Volume 144 — Tennessee Reports

<p>1. HUSBAND AND WIFE. Married woman’s power of attorney and deed validated fay curative statute.</p> <p>Under Shannon’s Code, sections 3764, 3765, validating deeds under powers of attorney which have been registered for twenty years or more, a married woman’s power of attorney and deed executed thereunder were validated by being registered for over twenty years before the title thereby transferred was attacked. (Post, pp. 10-15.)</p> <p>Cases cited and distinguished: Murdock v. Leath, 57 Tenn., 166; Kobbe v. Land Co., 117 Tenn., 315.</p> <p>Code cited and construed: Secs. 3764, 3765 (S.).</p> <p>2. VENDOR AND PURCHASER. Evidence held to show purchasers had actual notice.</p> <p>Evidence that purchasers made inquiries as to the title of the land from lawyer who sought to have remaindermen made parties in former suit for sale of the land held to show actual notice of re-maindermen’s claim. (Post, pp. 15, 16.)</p> <p>3. HUSBAND AND WIFE. Deed under power of attorney held validated by curative act.</p> <p>Where plaintiffs claimed that a deed by attorney in fact under power of attorney of a married wamon, under which they claimed as remaindermen had been validated, under Shannon’s Code, sec tions 3764, 3765, by registration for longer than twenty years, these statutes could not be said to be inapplicable because, although the deed and power of attorney were registered, there had not been twenty years of such registration period between the date of the enactment of the statutes, 1859-1860, and the date of the repudiation of the deed by the married woman in 1871, where plaintiff remaindermen at that time were minors and the repudiation was directed to and adjusted by their mother, the life tenant only, and there was no repudiation by suit to which the plaintiffs were parties. (Post, pp. 16, 17.)</p> <p>Acts cited and construed: Acts 1859-60, secs. 3764-65; Acts 1865, ch. 10.</p> <p>Code cited and construed: Sec. 4454 (S.).</p> <p>4. LIMITATION OF ACTIONS. Presumption of validity of recorded power of attorney and deed after twenty years not affected by suspension of limitations for Civil War period.</p> <p>Shannon’s Code, section 4454, suspending the operation of the statute of limitations during the period of the Civil War, did not suspend the operation of sections 3761, 3762, making power of attorney and deed executed pursuant thereto presumptively valid after the power of attorney and the deed has been on record for twenty years or more; such statutes being statutes of repose and not statutes of limitations, (Post, pp. 17, 18.)</p> <p>Code cited and construed: Sec. 4454 (S.).</p> <p>5. JUDGMENT. Not conclusive as to persons not parties to the action.</p> <p>Where grantor and life tenant named in deed, on grantor’s objection to validity of deed, made a settlement wherein life tenant executed note, the decree rendered in grantor’s action on note to which the remaindermen were not parties, was not conclusive as to remain-dermen. (Post. p. 18.)</p> <p>6. JUDGMENT. Decree not binding on persons not parties, though they sought to he made parties and their application was denied.</p> <p>A decree could not he deemed binding on remaindermen not parties to the suit, on the theory that, because they sought to have themselves made parties to the cause and their right to do so was denied by the court, the decree was res judicata as to them. (Post. p. 18.)</p> <p>7. JUDGMENT. Person not bound by judgment unless party to the action.</p> <p>Before a person can be hound by a former judgment or decree he must have been a party to the action in which such judgment or decree was rendered. (Post, pp. 18, 19.)</p> <p>Cases cited and approved: Melton v. Pace, 103 Tenn., 484; Chandler v. White Oak Creek Lumber Co., 131 Tenn., 47; Pile v. Pile, 134 Tenn., 370; Bank v. Smith, 110 Tenn., 337; Taylor v. Sledge. 110 Tenn., 263; Railroad Co. v. Donovan, 104 Tenn., 465.</p> <p>8. TRUSTS. Property held under dry trust vested in beneficiary on. trustee’s death.</p> <p>Where dry trust was created, giving trustee no power and imposing on him no duty except to hold property for beneficiary, the property on trustee’s death did not vest in trustee’s heirs, but immediately vested in the beneficiary, who thereupon had the right to convey it. (Post, p. 19.)</p> <p>Cases cited and approved: Turley v. Massengill, 75 Tenn., 353; Ellis v Fisher, 35 Tenn., 231; Bowers v. Bowers, 51 Tenn., 293; Whittle Springs Co. v. Johnson, 2 App. Cas., 324.</p> <p>9. LIFE ESTATES. Limitations do not run against remaindermen until life tenant’s death.</p> <p>The statute of limitations did not begin to run against remainder-men until life tenant’s death, the remainderman having seven years from such time in which to bring action to recover the property. (Post, p. 20.) Cases cited and approved: Southern Railway Co. v. Jennings, 130 Tenn., 456; Smith v. Cross, 125 Tenn., 173; Carver v. Maxwell, 110 Tenn., 75; Erch v. Church, 87 Tenn., 575; McBee v. Bearden, 75 Tenn., 731; Iron, etc., Co. v. Broyles, 95 Tenn., 612; Hubbard v. Godfrey, 100 Tenn., 150.</p>

<p>X. INDICTMENT AND INFORMATION. Defendant indicted for murder may be convicted of assault with intent to commit manslaughter.</p> <p>In view of Shannon’s Code, section 7195, providing that upon indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged, hut guilty of any inferior degree or of an attempt to commit the offense or of any offense necessarily included in the one charged where defendant was charged with murder in the first degree, he is not entitled to have a motion in arrest of judgment sustained because convicted and sentenced for assault with intent to commit voluntary manslaughter. (Post, pp. 24-27.)</p> <p>Cases cited and distinguished: Thomas v. State, 125 Ala., 45; State v. Parker, 66 Iowa, 586.</p> <p>Code cited and construed: Sec. 5222 (1858); Sec. 7195, (S); Sec. 5806 (1896).</p> <p>2. HOMICIDE. Evidence held to sustain a conviction of assault to commit voluntary manslaughter.</p> <p>In a prosecution for murder in the first degree, evidence held to present a question for the jury and to sustain a verdict convicting of an a'ssault with an intent to commit voluntary manslaughter where defendant struck deceased with an iron har. (Post, pp. 27-31.)</p> <p>3. HOMICIDE. Evidence held not to support plea to self-defense,</p> <p>Upon an appeal from a conviction of assault with intent to commit voluntary manslaughter, evidence held not to preponderate against the verdict and in favor of the defendant’s plea of self-defense. (Pots, p. 31.)</p>

<p>1. MINES AND MINERALS. Lessee held not entitled under forfeiture clause to avoid JLease for own default.</p> <p>A clause in a mineral lease, providing that, if lessee failed to mine . a minium quantity of the mineral so long as it was found in paying quantities on the premises, or to pay a minimum royalty, the lease should be void without demand or entry by lessor, will be construed merely to give lessor the option to forfeit the lease in case of breach, and not to terminate the lease regardless of such option, since the latter construction would permit lessee to avoid his obligations for his own default, and will be adopted only where such intention is clearly expressed by the parties. (.Post, pp.' 40-45.)</p> <p>Cases cited and approved: Evans v. Consumers’ Gas Trust Co.. 29 N. E„ 398; Woodland Oil Co. v. Crawford, 55 Ohio, St., 161; Hanley Falls Creambry Co. v. Mi’ton Dairy Co., 126 Minn., 226.</p> <p>^Cases cited and distinguished: Wills v. Gas Co., 130 Pa., 222; Ray v. Gas Co., 138 Pa., 576.</p> <p>2. MINES AND MINERALS. Lease of phosphate land held to require lessee to mine in good faith until entire deposit was removed.</p> <p>A lease of phosphate lands for five years and as long thereafter as phosphate rock might be found in paying quantities, requiring lessees to mine a minimum quantity per month or pay lessors a royalty on such amount per month, obligated lessees to mine minerals in good faith until the entire deposit was removed, pro- ' vided they were found in paying quantities. (Post, pp. 45, 46.)</p> <p>3. MINES AND MINERALS. Whether construed as a lease or license, conveyance of exclusive right to mine passes corporeal interest in land.</p> <p>Whether construed to he a lease or merely a license, a contract, which conveyed to lessee or licensee the exclusive right to mine minerals in land, passed a corporeal interest in the land which could be assigned, divided, or dealt with as any other interest therein. ( Post, p. 46.)</p> <p>Case cited and approved: Stanton v. Herbert & Sons, 141 Tenn., 447.</p> <p>4. MINES AND MINERALS. Original lessees held entitled to profit royalties from assignee.</p> <p>Where the original lessees of mineral land assigned the lease to a corporation, which agreed to pay the royalty to the landowners reserved by the original lease and an additional royalty to the original lessee, there is sufficient privity of contract between the original lessees and their assignee to entitle them to recover their profit royalty, though the assignee had made some arrangement with the original lessor under which it had ceased to remove minerals. (Post, p. 46.)</p> <p>5. MINES AND MINERALS. Lessor not necessary party to bill by original lessee to recover profit royalties from assignee.</p> <p>In a bill by the original lessee of mineral land against his assignee to recover the amount of royalties the assignee agreed to pay him in addition to the royalties to lessor and also the amount of royalties due lessor which the original lessee had paid to prevent forfeiture of the lease, in which bill no relief was ashed against lessor, lessor was not a necessary party, though the bill alleged that lessor and the assignee had made some arrangement between themseves whereby the lessor refused to receive the royalties from the assignee so as to forfeit the lease and deprive the as-signee of his royalties. (Post, pp. 47, 48.)</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County.— Hon. Jas. B. Newman, Chancellor.</p>

<p>LARCENY. Evidence held sufficient to sustain a conviction.</p> <p>In view of Shannon’s Code, section 6545, providing that, if a contract or loan for use or other bailment or agency be used merely as , a means of procuring possession of property with intent to fraudulently appropriate it, it is “larceny,” evidence held sufficient to show defendant guilty of larceny as having fraudulently obtained money from prosecuting witness for the purchase of. liquor for their joint benefit, with intent to appropriate the money</p> <p>Case cited and approved: Felton v. State, 17 Tenn., 397.</p> <p>Case cited and distinguished: Mitchell v. State, 92 Tenn., 668.</p> <p>Code cited and construed: See. 6545 (S.).</p>

<p>1.' ANIMALS. Fence law not repealed by statute prohibiting running at large.</p> <p>Pub. Acts 1899, chapter -23, as amended by Pub. Acts 1901 chapter 114, prohibiting the running at large of stock in counties having specified population, helel to repeal by implication Code 1858, sections 1682-1685, requiring planter to fence land, and providing that, if a fence sufficient to keep stock out has not been constructed, the owner of the stock should not be liable for damage done by such stock. (Post, pp. 71-74.)</p> <p>Acts cited and construed: Acts 1899, ch. 23; Acts 1901, ch. 114; Acts 1919, ch. 651; Acts 1905; ch. 504; Acts 1911, ch. 269.</p> <p>Cases cited and approved: Chemical Co. v-. Henry, 114 Tenn., 152.</p> <p>Case cited and distinguished: Peterson v. State, 104 Tenn., 127.</p> <p>Code cited and construed: Secs. 1682-85 (1858).</p> <p>2. ANIMALS. Statute prohibiting running at large not repealed by fence law.</p> <p>Acts 190S, chapter 504, and Priv. Acts 1911, chapter 269, defining lawful fences in rural districts of counties of special population, does not impliedly repeal Pub. Acts 1899, chapter 23, as amended by Pub. Acts 1901, chapter 114, prohibiting the running at large of stock within counties haying specified population, in so far as it was applicable to counties to which the Acts of 1905 and 1911 were applicable. (Post. pp. 74, 75.)</p> <p>Case cited and approved: Chattanooga Ry. & Lights Co. v. Bettis, 139 Tenn., 335.</p> <p>3. ANIMALS. Statute prohibiting running at large not repealed by statute defining lawful fences.</p> <p>Priv. Acts 1919, chapter 651, defining lawful fences in counties of certain population without making it the duty of any person to maintain such fences or prescribing any advantage which a person shall have who maintains such a fence, did not effect applicability to such counties of Pub. Acts 1899, chapter 23, as amended by Pub. Acts 1901, chapter 114, prohibiting owner of stock from permitting stocky to run at large. (Post, pp. 75, 76.)</p> <p>Acts cited and construed: Acts 1919, ch. 651; Acts 1899, ch. 23; Acts 1901, ch. 114.</p> <p>4: ANIMALS. Running at large not permitted by fence law.</p> <p>Priv. Acts 1911, chapter 269, defining lawful fences in rural districts of particular county, did not permit owner of stock to allow stock to run at large in such sections of the county in violation of Pub. Acts 1899, chapter 23, as amended by Pub. Acts 1901, chapter 114. (Post, pp. 76, 77.)</p> <p>5. STATUTES. Repeal by implication only to extent that statutes are irreconcilable.</p> <p>A later act does not repeal or cut down an older one by implication, unless and only to the extent that their provisions are necessarily irreconcilable. (Post, pp. 76, 77.)</p> <p>6. INJUNCTION. Owner of stock will be restrained from permitting stock to run at large on complainant’s farm to injury of crops.</p> <p>Bill to enjoin owner of stock from permitting stock to run at large upon complainant’s farms, alleging that plaintiff’s crops would be destroyed hy such stock to his irreparable damage, held sufficient to invoke the injunctive aid of equity. (Post, p. 77.)</p>

<p>1. INJUNCTION. Bill on information and belief generally insufficient on motion to dissolve when answer is sworn to on defendant’s knowledge.</p> <p>As a general rule, an injunction bill, sworn to on information and belief, is inadequate to withstand a motion to dissolve an injunction, when the answer is sworn to positively and directly on defendant’s personal knowledge. ■ (Post, p. 85.)</p> <p>Cases cited and approved: Reid v. Hoffman, 53 Tenn., 440; Smith v. Republic Life Insurance Co., 2 Tenn., Ch., 632.</p> <p>2. INJUNCTION. Bill on knowledge, information, and belief sufficient on motion to dissolve when it affirmatively appears which allegations are on knowledge.</p> <p>A bill sworn to on knowledge, information, and belief is sufficient to 1 support an injunction attacked only on the ground of insufficiency of the affidavit, where it affirmatively appears from the face of the bill which allegations are based on knowledge and which on information and belief. (Post, p. 85.)</p> <p>3. INJUNCTION. Bill on knowledge, information, and belief held sufficient on motion to dissolve.</p> <p>A bill, filed by a street railway company, alleging agreements by its employees not to join any labor union during the term of their service, and alleging that defendant was engaged in an effort to induce them to break their contracts by joining a union, held sufficient, on motion to dissolve an injunction, though sworn to on knowledge, information, and belief and though the answer was sworn to positively on defendant’s personal knowledge. (Post; pp. 86, 87.)</p> <p>4. CONTRACTS. Contracts not to join labor union not contrary to “public policy.”</p> <p>Contracts between a street car company and its employees, whereby they agreed not to join any labor union during the term of their service, not violating any provision of the State or federal constitution or statutes or any rule of the common law, are not contrary to “public policy” which means that principle of the law which holds that no subject can lawfully do that which has a tendency to, be injurious to the public or against the public good (quoting' Words and Phrases, Public Policy). {Post, pp. 87-96).</p> <p>Cases cited and approved: People v. Hawkins, 157 N. Y., 1; Smith v. Railway Co., 115 Cal., 594; Adair v. United States, 208 U. S., 161; Coppage v. Kansas, 236 U. S., 1;</p> <p>Cases cited and distinguished: Swann v. Swann. (C. C.), 21 Fed., 301; Hartford Fire Ins. Co. v. Chicago, etc., Railway (C. C.), 62 Fed., 904; Yidal et al. v. Girard’s Ex’rs, 2 How., 197; St. Louis Mining Co. v. Montana Mining Co., 171 U. S., 655; License Tax Case, 5 Wall., 469; Clark v. Railway, 123 Tenn., 232; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S., 235; Adair V. United States, 208 U. S., 161.</p> <p>5. CONTRACTS. Report of War Labor Conference Board held not to render agreement not to join union void; “shall.”</p> <p>The report of the National War Labor Conference Board, officially published as presenting the position of the administration, and providing that the right of workers to organize trade unions and to bargain collectively “shall” not be denied, etc., and that employers should- not discharge workers for membership in trade unions, does not invalidate agreements by employees not to join a union, or render them contrary to public policy, as “shall” is used in the sense of “should.” {Post, pp. 96-99.)</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County. —Hon. Jno. T. Lellyett, Chancellor</p>

<p>1. APPEAL AND ERROR. Findings of chancellor and court of civil appeals on question of duress not conclusive on supreme court.</p> <p>Findings of the chancellor and court of civil appeals on a question of duress exerted by defendant on complainant are not conclusive on the supreme court, the inquiry presented being one of law and fact. (Post, pp. 118-125.)</p> <p>Cases cited and approved: Black v. State, 130 Tenn., 533; Cartwright v. Dickinson, 88 Tenn., 476; Herring v. Ruskin Co-op. Association (Ch. App.), 52 S. W., 327; Whaley v. King, 141 Tenn., 1; Miller v. Ins. Co.,.92 Tenn., 167-176; Green v. Ashe, 130 Tenn., 615.</p> <p>Cases cited and distinguished; Civil Service Investment Association v. Thomas, 138 Tenn., 77; Trevor v. Whitworth, L. R. 12 App. Cas., 409.</p> <p>2. CORPORATIONS. Stockholder seeking to be relieved from contract for sale of stock to corporation on ground of duress must clearly show it.</p> <p>Complainant, seeking relief against his contract for sale of stock in a corporation to the company as procured by duress on him, must clearly show that he was so coerced or unduly influenced as to destroy his free agency in completing the transaction, and that on subsequent deliberation with the advice of counsel he did not fully ratify it. . (Post, pp. 118-125.)</p> <p>3. CORPORATIONS. Complainant, seeking to rescind sale of stock, to company for duress, not entitled to recover shares disposed of by company prior' to suit.</p> <p>In a suit by a stockholder in a company to set aside his sale of its stock to it on the ground the contract was procured by duress exerted on him, complainant, if entitled to rescind, cannot recover a number of the shares of his stock disposed of by the company to purchasers prior to the suit, the holders of such stock not being before the court, and any direction, seeking cancellation .of such stock or its return to the company, being necessarily futile. (Post, pp. 118-125.)</p> <p>4. CORPORATIONS. Companies cannot purchase own shares unless expressly authorized.</p> <p>Unless expressly authorized, corporations have no power to purchase shares of their own stock, and contracts with such effect are in contravention of the public policy of the State. (Post, pp. 118-125.)</p> <p>5. CONTRACTS. Corporations. Rule that where parties in pari delicto in illegal contract plaintiff cannot secure rescission subject to exception of cases where public good promoted by granting relief.</p> <p>The rule that, where the parties are in pari delicto in an illegal contract, the condition of defendant is the more powerful, and plaintiff cannot rescind, is of general application, where the illegal contract involves no consideration of the p'ublic welfare, but an exception to the rule is found in cases where the public good is to be promoted by permitting a disaffirmance of the contract and recovery of the consideration paid, though in so doing a party to its illegality may be benefited, such a contract being one between a stockholder and his corporation for sale to it of its own shares; the stockholder subsequently seeking to rescind. {Post, pp. 125-127.)</p> <p>Cases cited and approved: Rucker v. Wynne, 39 Tenn., 618-623; Porter v. Jones, 16 Tenn., 314-327; Johnson v. Cooper, 10 Tenn., 529-530.</p> <p>Case cited and distinguished: Hale v. Sharp, 44 Tenn., 275-281.</p> <p>6. CORPORATIONS. Company entitled to disaffirm illegal contract for purchase of own stock and stockholder entitled to recover stock.</p> <p>Where a corporation makes an illegal contract to purchase its own stock from its stockholder, the company is entitled to disaffirm the contract, and on return of the stock to recover the consideration paid; likewise where the stockholder seeks to restore to •the company its improperly diverted funds, and to have returned to him the identical stock unlawfully acquired from him by the company, and this may be accomplished, the policy of the State is to be best subserved by granting relief to the stockholder (Post, pp: 127, 128.)</p> <p>Case cited and approved: St. Louis, Vandalia & Terre Haute R. Co. v. Terre Haute & I. R. Co., 145 U. S., 394.</p> <p>Case cited and distinguished: Harriman v. Northern Securities Co., 197 U. S., 244.</p> <p>7. CORPORATIONS. Defenses of ratification and estoppel not available to company sued by stockholder for rescission of purchase of own stock.</p> <p>In suit by a stockholder to rescind sale of his stock to the company, the defenses of ratification and estoppel cannot avail defendant company to supply its want of power to purchase its own stock; the conduct of the parties cannot be held to have the effect of legalizing that which the policy of the law declares illegal. {Post, p. 128.)</p> <p>Gbeen, J., and E. J. Smith, Special Judge, dissenting in part.</p>

FROM DAVIDSON. Bill in the chancery court of Davidson, county by C. Rnncie Clements and others against A. H. Roberts, Governor, and others, wherein an injunction was granted by Circuit Judge E. F. Langford, .and defendants petitioned Chief Justice Lansden for certiorari and su-persedeas. Complainant moved to have writs of certio-rari and supersedeas quashed, and the petition filed therefor dismissed.

<p>1. Courts. Case involving validity of joint resolution of legislature held witbin jurisdiction of supreme Court.</p> <p>Under Acts 1907, chapter 82, creating the court of civil appeals and reserving to the supreme court jurisdiction of cases involving the constitutionality of a State statute, a suit to enjoin the Governor and other State officers from certifying the adoption and ratification of a proposed amendment to the federal Constitution, on ground that the joint resolution ratifying it was contrary to the State Constitution, was within the jurisdiction of the supreme court and not of the court of civil appeals, in view of Constitution, article 3, section 18, recognizing the power of the legislature to pass joint resolutions. (Post, pp. 153-155.)</p> <p>Acts cited and construed: Acts 1907, ch. 82.</p> <p>Constitution cited and construed: Art. 3, sec. 18; Art. 2, sec. 32.</p> <p>2. CONSTITUTIONAL LAW. Jurisdiction of supreme court cannot be interfered with by other branches of State Government.</p> <p>The supreme court takes its rank from the Constitution, and it and its jurisdiction cannot be interfered with by the other branches of the government. (Post, pp. 155-158.)</p> <p>Cases cited and approved: Miller v. Coulee, 37 Tenn., 482; Dodds v. Duncan, 80 Tenn., 731; State v. Gannaway. 84 Tenn., 124; Chestnut v. McBride, 65 Tenn., 95; Neuman v. Scott County Justices 48 Tenn., 787; Ward v. Thomas, 42 Tenn., 565; Hund-hausen y. Marine Fire Ins. Co., 52 Tenn., 704; McBlwee v. McElwee, 97 Tenn., 657; Chattanooga v. Keith, 115 Tenn., 589.</p> <p>Cases cited and distinguished: Railroad v. Byrne, 119 Tenn., 320; Campbell County v. Wright, 127 Tenn., 6.</p>

<p>1. STATUTES. Legislative intent must he ascertained and given i effect, and in doing so act must he considered as a whole.</p> <p>It is the duty of the court, in the interpretation of statutes, to ascertain and give effect to the legislative intent, and in order to arrive at this purpose the court must consider the act as a whole. (Post, pp. 167, 168.</p> <p>Acts cited and construed: Acts 1919, ch. 110.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>2. STATUTES. All sections of Factory Inspection Act held germane to subject.</p> <p>The body of Acts 1919, chapter 110, known as the bureau of Workshop and Factory Inspection Act, does not contain two subjects, and does not violate Constitution article 2, section 17, although the act is both civil and criminal in its nature. (Post, p. 168.)</p> <p>Case cited and approved: State v. Yardley, 95 Tenn., 557.</p> <p>3. INSPECTION. Factory Inspection Act provision for Inspection fees held not violative of constitutional rule of uniformity in taxation.</p> <p>Legislature had right to require the payment of reasonable inspection fees for the purpose of providing a fund for defraying the cost of maintaining the bureau under Acts 1919, chapter 110, known as the Bureau of Workshop and Factory Inspection Act, and such act does not violate the uniformity of taxation requirement of Constitution article 2, section 28, merely because a surplus remains after the payment of all expenses. (Post, pp, 168-170.)</p> <p>Case cited and approved: Rhinehart v. State, 121 Tenn., 420,</p> <p>4. MASTER AND SERVANT. Factory Inspection Act constitutional. Acts 1919, chapter 110, known as the Bureau of Workshop and Factory Inspection Act, is not unconstitutional. (Post, p. 170.)</p>

<p>1. BANKS AND BANKING. CasMer not presumed to have communicated knowledge to Rank when interest antagonisitc.</p> <p>Where defendant gave a note to L., who was acting on behalf of his father, and the father, in subsequently selling the note to the bank of which L. was cashier, negotiated both with L. and the president of the bank, there was no presumption that L. communicated to the bank his knowledge of the facts out of which the note arose, as in assisting in the sale of the note for the benefit of his father he was acting in a capacity where his interest was antagonistic to that of the bank. {Post, pp. 175, 176.)</p> <p>Cases cited and approved: Provident, etc., Assurance Society v. Edmonds, 95 Tenn., 53; Wood v. Green, 131 Tenn., 583; Smith v. Bank, 132 Tenn., 147.</p> <p>2. PRAUDULENT CONVEYANCES. Grantee giving note by way of restitution liable to purchaser having knowledge of fraudulent transaction.</p> <p>If property was conveyed to defendant to prevent the grantor’s creditors from reach it, defendant could not escape liability on a note executed by him to the grantor by way of turning back to the grantor part of the proceeds of the lands, though a purchaser of the note knew of the fraudulent transaction, as the note was not in furtherance of the fraud but in disaffirmance thereof. {Post, p. 176, 179.)</p> <p>Cases cited and approved: Stanton v. Shaw, 62 Tenn., 12; Insurance Co. v. Walker, 116 Tenn., 1.</p>

<p>CRIMINAL LAW. Jury must fix sentence of one under 18 years of age.</p> <p>The jury must fix the sentence of one under 18 years of age convicted of crime, the Indeterminate Sentence Law haying no application to persons under the age of 18 years convicted of crime punishable by imprisonment in the penitentiary, under Shannon’s Code, Section 4433a5, 7202al, 7213; and a verdict which does not do so is void.</p> <p>Acts cited and construed; Acts 1913, ch. 8, sec. 1; Acts 1907, ch. 599; Acts 1829, ch. 23, sec. 7; Acts 1917, ch. 97, sec. 4.</p> <p>Cases cited and approved: Martin v. State, 130 Tenn., 509; Gass v. State, 130 Tenn., 581; State v. Ragsdale, 78 Tenn., 671; May-field v. State, 101 Tenn., 673; Fitts v. State, 102 Tenn., 141.</p> <p>Code cited and construed: Sec. 7202al, 7213, 4433a5 (S.)</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County. —HoN. John T. Lellyett, Chancellor.</p>

<p>1. BANKS AND BANKING. Bank held to become bailee of bond and not only box in which kept.</p> <p>Where purchaser of Victory Bond from bank understood the bond , was to be placed in her father’s tin box in the vault, but relied upon the promise of the bank president to take care of the bond for her and his assurance that it would bé safely kept, the bank clearly became a bailee of the bond itself, and not a bailee of the father’s box, and the bank was liable, if at all, for its loss by robbery, under Thomp. Shan. Code, section 2099, and not under sections 2100, 2102. (Post, pp. 193-194.)</p> <p>Cases cited and approved. Sawyer v. Old Lowell National Bank, 230 Mass., 342.</p> <p>Code cited and construed: Secs. 2099/2100, 2101, 2102, (T.-S.).</p> <p>2. BAILMENT. Care to be exercised by bailee.</p> <p>Bailee under a bailment for the sole benefit of the bailor is bound to use a degree of diligence and attention adequate to the performance of his undertaking, and care and diligence which would be sufficient as to goods of small value or of slight temptation rnigh^ be wholly unfit for goods of great value and very liable to loss and injury. (Post, pp. 194, 195.)</p> <p>Cases cited and approved: Jenkins v. Motlow, 33 Tenn., 248; Kirt-land v. Montgomery, 31 Tenn., 452; Colyar v. Taylor, 41 Tenn., 373; Mariner v. Smith, 52 Tenn., 203; Cicalla v. Rossi. 57 Tenn., 67; Ridenour.v. Woodward, 132 Tenn., 620.</p> <p>3. BANKS AND BANKING. Whether proper care was exercised as to bond deposited held for jury.</p> <p>In an action against a bank to recover the value of a Victory Bond left with the bank for safe-keeping and stolen by burglars, whether bank exercised proper care held for the jury. (Post, p. 196.)</p> <p>4. BANKS AND BANKING-. Usage and custom as affecting care exacted of bailee.</p> <p>Usage and custom in a particular business reflect on the care exacted of a bailee, but in an action against a bank to recover value of bond stolen from vault by burglars it was not competent to permit defendant to prove what one or two other banks may or may not have done toward safeguarding their valuables, the business policy of burglary insurance companies, nor advertisements of bank, where plaintiff relied wholly on personal assurances from the bank president. (Post. p. 196.)</p> <p>Cases cited and approved: Kelton v. Taylor, 79 Tenn., 264; Railway Co. v. Manchester Mills, 88 Tenn., 653.</p>

<p>1. STATUTES. Statutes levying taxes not extended beyond clear meaning and construed in favor of citizens.</p> <p>Statutes levying taxes will not be extended by implication beyond tbe clear meaning of the language used; all questions of doubt being resolved against the government and in favor of the citizens. (Post, pp. 209-212.)</p> <p>Acts cited and construed. Acts 1907, ch. 602;</p> <p>Cases cited and approved: Plow Co. v. Hays, 126 Tenn., 148; Memphis v. Bing, 94 Tenn., 644; English v. Crenshaw, 120 Tenn., 531; Bell v. Watson & Bro., 71 Tenn. 328; Druggist Cases, 85 Tenn., 449; Memphis v. Express Co., 102 Tenn., 336; Gulf Refining Co. v. Chattanooga, 136 Tenn., 505.</p> <p>Constitution cited and construed: Sec. 8, art. 1.</p> <p>2. TAXATION. Shares'of stock in mercantile corporation not assessable to individual shareholders where capital stock assessed to corporation itself.</p> <p>Under Acts 1907, chapter 602, section 24, providing that shares of stock in any bank, loan, insurance, investment, or cemetery company shall be taxed as the personal property of the stockholders, but that the assessment of such shares shall be in lieu of any assessment or taxation of the capital stock or corporate property of such corporation, section 8, subsec. 6, providing for the assessment of all shares of stock, except when the corporate property or capital stock is assessed in lieu thereof, as provided in sections 21 and 22, covering all corporations except tthose enumerated in section 24, and section 26, providing that mercantile corporations shall pay an ad valorem tax on their capital stock, shares of stock, in corporations enumerated in section 24 may be assessed in lieu of the assessment of the corporate property, but all the property of every other corporation, including its capital stock, is to he assessed to the corporation itself, so that shares of stock in such corporations are not assessable to the individual shareholders. (Post, pp. 212, 213.)</p> <p>3. STATUTES. , Construction of act -by assessors entitled to great weight.</p> <p>The construction placed on an act taxing the capital stock of corporations by those charged with the duty of assessing the taxes, in not attempting to assess the shares of stock to the shareholders, though not binding on the court, is entitled to great weight. (Post, v. 213.)</p> <p>Cases cited and approved: Plow Co. v. Plays, 125 Tenn., 148; Lodge v. Nashville, 127 Tann., 248.'</p> <p>4. TAXATION. Legislature may assess capital stock to corporation itself or share to shareholders inndividually.</p> <p>It is within the power of the legislature to assess the corporate property or capital stock of a corporation to the corporation itsell or to assess to the individual shareholders the value of the shares owned by them. (Post, p. 213.)</p> <p>Cases cited and approved: Bank v. Memphis, 101 Tenn., 154; Carroll v. Alsup, 107 Tenn., 257.</p> <p>Case cited and distinguished Fertilizer Co. v. McFall, 128 Tenn., 645.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Chancery Court of Hamilton County.— Hon. W. B. Garvin, Chancellor.</p>

<p>1. MUNICIPAL CORPORATIONS. Ordinance requiring flagman at crossing not void for failing to prescribe penalties.</p> <p>A provision of an ordinance, relating to the keeping of a flagman on duty at a railroad crossing, was not void because it failed to prescribe a penalty, and failure of railroad to observe it was negligence per se, even though the municipality could not enforce it by a criminal proceeding, the ordinance in question being designed for the protection of individuals, and not the municipality itself. (Post, pp. 229-231.)</p> <p>Case cited and approved: De Scheppers v. Railroad, 179 Ill. App., 298.</p> <p>Case cited and distinguished: Chicago etc., R. R. Co. v. Hines, 82, Ill., App., 488.</p> <p>2. RAILROADS. Ordinance limiting speed to four miles per hour not unreasonable.</p> <p>An ordinance cannot be held unreasonable simply because it limits the speed of trains to four miles an hour at a crossing within the city, since to justify courts in declaring void an ordinance limiting the speed of railroad trains within a city, its unreasonableness or want of necessity as a police regulation must be clear, manifest, and undoubted. (Post, pp. 231-232.)</p> <p>Cases cited and approved: Central R. & Bkg. Co. v. Brunswick, 87 Ga., 386; Gratiot v. Railroad, 116 Mo., 450; Louisville & W. R. Co., v. Webb, 90 Ala., 185.</p> <p>On excessiveness of verdicts in actions for personal injuries resulting in death, see note in L. R. A., 1916C, 810.</p> <p>3. RAILROADS. Negligence in backing train at unlawful speed over crossing without flagman held for jury.</p> <p>In action for damages arising from a collision between an automobile and defendant railroad’s train at a crossing in a city, neld that court did not err in not directing a verdict in favor of defendant upon a count of the declaration, alleging that the train was being backed over the crossing at a rate of speed in excess of that prescribed by an ordinance of the city, and without having flagman present as required by such ordinance. {Post, p. 232.)</p> <p>4. TRIAL. No direction of verdieu where material evidence conflicting</p> <p>There .can be no constitutional exercise of the power to direct a verdict in any case, where there is a dispute as to ■ any material evidence, or any legal douht as to the conclusion to be drawn from the whole evidence on the issues to be tried, but the case must go to the jury. (Post, p. 232.)</p> <p>Cases cited and approved: Tenn. Cent. R. R. Co. v. Morgan, 132 Tenn., 1; Norman v. Southern R. Co., 119 Tenn., 401; Kinney v. Y. & M; Y. R. R. Co., 116 Tenn., 460.</p> <p>5. TRIAL. On motion for directed verdict for defendant, view of evidence most favorable to be taken.</p> <p>In considering defendant’s motion for a directed verdict, that view of the evidence most favorable to plaintiff’s case must he taken by the court; and, if there is any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. {Post, p. 233.)</p> <p>Case cited and approved: Nashville v. Reese, 138 Tenn., 471.</p> <p>6. APPEAL AND ERROR. Finding -of jury on disputed questions of fact binding on supreme court.</p> <p>Finding of jury upon disputed questions of fact are binding on the supreme court. {Post, p. 233.)</p> <p>7. RAILROADS. Automobilist’s negligence held for jury.</p> <p>In an action for damages arising from collision between automobile and defendant’s train at' railroad crossing in ciiy, wneiner plaintiff was guilty of contributory negligence held for tbe jury. (Post, pp. 233-235.)</p> <p>8. NEGLIGENCE. Contributory negligence question for jury.</p> <p>Where there is a controversy in respect of facts, upon which the defense of contributory negligence is predicated, the question should be submitted to the jury. (Post, p. 235.)</p> <p>Cases cited and approved: La Follette, etc., R. Co. v. Minton, 117 Tenn., 415; Railroad v. Bohan, 116 Tenn., 271; Knoxville v. Cox, 103 Tenn., 368; Robertson v. Cayard, 111 Tenn., 356.</p> <p>9. DEATH. Beneficiary not prejudiced by contributory negligente of cobeneficiary.</p> <p>Contributory negligence of husband could not prejudice in any way minor children who were not at fault in an action to recover damages for wrongful death of wife and mother under Shannons Code, Sections 4029al, 4029a2. (Post, pp. 235, 236.)</p> <p>Acts cited and construed: Acts 1897, ch. 86.</p> <p>Case cited and approved: Anderson, Adm’r. v. Memphis Street Ry. Co., 227 S. W. 39.</p> <p>Code cited and construed: Secs, 4029al, 4029a2, (S.).</p> <p>10. DEATH. Burden of proving contributory negligence on defendant.</p> <p>In an action by husband to recover damages for wrongful death of wife, under Shannons Code, sections 4029al, 4029a2, the burden -of proof on the issue of contributory negligence of the husband is upon the defendant. (Post, p. 236.)</p> <p>11. RAILROADS. Automobilist’s violation of statute does not affect right to recover damages.</p> <p>Acts 1917, chapter 36, making it a misdemeanor for drivers of automobiles not to come to a full stop before crossing railroad tracks, cannot be construed as bearing on or in any way affecting the common-law right of recovery of litigants in damage suits, and court did not err in refusing to charge in a damage suit against a railroad that failure to stop constituted contributory negligence. (Post, pp. 236, 237.)</p> <p>Acts cited and construed: Acts 1917, ch. 36.</p> <p>12. DEATH. Instruction on damages for death of wife held not prejudicial error.</p> <p>In an action for wrongful death of wife Shannon's Code, sections was the pecuniary value of the life of deceased, and not any sen-4029al, 4029a2, an instruction, “If you find in favor of the plaintiff, it will he your duty to fix the amount of his recovery. The measure of the recovery would be reasonable compensation for the life of the deceased. In determining that, take into consideration her age, the state of her health, her expectancy of lire, of a person of her state of health and age, and let your verdict be for reasonable compensation,” held not prejudicially erroneous,, although the court should have charged the jury that the measure of damages was.the pecuniary value of the life of deceased, and not any sentimental value which the jury might place on the deceased’s life, and that it should be taken into consideration that at best the duration of life is uncertain. (Post, pp. 237, 238.)</p> <p>13. DEATH. $10,000 not excessive for death of wife.</p> <p>A verdict of $10,000 for the wrongful death of a wife and mother, 34 years of age, and in good health, was not the result of sentiment, nor excessive. (Post, pp. 237, 238.)</p>

<p>1. TRIAL. Jury trial in case brought in chancery court obtainable only by transfer to circuit court.</p> <p>Under Public Acts 1919, chapter 90, section 3, the only method whereby any party can obtain a jury trial in any cause brought in the chancery court is to hare the cause transferred to the circuit court, and the only way in which such action can be had is upon the application of the defendant, who demands a jury in his first pleading, and then only in a case of which the chancery court has jurisdiction by virtue of the Acts of 1877, chapter 97. {Post, p. 244.)</p> <p>Acts cited and construed: Acts 1919, ch. 90, sec. 3; Acts 1877, ch. 97.</p> <p>Code cited and construed: Secs. 6282, 6287 (S.).</p> <p>2. EQUITY. Chancery acquired jurisdiction of suit to set aside fraudulent conveyance under Acts 1851-52, chapter 365.</p> <p>The chancery court did not acquire jurisdiction of a suit to recover $3,000 on a promissory note, where an alleged fraudulent conveyance was sought to be set aside, by virtue of Acts 1877, chapter 97, jurisdiction of the court to hear and determine a case of such character having been conferred by Acts 1851-62, chapter 365, carried into Code of Tennessee of 1858, at sections 4288-4295, (Shannon’s Code, sections 6097-6101). (Post, pp. 244-246.)</p> <p>Acts cited and construed: Acts 1851-52, ch. 365; Acts 1919, sec. 3.</p> <p>O'.se cited and approved: McKeldin v. Gouldy, 91 Tenn., 677.</p> <p>Code cited and construed: Secs. 4288 to 4295, (S.).</p> <p>3. CONSTITUTIONAL LAW. Unambiguous statute cannot be given other interpretation merely to bring it within constitutional limitation.</p> <p>It is the duty o'f the supreme court, where a statute is susceptible of two interpretations, one in harmony with and me other in violation of constitutional provisions, to give it an interpretation in harmony with the Constitution, but such principle does not authorize the court to give to an act a given interpretation merely to bring it within a constitutional limitation; where the act is unambiguous, it must be given its plain meaning, whatever the consequences as tested by the Constitution. (Post, pp. 246, 247.)</p> <p>4. JURY. Constitutional guaranty does not cover cause of which chancery . court has jurisdiction.</p> <p>The constitutional provision that the right of trial by jury shall remain in state does not guarantee the right of trial by a jury in any cause of which the chancery court has jurisdiction, exercise according to the forms by which such courts are accustomed to administer remedies. (Post, pp. 247-254.)</p> <p>Acts cited and construed: Acts 1845-46, ch. 122; Acts 1847-48, ch. 55.</p> <p>Cases cited and approved: Miller v. Washington County, 226 S. W-199; Castle v. Lawlor, 47 Conn., 340; Chumasero v. Potts, 2 Mont., 242; State v. Suwannee County Com’rs. 21 Fla., 19; Dutten v. Village of Hanover, 42 Ohio, St., 215; People v. Judge, 9 Cal.. 19; Goddard v. State, 10 Tenn., 96; Kirkpatrick v. State, 19 Tenn., 124.</p> <p>Cases cited and distinguished: Jackson v. Nimm, 71 Tenn., 697; Woods v. State, 130 Tenn., 100; State v. Sexton, 121 Tenn., 36; Neely v. State, 63 Tenn., 174; Marler v. Wear, 117 Tenn., 244; McGinnis v. State, 28 Tenn., 43; Tipton v. Harris, 7 Tenn., 414.</p> <p>5. JUEY. Trial. Eight of trial by jury in suit to set aside fraudulent conveyance not guaranteed by Constitution.</p> <p>In suit on a note, wherein it was sought to set aside a fraudulent conveyance, the case being one of an equitable nature in which the rights and remedies were to be worked out according to the procedure of the chancery court, the right of trial by jury was not guar-teed by the Constitution, and Public Acts, 1919, chapter 90, section 3, abolishing jury trials in the chancery court, and having the effect to deny entirely jury trial in the particular case because the court did not have jurisdiction of the suit under Acts 1877, chapter 97, to make the case transferable to the circuit court, is not unconstitutional. (Post, p. 254.)</p>

FROM LAKE. Appeal from the Chancery Court of Lake County.— TToN. V. IT. Holmes, Chancellor. This case was disposed of at the April term, 1920, hut opinion not written and filed until April 30, 1921.

<p>1. APPEAL AND ERROR. Statute construed as not including appeals ' from dissolution or dismissal of injunction.</p> <p>Shannon’s Code, section 4'889, providing that the chancellor may in his discre'ion allow an appeal from his decree in equity, makes no express provision for- an appeal from the dissolving or dismissing of an injunction, and the appeals under such Code section are limited to the cases, therein enumerated. (Post, pp. 270, 271.)</p> <p>Case cited and distinguished: Indemnity Co. v. Willard, 125 Tenn., 291.</p> <p>Code cited and construed: Sec. 4889 (S.).-</p> <p>2. APPEAL AND ERROR. Order dissolving' and dismissing injunction held final decree.</p> <p>Where the only relief sought hy a bill was an injunction, the chancellor’s dissolution and dismissal of the injunction was a final decree, adjudicating the merits and leaving nothing for future determination, so that the appeal therefrom to the court of civil appeals was not premature, and such court had jurisdiction. (Post, pp. 271-277.) .</p> <p>3. APPEAL AND ERROR. Decree is “final” where adjudication of costs is only thing left.</p> <p>A decree will be treated as final, and an appeal entertained only Where there is nothing left for future determination except adjudication of costs. (Post, pp. 271-277.)</p> <p>4.INJUNCTION. If the hill contains no equity, the better practice is to dismiss it, rather than dissolve the injunction.</p> <p>Where an injunction is the only remedy sought, and the chancellor is of the opinion that the bill contains no equity, the better- practice is to dismiss the bill, so that complainant can appeal and have the sufficiency of his pleading tested in the higher court, and if , the bill states a good cause of action and its allegations are put in issue by the answer, and the injunction is the remedial part of the hill, it should not he dissolved in advance of a hearing on the merits. (Post, pp. 271-277.)</p> <p>Cases cited and approved: Darlington Oil Co. v. P. D. Oil Co., 62 S. C., 196; Paul v. Munger, 47 N. Y„ 469; State v. Judge of Fourth District Court, 23 La. Ann., 151; Smith v. Sahler, 1 Neb. 310; Trustees v. Davenport, 7 Iowa, 213; Titus v. Mabee, 25 Ill., 232; Prout v. Lomer, 79 Ill. 331; Jacobi v. Schloss, 47 Tenn., 385; Foley v. Leath, 3 Shan. Cas., 353; Indemnity Co. v. "Willard, 125. Tenn., 288; Maupin v. Whitcon, 49 Tenn., 2.</p> <p>Case cited and distinguished: Brown v. Wright, 1 Tenn., ch. App., 153.</p> <p>Code cited and construed: Sec. 4938 (S.).</p>

<p>1. ARSON. Defendant who burned property with intent to injure insurer guilty whether or not he could have realized on policy.</p> <p>Where defendant believed that the property burned by him, consisting of the stock and fixtures of a restaurant which he operated, was insured, and acting under such belief, with intent to injure the insurer, he burned the property, he was guilty of a violation of Thomp-Shan. Code, section 6533, whether or not he could have realized on his policy. (Post, p. 280.)</p> <p>Code cited and construed: Sec. 6533 (T.-S.).</p> <p>2. ARSON. No offense at common law to burn one’s own insured property.</p> <p>At common law it was' no offense to burn one’s own properety, even though the property was insured. (Post, pp. 280, 281.)</p> <p>Cases cited and approved: Roberts v. State, 47 Tenn., 359; McDonald v. People, 47 Ill.. 533; Arnold v. State. 74 Tex. Cr. R., 269; People v. Morley, 8 Cal. App., 375; '</p>

<p>1. DEATH. Widow not entitled to Whole amount recovered for husband's death.</p> <p>Under Code 1858, sections 2291-2293 (Thomp.-Shan. Code, sections 4025. 4028), the widow was not entitled to the whole of the fund ; received by her as administratrix from the tort-feasor on account of her husband’s death, but such fund went to her and the children in equal parts. (Post, p. 289.)</p> <p>Acts cited and construed: Acts 1851-52, ch. 17; Acts 1871, ch. 78.</p> <p>Case cited and approved: Railroad v. Davis, 104 Tenn., 442.</p> <p>Cases cited and distinguished: Collins v. E. T.. V. & G. R. Co.,56 Tenn., 841; Trafford v. Adams Express Co., 76 Tenn., 96; Sample v. Smitii, 1 Shannon’s Cas.. 284.</p> <p>Codes cited and construed: Sec. 4025 (T.-S.); Sec. 2293 (S.); Secs, 4025. 4028 (T. S.); Sec. 2293 (1858).</p> <p>2. EXECUTORS AND ADMINISTRATORS. Damages for husband’s death not subject to widow’s year’s allowance.</p> <p>Fund received by widow as administratrix from tort-feasor on ao* count of husband’s death, under Code 1858, sections 2291-2283 (Thomp.-Shan. Code, sections 4025, 4028), was not subject to her year’s allowance; only the assets of a deceased husband going into the hands of the administratrix or executor subject to the payment of debts being open to diminishment by such allowance. (Post, p. 289.)</p> <p>Cases cited and approved: Agee v. Saunders. 127 Tenn., 680; Combs v, Combs. 131 Tenn., 66; Haynes v. Walker, 111 Tenn.. 107.</p> <p>Code cited and construed: Sec. 4028 (T.-S.).</p> <p>3. STIPULATIONS. Counsel after agreement to submit case without proof cannot*say chancellor improperly disposed of it on record.</p> <p>Where the case was submitted to the chancellor without proof by , the agreement of counsel, after making such a stipulation counsel are not in a position to say tile chancellor improperly disposed of the case on the record submitted to him, and to insist on a rehearing in order to submit proof. (Post, pp. 289-290.)</p> <p>4. EQUITY. Question of granting rehearing within discretion of chancellor.</p> <p>The question of granting plaintiff a rehearing to permit her to show that she invested all the money received by her on account of her husband’s death in a farm and its equipment, title to which she took to herself for life, with remainder to the children, was within the discretion of the chancellor in her suit wherein her second husband joined to recover part of the proceeds of settle ment for her husband’s death paid over the to the guardian of the children. (Post, pp. 289-290.)</p> <p>5. PATENT ANÍ) CHILD. Support not chargeable against children’s interest in recovery for father’s death,</p> <p>Expenses incurred by a widow in supporting her children cannot be charged against the children’s interest in recovery obtained by the widow on account of her husband’s death. (Post, p. 290.)</p> <p>Case cited and approved: Hollingsworth v. Beaver, 59 S. W., 464,</p>

<p>1. TAXATION. Property used “purely” and “exclusively” for religious, charitable, and like purposes exempt from taxation.</p> <p>Under Constitution article 2, section 28, providing that property used for purpose “purely” religious, charitable, scientific literary, or educational may be exempted from taxation, and Acts 1907, chapter 602, section 2, subsection 2, exempting such property when used “exclusively” for the purpose for which the institution was created, all property is exempt from taxation, which is used exclusively for religious, charitable, scientific, or educational purposes; the words “purely” and “exclusively” being synonymous and requiring that the property be used wholly for the purposes mentioned, and not to any extent, for gain or profit, unless the gain or profit be used for the purposes mentioned. {Post. p. 296.)</p> <p>Acts cited and construed: Acts 1907, ch. 602, sec. 2, subsec. 2; Acts 1875, eh. 142, sec. 1, par. 4.</p> <p>Cases cited and approved: Ward Seminary v. Nashville, 129 Tenn., 412; Cumberland Lodge v. Nashville, 127 Tenn., 248.</p> <p>Case cited and distinguished: M. E. Church South v. Hinton, 92 Tenn., 190.</p> <p>Code cited and construed: Sec. 2513 (5) (S.);</p> <p>Constitution cited and construed: Art. 2, sec. 28.</p> <p>2. TAXATION. Chamber of Commerce not exempt as charitable or educational institution.</p> <p>A Chamber of Commerce, though not a corproation for profit, cannot claim the benefit of the exemption from taxation extending to religious, charitable, scientific, or educational institutions; the mere fact that it administers to charity or gives, educational instruction along certain lines not rendering it an educacional or charitable institution, its primary object, a= stated in its charter being to promote the business and commercial interest of the city. (Post, pp. 296, 297.)</p> <p>Case cited and approved: Tri-State Fair v. Rowton, 140 Tenn., 304.</p>

<p>DISMISSAL AND NONSUIT. Plaintiff may take nonsuit “at any time before the jury retires,” though motion for directed verdict sustained.</p> <p>Under Shannon’s Code, section 4689, providing that tne plaintiff may, “at any time before the jury retires,” take a nonsuit, plaintiff may take a nonsuit after a motion for a directed verdict has been sustained; “at any time before the jury retires” meaning before the jury has "begun to consider of their verdict.”</p> <p>Cases cited and approved: Partlow v. Elliott, 19 Tenn., 547; Railroad v. Sanson, 113 Tenn., 683; Donaghy v. McCorkle, US Tenn., 77; Dodd v. Railroad, 120 Tenn., 446; Cunningham v. Terminal Co., 126 Tenn., 356; Hendrick v. Stewart, 1 Tenn., 476; Brackin v. McGannon. 137 Tenn., 207; Spankle v. Meyernick. 4 Tenn., 'Civ. App., 515; Daube v. Kuppenheimer, 272 Ill., 350; Haile v. Mason Hotel Co., 71 Fla., 469; Arpy v. Iowa Brick Mfg. Co., 150 Iowa, 431; Malone v. Erie R. R. Co., 90 N. J. Law. 350; Hall v. Chess & Wymond Co., 131 Ark.. 36; Gulf & S. I. R. Co. i. Williams, 109 Miss., 429; Van Sant v. Wentwórtn, 60 Ind. App., 591; Chicago, M. ■& St. P. Ry. Co. v. Metalstaff et al., 101 Fed., 769.</p> <p>Cases cited and disapproved: Turner v. Pope Motor Car Co., 79 Ohio St. 153; Barrett v. Virginia Ry. Co., 244 Fed. 397; Bee Building Co. v. Dalton. 68 Neb., 38.</p> <p>Code cited and construed: Sec. 4689 (S.).</p>

<p>1. DIVORCE. Decree for alimony, made without reserve, cannot he changed after it becomes final.</p> <p>A decree for alimony in a case of divorce a vinculo, made without reserve, though payable in installments, cannot be changed or altered after it becomes final, which is after the adjournment of the court, consequently, where there was no reservation of the right to modify, a decree for alimony payable in installments cannot be modified more than a year after rendition. (Post, pp. 308, 309.)</p> <p>2. DIVORCE. Judgment for alimony becomes final after term of court at which rendered.</p> <p>A judgment for alimony in an action for divorce a vinculo becomes final after the term at which it was rendered. (Post, pp. 308, 309.)</p> <p>Cases cited and approved: Mayer v. Mayer, 154 Mich., 386; Sampson v. Sampson, 16 R. I., 456; Livingston v. Livingston, 173 N. Y., 377; Kamp v. Kamp, 59 N. Y., 220; Erkenbrach v. Erkenbrach, 96 N. Y., 456; Ruge v.Ruge, 97 Wash., 51.</p> <p>3. DIVORCE. Decree awarding alimony in conjunction with divorce a mensa et thoro may be modified.</p> <p>Decree allowing alimony in connection with divorce a mensa et thoro may be changed after expiration of the term at whicn the decree was rendered without statutory authority or reservation of power to modify, inasmuch as power to amend such award existed at common law. (Post, p. 309.)</p> <p>4. APPEAL AND ERROR. Divorce. On appeal from decree of chancellor respecting alimony, bond must be executed;. no complaint of error in appellant’s favor. Shannon’s Code, section 4896, declaring that, where decrees are for a specific sum of money, the appeal bond shall he for the amount of the claimed damages and costs, has reference to decrees for alimony of the chancery court; so, where alimony was due from petitioner, who unsuccessfully sought modification of the decree, petitioner, who was allowed to deposit note in lieu of giving bond, etc., cannot complain of the requirement. (Post, pp. 309, 310.)</p> <p>Cases cited aand approved; Bilbo v. Allen, 51 Tenn., 31; Chenault v. Chenault, 5 Sneed, 248,</p> <p>Code cited and construed: Sec. 4896 (S.).</p>

<p>1. DIVORCE. Omission of complainant to procure indorsement of divorce, proctor held cured.</p> <p>Where complainant filed hill for divorce without procuring an acknowl-edgement of service on the divorce proctor, pursuant to Public Acts ■ 1915, chapter 121, providing that it shall be the duty of the divorce proctor to appear at the trial for every bill of divorce, and that it shall be his duty to acknowledge service of every oill of divorce, yet, where the indorsement was subsequently made before the case was tried, and defendant answered before he questioned the omission, the proceeding cannot be treated as void; the divorce proctor appearing and advising the court. (Post, pp. 314, 315.)</p> <p>Acts cited and construed: Acts 1915, ch. 121.</p> <p>2. DIVORCE. Wife held entitled to one-third of husband’s income as alimony.</p> <p>Where a husband cruelly and inhumanly treated his wife and deserted her after she reached middle life, the parties having lived together more than twenty years, the wife is entitled to one-third of the husband’s income as alimony. (Post, pp. 315-318.)</p> <p>3. DIVORCE. In view of the properties of the spouses and the earnings of the husband, held, that the wife was entitled to alimony at the rate of $1,500 a year.</p> <p>Where a dentist, whose income amounted to over $5,000 a year, but who had no considerable amount of property, wrongrully deserted his middle-aged wife, held, in view of the small amount of property which had been conveyed by the dentist to her, the wife was entitled to alimony at the rate of $1,500 per year, payable monthly; it being impracticable to make an award, of alimony in solido, (Post, pp. 315-318.)</p> <p>Cases cited and approved: Watson v. Campodonico, 3 Tenn. Civ. App., 698.</p> <p>Case cited and distinguished: Winslow v. Winslow, 133 Tenn., 666.</p> <p>4. DIVORCE. Wher¿ monthly alimony is awarded, cause should he retained on docket.</p> <p>Where monthly alimony is awarded, the case should he retained on the/docket of the trial court for further orders, to meet any ex-i • / igencies arising. (Post, p. 318.)</p> <p>Case cited and approved: Going v. Going, 232 S. W., 443.</p> <p>5. DIVORE. In divorce case, fees for counsel representing wife on appeal may he fixd hy the appellate court:</p> <p>In a divorce suit, where the trial court allowed counsel Tees, out ait , appeal was taken hy the husband, either the fees for services oi counsel on appeal may he fixed hy the appellate court, or the case may he remanded for the purpose of having fees determined. (Post, pp. 318, 319.)</p> <p>Case cited and approved: Shy v. Shy, 54 Tenn., 125.</p>

<p>1. SHERIFFS AND CONSTABLES. Statute imposing penalty for failure to mark on proces day received hy officer applies to writ of replevin issued hy justice.</p> <p>Shannon’s Code, section 4524, providing that the clerk, justice, or attorney issuing any process shall mark thereon the.day on which the same is issue, and that the officer into whose hands the same shall come to he executed shall, in like manner, mark thereon the day on which he shall have received it, etc., as originally enacted in 1794 (Acts 1794, chapter 1, section 9),.did not contain the word “justice.” The word “justice” was added in Code 1858, at which time justices of the peace had authority to issue writs of re-replevin. Held, that in a an action against constable for failure to indorse on a writ of replevin the date received, recovery could not he denied on the theory that the statute had no application to writs of replevin issued by a justice. (Post, p. 223.)</p> <p>Acts cited and construed: Acts 1794, ch. 1, sec. 9.</p> <p>Code cited and construed: Sec. 4524 (S.).</p> <p>2. STATUTES. “Penal statutes’’ and “remedial statutes’’ distinguished.</p> <p>Strictly and properly speaking, “penal statutes” are those imposing punishment for an offense committed against the State,'hut the . term has been enlarged to include all statutes which command or-prohibit acts and establish penalties for their violation to be recovered for the purpose of enforcing obedience to the law and punishing its violation; hut, if the recovery of the penalty by an individual is permitted as a remedy for the injury or loss, the statute is “remedial.” (Post, pp. 223, 324.) ,</p> <p>3. SHERIFFS AND CONSTABLES. Act requiring officers to indorse on writ date receipt remedial.</p> <p>Shannon’s Code, section 4524, requiring the sheriff or other officer into whose hands process shall come to he executed to mark thereon the day on which he shall have received it, and providing a penalty of $125 for neglect to he recovered hy any person who shall sue for the same, is remedial rather than penal in its nature, the purpose of the act being to give damages to person injured hy the neglect of the sheriff or other officer, consequently, where the failure of a constable to indorse on the writ of replevin the date of receipt caused no injury, there can he no recovery. (Post, pp. 324-326.)</p> <p>Acts cited and construed: Acts 1865-66, ch. 15.</p> <p>Cases cited and distinguished: Elliot & Co. v. Jordan, 66 Tenn., 376; Parks v. Railroad Co., 81 Tenn., 1.</p>

<p>1. ACTION. Will not lie to construe deed involving future rights, where title not disputed.</p> <p>Where, after the proposed purchaser of property had objected to the title, the seller filed a bill of construe a deed under which he claimed, and which provided for a life estate in the seller on certain conditions, and that if the seller “should die without issue leaving no children surviving” the property was to revert to the grantor’s heirs, the chancery court was without jurisdiction to decree a construction of the instrument, since it would involve a declaration of future rights, and since no one was disputing complainant’s title. (Post, pp. 334-336.)</p> <p>Case cited and approved: Crosse v. De Valle, 1 Wall., 1, 15.</p> <p>Cases cited and distinguished: Meacham v. Graham, 98 Tenn., 197: Prichitt v. Kirkman, 2 Aenn., ch. 390; Langdale v. Briggs, 39 Eng. L. & Eg., 214; McCall v. McCall, 1 Tenn., ch., 500; Chichamauga Trust Co. v. Lonas, 139 Tenn., 235.</p> <p>2. LIFE ESTATE. Life tenant held not entitled to sell premises.</p> <p>Where, after the proposed purchaser of property had objected to the ' title, the seller filed a bill to construe a deed under which he claimed, and which provided for a life estate in the seller on certain conditions, and that if the seller “should die without issue leaving no children surviving,” the property was to revert to the grantor’s heirs, the court would not pass upon the question as to whether the seller only had a life estate, nor as to the direction of the disposition of the funds from the sale, since, even if the seller were a mere life tenant, she would have no legal right to have the property sold. (Post, p. 336.)</p> <p>Case cited and approved: McConnell v. Bell, 121 Tenn., 198.</p>

<p>1. APPEAL AND ERROR. Finding on conflicting evidence not reviewable.</p> <p>The trial court’s decision on the facts on conflicting evidence will not be reviewed by the Supreme Court. (Post, p. 341.)</p> <p>2. JUSTICES OF THE PEACE. No appeal on pauper’s oath where defendant worth more than $5,000.</p> <p>On defendant’s appeal to the circuit court from judgment by a justice of the peace, on a pauper’s oath, conclusive proof that defendant had property worth more than $5,000 held to establish the falsity of his affidavit of poverty. (Post p. 341.)</p> <p>3. JUSTICES OF THE PEACE. Pauper’s oath itself not considered as evidence on question of its truth or falsity.</p> <p>On appeal to the circuit court from justice of tiie peace upon a pauper’s oath, the pauper’s oath itself cannot be considered as evidence on the question of truth or falsity of affidavit of poverty. (Post, p. 341.)</p> <p>4. JUSTICES OF THE PEACE. Burden of proving falsity of defendant’s affidavit of poverty on plaintiffs.</p> <p>On defendant’s appeal upon a pauper’s oath to the circuit court from judgment by a justice Of the peace, the plaintiffs had the burden of proving the falsity of the affidavit of poverty. (Post, p.341.)</p> <p>Codes cited and construed: Sec. 4932 (S.); Sec. 3194 (Tenn).</p> <p>5. STATUTES. Interpretation of Code section aided by reference to original act.</p> <p>The interpretation of a section' of the Code may be aided by reference to the words of the original act. (Post, pp. 341, 342.)</p> <p>Acts cited and construed: Acts 1821, ch. 22.</p> <p>6. JUSTICES OF THE PEACE. Court required to dismiss appeal on pauper’s oath on conclusive showing of falsity of affidavit of poverty.</p> <p>On appeal on pauper’s oath, where, falsity of oath of poverty is conclusively shown, the court is required to dismiss the appeal under Shannon’s Code, section 4932, providing that where it is made to appear to the court by testimony of disinterested persons that the allegation of poverty is probably untrue, or the cause of action frivolous or malicious, the action “may be dismissed,” since the court in such case could not by arbitrary exercise of discretion decline to do that which the proof showed ought to be done, but was required to decide the question in the same manner as any other question coming before it for decision, subject to a review of its decision by an appellate court, in view of the legislative history, of such statute. (Post, pp. 342, 343.)</p> <p>7. JUSTICES OF THE PEACE. Statute as to appeal on pauper’s oath liberally construed in favor of poor person.</p> <p>Shannon’s Code, section 4932, relating to appeal on pauper's oath, will be liberally construed in favor of the rights of poor persons. (Post, p. 343.)</p>

<p>APPEAL AND ERROR. Allowance by chancellor of attorney’s fee not disturbed.</p> <p>Where a chancellor allowed an attorney’s fee of $2,000 for services performed in an action to have a will construed and an estate settled, and where the services were performed under the eye of the chancellor, who is in a position to appraise the worth of a lawyer’s services, and there is a difference of opinion among the lawyers testifying, the allowance by the chancellor will not be disturbed.</p> <p>Case cited and approved: Bank v. Wood, 125 Tenn., 6.</p>

<p>1. CORPORATIONS. Foreign corporation cannot sue until it complies with statutes; “doing business.’’</p> <p>Although- Acts 1877, chapter 31, Acts 1891, chapter 122, and Acts . 1895, chapter 81, concerning terms on which corporations can carry on business in the State, were passed as a matter of public policy, and not for the benefit of parties sued, before a foreign corporation can sue on a contract made and performed while it was unauthori-sed to do business in the State in the courts of the State, it must comply with the statutes concerning transaction of business within the State by foreign corporations. (Post, p. 353.)</p> <p>Acts cited and construed: Acts 1877, ch. 31; Acts 1891, eh. 122; Acts 1895, ch. 81.</p> <p>Cases cited and approved: Lumber Co. v. Thomas, 92 Tenn., 587; Harris v. Light Co., 108 Tenn., 245; Lumber Co. v. Moore, 126 Tenn., 313; Cunnyngham v. Shelby, 136 Tenn., 176; Association v. Cannon, 99 Tenn., 344; Insurance Co. v. Kennedy, .96 Tenn., 711; Property Co. v. Nashville, 114 Tenn., 213; Heating Co. v. McKnight, 140 Tenn., 564.</p> <p>2. CORPORATIONS. “Doing business’’ is transaction of ordinary-business continuous in character.</p> <p>A corporation is “doing business” in a State when it transacts therein some substantial portion of its ordinary business, continuous in character, as distinguished from merely casual or occasional transactions. (Post, pp. 353, 355.)</p> <p>Cases cited and approved: Amusement Co. v. Albert, 128 Tenn., 417; Holder v. Aultman, Miller & Co., 169 TJ. S., 81.</p> <p>3. COURTS. Whether transaction is interstate commerce held a federal question. '</p> <p>Whether a transaction by a foreign corporation is interstate commerce, as distinguished from business done in the State, is a federal question, on which decisions of the federal Supreme Court are conclusive. (Post, p. 355.)</p> <p>Case cited and approved: Heating and Ventilating Co. v. McKnight & Merz, 140 Tenn., 563.</p> <p>4. CORPORATION'S: Contract made in one State, subject to approval by one party in another, held interstate business.</p> <p>Where contract to appraise property in Tennessee was made in Tennessee by an Illinois corporation, and before becoming valid had to be approved at the office of the Illinois corporation in Chicago, thé transaction was interstate business and was not a transaction of business in the State of' Tennessee within the statutes respecting foreign corporations. (Post, p. 355.)</p> <p>5. CORPORATIONS. Transaction of intrastate business in other! matters without complying wih statutes held not to prevent suit on interstate business.</p> <p>Although a foreign corporation is guilty of carrying on business within the State without complying with the statutes, it is not precluded by this from suing in the State courts on a contract constituting interstate business. (Post, pp. 355, 356.)</p> <p>Case cited and approved: Mertins .v._Hubbell Publishing Co., 190 Ala., 311.</p> <p>6. CONTRACTS. Evidence held to show a meeting of minds concerning appraisement of property.</p> <p>In an action for the agreed price of services under a contract for the appraisement of certain property, evidence held to show that the minds of the parties met concerning the appraisement of all the property involved. (Post, pp. 356, 358.)</p> <p>7. CONTRACTS. Evidence held to show sufficient meeting of minds on nature of services to be performed.</p> <p>In an action on a contract for the appraisement of certain property, evidence held, to show a sufficient meeting of the minds of the parties on the nature and character of the service to he performed. (Post pp. 358, 359.)</p>

<p>1. VEND OK AND PURCHASER. Purchaser required to prove sale by acre instead of in gross by clear evidence in view of recitals in purchaser-money note and deed.</p> <p>Where the purchaser-money note and the deed described . land as being seven hundred fifty acres, more or less, the purchaser, to defeat recovery by vendor of full amount of stipulated purchase price because of deficiency in acreage, was required to prove that the sale was the sale by the acre at a given price per acre instead of in gross by clear and unmistakable evidence. (Post, pp. 368-379.)</p> <p>Case cited and distinguished: Caughron v. Stinespring, 132 Tenn., 636.</p> <p>2. VENDOR AND PURCHASER. Evidence held insufficient to prove sale one by acre instead of in gross.</p> <p>Evidence held insufficient to prove that conveyance of land described in deed as seven hundred and fifty acres, more or less, was a sale by the acre for specified amount per acre, instead of in gross. (Post, p. 379.)</p> <p>3. VENDOR AND PURCHASER. Purchaser’s cross-bill complaining of deficiency in acreage held to plead willful misrepresentation, and not mutual mistake.</p> <p>In vendor’s action for balance of purchase price, purchaser’s cross-bill complaining of deficiency in acreage held to plead willful misrepresentation by vendor as to amount of land, and not mutual mistake. (Post, pp. 379-383.)</p> <p>Case cited and approved: Caughron v. Stinespring, 132 Tenn., 636.</p> <p>Case cited and distinguished: Bigham v. Madison, 103 Tenn., 358.</p> <p>4. VENDOR AND PURCHASER. Deficiency in acreage no ground for relief where sale was in gross.</p> <p>Where purchaser rode over the farm before the purchaser thereof, and there was no mutual mistake as to the boundaries of the farm and no examination by purchaser of land which he did not subsequently receive, a mere mistake as to the quantity of land em- • braced within the boundaries, in that it contained only six hundred eighty-five acres, though described in deed as seven hundred fifty acres, more or less, was not ground for relief, where the sale was in gross instead of a sale by acre, in the absence of fraud or misrepresentation. (Post, pp. 383, 384.)</p> <p>Case cited and distinguished: Shields v. Thompson, 63 Tenn., 227.</p> <p>5. VENDOR AND PURCHASER. Discrepancy of 66 acres in supposed tract of seven hundred fifty acres held not so great as to shock conscience.</p> <p>Discrepancy of sixty-six acres in supposed tract of seven hundred fifty acres held not so great as to shock the conscience and entitle the purchaser to recover on the ground of fraud. (Post, pp. 384-394.)</p> <p>Cases cited and approved: Adams v. Brown, 63 Tenn., 124; Allison v. Allison, 9 Tenn., 16; Witherspoon v. Porter, 1 Shan. Cas., 666; Myers v. Lindsay, 73 Tenn., 331; Hillis v. Martin, 2 Shan Cas., 273; Deakins v. Alley, 77 Tenn., 494; State, to the use, etc., v. Keller, 79 Tenn., 399; Caughron v. Stinespring, 132 Tenn., 636# Hendrick’s Heirs v. Mosley, 11 Tenn., 74; Waters v. Hutton, 83 Tenn., 109.</p> <p>Cases cited and distinguished: Rich v. Scales, 116 Tenn., 57; Hendrick’s Heirs v. Mosley, 11 Tenn., 74; Neal v. Allison, 1 Shan. Cas., 146; Horn v. Denton, 34 Tenn., 125; Miller v. Bentley, 37 Tenn., 671; Barnes v. Gregory, 38 Tenn., 230; Bradley v. Dib-brell, 50 Tenn., 522; Moses v'. Wallace, 75 Tenn., 413; Waters v. Hutton, 85 Tenn., 109.</p>

<p>1. DAMAGES. Contract designated as an “option” held in effect a sales contract entitling purchaser on default to recovery of payments, provision of forfeiture of which was in effect a penalty.</p> <p>A contract designated an “option,” reciting that certain parties wished to purchase the property for a specified price, payable a part in cash and the balance in ninety-four monthly installments, purporting to give them “the right and option at any time within ninety-four months to buy and pay for” such property, and providing that, if they should at any time elect not to exercise their option to buy the property, and should fail to make the payments provided for, or any of them, which failure should operate as an election not to purchase, the possession of the property should be surrendered to the other party to the contract, and at its request the sums paid should be treated as compensation for the use of the property and the price of the option, and as liquidated damages, held, in effect a sale contract with provision for forfeiture of possession, entitling the purchasers on declaration of the forfeiture to a recovery of the, money paid as well as amounts paid for taxes and insurance subject to a credit for reasonable rents; the provision as to vendor’s retention of money paid being a mere penalty. (Post, pp. 402, 403.)</p> <p>2. ASSIGNMENTS. Of rights under contract to vendor held void.</p> <p>Assignment by purchasers who had paid more than $700 toward the purchase of the property to the vendor on vendor’s payment to purchasers of $5 held void, since, if such payment was a mere gratuity given purchasers to enable them to move the assignment was without" consideration, and, if it was in fact the consideration for the assignment, it was grossly and shockingly inadequate. (Post, pp. 404, 405.)</p>

<p>1. INSANE PERSONS. Evidence held to show party to sale of corporate stock insane.</p> <p>Evidence held to show that an owner’s mental condition was such as to render him incapable of making a valid contract, and that such condition was so pronounced as to be apparent to any one dealing with him. (Post, pp. 422-432.)</p> <p>2. INSANE PERSONS. Judgment of insanity held prima-facie evidence thereof at date of sale of stock owned by insane person.</p> <p>A judgment declaring a person insane is conclusive evidence thereof at the date of the judgment, and prima-facie evidence of such fact from the time the jury found him to have become insane until the date of the judgment, so that where, during such period, stock owned by him jointly with another was sold by the latter in then-joint behalf, such judgment was prima-fapie evidence of his insanity when the sale was made. (Post, pp. 422-432.)</p> <p>Case cited and approved: Bond v. State, 129 Tenn., 75.</p> <p>3. INSANE PERSONS. Contract prior to adjudication of insanity and appointment of guardian is voidable.</p> <p>The contract of an insane person made prior to an adjudication of his insanity and the appointment of a guardian is voidable. (Post, p. 432.)</p> <p>4. INSANE PERSONS. Contracts after adjudication of insanity void.</p> <p>A contract by an insane person after he has been regularly adjudged insane is absolutely void, the inquisition of insanity being regarded as notice, actual or constructive, to all the world of the fact of insanity. (Post, p. 432.)</p> <p>5. INSANE PERSONS. Contracts in good faith, wholly or partly executed, not set aside without restoration.</p> <p>Where a contract with an insane person has been entered into in good, faith, without fraud or imposition, for a fair consideration, without notice of the infirmity and before an adjudication of insanity, and has been executed in whole or in part, it will not be set aside unless the parties can be restored to their original position. (Post, p. 432.)</p> <p>6. INSANE PERSONS. Contract by one knowing of insanity may be set aside for fraud.</p> <p>A contract with an insane person, by one having knowledge of his incapacity, may be set aside on the ground of fraud. (Post, pp. 432-434.)</p> <p>7. INSANE PERSONS. Knowledge leading prudent person to believe other party of unsound mind avoids contract.</p> <p>Knowledge or information such as would lead a prudent person to believe that the other party to a contract is of unsound mind is such evidence of bad faith as will avoid the contract. (Post, pp. 432-434.)</p> <p>Case cited and approved: Bank v. Sneed, 97 Tenn., 120.</p> <p>8. PARTNERSHIP. General nature of “partnership” defined.</p> <p>A partnership is a voluntary contract of two or more competent persons to place their money, effects, labor, and skill in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. (Post, pp. 434, 435.)</p> <p>Cases cited and approved: McMurtrie v. Guiler, 183 Mass., 451; Carter v. McClure, 98 Tenn., 109; Mallory v. Oil Works, 86 Tenn., 598.</p> <p>9. PARTNERSHIP. Created by voluntary agreement, not by operation of law.</p> <p>A partnership, as between the parties, is always created by a voluntary agreement of the parties, and not by operation of law alone. (Post, p. 435.)</p> <p>10. PARTNERSHIP. Agreement to share profits implies agreement to share losses.</p> <p>An agreement to share profits prima-facie implies an agreement to share losses. (Post, pp. 435, 436.)</p> <p>Cases cited and approved: Gavin v. Walker, 82 Tenn., 645, 646; Johnson Bros. v. Carter, 120 Iowa, 355; Ruggles v. Buckley, 158 Fed.,' 950; Huggins v. Huggins, 117 Ga., 151.</p> <p>11. PARTNERSHIP. Unnecessary to creation of partnership that it he called such.</p> <p>It is unnecessary to the creation of a partnership that it he called hy that name, it being sufficient that the partners by contract combined their property, labor, and skill as principals for the purpose of joint profits. (Post, p. 436.) '</p> <p>Cases cited and approved: Fougner v. First Nat. Bank, 141 Ill., 124;' Beecher v. Bush, 45 Mich., 188; King v. Remington, 36 Minn., 15; Fairly v. Nash, 70 Miss., 193; McDonald v. Campbell, 96 Minn., 87; Corey v. Cadwell, 86 Mich., 576.</p> <p>12. PARTNERSHIP. Contract binding, though signed with individual names, when given in firm transaction and intended as firm obligation.</p> <p>A-written contract is binding on a partnership, though signed with the individual names of the partners instead.of the firm name, when given in a firm transaction and intended as a firm obligation. (Post, p. 436.)</p> <p>13. PARTNERSHIP. Either partner may dispose of partnership property for benefit of firm.</p> <p>Either partner may dispose of partnership property for the benefit of the firm. (Post, p. 437.)</p> <p>Case cited and approved: Whitman v. Insurance Co., 82 Tenn., 335.</p> <p>14. PARTNERSHIP. May exist for single transaction.'</p> <p>A partnership may exist for a single transaction, venture, or undertaking. (Post, p. 437.)</p> <p>15. JOINT ADVENTURES. Similar to partnership and governed by same rules.</p> <p>A joint adventure is similar to a partnership and governed by the same rules. (Post, p.'437.)</p> <p>Cases cited and approved: Slater v. Clark, 68 Ill. App., 433; Doane v. Adams, 16 La. Ann., 350; Chester v. Dickerson, 54 N. Y. 1; Marston v. Gould, 69 N. Y. 220; Ross v. Willett, 76 Hun., 211.</p> <p>16. PARTNERSHIP. Persons contracting to huy stock on joint account and share the profits are partners.</p> <p>A contract oí two individuals to huy gas stock on a joint account, they to share in the profits equally, constitutes the community of interest necessary to make the venture a partnership. (Post, pp. 437, 438.)</p> <p>17. PARTNERSHIP. Sale hy one partner in good faith binding on other, notwithstanding latter’s insanity.</p> <p>A good-faith sale of stock belonging to a partnership hy one of the partners hy agreement of both, to discharge a firm indebtedness, is valid and binding on the other, notwithstanding his insanity at the time of the sale. (Post, pp. 438-440.)</p> <p>On Rehearing.</p> <p>18. PARTNERSHIP. Insanity of partner does not per se dissolve partnership.</p> <p>The insanity of a partner does not per se work a dissolution of the partnership, but may constitute sufficient grounds to justify a court of equity in decreeing its dissolution. (Post, pp. 440-442.)</p> <p>Case cited and approved: Isler v. Baker, 25 Tenn., 815.</p> <p>Case cited and distinguished: Raymond v. Vaughn, 128 Ill., 256.</p> <p>19. PARTNERSHIP. Mere knowledge by one dealing with partnership of insanity of partner does not effect dissolution.</p> <p>Mere knowledge, actual or constructive, by- one dealing with a partnership, of the insanity of one of the partners, does not effect a dissolution of the partnership so far as he is concerned. (Post, p. 442.)</p> <p>20. PARTNERSHIP. Evidence held to show seller of partnership stock acted as partner and that buyer dealt with him as such.</p> <p>In an action to set aside a sale of stock belonging to a partnership, on the ground of insanity of one of the partners, evidence held to show that a sale was contemplated by the partners prior to such insanity, that the one selling the stock assumed to act as a partner, and that the buyer dealt with him as such. (Post, pp. 442, 443.)</p> <p>21. PARTNERSHIP. Each partner considered agent of the firm and as such may hind other partners as though acting under power of attorney. (Post, p. 444.)</p> <p>Bach partner is considered generally as agen^ of the firm in all matters pertaining to its business, and as such may hind the other partners as though he acted under a duly executed power of attorney. (Post, p. —.)</p> <p>Cases cited and approved: Schneider v. Sansom, 62 Tex., 201; Blodgett v. Weed, 119 Mass., 215; Decker v. Howell, 42 Cal., 636; Campbell v. Dent, 54 Mo., 325; Pahlman v. Taylor, 75 Ill., 629; Kenney v. Altvater, 77 Pa., 34.</p> <p>22. PARTNERSHIP. One partner may sell assets of firm for purpose of paying debts, in absence of fraud. ■</p> <p>One partner may sell the whole or any part of the assets of the firm in the regular course of business, or for the purpose of paying the. firm’s indebtedness, when there is no fraud in the sale. (Post, pp. 444, 445.)</p> <p>Cases cited and approved: Williams v. Roberts, 46 Tenn., 493; Schneider v. Sansom, supra; Graser v. Stellwagen, 25 N. Y., 315; Williams v. Barnett, 10 Kan., 455; Halstead v. Shepard, 23 Ala., 558; Cayton v. Hardy, 27 Mo. 536; Arnold v. Brown, 24 Pick. (Mass.), 89; Lamb v. Durant, 12 Mass., 54.</p> <p>23. INSANE PERSONS. Guardian of insane partner on setting aside sale of partnership stock may recover market value thereof at time of trial less price paid by purchaser.</p> <p>In an action to set aside a sale of stock owned by a partnership on the ground of the insanity of one of the partners, complainant, as guardian of the insane partner, could recover the stock in specie; but having elected to recover its value less the price paid by defendant for it, she was not limited to the difference between the sale price and the highest market price at any time within a reasonable period alter haying notice of the sale, hut could recover on the basis of the market value of the stock at the time of the trial, the object being to restore the status quo of the parties. (Post, p. 445.)</p>

<p>1. STREET RAILROADS. Statutory duty to “set apart’’ portion of car for colored passengers defined.</p> <p>Where those in charge of a street car made no effort to keep white and colored passengers separated, it violated Thompson’s-Shannon’s Code, section 3076a et seq., it being intended that the authority conferred on employees of a carrier to “set apart” separate portions of the car for white and colored passengers he exercised, and the carrier must do more than merely designate the portions of the car to be occupied. (Post, pp. 448-451.)</p> <p>Acts cited and construed: Acts 1905, eh. 155.</p> <p>Case cited and distinguished: Morrison v. State, 116 Tenn., 534. .</p> <p>Codes cited and construed: Secs. 3076a, 3076a2, 3076a3, 6437 (T.-S.).</p> <p>2. STREET -RAILROADS. Penalty for failure to separate races.</p> <p>The punishment fixed for a street car company which fails to separate white and colored passengers as required by Thompson’s-Shannon’s Code, section 3076a et seq., is fixed at $25, and section 6437 does not apply. (Post, p. 451.)</p> <p>3. CRIMINAL LAW. Verdict for fine higher than authorized by statute requires reversal. ■</p> <p>Where an error has been committed by the jury in rendering a verdict for a fine either greater or lower than that authorized by a-statute which designates the punishment for the crime, there is no remedy in the supreme court except a reversal, and a remand for further proceedings. (Post, p. 451.)</p> <p>Cases cited and approved: Mayfield v. State, 101 Tenn., 673; Mc-Dougal v. State, 64 Tenn., 660; Cowan v. State, 117 Tenn., 247.</p>

<p>1. BONDS. Trusts. Bank lending money on bonds has rights of innocent purchaser.</p> <p>Where bank loaned money and took negotiable bonds as collateral without knowledge of any interests of third persons in the bonds, and the borrower of the money died insolvent without repaying the loan, and the bonds did not equal in value the amount of. the loan, such third persons cannot recover their interests in the bonds in specie, for the bank acquired the whole of the bonds as an innocent purchaser for value, nor can third persons recover on the theory of tracing the proceeds of trust property. (Post, pp. 455-459.)</p> <p>2. TRUSTS. Proceeds of trust property must be identified.</p> <p>If one holding bonds in trust converts them into money by placing them as collateral for a loan in excess of the value of the bonds, the cestui que trust, in order to fasten the trust upon any property of the insolvent estate, must identify the proceeds of the loan and follow such proceeds into some specific investment, and cannot claim to be a preferred creditor as to the general funds of the estate, and it is immaterial that the insolvent has died, and the assets are in the hands of an executor or administrator. (Post, pp. 455-459.)</p> <p>Cases cited and approved: Treadwell v. McKeon, 66 Tenn., 445; Wells v. Stratton, 1 Cooper, Chy. 328; Brocchus v. Morgan, 3 Shan. Cas., 671; Macy v. Roedenbeck, 227 Fed., 347; Akin v. Jones, 93 Tenn., 353; Sayles v. Cox, 95 Tenn., 579; Klepper v. Cox, 97 Tenn., 534; Arbuckle v. Kirkpatrick, 98 Tenn., 221; Lowe v. Jones, 192 Mass., 92.</p> <p>Cases cited and distinguished: Moffitt v. McDonald, 30 Tenn., 457; Richardson, Adm’r, v. Vick. 125 Tenn., 536.</p>

<p>MASTER AND SERVANT. Dependents of more than one class may take compensation^</p> <p>Under Workmen’s Compensation Act, section 30, subsecs. 3-18, dependents of more than one class may, in the order named, take compensation up to the point that fifty per cent, of the monthly wages of the deceased exployee for the statutory period has been exhausted, provided that those of the first class are not entitled to the entire amount.</p> <p>Acts cited and construed: Acts 1919, ch. 123.</p>

<p>MASTER AND SERVANT. Compensation dependent on timely notice of accident.</p> <p>Under Workmen’s Compensation Act, section 22, unless tke employer kas actual knowledge of an accident, tke injured employee is not entitled to compensation accruing before written notice to tke employer, and unless suck notice is given witkin tkirty days of tke accident, no compensation skall be payable under the act, unless a reasonable excuse for tke failure is made to tke satisfaction of tke tribunal trying tke claim; section 23 relating to form of tke notice, merely saving a defect from being a bar to compensation, unless tke employer shows he was injured thereby.</p> <p>Acts cited and construed: Workmen’s Comp. Act, sec. 22.</p>

<p>INSURANCE. Indemnity policy held not to cover explosion injuring employee; “boiler.”</p> <p>A policy of insurance, indemnifying master for losses due to injury to servant in the event of explosion of a boiler, defined as a receptacle in which steam is generated, “including the stop valve nearest the boiler,” cannot be construed to include a nipple screwed into the outlet of the stop or blow-off valve, which was simply a connection between the stop valve and the ell below.</p> <p>Case cited and approved: Hartford Steam Boiler Inspection & Ins. Co. v. Pabst Brewing Co., 201 Fed. 617.</p>

<p>1. DEEDS. Parties’ intention as to estate conveyed should be ascertained and enforced.</p> <p>To determinne what estate was conveyed by a deed the parties’ intention should be ascertained, if possible, by giving to each word its appropriate meaning, and that intention should be enforced. (Post, pp. 480, 481.)</p> <p>Cases cited and approved: Fulper v. Fulper, 54 N. X Eq., 431; Miner v. Brown, 133 N. Y., 308; Hunt v. Blackburn, 128 U. S., 464; McDermott v. French, 15 N. X Eq., 78; Hadlock v. Gray, 104 Ind., 596; Dowling v. Salliotte, 83 Mich., 131; Baker v. Stewart, 40 Kan., 442; Fladung v. Bose, 58 Md., 13; Speight v. Askins, 118 Tenn., 749; Laurenzie v. Insurance Co., 131 Tenn., 662; Teague v. Sowder, 121 Tenn., 132.</p> <p>2. HUSBAND AND WIFE. Deed construed as granting to husband and wife as joint tenants or tenants in common and not by the entirety.</p> <p>A deed, conveying to one named and his wife, also named, “their heirs and assigns forever jointly and severally in equal moities,” held to convey to husband and wife as joint tenants or tenants in common, and not by the entirety, and, survivorship in joint tenancy being abolished by Shannon’s Ann. Code, section 3677, the husband could not convey the full title upon the wife’s death so as to bar her heirs. (Post, pp. 481, 482.)</p> <p>Code cited and construed: Sec. 3677 (s.).</p>

<p>1. MUNICIPAL CORPORATIONS. Bondsman of patrolman not liable for injury to persons.</p> <p>A bond of a supernumerary patrolman, conditioned that he “well and faithfully serve said city, and shall well and truly collect such fines and other revenue placed in his hands that may be due said corporation, arising from the violation of the ordinances of said corporation, properly account for all city property which may come into his possession, and hold the said corporation harmless,” was not given for the benefit of a person unlawfully shot by the patrolman while acting in his official capacity, and no recovery could be had thereon; the only authority for the bond being a city ordinance simply requiring a bond conditioned for -the faithful performance of duties, and Shannon’s Code, section 1092, subsec. 3, not relating to such officers. (Post, pp. 487-489.)</p> <p>Cases cited and approved; Matlock v. Bank, 15 Tenn., 91; State ex rel. v. Nichol, 76 Tenn., 657; Snyder v. Stump, 127 Mich., 1.</p> <p>Cases cited and distinguished: Alexander v. Ison et al., 107 Ga., 745.</p> <p>Code cited and construed. Sec. 1092, subsec. 3(s.).</p> <p>2. MUNICIPAL CORPORATIONS. No recovery against policeman individually in action on bond.</p> <p>"Where suit was brought solely on the bond of a policeman, in the name of a city for the use of one who had been maliciously shot by the policeman, there can be ne recovery against the policeman individually, where it is determined that the bond was executed simply to protect the city. (Post, pp. 489, 490.)</p>

<p>EVIDENCE. Evidence of offer of compromise settlement inadmissible.</p> <p>In an action resulting from tbe negligence of an alleged agent, driver of defendant, evidence of an offer of a compromise settlement with plaintiff was inadmissible, even though offered to show that the driver was an agent as a circumstance of relationship and not for the purpose of fixing liability.</p> <p>Cases cited and approved: Moon v. Mathews, 227 Pa. St., 488; Lynde v. Browning, 2 Rep. Dec.,' — .</p>

<p>GARNISHMENT. Garnishee to he summoned to appear at place where judgment on which execution issued was entered.</p> <p>Shannon’s Code, section 4815, providing for sumnioning a person . as garnishee to appear “at the next term of the court” from which the unsatisfied execution issued, contemplates his being summoned to appear at the place where the judgment on which the execution issued was entered; and so the judgment being one of the supreme court, and having been entered, and execution having issued, while it was in session at Nashville, garnishee is to be summoned to appear there, though the next term is at Knoxville (section 4827).</p> <p>Cases cited and approved: State ex rel. v. Hebert, 127 Tenn., 220; Seawell v. Murphy, 3 Tenn., 478; Kaylor v. Brunswick, 53 Tenn., 239; Railroad v. Todd, 58 Tenn., 555; Karr v. Schade, 75 Tenn., 298; Bryants. Bigelow, 77 Tenn., 137; Walton v. Sharp, 79 Tenn., 582.</p> <p>Code cited and construed: Secs. 4815, 4827(s.).</p>

<p>1. CRIMINAL LAW. Disturbing public worship the offense under each of two Code sections.</p> <p>The offenses defined in Shannon’s Code, sections 2566, 6776, are the same, in substance, “disturbing public worship;” the language of the former section requiring officers to arrest immediately a person “in their knowledge or observation” disturbing a congregation assembled for public worship, relating to the method of procedure, rather than to a designation of the offense. (Post, pp. 503-505.)</p> <p>Case cited and distinguished: State v. Layne, 96 Tenn., 674.</p> <p>Codes cited and construed: Secs. 2566, 6776(s.); Secs. 1511, 4853 (1858).</p> <p>2. DISTURBANCE OF PUBLIC ASSEMBLAGE. New section in Code repeals section codifying old law where in irreconcilable conflict as to penalty.</p> <p>There is such irreconcilable conflict between Shannon’s Code, section 2566, prescribing a maximum penalty of $5 fine for disturbing public worship, and section 6776, prescribing a minimum penalty of $20 fine for the same offense, that the latter, coming into force for the first time by the enactment of that Code, repeals the former, which was a codification of older statutes. (Post, pp. 505-510.)</p> <p>Acts cited and construed: Acts 1799, ch. 20; Acts 1801, ch. 35; Acts 1815, ch. 60; secs. 1, 2; Acts 1807, ch. 73, sec. 4; Acts 1829, ch. 74; Acts 1841-42, ch. 141.</p> <p>Cases cited and approved: Bennett v. State, 10 Tenn., 472; Bailey v. Drane, 96 Tenn., 16; Adkins v. Arnold, 238 XJ. S., 417.</p> <p>Case cited and distinguished: Roberts v. State, 2 Tenn., 425; Taylor v. State, 26 Tenn., 510.</p> <p>Code cited and construed: Secs. 1511, 4853 (1858).</p> <p>3. CRIMINAL LAW. Judgment imposing less than the minimum fine not available as former conviction.</p> <p>A judgment, imposing a fine less than the minimum fixed by statute, is not available in bar of a prosecution for the same offense. (Post, p. 510.)</p>

<p>1. JUDGMENT. Adjudication in bankruptcy court determination of question in action in State court.</p> <p>Where, in determining validity of claim, bankruptcy court held that a contract under which claim was made was void, the claimant, in an action in State court by assignee of bankrupt to recover money paid under the contract, cannot claim the legality of the contract. (Post, p. 515.)</p> <p>Cases cited and approved: Gudger v. Barnes, 51 Tenn., 571; State v. Bank, 95 Tenn., 221; Memphis City Bank v. Smith, 110 Tenn., 337.</p> <p>2. CORPORATIONS. Creditors can recover money paid out under void contract.</p> <p>Creditors of a bankrupt corporation may recover money paid by it to a third party under a contract void because in restraint of trade, since equity regards the property of the corporation as held in trust for the payment of debts of the corporation. (Post, pp. 515, 516.)</p> <p>Cases cited and distinguished: Vance & Kirby v. McNabb Coal, etc. Co., 92 Tenn., 47; Jennings, Neff & Co. v. Ice Co., 128 Tenn., 231.</p> <p>3. BANKRUPTCY. Trustee has rights of creditors; trustee may recover money paid out under void contract.</p> <p>Trustee of bankrupt corporation may in general assert the right of creditors respecting the bankrupt estate, and may recover money paid out by the corporation under a contract void as being in restraint of trade. (Post, pp. 516, 517.)</p> <p>Cases cited and approved: Benner v. Scandinavian-American Bank, 73 Wash., 488; Bailey v. Wood, 211 Mass., 37; Sherrill v. Hutson, 187 Ala., 189; Mackall v. Pocock, 136 Minn., 8; Memphis Lbr. Co. v. Security Bank & Trust Co., 143 Tenn., 136.</p> <p>4. ASSIGNMENTS. Conveyance of property not void because grantee may Rave to bring suit.</p> <p>A bare right of action cannot be assigned, but a conveyance of property is not void because the grantee may have to bring suit to enforce his right to the property conveyed. {Post, pp. 517, 518.)</p> <p>Cases cited and distinguished: Dickinson v. Burrell, L, R., 1 Eq., 337; Traer v. Clews, 115 U. S., 528.</p> <p>5. BANKRUPTCY. Assignee held entitled to sue for money paid out by corporation under void contract.</p> <p>Where trustee of a bankrupt corporation conveyed to assignee the property of the bankrupt and “all of the rights, title, claims, interest, and demands, both in law and equity, of the trustee in bankruptcy, as such in,” etc., assignee was entitled to bring suit to recover money paid to a third person by the corporation under a contract void as being in restraint of trade. {Post, pp. 518, 519.)</p> <p>6. BANKRUPTCY. Where trustee discharged assignee of bankrupt’s assets should sue in own name.</p> <p>Where assignee of assets of bankrupt was entitled to sue third person to recover money paid by bankrupt under void contract, the suit should be brought in the name of the assignee, trustee in bankruptcy having been discharged, in view of Thompson’s-Shannon’s Code, section 4492; but where a suit was brought in the name of the trustee for the use of the assignee, the name of the trustee as a nominal plaintiff should have been rejected as sur-plusage, and it was error to dismiss the bill. {Post, p. 519.)</p> <p>Cases cited and approved: Enley v. Nowlin, 60 Tenn., 163; Kyle v. Ewing, 73 Tenn., 580.</p> <p>Code cited and construed: Sec. 4492(T.-S.).</p>

<p>1. BANKS AND BANKING. Collecting Rank, refusing to remit proceeds, has burden of proving defenses.</p> <p>Where defendant collecting hank admitted collection of a draft, aid that the draft was payable on its face to complainant bank, which sent it for collection, defendant, to escape responsibility, had the burden of establishing defenses made. (¡Post, p. 527.)</p> <p>2. BANKS AND BANKING. Bank purchasing draft and bill of lad-# ing is absolute owner of draft.</p> <p>Where bank purchased draft and bill of lading, it became the absolute owner thereof, and the proceeds of the draft in the hands of a collecting bank were not garnishable, by creditor of the drawer of the draft, as the property of the latter. (Post, pp. 527-532.)</p> <p>Cases cited and approved: Curry v. Roulstone, et ah, 2 Tenn., 110; Kirkman v. Bank of America, 42 Tenn., 403.</p> <p>Cases cited and distinguished: Bank v. Hays, 119 Tenn., 729; Means v. Randall Bank, 146 U. S., 620; Cornick v. Richards, 71 Tenn., 25; Ochs et al. v. Price, 53 Tenn., 487.</p> <p>3. EVIDENCE. Court not bound by conclusion of witness.</p> <p>In suit by bank as owner of draft and bill of lading, statement of cashier of complainant, to the effect that complainant purchased outright the bill of lading and draft, was a conclusion of the witness, not binding on the court, which might look to the whole transaction as related by the witness to ascertain whether or not as a matter of law it did constitute an absolute purchase by his bank of the draft and bill of lading. (Post, pp. 532-538.)</p> <p>4. BANKS AND BANKING. Option of charging back draft if un-collectible does not affect' bank’s title if proceeds of- draft drawn out by customer.</p> <p>Where hank credits its customer’s account with the amount of a draft secured by hill of lading, and the amount of such credit is drawn out by the customer, the bank’s title to the draft is absolute, and is not rendered conditional by the fact that the customer agrees that the draft, on failure to collect, may be charged back against his account, for, by withdrawing the amount to his credit, any beneficial interest of the customer in the draft ceases. (Post, pp. 532-538.)</p> <p>Case cited and approved: Implement Co. v. Bank, 128 Tenn., 320.</p> <p>5. CONSTITUTIONAL LAW. Garnishee not protected by judgment where owner of property garnished not a party.</p> <p>The principle protecting a garnishee who has been compelled to pay a debt to another after full disclosure of material facts known to him in compliance with the judgment of a court of competent jurisdiction can have no application, where the owner of the property attached is not before the court; for to hold that one not a party to the proceedings can be deprived of his property by an attachment adjudicating the ownership of the property to be in another would be to deprive the person of his property without due process of law. (Post, pp. 539-542.)</p> <p>Cases cited and approved: McCain v. Hill, 3 Shan. Cas., 654; Miller v. McClain, 18 Tenn., 246.</p> <p>Case cited and distinguished: Connor v. Allen, 40 Tenn., 19.</p> <p>6. GARNISHMENT. Answer of garnishee conclusive.</p> <p>If garnishee's answer does not contain admissions sufficient to charge him, he must be discharged; as, for instance, where he answers that he does not know whether he is indebted or not, or his answer is not sufficiently specific. (Post, pp. 542, 543.)</p> <p>Code cited and construed: Sec. 4831 (S.).</p> <p>7. ATTACHMENT. Owner not concluded by proceedings to which not a party.</p> <p>The owner of property is not concluded by' proceedings to attach the property, to which proceedings he is not a party. (Post, pp. 543, 544.)</p> <p>8. ATTACHMENT. Where abandoned does not affect rights.</p> <p>\yhere attachment of a carload of beans was purely a paper levy, in that the railroad refused to deliver the beans unless the bill of lading was taken up and the freight paid, so that the continued possession of the railroad was by virtue of its contract under the-bill of lading, and not as agent of the attaching officer, and the attachment was abandoned, in that by agreement of the parties the beans were surrendered and turned over to the consignee thereof, who was allowed to receive them upon payment of draft held by a bank, and the parties elected to proceed against the bank, for the proceeds of the draft, by garnishment proceedings, rather than against the property they had undertaken to attach, the attachment did not affect the rights of the parties. (Post, pp. 543, 544.)</p> <p>9. ESTOPPEL. Receipt of notice of facts constituting estoppel must be shown.</p> <p>In suit by bank owning and forwarding a draft for collection for failure of defendant collecting bank to remit proceeds, payment to another of such proceeds by defendant as garnishee in proceedings to which complainant was not a party could not be justified on the ground -that complainant was estopped because defendant notified complainant of the garnishment proceedings and asked for advice as to what defense should be made and received no response, where" there was no proof that complainant actually received such notification, but merely testimony that such a letter had been written. (Post, pp. 544, 545.)</p> <p>10. ESTOPPEL. Failure to instruct correspondent bank as to defense in garnishment did not relieve it from making complete answer,</p> <p>In suit by bank owning and forwarding a draft for collection for failure of defendant collecting bank to remit proceeds, payment to another of such proceeds by defendant as garnishee in proceedings to which complainant was not a party could not be justified on the ground that complainant was estopped because defendant notified complainant of the garnishment proceedings and asked for advice as to what defense should be made and received no response, where the defendant failed to make a complete answer to Ike garnishment proceedings, as by showing that the draft bad been sent to it directly by complainant, and was, on its face, payable to complainant, for the defendant owed complainant the duty of setting up such facts, even without specific direction as to what answer to make. {Post, 545-547.)</p>

<p>1. HUSBAND AND WIFE. “Estate hy the entirety” defined.</p> <p>An “estate hy the entirety” is one limited to the lifetime of the husband and wife and to the continuance of that relationship, and can be ended by the joint conveyance of husband and wife. (Post, pp. 550, 551.)</p> <p>2. HUSBAND AND WIFE. Estate by entirety belongs to owners equally, but the interest of neither can be separated except by mutual consent or operation of law.</p> <p>Bach tenant of an estate by the entirety is entitled to an equal interest and to take the whole upon the death of the other, but neither can separate his interest from that of the other except by the joint action of both, or by operation of law. (Post, pp. 550, 551.)</p> <p>3. - HUSBAND AND WIFE. Except as to the right of the survivor to the whole, tenants by the entirety have equal rights in the land.</p> <p>The only limitation of the full property right in lands conveyed jointly to tenants by the entirety is the right of survivorship in the other, and that neither has the power of alienation so as to prejudice the right of the other, but in all other respects they hold the property as if separate individuals, which under the statutes is as tenants in common, and at common law is equal. (Post, p. 551.)</p> <p>4. HUSBAND AND WIFE. On simultaneous death of tenants by entirety, heirs of each inherit half.</p> <p>Where tenants by entirety perish simultaneously, the children and heirs of each inherit a half. (Post, pp. 551, 552.)</p> <p>Gases cited and distinguished: Hopson v. Fowlkes, 92 Tenn., 697; Ames v. Norman, 36 Tenn., 683.</p> <p>5. DEATH. No presumption of survivorship.</p> <p>Except where the question is governed by a statute, if two or more persons perish in the same disaster without any fact or circumstance to prove which survived, there is no presumption as to suvivorship. (Post, p. 553.)</p>

<p>1. COURTS. Supreme court has jurisdiction of appeal in controversy-over office.</p> <p>The supreme court has jurisdiction of an appeal direct from chancery court in a controversy over the office of a recorder of a town, wherein relator sought to restrain another claiming the office from interfering with the right of relator to exercise the functions, and also prayed for an alternative writ of mandamus requiring the defendant and others to recognize him as recorder; it being- the custom of the supreme court to treat almost any controversy over an office as an election contest. (Post p. 558.)</p> <p>.Acts cited and approved: Acts 1905, ch. 528: Acts 1921, ch. 117;</p> <p>Case cited and approved: Heiskell v. Lowe, 126 Tenn., 475.</p> <p>2. AFFIDAVITS. Petition may be sworn to before notary public.</p> <p>A petition in chancery court for mandamus may be sworn to before a notary public, not being required by Thompson-Shannon’s Code section 5331, to be sworn to before a judge, justice of the peace, or clerk of a circuit court. (Post, pp. 558, 659.)</p> <p>Case cited and approved: State ex rel. v. Arnwine, 138 Tenn., 227.</p> <p>3. MANDAMUS. Dismissal of alternative writ returnable to chancellor properly refused.</p> <p>Where petition was filed in chancery court praying for an injunction to restrain interference with right to exercise duties as officer and also for an alternative writ of mandamus, an objection that the alternative writ should be dismissed because made returnable to the chancellor instead of to the next term of court was of no force, where, in the proceedings had before him, the chancellor required an answer to tlie writ at a subsequent rule day, which was proper practice. (Post, p. 559.)</p> <p>4. ELECTIONS. Mandamus. Chancellor has no jurisdiction of election contest, but may compel recognition of right to office.</p> <p>The chancery court does not have jurisdiction of an election contest, but chancellor has jurisdiction of a mandamus suit wherein it is sought to compel an officer to recognize some other person as an officer, which incidentally involves the determination of an election contest. (Post, pp. 559, 560.)</p> <p>Case cited and approved: Adcock v. Houk, 122 Tenn., 26$.</p> <p>Cases cited and distinguished: Lawrence v. Ingersoll, 88 .Tenn., 52; Pueket v. Bean, 58 Tenn, 600.</p> <p>5. OFFICERS. Equity will not prevent party from enjoying office pending suit.</p> <p>In a suit to determine the right of a party to a public office, equity will not interfere by injunction to prevent' the incumbent from enjoying the office pending the suit. (Post, pp. 560-562.)</p> <p>Cases cited and approved: Hogan v.- Hamilton County, 132 Tenn., 554; Brown v. Ice Co., 122 Tenn., 239.</p> <p>Laws cited and construed: Laws 1877, ch. 97.</p> <p>6. MUNICIPAL CORPORATIONS. Recorder suing for office entitled to salary for entire term.</p> <p>One claiming office of town recorder, who is successful in an action to compel incumbent and the board of mayor and aldermen to recognize him as officer, is entitled to a salary for his entire term from the municipality. (Post, pp. 562, 563.)</p> <p>Cases cited and approved: Memphis v. Woodward, 59 Tenn., 499; Currey v. Wright, 77 Tenn., 247.</p>

<p>1. CONSTITUTIONAL LAW. Legislature not hampered hy limitation of taxing power in exercise of police power.</p> <p>The police power is coexistent with the taxing power, but is in no wise dependent thereon, and in the exercise of the police power the legislature is not hampered hy any limitation placed by the Constitution on the exercise of the taxing power of the legislature. (Post, pp. 571-580.)</p> <p>Acts cited and construed: Public Acts, 1919, ch. 61.</p> <p>Constitution cited and construed: Arts. 1, 2, 11, secs. 8, 18, 28.</p> <p>2. ANIMALS. Dog license tax law valid exercise of police power.</p> <p>Pub. Acts 1919, chapter 61, requiring persons to pay a license fee to keep dogs, does not levy a tax violative of the limitations of the taxing power under Constitution article 2, section 28, but is a valid exercise of the police power to protect the safety of people and property by reducing the number of dogs. (Post, pp. 571-580.)</p> <p>3. CONSTITUTIONAL LAW. Dog license law held not to imprison or deprive of life, liberty, or property without judgment of peers.</p> <p>Pub. Acts 1919, chapter 61, regulating the ownership and keeping of dogs and requiring payment of license therefor, is not in conflict with Constitution article 1, section 8, which provides that no man shall be taken or imprisoned, or disseised of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of her life, liberty, or property, but by the judgment of his peers or the law of the land. (Post, pp. 571-580.)</p> <p>4. CONSTITUTIONAL LAW. Dog license law held not to imprison for debt in civil cases.</p> <p>Pub. Acts 1919, chapter 61, regulating the ownership and keeping of dogs and providing punishment for violations thereof, does not violate Constitution article 1, section 18, prohibiting imprisonment for debt in civil cases. (Post, pp. 571-580.)</p> <p>Cases cited and approved: Blair v. Forehand, 100 Mass., 136; Fari-bault v. Wilson, 34 Minn., 254; Cranston v. Augusta, 61 Ga., 573; Woolf v. Chalker, 31 Conn., 121; Hendrie v. Kalthoff, 48 Mich., 306; Gibson v. Harrison, 69 Ark., 385; Griggs v. Macon, 103 Ga., 602; State v. Topeka, 36 Kan., 76; Indianapolis v. Bieler, 138 Ind., 38; Duluth Brewing Co. v. Superior, 123 Fed., 356; United States Distilling Co., v. Chicago, 112 Ill., 19; Wallace v. Culanola, 70 Ark., 395; Troll v. Hudson, 78 Mo., 302; State v. Erwin, 139 Tenn., 341.</p> <p>Cases cited and distinguished: Holst v. Roe, 39 Ohio St., 340; Mitchell v. Williams, 27 Ind., 62; Litchville v. Hanson, 19 N. D„ 672; Carthage v. Rhodes, 101 Mo., 175; Ponder v. State, 141 Tenn., 481.</p> <p>5. CONSTITUTIONAL LAW. Dog license law for benefit of sheep owners not invalid as class legislation.</p> <p>Pub. Acts 1919, chapter 61, regulating the ownership and keeping of dogs and providing that licenses and fines collected be placed in a “sheep fund” for the payment of damages sustained by owners of sheep maimed or damaged by dogs, is not class legislation in violation of Constitution article 11, section 8. (Post, pp. 580-586.)</p> <p>Cases cited and approved: Longyear v. Buck, 83 Mich., 236; Noble State Bank v. N. C. Haskell, 219 U. S., 104,</p> <p>Cases cited and distinguished: Van Horn v. People, 46 Mich., 183; Thorpe v. Rutland & Burlington Railway Co., 27 Vt., 140; Cole v. Hall, 103 Ill., 30; McGlone v. Womack, 129 Ky„ 274.</p> <p>6. ANIMALS. Cost of administration of dog license act payable out of receipts.</p> <p>Authority may be implied from the provisions of Public Acts 1919, chapter 61, regulating the ownership and keeping of dogs, for the payment of the cost of the administration thereof out of the funds derived from the collection of license fees; the act not providing for the payment of any of these expenses out of the public revenue. (Post, pp. 586-622.)</p> <p>Acts cited and construed: Acts 1919, ch. 61; Acts 1867, ch. 130, sec. 7.</p> <p>Oases cited and approved: Am. Fertilizer Co. v. Board of Agriculture of N. C., 43 Fed., 609; Mayor of Nashville v. Linck, 80 Tenn., 507; Ex Parte Cramer, 62 Tex. Cr. R., 11; A. & P. Telegraph Co., v. Philadelphia, 190 U. S., 160; Cole v. Hall, 103 Ill., 30; State v. Erwin, 139 Tenn., 341; Ponder v. State, 141 Tenn., 48l; Fox v. Mohawk & Hudson River Humane Society, 165 N. Y.. 517; Commonwealth v. Hazelwood, 84 Ky., 681.</p> <p>Cases cited and distinguished: Ellis v. Frazier, 38 Ore., 462; Wisconsin Telephone Co. v. City of Milwaukee, 126 Wis., 1; Ottumwa v. Zekind, 95 Iowa, 176; McCullough v. Maryland, 17 ü. S., 316; McMillan v. city of Knoxville, 139 Tenn., 324; Postal Telegraph Co. v. Taylor, 192 TI. S., 64; Phillips v. Lewis, 3 Shan. Cas., 230; People ex rel. Einsfeld v. Murray, 149 N. Y., 374. Nicchia v. People of State of N. Y., 255 U. S., — .</p> <p>Laws cited and construed: Laws 1907, eh. 32.</p> <p>Baohmah, J„ and L. D. Smith, Special Judge, dissenting.</p>

<p>1. CRIMINAL LAW. Conviction of receiving stolen goods sustained, irrespective of accomplice evidence.</p> <p>In a prosecution for receiving and concealing stolen property, evidence held sufficient to sustain a conviction, irrespective of the testimony of an accomplice. (Post, pp. 625-627.)</p> <p>Cases cited and approved: Boyd v. State, 94 Tenn., 505.</p> <p>Case cited and distinguished: Fair v. State, 2 Shan. Cas., 481.</p> <p>Code cited and construed: Sec. 5595 (S.).</p> <p>2. WITNESSES. Accomplice not incompetent where not convicted, although he has pleaded guilty.</p> <p>An accomplice is not rendered incompetent to testify hy Shannon’s Code, section 5595, because he has pleaded guilty of grand larceny, where he has not been formally convicted nor had sentence pronounced upon him. (Post, p. 627.)</p> <p>3. CRIMINAL LAW. Admission of printed copy of ordinance held harmless error.</p> <p>In a prosecution for receiving stolen goods, admission in evidence of a printed copy of a city ordinance requiring secondhand dealers in merchandise to report purchases held not prejudicial error, defendant admitting familiarity with the ordinance and undertaking to explain his noncompliance therewith. (Post, p. 627.)</p>

<p>1. GUARDIAN AND WARD. Evidence Reid to show exchange of property was to advantage of minors.</p> <p>Evidence that property inherited hy minors was a farm located away from their residence, which was deteriorating for want of attention, held, to show that the exchange of the farm for city property of equal or greater value and producing a greater annual income was to the advantage of the minors, especially where the master and the chancellor Roth found such advantage, (Post, pp. 632-635.)</p> <p>Case cited and distinguished: Arbuckle v. Arbuckle, 129 Tenn., 489.</p> <p>Code cited and construed: Sec. 5078 (S.).</p> <p>2. INFANTS. Chancery can approve sale of minors’ property independently of. statute.</p> <p>The jurisdiction of the chancery court to approve the sale-or exchange of the property of minors or other persons under disability does not depend upon Shannon’s Code, section 5078, regulating proceedings therefor, but is inherent in the court and more comprehensive than the statute. (Post, pp. 635, 636.)</p> <p>Cases cited and distinguished: Hurt v. Long, 90 Tenn., 445; Porter v. Porter, 60 Tenn., 301.</p> <p>3. GUARDIAN AND WARD. Failure to allege other property of minors does not defeat jurisdiction to order sale.</p> <p>The failure of bill by a guardian for the approval of an exchange of property of" minors to specify the other property belonging to the minors, as required by Shannon’s Code, section 5078, does hot defeat the jurisdiction to approve an exchange, since the other property of the minors is merely a question of fact which appeals to judgment of the court in determining whether the sale or exchange ought to be ratified. (Post, pp. 636, 637.)</p> <p>Cases cited and approved: Wilson v. Schaefer, 107 Tenn., 330; Holt v. Hamlin, 120 Tenn., 523.</p> <p>4. GUARDIAN AND WARD. Strict compliance with statutes regulating sales is not essential to jurisdiction.</p> <p>Strict compliance with Shannon’s Code, section 5078, prescribing the pleadings for the approval of a sale or exchange of property of a minor, is not essential to the jurisdiction of the court. (Post, pp. 637, 638.)</p> <p>Case cited and distinguished: Greenlaw v. Greenlaw, 84 Tenn., 442.</p> <p>Code cited and construed: Secs. 5078, 5085, (S.).</p> <p>6. GUARDIAN AND WARD. Erroneous order of sale can he cor- > rected, regardless of right to recover against purchaser.</p> <p>An erroneous decree by the chancellor confirming a sale of property of minors may he corrected on writ of error by the next friend of the minors, regardless of whether the rights of the purchaser under the decree will be thereby affected. (Post, pp. 638, 639.)</p> <p>6. GUARDIAN AND WARD. Omission of description of other property held not prejudicial to minors.</p> <p>In a suit for the confirmation of the exchange of property belonging to minors, where the bill alleged generally that the minors owned other property in another county which they had inherited from their father, and the evidence showed what that property consisted of, the failure of the bill to describe the other property specifically was not prejudicial to the minors and does not require reversal of the decree and confirmation. (Post, pp. 638, 639.)</p> <p>7. GUARDIAN AND WARD. Answer to original bill may be considered answer to amended bill.</p> <p>The failure to have filed an answer on behalf of minors to an amended bill for the confirmation of exchange of property was a matter of procedure over which the chancellor, acting as guardian of minors, had complete control, and the court’s confirmation of the exchange will not he reversed for such failure where the minors answered the original bill, into which the amendments' were incorporated under the chancery practice, were represented by guardian ad litem, and their best interests were conserved by the decree. (Post-, p. 639.)</p>

<p>RAILROADS. Not liable for negligence during federal control.</p> <p>A railroad is not liable for negligence of employees while the road was under federal control, provided for by Federal Control Act March 21, 1918 (IT. S. Comp. St. 1918, TJ. S. Comp. St. Ann. Supp. 1919, Sections 3115%a-3115%p), in view of General Order No. 50 of the Director General of Railroads.</p> <p>Cases cited and approved: Mo. Pac. R. R. Co. and Walker D. Hines, Director General of Railroads v. H. A. F. Ault, 255 U. S., 1; Gracie v. Palmer, 8 Wheat., 605; McNulta v. Lochridge, 141 U. S., 327;</p>

<p>1. BRAINS. Notice of additional assessment in proportion to original assessment not required.</p> <p>Under General Drainage Act, sections 1-11, 13, 18, providing for the establishment of drainage districts and for the making of an assessment, and, if the first assessment is insufficient, for the making of an additional assessment in the same ratio as the first, and only specifically providing for notice of the hearing as to the advisability of the. creation of the district and on the hearing of the report of the commissioners as to the classification of the lands, notice of intention to make an additional assessment is unnecessary, and it is immaterial that failure to give notice prevents landowners from exercising their option, under section 27, to pay the whole assessment prior to the issuing of bonds, as they are charged with constructive notice of the proceedings. (Post, pp. 656-663.)</p> <p>Acts cited and construed: General Drainage Act, sections 1-11, 13 18.</p> <p>Cases cited and approved: State v. Whittlesey, 17 Wash., 447; Meggett v. Eau Claire, 81 Wis., 326; Hennessy v. Douglas Co., 99 Wis., 129; Davidson v. New Orleans, 96 U. S., 97.</p> <p>Cases cited and distinguished: Nicely v. Hickman, 188 Ky., 258. People ex rel. Barber v. Chapman, 127 Ill., 387; Stone v. Little Yellow Drainage Dist., 118 Wis., 388.</p> <p>2. CONSTITUTIONAL LAW. Drainage act does not deny due process because authorizing additional assessment without notice.</p> <p>The General Drainage Act, construed as authorizing the making of an additional assessment in the same ratio as the original assessment without notice, does not violate the due process clause of the federal Constitution. (Post, p. 664.)</p> <p>Cases cited and approved: Seattle v. Kelleher, 195 U. S., 351; Nor-wood v. Baker, 172 U. S., 269; Spencer v.’ Merchant, 125 U. S., 345; I-Iagar v. Reclamation District, 111 U. S.,'701.</p> <p>3. DRAINS. Limiting assessments in decree establishing district was authorized and did not prevent additional assessment.</p> <p>Under the General Drainage Act, expressly authorizing an additional assessment in the same i>tio as the first assessment if the first - assessment be insufficient, a provision in the original decree establishing the district limiting assessments to $10 an acre was unauthorized and void and did not prevent the making of an additional assessment, where the original assessment was insufficient to complete the work and the additional assessment did not put upon the land a greater burden than it should bear. (Post, pp. 664, 665.)</p> <p>Acts cited and construed: Acts 1909, ch. 185.</p>

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

<p>RAILROADS. Grantor of right of way cannot recover damages from proper construction.</p> <p>A landowner conveying a right of way to a railroad cannot recover damages caused to his other land by the construction of a fill with a culvert therein collecting surface water and casting it on such other land in a body, where no negligence in the construction of the track or of the culvert is shown.</p> <p>Cases cited and approved: Carrier v. Railroad, 75 Tenn., 388; Railroad v. Hays, 79 Tenn., 389; Railroad v. Mossman, 90 Tenn., 157; Railroad v. Higdon, 111 Tenn., 121; Railroad v. Hanks, 80 Ark,, 417; Gilbert v. Railroad, 69 Ga., 396; Railroad v. Smith, 111 111., 363; McCarty v. Railroad, 31 Minn., 278; Railroad v. Wallbrink, 47 Ark., 330; Benson v. Railroad, 78 Mo., 504; Cona-beer v. Railroad Co., 156 N. Y., 474; Railroad Co. v. Swank, 105 Pa., 555; Righter v. City of Philadelphia, 161 Pa., 73; Railroad v. Adam, 58 Tex., 476; Faires v. Railroad Co., 80 Tex., 43. Norris v. Railroad Co., 28 Vt., 99.</p> <p>Case cited and distinguished: Hord v. Railroad, 122 Tenn., 408.</p>

<p>1. CERTIORARI. Chancellor’s finding of fact, concurred in by court of civil appeals, conclusive.</p> <p>Chancellor’s finding of fact, concurred in by the court of civil appeals, is conclusive,, on petition for certiorari to the supreme court. {Post, p. 689.)</p> <p>2. TIME. Date on which option was given excluded in computing time for performance.</p> <p>Under a contract giving purchasers an option to buy land “at any time with eighteen days from the date hereof,” the date on which the contract was executed is to be excluded in computing the length of time in which the purchasers had the right to exercise the option, in view of Code 1858, section 48. {Post, pp. 689, 690.)</p> <p>3. TIME. Whether day of execution included in days for performance “from” execution depends on tenor of instrument and intent.</p> <p>A question of whether the day on which a contract is executed is to be included or excluded in the period of time within which the contract is to be performed, under provision for performance within specified number of days “from” day of execution, is to be determined according to the tenor of the instrument and the intent of parties. (Post, pp. 690 — 696.)</p> <p>Cases cited and approved: Pugh v. Leeds, 2 Cowp., 714; Halbert v. San Saba Springs L. Ass’n, 49 L. R. A., 195, 196; Cornell v. Moulton, 3 Denio, 16; Bigelow v. Wilson, 85 Tenn., 485; Taylor v. Brown, 147 U. S., 644; Jones v. Planters’ Bank, 24 Tenn., 619.</p> <p>Cases cited and distinguished: Sheets v. Selden’s Lessee, 69 U. S., 177;'Trust Co. v. Railway, 101 Tenn., 297.</p> <p>Code cited and construed: Sec. 48 (Tenn.); Sec. 60. (S.).</p> <p>4. TIME. Law does not recognize fractions of a day.</p> <p>Generally the law knows no fractions of a day. {Post, pp. 690 — 696.)</p> <p>5. VENDOR AND PURCHASER. Forfeiture not favored.</p> <p>Tlie rule that the law favors enforcement of rights, and the prevention of forfeiture thereof, applies to forfeiture of options. (Post, pp. 696, 697.)</p> <p>Case cited and approved': Turner v. Odum,, 43 Tenn., 456.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County —.Hon. Jno. T. Lellyett, Chancellor. •</p>