p>Acts cited and construed: Acts 1917, ch. 525.</p> <p>Cases cited and approved: Hyman v. State, 87 Tenn., 110; Wright V. Cunningham, 115 Tenn., 454; Memphis Street Ry. Co. v. State,’ 110 Tenn., 618; Goodbar et al. v. City of Memphis et al., 113 Tenn., 38; City Lumber Co. v. Temple, 138 Tenn., 91.</p> <p>Case cited and distinguished: State ex rel. v. Algood, 87 Tenn., 166.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>2. STATUTES. Reading of bills. Amendments.</p> <p>Where Priv. Acts 1917, chapter 525, amending city charter of Nashville, in its original form had been passed three times in the Senate and sent to the House, where it was substituted for an identical bill, which had been twice read in the House, and then amended by unnecessary additions and read a third time and passed and sent to the Senate, where amendment was concurred in and bill approved by Governor, it was not a violation of Constitution, article 2, section 18, requiring three readings of a bill in each house. {Post, pp. 410, 411.)</p> <p>Cases cited and approved: Erwin v. State, 116 Tenn., 80; State v. Bradt, 103 Tenn., 584.</p>

<p>1. CLERKS OF COURTS. Counties. Equity. Registers of deeds. Sheriffs and constables “throughout the state.” Fees. Statutes.</p> <p>Acts 1917, chapter 47, providing that clerks of court, masters in chancery, county trustees, registers of deeds, and sheriffs throughout the State shall he deprived of their fees and compensated only by salary as hereinafter provided, must be construed as depriving such officers of their fees in counties of less than 30,000 population, though salary for such officers was not thereinafter provided. (Post, pp. 417, 418.)</p> <p>Acts cited and construed: Acts 1917, ch. 47; Acts 1897, ch. 124.</p> <p>2. STATUTES. Construction. Omission.</p> <p>A pure casus omissus occuring in a statute can never be supplied or relieved against by the court under any rule or canon of construction or interpretation. (Post, p. 418.)</p> <p>Cases cited and approved: Kelly v. State, 123 Tenn., 516; State ex rel. Board, etc., of Benton County v. Boice, 140 Ind., 506.</p> <p>3. STATUTES. Construction. Ambiguity.</p> <p>If actual language and provisions of statute are plain and clear, and are devoid of contradiction, or any affirmative ambiguity, so that statute, as result of express provisions, is not reasonably susceptible of twofold meaning, there is no room for applying any other rules or canon of construction. (Post, pp. 418, 419.)</p> <p>Cases cited and approved: Miller v. Childress, 21 Tenn., 319; Kirk v. State, 41 Tenn., 344; State v. Manson, 105 Tenn., 232; Samuelson v. State, 116 Tenn., 470; Darnell v. State, 123 Tenn., 663; Heiskell v. Lowe, 126 Tenn., 475; State v. Wheeler, 127 Tenn., 58; Palmer v. Express Co., 129 Tenn., 116.</p> <p>4. CLERKS OF COURTS. Constitutional law. Counties. Registers of deeds. Sheriff and constables. Fees. Due process of law. Class legislation.</p> <p>Acts 1917, chapter 47, depriving clerks of courts, sheriffs, registers • of deeds, masters in chancery, and county trustees throughout the State of fees, and providing salaries for only a part of them, is unconstitutional, as depriving part of such officers of compensation, contrary to “the law of the land,” and as “class legislation” (Const, article 1, section 8, and article 11, section 8). {Post, p. 419.)</p> <p>Acts cited and construed: Acts 1917, ch. 47.</p> <p>Constitution cited and construed: Art. 1, sec. 8; Art. 11, sec. 8.</p> <p>5. STATUTES. Special laws. Classification of officers. Compensation.</p> <p>Acts 1917, chapter 47, classifying certain officers for purposes of compensation according to population of their respective counties, making the minimum of one class and the maximum of the succeeding class the same, violates Constitution article 11, section 8, as allowing one in a certain class to enjoy a greater benefit than others in the same class. {Post, pp. 419, 422.)</p> <p>6. CONSTITUTIONAL LAW. Delegation of legislative power. Imposition of non-judicial duties on judiciary.</p> <p>In view of Constitution article 11, section 9, legislature, in passing Acts 1917, chapter 47, did not violate Constitution article 2, sections 1, 2, relating to delegation of legislative power and imposition of nonjudicial duties upon judiciary, when it delegated to the courts authority to determine the number of deputies of county officers unable to perform all the duties of the office and the salaries they were to receive. {Post, pp. 422, 423.),</p> <p>Acts cited and construed: Acts 1917, ch. 47.</p> <p>Constitution cited and construed: Art. 11, sec. 9; Art. 2, secs. 1, 2.</p>

<p>1. WILLS. Disposition of proceeds of life policy.</p> <p>The proceeds of life policy payable to testator’s estate did not pass under his will giving all his estate, both real and personal, to his wife to have and hold in her own right, but inured to the benefit of widow and only child of testator by former marriage as provided by Shannon’s Code, sections 4030, 4231. (Post, pp. 427-429.)</p> <p>Acts cited and construed: Acts 1845-46, ch. 216.</p> <p>Cases; cited and approved: Rison v. Wilkerson, 35 Tenn., 569; Williams v. Carson et al., 68 Tenn., 516; Nashville Trust Co. v. First National Bank, 123 Tenn., 617; Cooper v. Wright, 110 Tenn., 214; Rowlett v. Rowlett, 116 Tenn., 467.</p> <p>Cases cited and distinguished: Harvey, Adm’r. v. Harrison, 89 Tenn., 476; Rose v. Wortham, 95 Tenn., 511.</p> <p>2. WILLS. Disposition of proceeds of life policy.</p> <p>To effectuate the clear intendment of Shannon’s Code, sections 4030, 4231, and create the exemption- in favor of widow and children, the proceeds of insurance must take a different course from that of disposition by will, for so long as the same are incorporated in the assets of a deceased husband they remain liable to his debts and subject to the claims of creditors under section 3985. (Post, , pp. 429, 430.)</p> <p>Case cited and approved: Agee v. Saunders, 127 Tenn., 683.</p> <p>3. WILLS. Disposition of proceeds of life policy. Intent.</p> <p>Testator is presumed to have known the effect of Shannon’s Code, sections 4030, 4231, relative to disposition of his life insurance, and, in the absence of his express' intent to the contrary, the statutory provisions are effective, though it was wholly within his power to prevent application of the sections. (Post, pp. 430, 431.)</p> <p>Code cited and construed: Secs. 4030, 4231 (S.).</p>

<p>1. HUSBAND AND WIFE. Wife’s separate estate. Property conveyed to wife.</p> <p>A warranty deed to a married daughter, and the heirs of her body, “to have and to hold ... to the only proper use and behalf of her . . and her heirs and assigns forever/’ did not create in her a separate estate, and she could not convey a half interest therein to her husband. (Post, pp. 436, 437.)</p> <p>Cases cited and approved: Travis v. Sitz, 135 Tenn., 157; Gray v. Robb, 51 Tenn., 74.</p> <p>Case cited and distinguished: Houston v. Embry, 33 Tenn., 480.</p> <p>2. HUSBAND AND WIFE. Contracts and conveyances between hus- and wife. Improvements on wife’s real estate.</p> <p>A husband cannot recover for improvements made on his wife^f lots, not her separate property, pursuant to contract by which his wife conveyed to him a one-half interest in such lots; such contract being void, and therefore incapable of creating a lien in favor of the husband upon her land. (Post, pp. 437-439.)</p> <p>Cases cited and distinguished: O’Malley v. Coughlin, 3 Tenn. Ch., 431; Sexton v. Alberti, 78 Tenn., 452.</p>

<p>1. DEEDS. Exception. Reservation. Distinguished.</p> <p>A clause that the conveyance is subject to a right of the grantors to remove sand from the land is not an exception with respect to part of the thing granted, but a reservation to the grantors: such right not formerly existing separately, but having been called into being by the deed. (Post, pp. 443, 444.)</p> <p>2. EASEMENTS. Reservations. Incorporeal hereditament.</p> <p>A reservation of the right to remove sand in a deed as “an easement, right or privilege,” with rights necessary for such use, does not create an exclusive right passing an interest in land, corporeal, assignable, and divisible, but an incorporeal hereditament, assignable but not divisible. (Post, pp. 444-448.)</p> <p>Cases cited and approved: Earl of Huntington v. Lord Mountjoy, 4 Leo., 147; Doe v. Wood, 2 Barn. & Aid., 724; Gloninger v. Franklin Coal Co., 55 Pa., 9; Johnstown Iron Co. v. Cambria Iron Co., 32 Pa., 241; Caldwell v. Fulton, 31 Pa., 475; Massot v. Moses, 3 S. C., 168; Post v. Pearsall, 22 Wend. (N. Y.), 425; Boatman v. Lasley, 23 Ohio St., 614; Hinicum Fishing Co. v. Carter, 61 Pa., 21.</p> <p>Cases cited and distinguished: Cheatham v. Williams, 4 East., 469; Duke of Sutherland v. Heathcote, 1 Ch., 475.</p> <p>3. EASEMENTS. Assignment. Right to take sand. Construction and operation.</p> <p>Where grantors assigned an assignable but indivisible right to take sand in the deed to three contractors building a large plant and using more sand than grantors would, such attempted division destroyed the reservation and gave the contractors no right to take sand. (Post. pp. 448-453.)</p> <p>Cases cited and approved: Buerton’s Case, 6 Co., 1; Turringham’s Case, 4 Co., 37; Leyman v. Abeel, 16 Johns., 30; Chandler v. Hart, 161 Cal., 405.</p> <p>Cases cited and distinguished: Van Renselaer v. Radcliff, 10 Wend. (N. Y.), 639; Luttvel’s Case, 4 Co., 87.</p> <p>4. NAVIGABLE WATERS. Islands. Ownership. Taking sand. Damages.</p> <p>The owner of an island in a navigable river cannot recover for the value of sand wrongfully taken from land submerged by the construction of a government dam; such land being government property, taken by eminent domain, for which the government was liable in damages. {Post, pp. 453-455.)</p> <p>Acts cited and construed: Acts 1899, eh. 425, sec. 10.</p> <p>Cases cited and approved: Reelfoot Lake Case, 127 Tenn., 575; United States v. Lynah, 188 U. S., 445; United States v. Great Falls Mfg. Co., 112, U. S., 645.</p>

<p>1. SUNDAY. Prohibition of baseball. Statute.</p> <p>Shannon’s Code, section 3029 (Acts 1803, chapter 47, section 1), making it an offense for any merchant, artificer, tradesman, farmer, or other person to exercise any of the common avocations, of life on Sunday, etc., does not prohibit the playing of professional baseball on Sunday; the game not having been in existence when the statute was enacted. (Post, pp. 457-465.)-</p> <p>Acts cited and construed: Acts 1803, ch. 47, sec. 1.</p> <p>Cases cited and approved: State v. Prather, 79 Kan. 513; .Mc-Creary v. First National Bank, 109 Tenn., 128; Stockley v. Ciss-na, 119 Fed., 812; Goodwin v. Thompson, 83 Tenn., 209; Ex parte Neet, 157 Mo., 527.</p> <p>Cases cited and distinguished: Territory v. Davenport, 17 N. M„ 214; Ex parte Roquemore, 60 Tex. Cr. 282.</p> <p>Code cited and construed: Sec. 3029 (S.).</p> <p>2. STATUTES. Contemporaneous construction.</p> <p>Shannon’s Code, section 3029 (Acts 1803, chapter 47, section 1), making it an offense for any merchant, artificer, tradesman, farmer, or other person to exercise any of the common avocations of life on Sunday, etc., having been construed by the legislature, the legal profession, and the public generally not to prohibit the playing of professional baseball on Sunday, will not be held to ■do so by the supreme court. (Post, pp. 465, 466.)</p> <p>3. SUNDAY. Prohibition of professional baseball. Statute.</p> <p>Shannon’s Code, section 3031 (Acts 1803, chapter 47, section 2), subjecting to the same proceedings and penalty as those who work on the Sabbath any person who shall hunt, fish, or play at any game of sport on Sunday, does not prohibit the playing of professional baseball; the game not having been in existence when the statute was enacted. (Post, pp. 466-468.)</p> <p>Case cited and approved: Graham v. State, 134 Tenn., 285.</p> <p>Code cited and construed: Sec. 3031(S.).</p>

<p>1. PARENT AND CHILD. Failure 'to provide for cMld. Offenses.</p> <p>Where a father failed to provide for his infant child under sixteen according to his means, hut suffered the child to sicken and die without medical attention, he cannot be punished under Acts 1915, chapter 120, making it a misdemeanor for a father to willfully fail to provide for his child under sixteen, hut providing that, upon complaint, the father shall he required to execute a bond to secure the child’s support, etc., and in event of his failure to comply with the undertaking he may be imprisoned for misdemeanor, as a delinquent parent cannot he imprisoned as an original proposition under the statute, hut only for repudiation or breach of the undertaking required by the statute. (Post, p. 471.)</p> <p>Acts cited and construed: Acts 1915, ch. 120.</p> <p>2. PARENT AND CHILD. Duty of parent.</p> <p>It is the legal duty of a father to provide proper care, treatment, and medical attention for his infant child. (Post pp. 471, 472.)</p> <p>Case cited and approved: Wallace v. Cox, 13-6 Tenn., 69.</p> <p>3. HOMICIDE. Breach of duty.</p> <p>If one owes to another a plain particular and personal duty imposed by law or contract, an omission resulting in the death of the party to whom such duty was owing usually renders the delinquent party guilty of homicide; so, where an infant child died by reason of her father’s failure to provide proper medical attention, the father is guilty of homicide. (Post, p. 472.)</p> <p>Cases cited and approved: Westrup v. Commonwealth, 123 Ky., 95; People v. Beardsley, 150 Mich., 206; Territory v. Mantón, 8 Mont., 95; Anderson v. State, 27 Tex. App. 177; Gibson v. Commonwealth, 106 Ky., 360.</p> <p>Case cited and distinguished: Regina v. Senior (1899), 1 Q. B., 283.</p> <p>4. HOMICIDE. Failure to provide for child. Grade of offense.</p> <p>As to whether a father, who suffered his child to die for want of proper medical attention, is guilty of murder or manslaughter, depends upon the circumstances; it be’'ng probable that, if the neglect was not malicious or willful, he would be guilty only of manslaughter. (Post, p. 473).</p> <p>Cases cited and approved; Bex v. Hughes, 3 Jur. N. S., 996; Lewis v. State, 72 Ga., 164; State v. Smith, 65 Me., 257; State v. Gilliam, 66 S. C., 419.</p>

<p>•TAXATION. Collateral inheritance tax. Shares of brothers and sisters. Statutes.</p> <p>Although Acts 1893, chapter 174, section 1, providing for collateral inheritance tax, was not enforceable for a time against property passing to an intestate’s brother or sister’ in view of the revenue law, Acts 1893, chapter 89, section 7, passed subsequently,' which was held to repeal it by implication to the extent of its repugnance and the subsequent revenue acts, Acts 1895 (2d Sess.) chapter 4, Acts 189.7, chapter.2, Acts 1899, chapter 432, section 1, Acts 1901, chapter 128, Acts 1903, chapter 257, Acts 1907, chapter 541,_ Acts 1909, chapter 479, Acts 1915, chapter 101, and Acts 1917, chapter 70, amending Acts 1915, chapter 101, and the language, “and acts amendatory thereof,” in Acts 1901, chapter 128, which refers to live amendatory acts only, does not have the effect of reinstating Acts 1893, chapter 89, section 7, and shares of brothers and sisters are now subject to collateral inheritance tax.</p> <p>Acts cited and construed: Acts 1893, ch. 89, sec. 7, ch. 174, sec. 1; Acts 1895, ch. 4; Acts 1897, ch. 2; Acts 1899, ch. 432, sec. 1; Acts 1901, ch. 128; Acts 1903, ch. 257; Acts 1907, ch. 541; Acts 1909, ch. 479; Acts 1915, ch. 101; Acts 1917, ch. 70.</p> <p>Cases cited and approved: Bailey v. Drane, 96 Tenn., 16; Zickler v. Union Bank & Trust Co., 104 Tenn., 277; Tate et al. v. Greenlee, 141 Tenn.,-.</p>

<p>1. ANIMALS. Statutes. Classification of counties. Registering dogs.</p> <p>Priv. Laws 1917, chapter 648, section 1, declaring a public nuisance the running at large of dogs not registered, in counties haying a population between 29,946 and 29,975, according to the 1910 federal census, is not unconstitutional as partial; counties being properly-subjected to the population classification basis. (Post, pp. 487, 488.)</p> <p>Acts cited and construed: Acts 1917, eh., 648.</p> <p>Cases cited and approved: State y. Erwin, 139 Tenn., 341; Thomas V. State, 136 Tenn., 47.</p> <p>2. CONSTITUTIONAL LAW. Discrimination. Registering dogs.</p> <p>The requirement of Priv. Laws 1917, chapter 648, that dogs be registered and wear collars bearing tags for identification is reasonable, and the enactment that dogs not so identified are a public nuisance when found running at large, while dogs so identified are permitted to run at large, is not an arbitrary and unreasonable discrimination. (Post, pp. 488, 489.)</p> <p>3. STATUTES. Title. Provisions germane to general subject. Registration of dogs. Disposition of fees.</p> <p>Priv. Laws 1917, chapter 648, entitled “An act to regulate the keeping of dogs by requiring them to be registered and to declare the running at large of unregistered dogs a public nuisance in certain counties of this State and to provide penalties for violations of this act,” is not unconstitutional as being broader than its title, in that section 8 thereof, providing that balance of registration fees, if any, shall be credited to a “Dog and Stock” fund, is not germane to its general subject; the tax being but an incident to the object expressed. (Post, pp. 489, 490.)</p> <p>4. EMINENT DOMAIN. Licenses. Taxation. Taking property without just compensation. Equality of taxation.</p> <p>Priv. Laws 1917, chapter 648, as to registering dogs, does not violate Constitution article 1, section 21, in that it takes property without just compensation being made therefor, nor article 2, section 28, providing that no one species of taxable property shall be taxed higher than any other species of property of the same value. (Post, pp. 490, 491.)</p> <p>Constitution cited and construed: Art. 1, sec. 21; Art. 2, sec. 28.</p> <p>5. ANIMALS. Dogs. Registration. Penalty.</p> <p>Under Priv. Laws 1917, chapter 648, requiring registration of dogs, it is no defense to an indictment for keeping and permitting a dog to run at large in September without first having been registered, which is a misdemeanor under section 6, that the tax is not delinquent under section 12 until October 1st, since the latter section requires registration by July 1st. (Post, pp. 491, 492.)</p>

<p>1. TURNPIKES AND TOLL ROADS. Ownership of road by turnpike company. Conveyance to county.</p> <p>Since a turnpike company never owned certain public roads, merely having had the right to erect gates over them and collect tolls for travel on them by complying with certain conditions prescribed by law, its conveyance to the county added nothing to the rights of the county and merely destroyed the rights of the company. (Post, pp. 497, 498.)</p> <p>Cases cited and approved: State v. Stroud (Ch. App.), 52 S. W., 697; Laufer v. Bridgeport Traction Co., 68 Conn., 457; Morse v. Sweenie, 15 Ill. App. 486; Bogue v. Bennett, 156 Ind.. 478; Wild v. Deig, 43 Ind., 455; Burlington, etc., v.^Johnson, 38 Kan., 142; Riley v. Buchanan, 116 Ky., 625; Macomber v. Nichols, 34 Mich., 212.</p> <p>2. HIGHWAYS. “Public road.”</p> <p>A “public road” is a way open to all the ppople, without distinction, for passage and repassage at their pleasure. (Post, pp. 497, 498.)</p> <p>3. HIGHWAYS. Exclusion from use. Authority of court.</p> <p>The county court has no power, without legislative authority, to exclude any member of the public from reasonable use of a public road. (Post, pp. 498, 499.)</p> <p>4. HIGHWAYS. Power to control. Prescription. Conditions of use.</p> <p>The Legislature, as the constitutional representative of the public, has the power to levy reasonable conditions on members oft the public for their use of the public roads; but the county court, without express authority, has not such power, cannot take such action as proprietor, and as a county court has no power to legislate, so that an attempt of the court to restrict the size of motor trucks of a company and the weight of their loads was void, being unauthorized by the legislature. (Post, pp. 498, 499.)</p> <p>Cases cited and approved: Ledbetter v. Turnpike Co., 110 Tenn., 92; Turnpike Co. v. Marshall, 61 Tenn., T18; Johnson v. Brice, 112 Tenn., 65.</p> <p>5. HIGHWAYS. Bight to use.</p> <p>Every member of the public has the right to use the public roads in a reasonable manner for the promotion of his health and happiness; the use being restricted to a use with due care and in a reasonable manner. (Post, p. 500.)</p> <p>6. HIGHWAYS. Use by motor vehicles.</p> <p>The motor vehicle being a common means of transportation, and its use on the public roads being authorized wherever the size and character of the vehicle is not restricted by the legislature, the fact that a transportation company has used motor trucks heavier than customary, to the damage of the public roads and bridges of the county, does not give the county court or any one else an action against it for such use. The county can neither restrain the use of the roads or bridges, nor collect damages on account of their reasonable use. (Post, p. 500.)</p> <p>7. HIGHWAYS. Excessive use. Liability.</p> <p>Transportation company, operating heavy motor trucks on public roads and bridges of a county, held not liable to the county or county court as for an excessive use of the roads, though the trucks were so heavy as to break down the roads to some extent, and constituted a greater load than the bridges were designed to bear. (Post, p. 500.)</p> <p>8. HIGHWAYS. Beasonable use. Motor trucks.</p> <p>Unreasonable use of public roads of a county by a transportation company using motor trucks must have involved more than the mere weight of the trucks and their loads, and have related to the manner of'use, either in the management of the vehicles, so as to carelessly operate them upon the roads, or reckless driving by the motorman. (Post, pp. 500, 501.)</p>

<p>1. CRIMINAL LAW. Bill of exceptions. Time for filing.</p> <p>Where bill of exceptions in a criminal case was not signed and filed within sixty days after trial term, hut at' a subsequent term in which a new trial motion was heard, that part of bill relating to new trial motion was seasonably preserved, but portion relating to proceedings at trial will be stricken. (Post, pp. 503, 504.)</p> <p>Case cited and approved: Dunn v. State, 127 Tenn., 267.</p> <p>2. CRIMINAL LAW. Review. Separation of jury. Burden of proof.</p> <p>A jury separation in a felony case, with possibility that a juror has been tampered with, renders verdict prima-facie void, and State has burden of making a satisfactory explanation. (Post, pp. 504, 505.)</p> <p>3. CRIMINAL LAW. Separation of jury. Prejudicial effect.</p> <p>Where a juror in a homicide case was permitted to return home on account of illness and.death of his child, the explanation of an officer who attended him that he did not think juror talked to any one except his wife, that he did not think anything improper occurred, etc., held insufficient to show that no prejudice resulted to accused. (Post, pp. 504, 505.)</p> <p>Case cited and approved: Sherman v. State, 125 Tenn., 19.</p> <p>4. CRIMINAL LAW. Separation of jury. Waiver by failure to object. ,</p> <p>In a homicide case accused did not waive his right to object to separation of the jury by failing to bring matter to court’s attention during trial. (Post, pp. 505, 506.)</p> <p>Cases cited and approved: Thomas v. State, 109 Tenn., 688; Preston v. State, 115 Tenn., 343; Hobbs v. State, 121 Tenn., 413; Long v. State, 132 Tenn., 649.</p> <p>5. CRIMINAL LAW. Appeal. Reversible error.</p> <p>Acts 1911, chapter 32, prohibiting reversal unless error affecting result affirmatively appears, does not preclude reversal in a homicide case for separation of the jury, where proceedings at trial are not before the court, since statute applies only to cases where supreme court can consider merits of controversy. (Post, p. 506.)</p> <p>Acts cited and construed: Acts 1911, ch. 32.</p>

<p>1. BILLS AND NOTES. Payment or purchase of note.</p> <p>Where a company unable to pay its notes upon which stockholders were indorsers executed to a hank a note payable in four months for the exact amount advanced by the bank to take up said two prior overdue notes, which were not to be canceled or stamped paid but attached as collateral for the money advanced, held, the bank became a purchaser and owner of the overdue notes, and that there was no payment thereof. (Post, VV- 515, 516.)</p> <p>Cases cited and approved: Cussen v. Brandt, 97 Va., 1; Dodge v. Freedman Savings & Trust Co., 93 IT. S., 379; Carter v. Burr, 113 U. S., 737; Swipe v. Leffingwell, 72 Mo., 348: McDonnell v. Burns, 28 C. C. A., 174; Brice’s Appeal, 95 Pa., 150; Meredith v. Dibrell, 127 Tenn., 387. ,</p> <p>Cases cited and distinguished: Wood v. Guarantee, etc., Co., 128 U. S„ 416; Johnston v. Schnabaum, 86 Ark., 82; Hirsch v. People’s Bank of Plaquemine, La., 240 Fed., 664.</p> <p>2. BILLS AND NOTES. Indorsers. Discharge. Extension of time.</p> <p>Where a company unable to pay its notes upon which stockholders were indorsers executed to a bank a note payable in four months for the exact amount advanced by the bank to take up said two prior overdue notes, and the overdue notes were not to be canceled or stamped paid, but attached as collateral for the money advanced, held, that the rights of the hank against the indorsers were reserved within the Negotiable Instruments Act. (Post, pp. 516-521.)</p> <p>Cases cited and approved: Place v. Mcllvain, 38 N. Y., 96; National Bank of Newburgh v. Bigler, 83 N. Y., 51.</p> <p>Cases cited and distinguished: Morgan v. Smith, 70 N. Y., 537; National Park Bank of New York v. Koehler, 137 App. Div., 785.</p>

<p>1. CRIMINAL LAW. Reversal. Technical error. Constitutional rights.</p> <p>Notwithstanding Shannon’s Code, section 6351al, forbidding reversal except for error affecting the merits, there may he such violation or disregard of some constitutional right of the accused not affecting the merits that would induce the court to order a new trial. (Post, pp. 524, 525.)</p> <p>Acts cited and construed: Acts 1911, ch. 32.</p> <p>Cases cited and approved: Manier v. State, 65 Tenn., 602; Newman v. State, 65 Tenn., 164; Huddleston v. State, 60 Tenn., 110; State v. Missio, .105 Tenn., 219; Elijah Duncan v. State, 66 Tenn., 387; Harness v. State, 126 Tenn., 365; Hamhlin v. State, 126 Tenn., 394; Lauter-Lee v. State, 132 Tenn., 655.</p> <p>Codes cited and construed: Sec. 7186 (T.-S.); Sec. 6351al(S.).'</p> <p>2. CRIMINAL LAW. Reversal. Technical error.</p> <p>Where evidence sustained conviction of voluntary manslaughter, court’s action in orally charging that jury was not concerned with fixing punishment since punishment was fixed by law, in violation of Thompson’s Shannon’s Code, section 7186, requiring instructions to be in writing, was not reversible error, under section 6351al, being mere technical error which did not affect judgment, and being correct statement of law under sections 4604, 4645, 7210a9, and 7210al0. (Post, pp. 525, 526.)</p> <p>3. CRIMINAL LAW. Written instructions. Felony cases.</p> <p>The practice of orally charging juries in felony cases is not to be encouraged, and trial judges should in every case reduce their charges to writing. (Post, p. 526.)</p> <p>4. CRIMINAL LAW. Appeal. Harmless error. Validity of Statute.</p> <p>Acts 1911, chapter 32 (Shannon’s Code, section 6351al), forbidding reversal except for error affecting the merits, is valid. (Post, p. 526.)</p>

<p>1. MASTER AND SERVANT. Negligence of automobile driver, liability of owner. Presumptions.</p> <p>In action against owner of automobile for negligence of driver, proof of ownership is not sufficient to raise presumption of law that driver was owner’s servant, or that he was acting within the scope of his employment at time of accident. {Post, p. 529.)</p> <p>Cases cited and approved: Frank v. Wright, 140 Tenn., 538; King v. Smythe, 140 Tenn., 227.</p> <p>2. EVIDENCE. Presumption. Proof by defendant.</p> <p>The rule that defendant is required to introduce evidence which he has in his possession to rebut plaintiff’s case applies only when plaintiff’s proof and the legal deduction therefrom make a prima-facie case against defendant. {Post, pp. 529, 530.) Cases cited and approved: Western Union Tel. Co. v. Lamb, 140 Tenn., Ill; Fisher v. Insurance Co., 124 Tenn., 483; Standard Oil Co. v. State, 117 Tenn., 618.</p> <p>3. MASTER AND SERVANT: Negligence of. automobile driver. Liability of owner.</p> <p>Liability of automobile owner for negligence of driver is based upon his legal control of the driver. {Post, p. 530.)</p> <p>Cases cited and approved: Goodman v. Wilson, 129 Tenn., 464.</p>

<p>1. BROKERS. Authority. Cash sale. Sale on time not compliance.</p> <p>An agency contract to sell land at a fixed price means a cash sale, where the contrary is not stated and does not authorize a contract for sale giving the buyer ten months in which to pay for the land or forfeit earnest money. (Post, p. 536.)</p> <p>2. BROKERS. Exclusive agency. Right of owner to sell. Sale as revoking agency.</p> <p>Where a farm was deeded to trustees who issued certificates to each of the owners showing the amount and part each paid, and they gave -an exclusive agency contract to sell the land, and subsequently conveyed all the certificates to other parties, such transfer constituted a sale and revoked the agency, there being no stipulation against sale by the owners, since it is never presumed an owner has deprived himself of the right to sell. (Post, pp. 536, 537.)</p> <p>Cases cited and approved: Chambers v. Seay, 73 Ala., 372; Brown v. Pforr, 38 Cal., 550; McKellop v. De Witz, 42 Okla., 220.</p> <p>3. BROKERS. Authority to sell. Authority to contract to sell or make option agreement. “Sale.”</p> <p>An exclusive agency contract construed as authorizing a “sale,” i. e., the finding of a purchaser and the consummation of a deal, and not to authorize a contract to sell or an option agreement for sale of the land. (Post, p. 537.)</p> <p>Cases cited and approved: Weatherhead v. Ettinger, 78 Ohio St., 104; Jasper v. Wilson, 14 N. M., 482; Trogden v. Williams, 144 N. C., 192.</p> <p>4. BROKERS. Real estate brokers. Specific authority. Knowledge of purchaser. Construction of agency contract.</p> <p>The agent’s authority to sell real estate must be specific, and is generally closely construed, and the purchaser must know that tlie seller is acting as agent, and not as principal, and must become aware of the agent’s authority; and, where limited to sale at a fixed price per acre, the purchaser must know that the agent is without authority to make contract for sale, particularly one giving purchaser an unreasonable time to consummate the deal. (Post, pp. 537, 538.)</p>

<p>1. CONSTITUTIONAL LAW. Judicial power. Legislative invasion.</p> <p>A joint resolution of legislature, directing the discharge of a defendant indicted for a crime, is an invasion of the judicial power by the legislature. (Post, pp. 544, 545.)</p> <p>Case cited and approved: State v. Fleming, 26 Tenn., 152.</p> <p>2. JUDGES. Duty of judge. Impartiality.</p> <p>In a criminal prosecution, the judge does not represent the State in the prosecution of the criminal, hut should judge fairly ■and impartially of the complaint of the State against the defendant and of the defense or defenses made thereto. (Post, pp.545, 546.)</p> <p>3. CRIMINAL LAW. “Nolle prosequi.”</p> <p>A “nolle prosequi," is a formal entry of record by the attorney general, by which he declares that he will no longer prosecute the case. (Post, pp. 545, 546.)</p> <p>4. CONSTITUTIONAL LAW. Policy of statute.</p> <p>The court is not concerned with the policy of a statute. (Post, pp. 545, 546.)</p> <p>5. CRIMINAL LAW. Indictment and information. Amendment. Nolle prosequi.</p> <p>Where indictment charging embezzlement incorrectly stated facts relating to the ownership 'of the property, the attorney-general should have recommitted the indictment and had it amended, and should not have filed a nolle prosequi. (Post, p. 546.)</p> <p>Cases cited and approved: Hite v. State, 17 Tenn., 203; McKinley v. State, 27 Tenn., 73; State v. Hughes, 31 Tenn., 261; State v. Davidson, 42 Tenn., 184; State v. Willis, 40 Tenn., 157; Lawless v. State,- 72 Tenn., 178; De Berry v. State, 99 Tenn., 207.</p> <p>6. CONSTITUTIONAL LAW. Nolle prosequi. Exercise of pardoning power.</p> <p>The action of the attorney-general in recommending a nolle prose-qui upon ground that defendant had served in the army since the filing of the presentment, and had been honorably discharged, and the action of the court in granting the nolle prose-qui was an attempt to exercise pardoning power, vested in the</p> <p>Governor under Constitution, article 3, section 6. (Post, pp. 546, ' 547.)</p> <p>Constitution cited and construed: Const. Art. 3, sec. 6.</p> <p>7. CONSTITUTIONAL LAW. Legislative acts. Encroachment. Nolle prosequi.</p> <p>Senate Bill No. 141, prohibiting the discharge of indicted defendant, except by acquittal without requiring him to pay, secure, or work out in the workhouse all the costs, fees, and penalties, is not unconstitutional by interfering in sections 1 and 4 with judicial discretion and functions of the court in violation of Constitution, article 6, section 1, or in controlling the ministerial acts of the attorney-general and the judges; the judge having no participation in filing of nolle prosequi except to give his consent to such order and permit its entry upon the record, and the attorney-general having no constitutional right to file nolle prosequi. (Post, p. 547.)</p>

<p>1. COUNTIES. Appropriation of funds. Damages for condemnation of land. County court. “May.”</p> <p>Acts 1907, chapter 323, providing that quarterly ' county court "may” appropriate out of the general funds of the county moneys for payments of any damages found to he due landowners, or others suffering from the action of the “Tipton county road commissioners in condemning land,” 'means that county court “shall” make such appropriation. (Post, p. 550.)</p> <p>Acts cited and construed: Acts 1907, ch. 323.</p> <p>2. EMINENT DOMAIN. Power of road commissioners. Condemnation of land. Eelocation of road.</p> <p>Acts 1907, chapter 3.23, empowering Tipton county road commissioners “to condemn lands for purpose of widening or straightening roads, or reducing or avoiding grades, hills or marshy places,” and authorizing county court to appropriate county moneys out of general funds for payment of landowner’s damages, held to confer upon commissioners’ jurisdiction of county roads, with power to relocate roads, and by exercise of eminent domain condemn land for such purpose. (Post, pp. 550, 551.)</p> <p>3. EMINENT DOMAIN. Eelocation of road. Necessity for relocation. Conclusiveness of county court’s determination.</p> <p>Under Acts 1907, chapter 323, the legislature has delegated to Tip-ton county road commissioners the question of the necessity for or advisability of taking land in county for road purposes, subject to supervision of quarterly county court, the action of county court being conclusive, in absence of a strong showing of fraud or oppression, and circuit court on appeal therefrom being concerned only with judicial questions, with no right to try matter de novo. (Post, pp. 551, 552.)</p> <p>Cases cited and approved: Railroad v. Memphis, 126 Tenn., 267; Railroad v. Mayor and Aldermen of Union City, 137 Tenn., 500.</p>

<p>POISONS. “Dispense” or “distribute” morphine. Keeping duplicate prescription.</p> <p>Defendant, a practicing physician and not a salesman of morphine, who prescribed morphine for an habitual user after personally attending the user, did not “dispense” or “distribute” the drug within Acts 1913 (1st Ex. Sess.) chapter 11, requiring physicians who “dispense” or “distribute” to keep duplicates of all prescriptions issued for a period of two years.</p> <p>Acts cited and construed: Acts 1913, ch. 11.</p> <p>Case cited and approved: Hyde v. State, 131 Tenn., 208.</p>

<p>1. BILLS AND NOTES. Consideration. Collateral security for preexisting debt. “Value.”</p> <p>Under Negotiable Instruments Law, section 25, providing tbat an antecedent or pre-existing debt constitutes value, and section 27, providing tbat a bolder who has a lien on the instrument shall be deemed a holder for value to the extent of his lien, a pre-existing debt is “value,” even though the instrument is transferred merely as collateral security for such debt. (Post, pp. 560, 561.)</p> <p>Acts cited and construed: Acts 1899, ch. 94.</p> <p>Cases cited and approved: Birket v. Elward, 68 Kan., 295; Exchange Nat. Bank v. Coe, 94 Ark., 387; German-American Bank v. Wright, 85 Wash., 460.</p> <p>2. BILLS AND NOTES. Innocent holders. Security for pre-existing debt.</p> <p>Where defendant executed a note and mortgage covering land, title to which was taken in his name merely for the convenience of others actually interested, and such note was negotiated contrary to agreement, and came into the hands of plaintiff prior to maturity, without knowledge of any infirmity or defense, plaintiff was an innocent holder in due course, even though the note was taken as security for a pre-existing debt owing by the person who negotiated it in view of Negotiable Instruments Law, sections 25, 27. (Post, pp. 561, 562.)</p> <p>Case cited and approved: Trust Co. v. McDougald, 132 Tenn., 323.</p> <p>3. FRAUDULENT CONVEYANCES. Evidence. Presumptions.</p> <p>A deed of property to grantor’s wife for a recited consideration of $5, love, and affection, shortly after the foreclosure of a trust deed executed by grantor to secure a note, leaving a large balance still due, was presumptively fraudulent. (Post, p. 562.)</p> <p>4. WITNESSES. Matters occurring in consequence of marital relation.</p> <p>In an action on a note and to set aside a transfer by defendant to his wife as fraudulent, evidence by defendant and his wife that the consideration in the deed was recited as being nominal merely by error of the draftsman, and that defendant was largely indebted to his wife, was properly excluded as a matter occurring between husband and wife, by virtue of or in consequence of the marital relation, under Thompson’s Shannon’s Code, section 5596. (Post, pp. 562, 563.)</p> <p>Case cited and approved: Insurance Co. v. Shoemaker, 95 Tenn., 72.</p> <p>Code cited and construed: Sec. 5596 (T.-S.).</p> <p>5. FRAUDULENT CONVEYANCES. Evidence. Matters occurring between husband and wife.</p> <p>Testimony of a husband and wife as to matters occurring between them by virtue of, or in consequence of, the marital relation, even when admitted without objection, is insufficient to set up a contract between them to the prejudice of the husband’s creditors, unless corroborated. (Post, p. 563.)</p> <p>Cases cited and approved: Gates v. Card, 93 Tenn., 334; Hardison v. Billington, 82 Tenn., 346; Grotenkemper v. Carver, 77 Tenn., 280; Page v. Gillentine, 74 Tenn., 240; Hyden v. Hyden, 65 Tenn., 406.</p> <p>6. WITNESSES. Competency.. Husband and wife. Statutes.</p> <p>Acts 1915, chapter 161, making a husband and wife competent witnesses for or against each other, relates only to criminal cases, and even in such cases they may not testify as to their dealings had apart from others. (Post, pp. 563, 564.)</p> <p>Acts cited and construed: Acts 1915, eh. 161.</p> <p>Case cited and approved: McCormick v. State, 135 Tenn., 128.</p> <p>7. WITNESSES. Competency. Husband and wife. Statute.</p> <p>Married Woman’s Emancipation Act of 1913 does not change the rule of evidence that matters occurring between husband and wife in consequence of the marriage relation are inadmissible as against the husband’s creditors. (Post, p. 564.)</p>

<p>1. PARDON. “After conviction.”</p> <p>Pardon after verdict, but before motion for new trial was overruled, came “after conviction’’ within Const, article 3, section 6. (Post, pp. 566, 567.)</p> <p>Cases cited and approved: State ex rel. v. Garrett, 135 Tenn., 617.</p> <p>Constitution cited and construed: Const, art. 3, sec. 6.</p> <p>2. PARDON. Conditions. Binding effect.</p> <p>Pardon having been issued upon express condition that defendant pay all costs of the case, defendant, who accepted the benefits of the pardon, must be held to have assumed payment of costs. (Post, p. 567.)</p>

<p>1. PARTNERSHIP. Agreement. Record insufficient to establish.</p> <p>In an action on rent notes under a lease which had been assigned to a corporation organized by lessees, defended on the ground that the corporation had assumed liability and defendants were released under the lease terms, evidence held not to show that lessees had agreed upon a partnership. (Post, pp. 574-577.)</p> <p>2. CORPORATIONS. Lease to corporate promoter. Provision releasing from liability. Evidence.</p> <p>Where a lease to corporate promoters provided that they were not to he personally liable for rent accruing after the thirty-sixth installment was paid, provided the corporation was organized and became lessee, and $20,000 in cash was paid into its treasury, lessor’s contention that such sum had not been paid in, held contrary to the evidence. (Post, pp. 577, 578.)</p> <p>3. CORPORATIONS. Contracts between promoters and third persons. Payment for corporate stock. Furnishing machinery.</p> <p>Where a contract by promoters with third persons required the payment of a certain amount of cash into the treasury of a corporation being organized, payment for stock by purchase of machinery held sufficient, the formality paying the money for the machinery and repaying it into the treasury being useless. (Post, pp. 578-582.)</p> <p>Cases cited and approved: Kelly Bros. v. Fletcher, 94 Tenn., 6; Bristol Trust Co. v. Jonesboro Tl'ust Co., 101 Tenn., 554; Morgan Bros. v. Coal & Iron Co., 134 Tenn., 244.</p> <p>Cases cited and distinguished: Mills v. Faris, 59 Tenn., 457; Nun-nelly v. Warner Iron Co., 94 Tenn., 282; Searight v. Payne, 74 Tenn., 285.</p>

<p>1. INSURANCE. Accident insurance. Notice of injury. Knowledge of disability.</p> <p>Wkere two accident insurance policies proyided that “written notice of an injury or of the beginning of any disability” must be given within forty days, and “within twenty-one days from the date of the accident or injury,” respectively, an insured, who lost an eye by accident, but did not know the extent of the injury until forty-one days after the accident, complied with the terms of the policies, where he gave notice within forty and twenty-one days, respectively, from the time he acquired such knowledge. (Post, pp. 600, 601.)</p> <p>Case cited and approved: Hughes v. Central Accident Ins. Co., 222 Pa., 462.</p> <p>Cases cited and distinguished: Grant v. North American Casualty Co., 88 Minn., 397; Hoffman v. Provident Indemnity Company, 56 Mo. App., 301; Baumister v. Casualty Co., 124 Mo. App., 38; U. S. Casualty Co. v. Hanson, 20 Colo. App., 393; Odd Fellows Fraternal Accident Association v. Earl, 70 Fed., 16; Borick v. Railway Officials’ & Employees’ Accident Association, 119 Fed., 63; Jennings v. Brotherhood Accident Co., 44 Colo., 68; Peele v. Provident Fund Society et al., 147 Ind., 543; People’s Accident Association v. Smith, 126 Pa., 317.</p> <p>2. INSURANCE. Accident insurance. Construction of policies.</p> <p>Provisions in accident insurance policies relative to the time within which notice of loss or injury must be made must be construed according to the intention of the parties and against the insurer, where such construction does not violate the plain provisions of the contract. (Post, pp. 601-603.)</p> <p>Cases cited and approved: Hatch v. U. S. Casualty Co., 197 Mass., 101.</p> <p>3. INSURANCE. Accident insurance. Payment of premiums. Evidence.</p> <p>In an action on an accident insurance policy, a claim by the insurer that premiums had not been paid could not be sustained, where it appeared that the insurer’s local agent had extended credit to insured, paid the premium for him, and charged it to him. (Post, pp. 603, 604.)</p> <p>4. INSURANCE. Accident insurance. “Loss of entire sight.’’</p> <p>Under an accident insurance policy, there was “loss of the entire sight of one eye,” where insured’s eye became incurably sightless and useless, although a slight light perception still remained. (Post, p. 604.)</p> <p>5. INSURANCE. Accident insurance. Notice of other' insurance. Waiver.</p> <p>In an action on an accident insurance policy, where the defense was interposed that insurer was only liable for a proportionate part of the loss because of insured’s failure to give it notice that other insurance had been taken out, such notice held waived by failure to cancel the policy and collection of premiums after knowledge of the other insurance. (Post, pp. 604-606.)</p> <p>Case cited and approved: Westchester Fire Ins. Co. v. McAdoo, 57 S. W., 409.</p>

<p>1. EQUITY. Waiver of demurrers.</p> <p>Defendants’ demurrers to the bills, relied on in their answers, not having been called up or disposed of at the hearing, must be treated as waived. (Post, pp. 611-613.)</p> <p>2. EXECUTORS AND ADMINISTRATORS. Liability of sureties. Statute.</p> <p>At common law and under Shannon’s Code 1917, section 1095, where sureties sign the bond of an executor or administrator in its blank printed form before it has been filled in, they are estopped to deny their liability for money received on the faith of the bond. (Post, pp. 613, 614.)</p> <p>Cases cited and approved: McLean v. State, 55 Tenn., 22; Galbraith v. State, 78 Tenn., 574; State v. Polk, 82 Tenn., 6; Stevens v. Green County Iron Co., 58 Tenn., 71; Upton v. Philips, 58 Tenn., 224.</p> <p>Code cited and construed: Secs; 1095, 1097 (S.).</p> <p>3. EXECUTORS AND ADMNISTRATORS. Payment of moneys into court. Notice to sureties.</p> <p>Under Shannon’s Code 1917, section 4043, the probate court was authorized to require an administrator to pay into the office of the clerk the balance found to be due the estates of his intestates, and on his failure, and the clerk’s motion, was authorized to award execution against the administrator and his sureties for the amount of the balance without any notice of the motion to the sureties; such notice having been given the administrator. (Post, pp. 614, 615.)</p> <p>Code cited and construed: See. 4043 (S.).</p> <p>4. EXECUTORS AND ADMINISTRATORS. Settlement for wrongful death as part of estate. Liability of sureties.</p> <p>Fund received by administrator of children killed by a railroad in settlement of claims against tlie road for the wrongful k’lling of the children constituted part of their estates, and the sureties of the administrator could be held liable for the same under the bond. (.Post, pp. 615, 616.)</p> <p>Case cited and approved: Glass v. Howell, 70 Tenn., 50.</p> <p>5. INJUNCTION. Bond. Additional bond.</p> <p>In suit by the sureties of an administrator to enjoin sale of their property on execution to satisfy an order to pay into the probate court an amount for which the administrator had defaulted, where the original injunction bonds were not in proper form, but conditioned only to pay costs and damages, and were insufficient to cover the amount of the judgment and interest, the chancellor properly required the sureties to execute an additional injunction bond on the hearing of the cases, and before they had been disposed of. (Post, pp. 616, 617.)</p> <p>6. EQUITY. Cross-bill. Protection of cross-complainants by bond.</p> <p>In suit by sureties on the bond of an administrator of children killed by a railroad to enjoin sale of their property on execution to satisfy an order of the probate court requiring them to pay into court the amount of a settlement made by the administrator with the railroad, the chancellor properly dismissed the crossbill of the mother and brother of the children killed asking decree for the amount shown to be due the estate of the deceased children; the interests of the mother and brother being protected by the injunction bond executed by the sureties. (Post, p. 617.)</p>

<p>1. STATUTES. Validity. Title. Railroad commission. Amending acts.</p> <p>Acts 1919, chapter 49, -which amended Acts 1897, chapter 10, entitled an act to create a Railroad Commission, defining its powers and duties to prohibit extortion, etc., is not invalid under Constitution, article 2, section 17, which forbids any bill to become a law which embraces more than one subject and declares that all acts which repeal, revive, or amend former laws shall recite in their caption the substance of the law repealed or revived on the theory that the original act related solely to railroads and the amending act was extended so as to embrace other public utilities, as street railroads. (Post. pp. 621-624.)</p> <p>Acts cited and construed: Acts 1919, ch. 49; Acts 1897, ch. 10.</p> <p>Cases cited and approved: Bank v. Divine Gro. Co., 97 Tenn., 603; Railroad V. Byrne, 119 Tenn., 278; State v. Algood, 87 Tenn., 163; Goodbar v. Memphis, 113 Tenn., 20.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>2. CONSTITUTIONAL LAW. Arbitrary classification. Regulation of street railroads.</p> <p>An act regulating public utilities, as street railroads, is invalid both under the federal and Tennessee constitutions, if it makes an arbitrary and illegal classification. (Post, p. 624.)</p> <p>Cases cited and approved: State v. Railroad, 124 Tenn., 1; Strat-ton v. Morris, 89 Tenn., 534; Railway v. Ellis, 155.U. S., 155; Connolly v. Union Sewer Pipe Co., 184 U. S., 540.</p> <p>3. CONSTITUTIONAL LAW. Right to attack constitutionality of act.</p> <p>The city of Memphis cannot attack Acts 1919, chapter 49, regulating public utilities, as street railroads, and giving the Railroad Commission jurisdiction over fares, on the ground that the requirement that the public utilities carry for the protection of stockholders a depreciation account, that they keep their books in a certain manner, and that they cannot issue stocks without first obtaining authority from the commission, etc., amounts to an arbitrary and illegal classification; the city not being entitled to complain against such classification of public utilities. (Post, pp. 624-626.)</p> <p>4. CONSTITUTIONAL LAW. Illegal classification. Regulation of public utilities.</p> <p>The provisions of Acts 1919, chapter 49, that public utilities shall carry for protection of stockholders, etc., a depreciation account, that they shall keep hooks in a certain manner, and that they shall not issue stocks, etc., without consent of the Railroad Commission, do not render the act invalid on the theory that it arbitrarily classifies'’public utilities and discriminates against them. (Post, pp. 624-626.)</p> <p>Case cited and approved: Noell v. Power Co., 130 Tenn., 245.</p> <p>5. CONSTITUTIONAL LAW. Validity of statute. Persons entitled-to question.</p> <p>Though Acts 1897, chapter 10, provided that no person owning bonds or stocks of any railroad company should serve as a member of the Railroad Commission, the city of Memphis cannot attack the constitutionality of Acts 1919, chapter 49, extending the regulatory powers of the Railroad Commission to public utilities, stress railroads, on the ground that the subsequent act made no such provision; for the city is not, in a suit to enjoin the commission from hearing an application for increase in rates, interested in such provision. (Post, pp. 626, 627.)</p> <p>6. PUBLIC SERVICE COMMISSIONS. Qualification. Ownership of railroad securities.</p> <p>The provision of Acts 1897, chapter 10, creating the Railroad Commission, that no person owning stocks or bonds of any railroad or transportation company shall serve as commissioner, must be deemed incorporated in Acts 1919, chapter 49, extending the powers of the commission to public utilities, as street railroads, for the two acts after amendment will be read as one. (Post pp. 626, 627.)</p> <p>7. CONSTITUTIONAL LAW. Obligation of contracts. Street railroad rates.</p> <p>Acts 1919, chapter 49, extending the powers of the Railroad Commission to public utilities and allowing the commission to investigate and fix rates, is not invalid as impairing the obligation' of contract in violation of Constitution U. S. and Constitution Tenn. article 1, section 20, as to the city of Memphis, which had previously by ordinance fixed the rate which street railroad company doing business therein might charge. (Post, pp. 627-630.)</p> <p>Cases cited and approved: Denver & So. Platte Ry. Co. v. City of Englewood, 62 Colo., 229; Home Telegraph Co. v. Los Angeles, 211 U. S„ 265; Detroit v. Detroit Citizens’ St. Ry. Co., 184 U. S„ 368; Vicksburg v. Vicksburg Waterworks Co., 206 U. S., 496; Providence Bank v. Billings, 4 Pet., 514; Railroad Commission Cases, 116 U. S., 307; Freeport Water Co. v. Freeport City, 180 U. S., 587; Lynn v. Polk, 76 Tenn., 121.</p> <p>Case cited and distinguished: Collingswood Sewerage Co. v. Borough of Collingswood, 105 Atl., 209.</p>

<p>FROM DAVIDSON.</p> <p>Error to the Circuit Court of Davidson County.— Hon. M. H. Meeks, Judge.</p>

<p>1. ELECTIONS. Woman suffrage. Validity.</p> <p>Acts 1919, chapter 139, authorizing women to vote for presidential and vice presidential electors, is valid under Constitution, article 7, section 4, providing the election of all officers not otherwise provided for by the Constitution shall be made in such manner as legislature may direct. (.Post, pp. 650-657.)</p> <p>Acts cited and construed: Acts 1919, eh. 139.</p> <p>Cases cited and approved: Ledgerwood v. Pitts,' 122 Tenn., 570; Scown V. Czarnecki, 264 Ill., 305; Hanna v. Young, 84 Md., 179; State v. Hanson, 80 Neb., 724; State v. Dillon, 32 Fla., 545; Spitzer v. Fulton, 172 N. Y., 285; Richardson v. Young, 122 Tenn., 471; Wheeler v. Brady, 15 Kan., 26; State v. French, 96 Ohio St., 172.</p> <p>Constitutions cited and construed: Art. 1, sec. 5; Art. 4, sec. 1; Art. 3, sec. 2; Art. 6, secs. 3, 4, 13, 15; Art. 7, sees. 1, 4.</p> <p>2. TAXATION. Poll tax. Statute. Validity. Tax on women.</p> <p>Constitution article 2, section 28, making male citizens liable for poll taxes, etc., does not impliedly prohibit the legislature from imposing a poll tax on women. (Post, pp. 657-660.)</p> <p>3. TAXATION. Legislative power.</p> <p>Right to tax is essential to the existence of government, and the legislative power in this respect can only be restricted by distinct and positive expressions in the Constitution. (Post, pp. 657-660.</p> <p>4. ELECTIONS. Woman suffrage. Validity.</p> <p>Acts 1919, chapter 139, authorizing women to vote at certain elections and requiring them to furnish evidence of payment of 'poll taxes in same manner as men, etc., does not discriminate against men upon ground that no poll tax is levied against women, since such difference is due, not to the suffrage act, hut to Constitution, article 2, section 28, requiring males to pay poll taxes, and legislature’s failure to pass a law taxing women. (Post, pp. 657-660.)</p> <p>Acts 1919, chapter 139, authorizing women who have resided within</p> <p>Cases cited and approved: Kuntz v. Davidson County, 74 Tenn., 65.</p> <p>Codes cited and construed: Secs. 1220, 1221, 813a2, 1226 (T.-S.).</p> <p>Constitution cited and construed: Art. 2, sec. 28.</p> <p>5. ELECTIONS. Woman suffrage. Validity.</p> <p>Acts 1919, chapter 139, authorizing women who have resided within county for preceding six months to vote at municipal elections, etc., does not repeal Nashville city charter (Private Acts 1919, chapter 22, section 5), requiring a six months’ residence in city before voting; and suffrage statute is therefore not invalid upon ground that it discriminates by allowing women to vote after a shorter city residence than is required of men. (Post, pp. 661, 662).</p> <p>6. STATUTES. Repeal by implication. General and special laws.</p> <p>A general law does not repeal a special law unless such a legislative intent clearly appears. (Post, pp. 661, 662.)</p> <p>Acts cited and construed: Acts 1919, ch. 139; Acts 1919, ch. 22, sec. 5.</p> <p>Case cited and construed: Burnett v. Maloney, 97 Tenn., 697.</p> <p>7. STATUTES. Title. Sufficiency. Woman suffrage act.</p> <p>Constitution, article 2, section 17, requiring statutes to contain only one subject expressed in the title, is not violated by Acts 1919, chapter, 139, authorizing women to vote at certain elections. (Post, p. 662.)</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>8. ELECTIONS. Ballot boxes. Joint resolution of legislature. Effect.</p> <p>A joint resolution by the legislature purporting to empower election . boards to provide separate ballot boxes for women, conferred no additional power on election officers, but may be considered as an ' expression of legislative advice and opinion that election officers already had necessary power to take such steps. (Post, pp. 662-666.)</p> <p>9.ELECTION'S. Woman suffrage. Ballot boxes.</p> <p>Election officers have power to provide separate ballot boxes for women in order to prevent fraud, especially in view of tbe joint resolution of legislature recommending and directing sucb a course. (Post, pp. 662-666.)</p> <p>10. ELECTIONS. Woman suffrage. Validity.</p> <p>Acts 1919, chapter 139, authorizing women to vote for certain officers, etc., it not void because affording opportunity for fraud, since separate ballot boxes may be provided for women, and thereby eliminate tbe danger that- they will fraudulently vote for officials not entitled to be elected by their‘votes. (Post, pp. 662-666.)</p> <p>Acts cited and construed: Acts 1919, cb. 139.</p> <p>Code cited and construed: Sec. 1266 (T.-S.).</p> <p>11. ELECTIONS. Woman suffrage. Validity. “Qualified voters.” Municipal election. Voting credit.</p> <p>Notwithstanding Acts 1919, chapter 139, authorizing women to vote at municipal elections, Constitution, article 2, section 29, providing that a municipality’s credit should not be given or loaned except after an election by “qualified voters,” etc., precludes women from voting upon such propositions, since “qualified voters” means male voters. (Post, pp. 666, 667.)</p> <p>Acts cited and construed: Acts 1919, cb. 139.</p> <p>Constitution cited and construed: Art. 2, sec. 29.</p> <p>12. ELECTIONS. Woman suffrage. Validity.</p> <p>Whether Acts 1919, chapter 139, section 3, requires women voting at municipal elections to produce poll tax receipts need not be decided, since municipalities having poll tax requirements should apply them to women whenever the legislature levies a poll tax upon females. (Post, pp. 668-674.)</p> <p>Bachman, J., dissenting.</p> <p>Acts cited and construed: Acts 1919, ch. 139, sec. 3.</p> <p>Cases cited and approved: Gardner v. Hall, 61 N. C., 22; Kuntz v. Davidson County, 74 Tenn., 65; Brewer v. McClelland, 144 Ind., 423; Kinneen v. Wells, 144 Mass., 497-503; Lyman v. Martin, 2 Utah, 145; Attorney General v. City of Detroit, 78 Mich., 545; In re Appointment of Supervisors, 52 Fed., 261; Coggeshall v. City of Des Moines, 138 Iowa, 730.</p> <p>Cases cited and distinguished: Morris v. Powell, 125 Ind., 281; Stratton Claimants v. Morris Claimants, 89 Tenn., 534; Fleming y. Memphis, 126 Tenn., 337; Malone v. Williams, 118 Tenn., 437. Constitution cited and construed: Art. 7, sec. 4; Art. 11, sec. 8; Art. 2, sec. 28.</p>

<p>CRIMINAL LAW. Court, in absence of defendant not charged with felony. Can enter plea of not guilty.</p> <p>Where a corporation, charged with failure to repair a turnpike owned and operated by it, was duly served with process and voluntarily entered appearance, by demurring and applying for continuance, but did not plead, the trial court, under Thompson Shannon Code, section 7173, was authorized to enter plea of not guilty for it in its absence from the court; Constitution, article 1, section 9, providing that accused hath the right to be heard by himself and his counsel, etc., applying only to charges of felony.</p> <p>Cases cited and approved: McGinnis v. State, 28 Tenn., 43; State v. Sexton, 121 Tenn., 35; Witt v. State, 45 Tenn., 11; Andrews v. State, 34 Tenn., 551; Armstrong v. State, 41 Tenn., 338.</p> <p>Constitution cited and construed: Art. 1, secs. 6, 9, 14.</p>

<p>1. CUSTOMS AND USAGES. Course of trade of certain dealers, not amounting to custom, insufficient to bind defendant.</p> <p>In an action for failure to deliver meal purchased, the seller denying that it accepted the tentative contract made by its agent, the proof that some jobbers in the seller’s city uniformly filled such orders, unless the buyer was notified to the contrary, not amounting to a custom, held valueless to make a case for plaintiff buyer. (Post, pp. 681, 682.)</p> <p>2. SALES. Unreasonable delay in rejecting solicited order amounts to acceptance.</p> <p>Where order for meal was solicited by wholesaler’s drummer, wholesaler’s delay for sixty days after order was taken in- notifying the customer that it had not confirmed or accepted the order as required held to be unreasonable, and to effect an acceptance of the order. (Post, pp. 682-685.)</p> <p>Cases cited and approved: Williams v. Storm, 46 Tenn., 207; Blue Grass Cordage Co. v. Luthy, 98 Ky., 583; L. A. Becker Co. v. Alvey, 86 S. W., 974.</p> <p>Response to Petition to Reheak. '</p> <p>3. CONTRACTS. Assent to offer may be either express or implied.</p> <p>Though an assent to an offer is requisite to the formation of a contract or agreement, such, assent is a condition of mind, and may he either expressed or merely evidenced by circumstances. (Post, p. 685.)</p> <p>4. SALES. Unreasonable delay in rejecting solicited order amounts to acceptance.</p> <p>Although orders solicited by drummers for wholesaler are not binding until accepted by wholesaler, yet, if wholesaler wishes to reject such an order, he should, especially in case of orders for perishable articles and articles consumable in the use, notify the customer within a reasonable time that the order is not accepted, and if, with ample opportunity, he fails to do so, silence for an unreasonable length of time will amount to acceptance, if the customer is relying on him for the goods,. Post, p. 685.)</p> <p>Case cited and approved: Hartford et al. v. Jackson, 24 Conn., 514.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — Hon. ^Ben L. Capell, Judge.</p>

<p>1. WILLS. Devise on life estate with remainder to life tenant’s children.</p> <p>A codicil, considered with the will, held to devise a life estate only, with the remainder to life tenant’s children. {Post, pp. 699, 700.)</p> <p>2. WILLS. Decree construing will not contradicted hy decree vesting devisee with fee to land.</p> <p>A decree, passed for construction of a will, and ordering an allotment of testator’s lands, and correctly adjudging that D. took only a life estate, with remainder to his children, and a subsequent decree after allotment hy commissioners of land to D., that all right of all the devisees and heirs of testator, except D., in and to the land assigned hy commissioners to D., he divested out of them and vested in D., “his heirs and assigns forever,’’ held not to vest D. with the fee, the latter decree being consistent with former. {Post, pp. 699, 700.)</p>