Volume 146 — Tennessee Reports

<p>1. HUSBAND AND WIFE. Wife acquiescing in husband's use of income from separate estate assumed to have consented and not entitled to accounting.</p> <p>Where husband and wife are living together and the income of the wife’s separate estate is used by the husband through a long series of years without objection on the part of the wife, but with her knowledge and acquiescence and without the exercise of any undue influence, either for their joint purposes, living expenses, or for the husband’s own purposes, the wife’s consent is presumed, and she cannot .subsequently recall such consent and have an accounting, though there was an express agreement that the income was to be used for specified purposes only, this being merely a circumstance to be considered in determining whether the different use of the income was wRh the wife’s knowledge, acquiescence, or consent. {Post. pp. 12-21.)</p> <p>Case cited and approved: Catón v. Hideout, 1 Mac. & G., 599.</p> <p>Cases cited and distinguished: Lishey v Lishey, 2 Teun. Ch., 5; Rideout v. Lewis, 1 Ark., 269; Powell ■ l l^inkey, 2 P. W., 82.</p> <p>2. HUSBAND AND WIFE. Husband managing wife’s separate estate liable to account for income, but wife’s right to accounting may be waived.</p> <p>The fact alone that a husband took over the management and control of his wife’s separate property would make him liable in law. not only for the corpus of the property, but to account to the wife for the income, but the w'fe’s right to receive the income and have an accounting may be waived by dealing with him in such a way as to preclude such right. (Post, p. 21.)</p> <p>G. HUSBAND AND WIFE. In wife’s suit for accounting by husband, bill held sufficiently broad to cover theory on which relief sought.</p> <p>Tn a wife’s suit against her husband for an accounting with respect to the income of her separate estate, the bill, though alleging a specific agreement that the income was to be deposited in a bank to her credit, held sufficiently broad to embrace the theory that there was an express agreement that the income was to be devoted only to certain specified purposes such as family expenses, the education and expenses of the -wife's children, and her clothing and traveling expenses. (Post, pp. 21, 22.)</p> <p>A. HUSBAND AND WIFE. Casual conversations before marriage held not to limit husband’s use of income in managing wife’s estate.</p> <p>Casual conversations between a husband and wife before their marriage in which the wife, a widow, in view of her abundant income, stated that she did not expect the husband to pay the expenses of rearing and educating her children, or the expense of her travel or clothes, but in which nothing was said about the husband managing her property, could not be considered as an express contract or agreement, limiting his use of the income of such property to the expenses specified. (Post, pp. 22, 23.)</p> <p>5. HUSBAND AND WIFE. Wife held to have acquiesced in husband’s expenditure of income from her separate property for any purpose.</p> <p>A wife who for eighteen years permitted her husband to manage her separate property without any express understanding that he would account for the income, and permitted him to intermingle it with his own funds and pay living expenses and other expenses without reference to whether the fund was derived from his own business or from the management of his wife’s property, and who never demanded an accounting or objected to statements made ■by the husband of the property in his hands because income was not accounted for, held to have acquiesced in the use of the income by the husband for any purpose he deemed right and proper, and not entitled to an accounting with respect to moneys expended for purposes of his own. (Post, pp. 23-30.)</p> <p>6. HUSBAND AND WIFE. Husband’s answer held to sufficiently embrace defense that wife had acquiesced in expenditure of income from separate property.</p> <p>In a wife’s suit against her husband for an accounting with respect to the income from her separate estate, the husband’s answer Held sufficient to cover the defense that the wife by her knowledge and acquiescence had consented to the use of the income by the husband for any purpose for which he desired to use it. (Post, pp. 31, 32.)</p> <p>7. HUSBAND AND WIFE. When wife acquiesced in husband’s use of income accounting not required because of husband’s breach of marital obligations.</p> <p>Where a wife for many years acquiesced in the husband’s use of the income from her separate estate for any purpose for which he desired to use it, no condition will be implied that he was not to give her just grounds for bringing about a legal separation, and an accounting will not be granted because the husband has broken his marital obligations. (Post, p. 32.)</p> <p>8. HUSBAND AND WIFE. Love and affection held sufficient consideration for wife’s acquiescence in husband’s use of income from her property.</p> <p>A wife’s acquiescence in her husband’s use of the income from her separate property, considered as a gift, had a sufficient consideration in love and affection alone, especially where the husband was managing. the wife’s large estate without any compensation for his services. (Post, pp. 32-37.)</p> <p>Cases cited and approved: Sidney v. Sidney, 3 P. Wms, 269; Gee v. Thurlow, 2 B. & C., 547; Field v. Serres, 4 B. & P., 121; Baynon v. Batley, 8 Bing., 256; McAllister v. McAllister, 57 Tenn., 345.</p> <p>Cases cited and distinguished: Chase v. Phillips, 153 Mass., 17 Kinzey v. Kinzey, 115 Mo., 496; Lister v. Lister, 35 N. J. Eq., 49 Forrest v. Forrest, 9 Ahb. Pr., 289; Seagrave v. Seagrave, 13 Ves 439.</p> <p>Code cited and construed: Sec. 4224 (S.)</p>

<p>1. DIVORCE. Statute not mandatory, Rut alimony allowed when facts Bring case within express purpose; “may.”</p> <p>Under Shannon’s Code, sections 4221-4224, providing that the court in dissolving a marriage may provide for the support and maintenance of the wifq by 'the husband, or out of his property, etc., the word, “may” cannot be interpreted to mean “shall,” but the court may not exercise an arbitrary discretion, and, where the facts bring the case within the purpose of the allowance of alimony, it is the duty of the court to allow it. (Post, p. 43.)</p> <p>Code cited and construed: Secs. 4221-4224 (SO; Secs. 2468 to 2471 (1858).</p> <p>2. DIVORCE. May be granted without alimony or alimony decreed without divorce.</p> <p>There is no necessary connection between divorce and alimony, and divorce may be granted without alimony or alimony decreed when there is no divorce. (Post pp. 43, 44.)</p> <p>Cases cited and approved: McBee v. McBee, 48 Tenn., 561; Toneray v. Toncray, 123 Tenn., 484.</p> <p>3. DIVORCE. Alimony should be granted when circumstances permit, notwithstanding wife’s ownership of property.</p> <p>Under Shannon’s Code, sections 4221-4224, it is the duty of the court granting a divorce to require the husband to provide for the suitable support of the wife when the circumstances of the parties and the facts of the case will permit, even though the wife has ample property of her own, or strength or ability to earn a support for herself, as the statute was not passed merely to provide for the wife’s support, but to provide for such support by the husband, or out of his property. (Post, pp. 44-46.)</p> <p>Case cited and distinguished: Chunn v. Cliunn, 19 Tenn:; 136.</p> <p>4. DIVORCE. Wife should he granted fair portion of husband’s estate for her support.</p> <p>Upon an absolute divorce obtained by the wife she is entitled' to a fair portion of the husband’s estate for her suitable support, the amount to be determined according to the circumstances of the parties and the facts of the particular case. (Post, p. 46.)</p> <p>5. DIVORCE. Alimony awarded in solido in absence of reasons for different award.</p> <p>■In the absence of any reasons for making an award for the support of the wife upon a divorce in the form of monthly or yearly allowances or by setting aside a particular part of the husband's estate in specie to the wife, the proper practice is to award alimony in solido. (Post, p. 46.)</p> <p>Case cited and distinguished: Winslow v. Winslow, 133 Tenn., 666.</p> <p>6. DIVORCE. Wife allowed $20,000 as alimony from husband worth $180,000.</p> <p>Where a husband, whose wife was grante da divorce for his misconduct, was worth $180,000, and for years had had the management of the wife’s Separate property with the free use of the income and had been able to hold salaried positions by reason of being the nominal holder of her property, but the wife’s own estate was sufficient, not only to care for her needs, but to afford her a luxurious support, an allowance of $2,500 as alimony held too small, the usual allowance of one-third, of the husband’s property too large, and $20,000 fair and just. (Post, pp. 46, 47.)</p> <p>7. DIVORCE. Amount allowed as alimony may be reduced because of wife’s ownership of property.</p> <p>While under Shannon’s Code, sect'ons 4221-4224, a husband cannot be entirely freed from contributing to his wife’s support upon (.he granting of a divorce because of her ownership of property, under the express provision that the extent of her separate estate shall he taken into consideration, the amount to be set apart to her may be reduced below what it would otherwise be because of her ownership of an estate of her own. (Post, pp. 47, 48.)</p>

<p>1. RELEASE. To void release, misrepresentation must he as to material fact.</p> <p>A misrepresentation, to he sufficient to avoid a contract of settlement, must he as to the material facts, unless the relation of the parties is such as to render applicable exceptions to the rule, such as a fiduciary relation existing between the parties. (Post, p. 58.)</p> <p>2. RELEASE. Evidence insufficient to show release procured by fraud.</p> <p>In an action for personal injuries, in which defendant set up a contract of settlement, evidence held insufficient to show that the settlement and release were procured by defendant’s fraud. (Post, p. 58.)</p> <p>3. RELEASE. $150 for release of liability for injury not grossly inadequate.</p> <p>Where a passenger on a street car was struck by the conductor with an iron rod, which injury required confinement in the hospital for three days, a settlement on the fifth day while the passenger was engaged in his usual work of driving a truck, for $150, cannot be said to be grossly inadequate. (Post, pp. 59-64.)</p> <p>Cases cited and approved: Byers v. Railroad Co, 94 Tenn., 345; Hayes v. Railway Co., 89 Ga., 264; Kane v. Chester Traction Co., 186 Pa., 145; Railway Co. v. McCarty, 94 Tex., 298; Kowalke v. Milwaukee Elec. Ry. & Light Co., 103 Wis., 472; Quebec v. Railway Co. 98 Tex., 6; Railway Co. v. Armstrong, 115 Ark., 123; Homuthv. Railroad Co., 129 Mo., 629.</p> <p>Cases cited and distinguished: Byers v. Railroad, 94 Tenn., 345; Brundige v. Railroad, 112 Tenn., 530; Russell v. Dayton Coal k Iron Co., 109 Tenn., 43: L. &/%íT'r. R- Co. v. Toombs,, 6 Tenn. Civ. App., 617.</p>

<p>1. COURTS. Supreme court has no jurisdiction over appeal, unless case clearly falls within exception to jurisdiction of court of civil appeals.</p> <p>The court of civil appeals has immediate supervision of all civil, litigation in - the lower courts, unless the particular case fails within one of the enumerated exceptions exclusively within the jurisdiction of the supreme court. (Post, pp. 67, 68.)</p> <p>Acts cited and construed: Acts 1907, ch. 82.</p> <p>Case cited and approved: Humphrey v. Godsey, 119 Tenn., 43.</p> <p>Case cited and distinguished: Burns v. City of Nashville, 132 Tenn., 435.</p> <p>2. COURTS. Appeal from decree for complainant, with reference to ascertain damages, which may he less than $1,000, is within jurisdiction of court of civil appeals.</p> <p>Where the complainant claimed $1,600 damages, but under the evidence the damages might have been found to be less than $1,000, an appeal from an interlocutory decree, referring the cause to the master to ascertain damages, did not involve a sum exceeding $1,000, and is within the jurisdiction of the court of civil appeals.</p> <p>(Post,.pp. 68, 69.) .</p>

<p>1. CRIMINAL LAW. Statement to sheriff hy witness, made several hours after killing, is not res gestse.</p> <p>Where the homicide occurred at about dusk, statements, made by a witness to the sheriff at 11 o’clock the same night, that it waé defendant who did the shooting, were not admissible as part of the res gestae. (Post, p. 79.)</p> <p>2. WITNESSES. Previous consistent statements generally inadmissible to support witness impeached by inconsistent statements.</p> <p>As a general rule, where evidence of contradictory statements is offered to impeach the creditable witness, evidence of former statements, made by the witness, sustaining his testimony, is inadmissible, unless it is charged that the testimony of the witness is a recent fabrication, and is the result of some interest in the cause *or motive of personal interest. {Post, pp. 72-81.)</p> <p>Cases cited and distinguished: Dietzel v. State,' 132 Tenn., 71; Legere v. State, 111 Tenn., 373; Queener v. Morrow, 41 Tenn., 134.</p> <p>3. WITNESSES. Previous consistent statement when witness had same motive as at trial is inadmissible.</p> <p>Where a witness was impeached by inconsistent statements previous statements of the same witness consistent with her testimony arc inadmissible to support the testimony if they were made at a time when the witness had the same motive for making a false state-ruent as she had for giving false testimony at the trial. (Post, p. 81, 82)</p> <p>4. WITNESSES. Previous statement of witness for State consistent with testimony held inadmissible.</p> <p>Where a witness for the State, who identified defendant as the person who committed the homicide, had reason to fear that because of her relations with deceased she might be implicated in the crime, statements by her to the sheriff several hours after the killing to the same effect as her testimony are inadmissible to support it since at that time she had. the same motive for placing-the blame on accused as at tht trial. (Post, pp. 82, 83.)</p> <p>5. CRIMINAL LAW. Admission of previous statements of witness for State held prejudicial to accused.</p> <p>Erroneous admission of previous statements by a witness for the State, consistent with her testimony that defendant committed the homicide, was prejudicial to accused, where she was the only witness who attempted to identify him as the one who did the shooting, and where she had made no statement connecting him with the killing during several hours intervening between the killing and the arrival of the’sheriff. (Post, pp. 83, 84.)</p>

<p>MASTER AND SERVANT. Employment of child held unlawful.</p> <p>Under Acts 1911, chapter 57, section 1, making it unlawful for any proprietor,' etc., to employ, permit, or suffer to work any child under fourteen in any factory, etc., and section 6, declaring it a misdemeanor to employ any child, or for one. having a child under his control as parent, guardian, or otherwise to permit or suffer such child to be employed in violation thereof, it is unlawful for an employer to permit or suffer a child under fourteen to be employed to assist an employee working on piecework.</p> <p>Acts cited and construed: Acts 1911, ch. 57, sec. 1.</p> <p>Case cited and distinguished: Kitts v. Kitts, 136 Tenn., 319.</p>

<p>1. REFORMATION OF INSTRUMENT. Deed to husband and. wife reformed so as to create estate by the entirety where grantees believed that language used created such estate.</p> <p>Where husband and wife agreed that land should be deeded to them so as to create an estate by the entirety, and were erroneously advised by counsel that a conveyance to them jointly would create such an estate, equity will reform the deed so as to create such an estate in an action by husband against the wife’s heirs; there being a mistake of fact. (Post, p%>. 104-117.)</p> <p>Acts cited and construed; Acts 1913, ch. 26.</p> <p>Cases cited and approved: Snell v. Insurance Co., 98 U. S., 91; Griswold v. Hazard, 141 U. S., 260; Trigg v. Read, 24 Tenn., 533; Helm v. Wright, 21 Tenn., 75; Webster v. Stark, 78 Tenn., 414; Park Bros. v. Blodgett, 64 Conn., 28; Canedy v. Marcy, 13 Gray, 373; Trusdell v. Lehman, 47 N. J. Eq., 218; Cooper v. Phibbs, L. R., 2 H. L., 149; Price v. Estill, 87 Mo.,- 378; Norton v. Highley-man, 88 Mo., 621; Griffith v. Townley, 69 Mo., 13; Cassidy v. Met calf, 66 Mo., 619; Gammer V. Jones, 52 Mo. 68; Modrell 1. Riddle. 82 Mo., 31; Cromwell v. Winchester,- 39 Tenn., 389; Perry v. Pearson, 20 Tenn., 439; Talley v. Courtney, 48 Tenn., 715; Seay v. Ferguson, 1 Cooper’s Chy., 295; Harding v. Egin, 2 Tenn., Ch.. 39;' Graham v. Quinn, 43 S. W., 749-752.</p> <p>Cases cited and distinguished: Gill v. McKinney, et al., 140 Tenn., 549; Snell v. Insurance Co., 98 U. S., 85; Cromwell v. Winchester, 39 Tenn., 390; Sands v. Hickman, 3 Higgins, 280; Willard v. Davis, 122 Fed., 367; Lumber Co. v. Shell, 136 Tenn., 466; Walden v. Skinner, 101 U. S., 577; Hunt v. Rousmaniere’s Adm’rs, 8 Wheat.. 174; Corrigan, et al. v. Tiernay, et al., 100 Mo., 276.</p> <p>2. EQUITY. Right not enforced where complainant comes into court with unclean hands.</p> <p>A right will not he enforced in equity where complainant comes into court with unclean hands, or where it would work an undue or unconscionable advantage. (Post, pp. 117-119.)</p> <p>3. REFORMATION OF INSTRUMENTS. Reformation of deed to husband and wife jointly so as to create estate by the entirety held not inequitable.</p> <p>Where wife, whose money was being used in payment for a farm, willingly and freely consented and agreed that the land was to be conveyed to the husband and the wife as tenants by the entirety, without undue advantage being taken of the wife by the husband, equity will not refuse to reform deed conveying land to husband and wife jointly, so as to create an estate by the entirety, in an action by the husband against the wife’s heirs, on the ground that it wduld bt inequitable to grant such relief. (Post, pp. 117-119.)</p> <p>4. REFORMATION OF INSTRUMENTS. Grantor not necessary party in husband’s action a,gainst wife’s heirs to reform deed to husband and wife jointly, so as to create an estate by entirety on ground of mutual mistake.</p> <p>Where a husband and wife agreed that land be conveyed to them as tenants by the entirety, and believed that the deed conveying the land to them jointly created such an estate, the grantor was not a necessary party in the husband’s action against the wife’s heirs to reform the deed, so as to create such estate on the ground of mutual mistake. (Post, p. 119.)</p>

<p>DEATH. Misrepresentation of beneficiary as to minor employee’s age bars recovery against employer.</p> <p>Where a minor of fourteen years, employed on the representation of his father that he was sixteen, was fatally injured while employed by defendant, who had noli complied with Public Acts 1911, chapter 57, section 5, as amended by Public Acts 1917, chapter 77, section 3, requiring age certificate, the father, as beneficiary, being-guilty under section 6 of Acts 1911 in permitting the minor to be employed could not recover because his act was a contributing cause of the death. ></p> <p>Acts cited and construed: Acts 1911, eh. 57, sec. 5; Acts 1917, ch. 77, sec. 3.</p> <p>Cases cited and approved: Bamberger v. Citizens’ St. Ry. Co., 95’ Tenn., 18; Anderson v. Memphis St. Ry. Co., 143 Tenn., 216; Richmond, etc., Co. v. Martin’s Admr., 102 Va., 201; Crevelli v. C., M. & St. Ry. Co., 98 Wash., 42.</p>

<p>1. VENUE. Action for daihages to real estate is a local action.</p> <p>An action for damages for injury to real estate is a “local action,” and must he brought in the county where the land lies. (Post, pp. 131-133.)</p> <p>Cases cited and approved: Nashville v. Webb, 114 Tenn., 432; Board of Directors v. Bodkin Bros., 108 Tenn., 700.</p> <p>Cases cited and distinguished: Mattix v. Swepston, 127 Tenn, 093; Gunther v. Dranbauer, 86 Md., 1.</p> <p>2. ABATEMENT AND REVIVAL. Pendency of action in court having no jurisdiction not bar to action in proper county.</p> <p>Where an action was for injury to real estate in Hickman county, the pendency of an action in Williamson county, where the court was without jurisdiction, and a judgment rendered would have been void, was no bar to an action in Hickman county. (Post, p 133, 134.)</p>

<p>1. JURY. Repeal of statute allowing jury trial in chancery did not affect pending suits.</p> <p>Acts 1919, chapter 90, section 1, repealing the provisions of the Code which gave a right to demand a jury in a chancery case, did not, in view of the second section of that act that every party thereto suing in the chancery court would he conclusively presumed to have waived a jury, and in view of Shannon’s Code, section 61, providing that the repeal of the statute does not affect any accrued right, deprive a party to a suit in chancery instituted before the repealing act took effect of his right to trial by jury. (.Post, pp. 145-147.)</p> <p>Acts cited and construed: Acts 1919, ch. 90, sec. 1.</p> <p>Case cited and approved-: Wallace v. Goodlett, 104 Tenn., 685.</p> <p>Case cited and distinguished: Lewis v. Mynatt, 105 Tenn., 514.</p> <p>2. FRAUDS, STATUTE OF. Statute only applies to contract which by express understanding is not performable within- a year.</p> <p>The provision of the statute of frauds, requiring contracts not performable within a year to be in writing, extends only to contracts which, by express understanding of the parties, are not to be performed within the year. (Post, p. 147.)</p> <p>Cases cited and approved: Railroad v. Staub, 75 Tenn., 397; Leinau v. Smart, 30 Tenn., 308; Railroad v. Hayden, 116 Tenn., 672.</p> <p>3. FRAUDS, STATUTE OF. Evidence held not to show understanding that contract to grade railroad was not to be performed within year.</p> <p>In an action on an oral modification of the contract for the grading of a railroad, evidence held not to show that the parties agreed that the modified contract was not to be performed within a year, though there was testimony it was not reasonably possible to do it, so that the contract was not invalid under the statute. (Post, p. 148.)</p> <p>4. RAILROADS. Engineers of rilroad held authorized to make new agreement with contractor.</p> <p>Where a contractor for railroad construction was seeking to abandon his contract because of the increased cost of the work, and was requested by the vice present of the railroad company to complete the contract and leave the estimate with the railroad engineers, whereupon the contractor was permitted to retire with the engineers and confer with them with regard to the proposition, and as a result of such conference agreed to go on with the work, the railroad company cannot contend that the engineers were not authorized to modify the contract. (Post, pp. 148, 149.)</p> <p>5. TRIAL. Evidence construed most favorably to party against whom peremptory instruction is requested.</p> <p>On motion for peremptory instruction, the entire evidence must be looked to, and it must be given the construction most favorable to the adverse party, and all reasonable inferences allowed in his favor, and the motion denied if there is then any dispute as to any material determinative evidence, or any doublt as to the conclusion to be drawn therefrom. (Post. pp. 149-152.)</p> <p>Oases cited and approved: Kinney v. Railroad Co-, 116 Tenn., 451: Mayor, etc., v. Reece, 138 Tenn., 479; Western Union Tel. Co. v. Lamb, .140 Tenn., 111.</p> <p>6.. APPEAL AND ERROR. Testimony as to witness’ understanding of language used cannot he considered.</p> <p>In determining defendant’s right to a peremptory instruction that the oral contract claimed by plaintiff was not made, a statement by plaintiff’s witness as to what he understood was meant by the language used. by defendant’s officer cannot he considered. (Post, pp. 152-155.)</p> <p>7. CONTRACTS. Agreement to “classify” contractor’s work differs from “estimate according to cost.”</p> <p>Testimony as to the modification of a contract for the construction of a railroad on which payments were to he made on the unit basis, so that the railroad engineers were to estimate the work according to cost, differs essentially from other testimony of the same witness they were to classify the work, since “estimating according to cast” means the issuance of estimates to the contractor calculated on the basis of cast, while to classify would mean to bring the different kinds of work under the heads or classes, and would be proper under a Unit price contract, but meaningless with reference to an agreement to pay the cast of the work. (Post, pp. 155-157.)</p> <p>Case cited and distinguished: Corbett v. Smith & Co., 101 Tenn., 374.</p> <p>8. TRIAL. Unexplained contradiction in testimony of only witness to support contra.ct held to warrant peremptory instruction aghinst agreement.</p> <p>Where the only evidence to support plaintiff’s version of the contract was the testimony of an interested witness, who had also stated the contract in- the terms claimed by defendant, .a peremptory instruction for defendant should have been given. (Post, pp. 157, 158.)</p> <p>Cases cited and approved: McLemore v. Railroad, 111 Tenn., 666: Harris v. Water & Light Co., 114 Tenn., 341.</p> <p>9 ESTOPPEL. Litigant cannot take position inconsistent with former position deliberately taken.</p> <p>A litigant who has deliberately taken one position will not, as a. matter of law, be allowed to advantage* himself by thereafter taking an inconsistent position either in the same or in another suit. (Post, pp. 159-161.)</p> <p>Cases cited and distinguished: Hamilton v. Zimmerman, 37 Tenn., 48; Stamper v. Venable, 117 Tenn., 561; Stearns Coal & Lumber Co. v. Jamestown R. Co., 141 Tenn., 206.</p> <p>20. CONTRACTS. Evidence aside from inconsistent testimony of witness held not to establish modified contract.</p> <p>Where plaintiff claimed a railroad construction contract had been •modified to allow the contractor the cost of the work, instead of the unit price fixed by the contract, while the defendant claimed the only modification was an agreement to reclassify some of the work, evidence that the contractor in his correspondence referred to the reclassification agreed upon, and requested an allowance of the cost of the work, without then claiming a previous agreement to that effect, and stopped work when his request was refused, lielcl not to support the contractor’s testimony as to the terms of the contract, which was contradicted by other portions of his own testimony stating the terms as claimed by the defendant. (Post, pp. 161-163.)</p> <p>11. CONTRACTS. Agreement held not to authorize use of contractor’s equipment without compensation.</p> <p>An agreement by a railroad company to advance money to its contractor, with the understanding that the contractor would allow his equipment to be used on the work until it was completed, does not entitle the railroad to use such equipment after the contractor abandoned his contract without paying compensation for such use. (Post, pp. 163, 164.)</p> <p>12. TROVER AND CONVERSION. Bill seeking recovery of property and rental value waives conversion.</p> <p>Where the receiver of a railroad contractor filed a bill against the railroad seeking to recover the property of the contractor used by the railroad in completing the work after it was abandoned by the contractor, and asking for the value of the hire and use of the property, he thereby waived his claim that the railroad hid converted the property, and cannot recover its value. (Post, pp 164, 165.)</p> <p>Case cited and distinguished: Bell v. Cummings, 35 Tenn., 286.</p> <p>13. TROVER AND CONVERSION. Rental value and decrease in market value cannot hoth be recovered.</p> <p>A receiver for a railroad contractor cannot recover from the railroad company which used the contractor’s equipment after he abandoned the contract both the rental value of the use of the equipment and the decreased market value. (Post, p. 166.)</p> <p>14. DAMAGES. Evidence held not to entitle contractor to recover for abuse of property used by railroad.</p> <p>A receiver of a railroad contractor cannot recover from the railroad for the abuse of the contractor’s equipment used by the railroad after the abandonment of the contract where the evidence is support of that item was meager, and the chancellor granted a liberal rental for the use of the equipment, which was all that the bill . prayed for. (Post, p. 166.)</p> <p>16. INTEREST. Allowance on recovery from date' of suit is within chancellor’s discretion.</p> <p>The allowance of interest on recovery of the amount due a railroad contractor on modified agreement, and for use of his equipment from the filing of the bill, was a matter resting primarily in the chancellor’s discretion. (Post, pp. 166, 167.)</p> <p>16. INTEREST. Allowance of interest on recovery for admitted liability held proper.</p> <p>Where defendants acknowledged their liability for a portion of plaintiff’s claim, but made no tender or offer to pay, because the.v filed a cross-complaint, which, however, they abandoned when it was dismissed by the chancellor,, the allowance of interest from the date of filing the bill was a proper exercise of the chancellor’s discretion. (Post, p. 167.)</p> <p>17. RAILROADS. Company held not liable for contractor’s work under director general.</p> <p>Where a railroad was under the control of the director general at the time a modified agreement with a contractor for construction was made, and during the time of the performance of such agreement by the contractor and by the railroad after his abandonment, the railroad company was not liable for the amount due the con tractor under the modified agreement, or the rental value of the equipment used in completing the contract after its abandon•ment (Post, p. 167.)</p> <p>Cases cited and approved: Memphis Union Station Co. v. Manning, 144 Tenn., 640.</p>

<p>1. MUNICIPAL CORPORATIONS. Street improvements for benefit of public, and not of abutting property owners, and bond issue therefor need not be submitted to voters.</p> <p>Private Acts 1919, chapter 598, providing that two-thirds of the cost of street improvements shall be borne by abutting property owners, and authorizing city to issue bonds for the part so charged to be -repaid by assessments against adjacent property, is not invalid as violating Constitution article 2, section 29, which provides that the credit of a city or town shall not be given or loaned to any person, etc., except by assent of three-fourths of the qualified voters at an election, the expenditure not being for the benefit or in aid of the adjacent property owners, but a public improvement made on the city streets, over which it maintains control for the benefit of all its citizens. {Post, pp. 172, 173.)</p> <p>Acts cited and construed: Acts 1919, ch. 598.</p> <p>Qase cited and approved: Imboden v. City of Bristol, 132 Tenn., 562.</p> <p>Constitution cited and "construed: Art. 2, sec. 29.</p> <p>2. STATUTES. Act not invalid as embracing more than one subject in title and body if provisions have proper connection.</p> <p>Private Acts 1919, chapter 598, providing for construction and improvement of streets within cities and towns having a population of not less than two thousand, two hundred and fifty nor more than two thousand, three hundred, the provisions of which relate, either directly of indirectly, to the subjects expressed in the title, and having a natural connection therewith, is not unconstitutional as embracing more than one subject in title and body, under Constitution article 2, section 17. {Post, pp. 173, 174.)</p> <p>Cases cited and approved: Cannon-v. Mathes, 55 Tenn., 504; Heiskell v. Knoxville, 136 Tenn., 376; State v. Cumberland Club, 136 Tenn., 84; Scott v. Nashville Bridge Co., 143 Tenn., 106; State v. Scblitx Brewing Co., 104 Tenn., 716; Memphis Street Ry. Co. v. State, 110 Tenn., 598.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>3. STATUTES. Amending by implication ■ former statute, need not recite in caption or otherwise title or substance of act amended.</p> <p>Private Acts 1919, chapter 598, providing for the issuance of bonds for the reimprovement of streets, etc., and amending Acts 1903, chapter 316, does not violate Constitution, article 2, section 17, providing that all acts which amend former laws shall recite in their caption or otherwise the title or substance of the law amended; the amendment being by implication. {Post, pp. 174, 175.)</p> <p>Cases cited and approved: Goodlar v. Memphis, 113 Tenn., 27; Railroad v. Maxwell, 113 Tenn., 464; Railroad v. Railroad, 116 Tenn., 500; Malone v. Williams, 118 Tenn., 444; State ex rel. v. Taylor, 119 Tenn., 253; State ex rel. v. McConnell, 71 Tenn., 340; State ex rel. v. Gaines, 72 Tenn., 353; Insurance Co. v. Taxing Dist., 72 Tenn., 647; State v. Yardley, 95 Tenn., 558; Railroad v. State, 110 Tenn., 598.</p> <p>4. MUNICIPAL CORPORATIONS. Homestead subject to assessment for street improvements.</p> <p>Under article 11, section 11, providing that the exemption of the homestead shall not operate against public taxes nor debts for purchase money or improvements, Private Acts 1919, chapter 598. providing that a portion of the cost of street improvement be assessed to the abutting property owners, subjected a homestead to the assessment thereof. {Post, p. 175.)</p> <p>Case cited and approved: State ex rel. v. Powers, 124 Tenn., 533.</p> <p>Code cited and construed: Sec. 3799 (S.).</p> <p>5. MUNICIPAL CORPORATIONS. Bonds may be issued for proper use of city without vote of people.</p> <p>Where the credit of a city is to be used for a proper city purpose if due authority is given by the legislature, bonds may be issued by the city for such purpose, without the submission of the matter to the vote of the people. (Post, p. 176.)</p> <p>G. MUNICIPAL CORPORATIONS. Act repealing by implication former act not invalid, as conflicting therewith.</p> <p>Private Acts 1919, chapter 598, repealed by implication Acts 1901!, chapter 316, section 22, which provided that the aggregate indebtedness to be incurred by the city of Athens for street improvement, etc., shall not exceed ten per cent, of the value of the assessable property of the city, and is not invalid as conflicting therewith. (Post, p. 176.)</p> <p>Acts cited and construed: Acts 1903, ch. 316, sec. 22.</p> <p>7. APPEAL AND ERÍIOR. Complaint as to validity of ordinances not stating grounds not considered on appeal.</p> <p>Complaint that certain city ordinances were invalid as not complying with the provisions of Private Acts 1919, chapter 598, but not pointing out wherein or in what particular such ordinances are invalid, cannot be noticed on appeal. (Post, p. 176.)</p> <p>8. MUNICIPAL CORPORATIONS. Sale of bonds, permitting purchaser to retain proceeds and pay city as work progressed, illegal.</p> <p>The sale of bonds for street. improvement, permitting purchaser to retain the proceeds without security to the city, and to pay the city only as the work progressed, was illegal. (Post, pp. 176, 177.)</p> <p>Case cited and approved: Delafield v. State of Illinois, 26 Wend., 192.</p> <p>9. MUNICIPAL CORPORATIONS. Sale of bonds, fixing no maximum amount for expense of issuance, illegal.</p> <p>Acceptance by a city of a bid for bonds for street improvements, providing that the minimum allowance for printing and counsel fees in having their legality passed upon should not be less than $5,700, was illegal as fixing no maximum amount for such expenses. (Post, pp. 177, 178.)</p> <p>Case cited ad approved: Miller v. Park City et al., 126 Temí., 427.</p> <p>10.MUNICIPAL CORPORATIONS. Within discretion of city to have proceeds of bonds deposited in particular bank.</p> <p>It is within the discretion of city authorities to make an agreement with the purchaser of its bonds to deposit the proceeds of such bonds in a particular bank, provided they act in good faith and with due care and diligence. (Post. p. 179.)</p> <p>31 MUNICIPAL CORPORATIONS. City has power to amend ordinances, reducing width of streets designated therein for improvement.</p> <p>A city may amend its ordinances and r'educe the width of the streets designated therein for improvement, so as to conform to proposed contract conditionally accepted. (Post, pp. 179, 180.)</p>

<p>1. LOGS AND LOGGING. Standing trees are part of realty, and do not nartake of the Ohara ter of emblements or fructus industriales.</p> <p>Standing trees are a part of the realty, and, inasmuch as they are the natural and permanent growth of the soil, they cannot be regarded as emblements or fructus industriales, and therefore a sale conveyance, or mortgage of land carries with it the trees growing thereon, and they cannot be levied upon or sold as chattels while standing, but lose such character by being severed from the realty. (Post, p. 195.)</p> <p>2. FRAUDS, STATUTE OF. Logs and Logging. Standing timber can only be conveyed by written instrument complying with the statute of frauds.</p> <p>A sale of standing timber is a sale of an interest in land, and hence a deed therefor is controlled by the rules governing deeds for realty, and the title thereto can be conveyed or transferred only by a written instrument complying with the statute of frauds. , (Post, p. 195.)</p> <p>Case cited and approved: Childers v. Coleman, 122 Tenn., 109.</p> <p>Case cited and distinguished: Galloway-Pease Co. v. Sabin, 130 Tenn., 578.</p> <p>3. LOGS AND LOGGING, Standing' timber may be transferred by deed, grant, or reservation and may constitute an estate separate from the land.</p> <p>Standing timber may be transferred by deed, grant, or reservation, and may constitute an estate separate from the land, and, when so separated, it retains its character so long as it remains, uncut, but when severed it becomes personal property. (Post. pp. 195, 196.) •</p> <p>4. LOGS AND LOGGING. Fee-simple title may be had in trees apart from title to land.</p> <p>There may be different ownership in land and timber upon it and the fact of diverse ownership does not change the character of timber as real estate until actually severed, so that a fee-simple title can be made in trees as well as in land. (Post, p. 196).</p> <p>5. LOGS AND LOGGING. Parties may contract. that one have perpetual right to enter upon other’s land and remove timber.</p> <p>Parties may make a contract whereby one will be entitled to a perpetual right to enter upon land of another and remove timber therefrom if the intention is made clearly to appear. (Post, p. 196.></p> <p>6. LOGS AND LOGGING. One’s perpetual right to enter another’s</p> <p>Where one party has a perpetual right to enter upon another’s land to remove timber is primarily a question of intention. (Post, pp. 196, 197.)</p> <p>•Case cited and approved: Hicks v. Phillips, 146 Ky., 305.</p> <p>7. LOGS AND LOGGING. Deed to timber construed as giving purchaser right to enter lands to cut and remove trees at pleasure or convenience.</p> <p>A deed to timber apart from ownership of the land construed in the light of the situation, circumstances, and surrouudings of the parties at the time of its execution, held to give a right in perpetuity in the trees therein described, and to give purchaser an unrestricted right to enter the lands and cut and remove the trees at pleasure or convenience, inasmuch as the contract gave the right to cut and' remove “at any time,” and warranted title to the trees. (Post, pp. 197, 202.)</p> <p>Cases cited and approved: Goodson v. Stewart, 154 Ala., 660; Oates v. Yeargin, 115 S. W., 794; Ferguson v. Arthur, 128 Mich., 297; Mitchell-Crittenden Tie Co. v. Crawford, 61 Okla„ 191; Hoit v. Stratton Mills, 54 N. H., 109; Berry v. Marion County Lbr. Co., 108 S. G., 108; Houston Oil Co. v. Boykin, 109 Tex., 276; Deerfield Lbr. Co. v. Lyman, 89 Vt, 201; Adams v. Tlazen, 123 Va„ '’-01; Johnson v. Powhatan Mineral Co., 127 Va., 352; Liston v. Chapman & D. Land Co., 77 Arte., 116; Hall v. Wellman Lbr. Co., 78 Ark., 408; Carson v. Lbr. Co., 108 Tenn., 681; Butterfield Lbr. Co. v. Guy, 92 Miss., 361; Forest Product & Mfg. Co. y. Buckley. 107 Miss., 897; Cobban Realty Co. v. Donlan, 51 Mont., 58; Jones v. Lodwick Lift. Co., S. W., 736; France v. Deep River Logging Co., 79 Wash., 336; Houston, Oil Co. v. Hamilton, 109 Tex., 270; Wilson Lbr. Co. v. Alderman, 80 S. C., 106; Putnam v. Tuttle, 10 Gray (Mass.), 48.</p> <p>Cases cited and distinguished; North Georgia Co. v. Beboe, 128 Ga., 563; Baker v. Kenney, 145 Iowa, 638; Lodwick Lbr. Co. v. Taylor, 100 Tex., 270; Chapman v. Dearman, 181 S. W. 808.</p> <p>8. LOGS AND LOGGING. Court may look to circumstances surround- ' ing the parties to determine time in which grahtee may remove timber.</p> <p>In interpreting the language of a deed to trees standing upon land, it is competent to look to the surroundings of the parties, the circumstances attending its execution and delivery and, if necessary, to vendee’s refusal to accept-the deed as originally written, because limiting time for removal of trees to three years, to determine whether a perpetual right to enter and remove was given. (Post, pp. 202, 203.)</p> <p>9. EVIDENCE. Evidence as to time purchaser had to remove timber held not to contradict terms of deed.</p> <p>Where a deed provided that the grantee might enter the land at any time to remove the timber, evidence of circumstances attendant upon the execution of the deed showing the intention as.to time of removal, held, not to contradict or vary the terms of the deed, but consistent with its terms and confirmatory thereof. (Post, pp. 202, 203.)</p> <p>Case cited and approved: Gholson v. Finney, 46 S. W., 345.</p> <p>JO. REFORMATION CP INSTRUMENTS. Bill of complaint and facts held to warrant reformation of deed for theber; it not effecting parties’ intention.</p> <p>In a suit involving title to and the right to cm'' and remove certain standing timber, if the language of the deed se. written was not sufficient to effect the contract according to the c'/'ar intention of the parties, held, tliat under the amended bill and facts proven, complainant would have been entitled to have the deed reformed so as to express the real contract on the ground of mistake, the evidence showing that the intention of grantors was to give grantee free and unrestricted to remove the timber. (Post, pp. 203, 204.)</p> <p>Case cited and approved: Pittsburg Lbr. Co. v. Shell, 136 Tenn., 466; Dinwiddie v. Self, 145 Ill., 290.</p> <p>11. APPEAL AND ERROR. Granting request to hold up decision for reply to supplemental brief is unnecessary, where the latter is not relied upon by the court.</p> <p>Granting request of counsel to hold up decision until counsel could have time to reply to the last supplemental brief of complainant’s counsel is unnecessary, where the decision is not based on anything presented in such supplemental brief. (Post, p. 204.)</p>

<p>1. APPEAL AND ERROR. Opinion on former appeal law of case on subsequent appeal.</p> <p>The decision of the supreme court on a former appeal held the law of the case on a subsequent appeal. (Post, p. 210.)</p> <p>2. MUNICIPAL CORPORATIONS. Insolvency of contractor and apparent inability to complete contract held to warrant city in assuming charge of work.</p> <p>Where a contract called for completion of a main building in October and an auditorium in January, but the contractor had finished neither building in February, and was insolvent, and it was apparent that he' was wholly unable to complete the contract, the city was warranted in giving the contractor the required notice and assuming charge of the work. (Post, pp. 210, 211.)</p> <p>3. DAMAGES. Provision in contract for construction of school for. payment for delay held a provision for liquidated damages, and not a penalty.</p> <p>Provision in contract for construction of school buildings stipulating for an agreed per diem payment for delay held one for liquidated damages, and not a penalty in view of nature of the contract, the purpose for which the building was to, be used, the public detriment to be contemplated by delay, and the difficulty of estimating the damage. (Post, pp. 210, 211.)</p> <p>Cases cited and approved: Yaulx v. Buntin, 127 Tenn., 118; Wise v. United States, 249 U. S., 361.</p> <p>4. MUNICIPAL CORPORATIONS. Claim of laborers and material-men against public contractor must be filed within 30 days after contractor’s abandonment of the contract. ,</p> <p>Under Acts 1899, chapter 182, section 4, requiring notice of claims of laborers and materialmen against public contractor to be filed “within thirty days after the contract is completed,” laborers and materialmen, to bring themselves within the protection of the bond of the contractor who has abandoned the contract, must file claim within thirty days after abandonment of the contract. (Post, pp. 211-214.)</p> <p>5. MUNICIPAL CORPORATIONS. Abandonment or default of contractor to constitute completion of contract within statutes as . to filing of claims must be such as to be legally binding.</p> <p>The abandohment or default of a public contractor, to constitute the expiration or completion of his contract, within Acts 1899, chapter 182, section 4, requiring laborers and materialmen to filo claims within thirty days after completion of the contract to come within the protection of the contractor’s bond, must be such as to be legally binding upon him; temporary cessation of or interference with the work not acquiesced in by the contractor not being sufficient. (Post, pp. 211-214.)</p> <p>6. MUNICIPAL CORPORATIONS. Temporary cessation or interference with work, not acquiesced in by public contractor, will not work forfeiture of the contract.</p> <p>Temporary cessation of work or interference therewith, not acquiesced in by contractor, will not work a forfeiture by the contractor of the public contract, since only the existence of legal causes will terminate his rights.thereunder. (Post, pp. 211-214.)</p> <p>1. MUNICIPAL CORPORATIONS. Contractor and surety claiming that contract was not abandoned could not insist that particular time should be taken as fixing completion under statute as to filing claims.</p> <p>Public contractor and his surety, claiming that the contractor had not abandoned his contract, but was legally deprived thereof by the city, could not insist that any particular time was taken as fixing the completion of the contract within Acts 1899 chapter 182. section 4, requiring laborers and materialmen to file claims within thirty days after completion of the contract to come within the protection df the contractor’s bond. (Post, pp. 211-214.)</p> <p>S. MUNICIPAL CORPORATIONS. Materialmen and laborers to avail themselves of public contractor’s bond need not have given surety notice of claims.</p> <p>Materialmen and laborers to avail themselves of public contractor’s bond executed under Acts 1899, chapter 182, need not have given contractor’s surety notice of their claims. (.Post, pp. 214, 215.)</p> <p>9.MUNICIPAL CORPORATIONS. Contractor’s bond executed under statute not construed to impose requirements in addition, to those designated ino statute.</p> <p>Public contractor’s bond executed under Acts 1899, chapter 182, will not be construed to impose requirements in addition to those designated in the statute. (Post, pp. 214, 215.)</p> <p>10. MUNICIPAL CORPORATIONS. Public contractor’s surety held not relieved from liability for payments made by contractor to assignee.</p> <p>Where public contract provided for payments to contractor on estimates for labor and material actually employed in the construction of the building, and did not restrict contractor’s right to make assignment thereof, contractor’s surety was not relieved from liability because of payments so made to contractor or his assignee, where amount in excess of payments so made was actually used in furtherance of the work. (Post, pp. 214, 215.)</p> <p>Acts cited and construed: Acts 1915, ch. 192.</p> <p>11. MUNICIPAL CORPORATIONS. Provision in public contractor’s bond requiring notice to surety of default, accompanied by statement of principal facts showing claim for indemnity, held valid.</p> <p>Stipulation in contractor's bond providing for notice of default, accompanied by a statement of the principal facts showing the claim for indemnity, held valid. (Post, pp. 215, 216.)</p> <p>12. MUNICIPAL CORPORATIONS. City completing building on contractor’s abandonment entitled to apply funds of contractor in its hands in satisfaction of its damages awarded fer delay.</p> <p>Where a city completed contract on contractor’s abandonment thereof, the city was authorized to apply the funds of the contractor in its hands to the satisfaction of its damages ’warded for delay incompletion of the building. (Post, p. 216.)</p> <p>13. MUNICIPAL CORPORATIONS. Surety not subject to additional liability under statute for refusal to make settlements after demand unless refusal in bad faith.</p> <p>Under Acts 1901, chapter 141, providing, for additional liability in cases where the refusal of the insurer or indemnitor to make settlement after demand is not made in good faith, it must appear that the surety company was prompted by improper motives in its refusal to settle upon the bond, or that its defense of the suit instituted ,by the city was not in good faith to entitle the city to additional liability. (Post, p. 216.)</p> <p>Case cited and approved: Silliman v. Life Ins. Co., 135 Tenn., 646.</p> <p>14. MUNICIPAL CORPORATIONS. Claimants benefiting by city’s successful prosecution of suit on public contractor’s bond, required to bear proportionate part of counsel fees.</p> <p>In action on public contractor’s bond executed under Acts, 1899. chapter 182, and Private Acts 1915, chapter 192, in which the success of the city in enforcing the obligations of the bond inured to the benefit of claimants for material and labor, the claimants will be required to bear their proportionate share of the counsel fees incurred by the city in prosecuting a suit. (Post, p. 217.)</p>

<p>1.. SCHOOLS AND SCHOOL DISTRICTS. School building contractor’s bond held common-law bond to protect school board and a statutory-bond to protect materialmen and laborers.</p> <p>High school building contractor’s bond, conditioned for contractor’s performance of the contract and payment for all material and labor used, held a common-law bond to indemnify a school board, and a statutory bond under Acts 1899 chapter 182, to protect ma-teralmen and laborers. (Post, pp. 225, 226.)</p> <p>Acts cited and construed: Acts 1899, ch. 182.</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS. Failure of bond to require payment for material and labor in lawful money of the United States held immaterial.</p> <p>A contractor’s bond executed under Acts 1899, chapter 182, section 1, requiring public contractor to execute a bond to “pay for all the materials and labor used in said contract, in lawful money of the United States,” held not void in that it merely required the contractor to pay for material and labor without requiring such payment to be made “in lawful money of the United States," the omission of the quoted words in the bond being immaterial. (Post, pp. 225, 226.)</p> <p>Case cited' and approved: City of Bristol v. Bostwick, 139 Tenn., 304.</p> <p>3. SCHOOLS AND SCHOOL DISTRICTS. Provision in contractor’s bond held surplusage.</p> <p>Provision in contractor’s bond to protect laborers and materialmen under Acts 1899, chapter 182, where a contractor to discharge “any and all obligations . . . that may or shall constitute an in debte.dness upon said structures,” held surplusage to be lisre-garded, having reference to mechanics’ liens which cannot attach to public buildings. (Post, p. 226.)</p> <p>Case cited and approved: Hardison v. Yeaman, 116 Tenn., 639.</p> <p>4. SCHOOLS AND SCHOOL DISTRICTS. Contractor’s receiver cannot sue on contractor’s bond for benefit of laborers and materialmen protected thereby.</p> <p>A contractor’s receiver could not bring action on contractor’s bond executed under Acts 1899, chapter 182, for protection of material-men and laborers, since such suit should be instituted by the ma-terialmen and laborers themselves, or by the school board for their benefit. (Post, pp. 226, 227.)</p> <p>5. ATTORNEY AND CLIENT. Solicitors of contractor’s receiver suing on contractor’s bond held not entitled to fee out of funds in hands of school board ordered paid into court.</p> <p>Where action on public contractor’s bond executed for protection of laborers and materialmen under Acts 1899, chapter 182, was brought for the benefit of .such laborers and materialmen by the contractor’s receiver instead of by the claimants themselves, or by the school board for their benefit, the solicitors for the receiver were not entitled to their fee out of the funds in the hands of the school board which the court ordered paid into court. (Post, pp. 227., —)</p> <p>6. SCHOOLS AND SCHOOL DISTRICTS. Supplemental contract held not to affect rights of laborers and materialmen under contractor’s bond.</p> <p>Supplemental contract between school board and contractor, in volving changes in original plan necessitating extra expense of $2,000, to which the contractor’s surety did not consent, did not affect the rights of materialmen and laborers who did 'not participate in alteration agreement, under the contractor’s bond executed under Acts 1899, chapter 182, for the benefit of laborers and ma-terialmen, though material was furnished under supplemental contract, where the original contract provided that alterations might be made without vitiating the contract. (Post, pp. 227-230.)</p> <p>Case cited and distinguished: Equitable Surety Co. v. United States, 234, U. S., 448.</p> <p>7. APPEAL AND ERROR. Assignment of error not referring to portion of record, in support thereof not considered.</p> <p>Assignment of error not referring to any portion of the record containing proof in support thereof will not he considered. {Post, p. 230.)</p> <p>8. SCHOOLS AND SCHOOL DISTRICTS. Materialmen protected toy contractor’s toond though material was diverted from use in performing contract.</p> <p>Where material was in good faith furnished for use in performance of a contract, the materialmen were protected by the contractor’s bond executed under Acts 1890, chapter 182, though material was diverted from use by the contractor. (Post, p. 230.)</p> <p>Case cited and approved: York Lbr. & Mfg. Co. v. McKnight, 138 Tenn., 687.</p> <p>9 SCHOOLS AND SCHOOL DISTRICTS. Claims of materialmen and laborers against contractor’s surety held assignable.</p> <p>Under Thompson-Shannon Code, section 3516, claims of laborers and materialmen against public contractor’s surety under Acts 1899, chapter 182, were assignable. (Post, pp. 230, 231.)</p> <p>Code cited and construed: Sec. 3516 (T.-S.).</p> <p>10. SCHOOLS AND SCHOOL DISTRICTS. Laborers and materialmen to bring themselves within protection of contractor’s bond must file claims within thirty days after completion or abandonment of work.</p> <p>Laborers and materialmen to avail themselves of public contractor’s bond under Acts 1899, chapter 182, must file claims within thirty days after the completion of the contract, or, in case of a defaulting contractor, within thirty days after the contractor’s abandonment of the work. (Post, pp. 231, 232.)</p> <p>Case cited and approved: City of Bristol v. Bostwick, 139 Tenn., 304.</p> <p>11. SCHOOLS AND SCHOOL DISTRICTS. Residue of retained percentage after school board’s completion of contract abandoned by contractor belongs to him.</p> <p>Where school board completed construction oí building on contractor’s abandonment thereof, the residue of the percentage retained by the school hoard from the amount due the contractor after the board’s completion of the work was not a fund to be applied to the payment of materialmen and laborers, where the contract did not so provide, hut belonged to the contractor; the laborers and materialmen having no iien on the funds in the hands of the school board, notwithstanding service of notice ot claim under Acts 1899 chapter 182. (Post, pp. 232, 233.)</p> <p>Cases cited and approved: Prairie State National Bank v. United States, 164 U. S., 227.</p> <p>12. SUBROGATION. Assignment to surety of contractor’s rights to retain percentage of unsued material, etc., held not valid without notice to school hoard.</p> <p>Contractor’s agreement in application for. bond that surety might be subrogated to contractor’s right to retain percentage of unsued material, etc., in case of default, was valid as to unsued material and physical property, hut was not good' as against retained percentage in hands of school hoard without notice to school board as against other creditors giving prior.notice or attaching fund. (Post, pp. 233, 234.)</p> <p>Cases cited and approved: Clodfelter v. Cox, 33 Tenn., 330; Willis v. Mann Const. Co., 236 S. W., 282; Peters v. Goetz, 136 Tennv 257.-</p> <p>13. SUBROGATION. Contractor’s surety on payment of claims against contractor was entitled to he subrogated to claimants’ rights against contractor.</p> <p>Public contractor’s surety on payment of duly filed claims of material-men and laborers was entitled to be subrogated • to the claimants' rights against the contractor, and to participate as claimants would have participated in the distribution of the assets of the con-' tractor. (Post, p. 234.)</p> <p>14. SCHOOLS AND SCHOOL DISTRICTS. Expenses of school board’s cross-bill for benefit of claimants against contractor’s bond not allowed out of common recovery or as against bond.</p> <p>Where a number of materialmen filed separate petitions to recover on ej, contractor’s bond before the school board had filed its cross-bill, for the benefit of all claimants against the bond, the expenses of the cross-bill, including- solicitors’ fees, should not be allowed out of the common recovery, or as against the bond, since it would be improper to charge the bond, or such materialmen who had filed separate petitions, with the cross-bill, which was rendered unnecessary as to such materialmen; the proper px-actice in such case being to require each litigant to compensate his own counsel as in consolidated cases. (Post, p. 234.)</p> <p>1C. SCHOOLS AND SCHOOL DISTRICTS. Cost of horse feed for teams transporting material used in contract not allowed against contractor’s bond.</p> <p>' Materialmen held not entitled to recover against contractor’s bond for horse feed for teams transporting material. (Post, pp. 234, 235.)</p> <p>Case cited and approved: Carter Co. v. Oliver Hill Const. Co., 143 Tenn., 649.</p>

<p>L TURNPIKES AND TOLL ROADS. Right to collect tolls is a franchise which vests only as granted hy legislature.</p> <p>The right to collect tolls is a franchise, a sovereign prerogative, wh'Ch vests only when and so far as granted hy the legislature. (Post, p. 240.)</p> <p>Acts cited and construed: Acts 1875, ch. 142.</p> <p>Code cited and construed: Secs. 1777, 2463 (T.-S.).</p> <p>2. CORPORATIONS. That fairly implied in charter is as much granted as that expressed.</p> <p>Ill construing a corporate charter, that which is fairly implied is as much grante as that expressed. (Post, p. 240.)</p> <p>Case cited and approved: Doty v. Telephone, etc., Co., 123 Temí., 329.</p> <p>3 STATUTES. Express exception, exemption or saving excludes others.</p> <p>Where a general rule is established by statute with exceptions, the court will not curtail the former nor add to the latter hy implication; an express exception, exemption, or saving excluding others. (Post, pp. 241-245.)</p> <p>4. TURNPIKES AND TOLL ROADS. Tolls may l)e collected from automobilists under statute relative to horse-drawn conveyances.</p> <p>Under Thompson-Shannons Code, section 2463, conferring the right to collect tolls and fixing rates for certain horse-drawn conveyances, hut excepting persons on certain missions, tolls may be collected from automobilists; the exceptions stated implying that all travel not exempted is subject to toll. (Post, pp. 241-246.)</p> <p>Acts cited and construed: Acts 1877, ch. 23.</p> <p>Cases cited and approved: Kelly v. State, 123 Tenn., 516; Burns r. City of Nashville, 132 Tenn., 429; In re Highway of Peru, 91 Vt., 295; Mallory v. Saratoga Lake Bridge, Co., 53 Mise., 446; By-Town Union Co. v. Blackburn, Rap. Jud. Quebec, 24 B. R., 118; Geiger v. Perkiomen, etc., Turnpike Road, 167 Pa., 582; Mur flu v. • Detroit, etc., Plank-Road Co., 113 Mich., 675; Burton v. Monticello & B. Turnpike Co., 162 Ky., 787.</p> <p>Cases cited and distinguished: Gibbons v. Ogden, 9 Wheat., 1; Brown et al. v. State of Maryland, 12 Wheat., 419.</p> <p>Code cited and construed: Sec. 2463 (T.-S.).</p> <p>5. TURNPIKES AND TOLL ROADS. Turnpike company cannot be required to permit free use of road by automobiles.</p> <p>A turnpike company, being required by Thompson-Shannon Code, sections 1769, 1771, to keep the road in repair, though authorized by its charter to collect tolls for the use thereof by horse-drawn conveyances only, may exact a toll from automobilists, whose use of the road it cannot deny, as to permit free use of the road by them would result in taking property without due process in viola-r tion of Construction article 1, section 8, and Construction U. S. Amend. 14. (Post, pp. 245, 246.)</p> <p>Case cited and approved: Sumner County v. Interurban Transportation Co., 141 Tenn., 493.</p> <p>Code cited and construed: vSecs. 1769, 1771 (T.-S.).</p> <p>6. TURNPIKE AND TOLL ROADS. Automobilsts not exempt from tolls for use of “turnpike road,” “public road.”</p> <p>A turnpike road being a public road, which is a way open to 'all the people -without distinction for passage and repassage at their pleasure, a turnpike company, authorized by its charter to exact toll for the use of the road by horse-drawn vehicles, cannot be required to exempt automobilists, as to do so would be an unjustifiable discrimination remediable on complaint by any party adversely affected. (Post, p. 246.)</p> <p>7. STATUTES. Development of obnoxious f3atures after passage does not affect validity.</p> <p>That obnoxious features of an act did not develop for several years after its passage does not affect its validity, .which is determined, not by what has been done, but by what may bé done. (Post, p. 247.)</p> <p>Cases cited and approved: Stuart v. Palmer, 74 N. Y., 183; Hathorn v. Natural Carbonic Gas Co., 194 N-. Y., 326; Montana Co. v. St. Louis Mining Co. 152 U. S., 160.</p> <p>S. CONSTITUTIONAL LAW. Must be construed to save constitutionality.</p> <p>A statute must be construed, if possible, to save its constitutionality. (Post, p. 247.)</p> <p>S. STATUTES. Must be construed to carry out purpose and avoid absurd consequences.</p> <p>A statute must be construed, if possible to make it sensible, to effect the purpose for which it was enacted, and avoid absurd consequences. (Post, p. 247.)</p> <p>Cases cited arid approved: Dugger v. Ins. Co., 95 Tenn., 245; State v. Schlitz Brewing Co., 104 Tenn., 715; Maxey v. Powers, 117 Tenn., 381; Riggins v. Tyler, 134 Tenn., 577.</p> <p>10. TURNPIKES AND TOLL ROADS. May exact reasonable toll for use of road by vehicles for which not rate is fixed.</p> <p>That a statute fixing toll rates for the use of a turnpike by horse-drawn conveyances fixed no rate of toll for vehicles not mentioned, such as automobiles, does not affect the right to exact tolls therefrom; the turnpike company being entitled to demand a reasonable toll until such rates are fixed by law. (Post, p. 247.)</p> <p>Case cited and approved: Geiger v. Perkiomen, etc., Turnpike Road, 167 Pa., 582.</p>

<p>MASTER. AND SERVANT. Steamboat employee Reid engaged in “interstate commerce’’ excepted from Compensation Act.</p> <p>Where a company was operating a steamboat on the Tennessee River between Chattanooga, Tenn.,’ and Decatur, Ala., and the mate on the boat was injured while trying to get a deck hand to perform his duties incident to a shipment of freight, the company and its injured employee were both .engaged in “interstate commerce,’ within Workmen’s Compensation Act, section 6, subdivision a, excepting from the operation of the statute carriers engaged in interstate commerce.</p> <p>Acts cited and construed: Acts 1919, ch. 123, sec. 6.</p> <p>Case cited and approved: Salmon v. Southern Railway Co., 133 Tenn., 223.</p>

<p>1. APPEARANCE. Plea in abatement to jurisdiction does not constitute appearance.</p> <p>Jurisdiction can always be raised by plea in abatement, and such peal does not constitute an appearance. (Post, pp. 254-260.)</p> <p>2. JUDGMENT. Plea in abatement in garnishment testing jurisdiction does not entitle plaintiff to personal judgment against defendant.</p> <p>Where defendant filed a plea in abatement denying any interest in funds, a portion of which plaintiff sought to garnish the plea went to the jurisdiction of the court, and did not entitle plaintiff to a personal judgment because by filing such plea defendant en tered his appearance. (Post, pp. 254-260.)</p> <p>- Case cited and distinguished: Implement Co. v. Bank, 128 Tenn., 320.</p> <p>3. GARNISHMENT. Deposited draft with checking credit given depositor not subject to garnishment for depositor’s obligations.</p> <p>Where a draft was deposited in a bank and full checking credit given depositor for draft, which was then forwarded for collection for the bank, the draft was not subject to garnishment in an action against depositor for alleged breach of warranty in goods for which draft was paid. (Post, pp. 260-261.)</p> <p>Acts cited and construed: Acts 1899, ch. 94.</p> <p>Code cited and construed: Sec. 3516a69 (S.).</p>

<p>1. RAILROADS. Finding of killing of animal on unfenced track sufficient to support recovery.</p> <p>In an action against a railroad company for the death of a mule, findings of fact that the animal entered on defendant’s unfenced tracks from plaintiff’s premises by reason of the defective condition of the fence, and was killed by defendant’s moving train in such a way as to make defendant liable, held, sufficient to support a judgment for plaintiff. (Post, pp. 265-267.)</p> <p>2. RAILROAD'S.- Proof of killing of stock on unfenced track prima-facie case.</p> <p>It is sufficient to make a prima-facia case of liability under the statute to show that stock was killed by a moving train on an unfenced track, and such showing places on the railroad company the burden of proving a defense. (Post, pp. 265-267.)</p> <p>2. RAILROADS. Landowner’s contract to repair fence held not without consideration.</p> <p>A contract by a landowner to keep a railroad fence in repair, the railroad company to furnish the material on notice from the owner, who agrees to release the company from all claims for damages to stock straying on the track, is not invalid for want of consideration; the statute not imposing an absolute duty on the company to fence its tracks, but merely making it liable for the value of stock injured by trains if the track is not fenced. (Post, pp. 267, 268.)</p> <p>Cases cited and approved: Hinton v. Insurance Co., 110 Tenn; 130; Martin v. McCrary, 115 Tenn., 316; Railroad Co. v. Stone-cipher, 95 Tenn., 311; Railroad v. Hughes, 94 Tenn., 451; Railroad v. Russell, 92 Tenn., 108.</p> <p>4. RAILROADS. Landowner’s contract to repair fence valid.</p> <p>A landowner’s contract with a railroad company to keep a fence along its right of way in repair from materials to he furnished by the railroad on notice of defects, and to release the company from liability for damages to stock is not contrary to public policy, expressed in the fencing statute which does not impose an ab solute duty to fence, but merely makes the company liable for injury to stock, and the owner cannot recover the value of stoctc killed as a result of his failure to give notice of defects. (.Post, p. 268.)</p> <p>5. CERTIORARI. Merely denied, by supreme court, though plaintiff not entitled to recover, where defendant did not complain of remand.</p> <p>Where defendant did not complain of the action 'of the court ot civil appeals in remanding a cause for a new trial, *on reversing a judgment for plaintiff, the latter’s petition for certiorari wilJ merely be denied, though he was not entitled to recover. (Post, p. 268-271.)</p> <p>Cases cited and approved: Railroad v. Crider, 91 Tenn., 507; Railroad v. Webster, 106 Tenn., 586; Terre Haute, etc. R. Co. v. Smith, 16 Ind., 102; Warren v. K. & D. M. R. Co., 41 Iowa, 484; Ells v. Pacific R. Co., 48 Mo., 231; Talmadge v. Rensselaer, etc., R. Co., 13 Barb. (N. Y.), 493; Illinois Cent. R. Co. v. Swearingen, 33 ilh, 289; Enright v. San Francisco, etc., R. Co., 33 Cal., 230; Whittier v. Chicago, etc., R. Co., 24 Minn., 394; Ells v. Pacific R. .Co., 48 Mo., 231; Indianapolis, etc., R. Co. v. Petty, 25 Ind., 413; Clayton v. Great Western R. Co., 23 U. C. C. P., 137; Kilmer v. G. W. R. Co., 35 U. C. Q. B., 595; Duffy v. N. Y., etc., R. Co., 2 Hilt., 496.</p> <p>Case cited and distinguished: New Albany, etc., R. Co. y. Maiden, 12 Ind., 10.</p>

<p>1. INFANTS. Circuit court Las jurisdiction over juvenile of fourteen charged with murder.</p> <p>In view of Juvenile Law, sections 2, 9-11, providing for jurisdiction of-juveniles, the circuit court has jurisdiction of a hoy of fourteen years charged with murder, notwithstanding the juvenile had not first been taken into custody by the juvenile court and remanded to the sheriff of the county to be dealt with as provided by the criminal law. {Post, pp, 275-277.)</p> <p>Acts cited and construed: Acts 1911, ch. 58.</p> <p>Laws cited and construed: Secs. 2, 9-11.</p> <p>2. INFANTS. That juvenile court had jurisdiction in manslaughter did not relieve circuit court from charging on manslaughter in murder trial of infant.</p> <p>That the juvenile court had jurisdiction of juveniles in all crimes less than murder in the first and second degree did not relieve trial judge, in a prosecution for murder, from charging on the oilenses of voluntary and involuntary • manslaughter, and its' refusal to so charge was error, and, notwithstanding defendant’s claim that he was not guilty of any offense at all, he was prejudiced by such refusal. {Post, pp. 277-281.)</p> <p>Case cited and approved: Jones v. State, 128 Tenn., 497 .</p> <p>Case cited and distinguished: Frazier v. State, 117 Tenn., 441.</p> <p>3. CRIMINAL LAW. Statement of accused, after shooting, that he did not intend to shoot deceased, inadmissible.</p> <p>In a prosecution for murder, the refusal of testimony to the effect that defendant told witness, just as they got into the road from the house where the shooting occurred, the house being only three or four steps from the road, that he did not .intend to shoot deceased, was inadmissible as a statement made shortly after the shooting as a part of the transaction. (Post, p. 281.)</p>

<p>1. CERTIORARI. Concurrent findings of fact fry chancellor and court of civil appeals not reviewed when sustained fry material evidence.</p> <p>Concurrent findings of fact by the chancellor and the court of civil appeals, when sustained fry material evidence, will not be reviewed fry the supreme court on certiorari. (Post, %>. 283.)</p> <p>Cases cited and approved: Knight v. Cooley, 181 Tenn., 21; Shaller v. Garrett, 130 Tenn., 473; Black v. State, 130 Tenn., 529.</p> <p>2. MORTGAGES. Advertisement of sale under terms of trust deed for three weeks held sufficient despite statute requiring advertisement for thirty days.</p> <p>Under Thompson-Shannons Code, section 3838, requiring that persons selling land in a fiduciary capacity publish the sale for at least twenty days, publication of a sale of land under a trust deed for three weeks is sufficient, though section 6249 requires that the sale be advertised at least thirty days, so that mortgagor may give twenty days’ notice to the trustee or mortgagee of an application for injunction, as required by section 6248, the effect of section 6249 being not to amend or repeal section 3838, but to require the mortgagee to advertise for thirty days in order to invoke the statute requiring twenty days’ notice of the application for injunction. (Post, p%>- 283-286.)</p> <p>Acts cited and construed: Acts 1873, ch. 10.</p> <p>Case cited and approved: Plowman & Eve v. Satterwhite, 3 Cooper’s Ch., 1.</p> <p>Code cited and construed: Secs. 3838, 6248, 6249, (T.-S.). Secs. 3838, 6248, 6249 (S.).</p>

<p>X. STATUTES. Legislative journal entries held to raise presumption that act was regularly passed unless journals affirmatively show the contrary.</p> <p>Though affirmative entries on the legislative journals that an act was rejected in either house before its final passage invalidate the act notwithstanding its proper signature by the respective speakers and approval by the Governor, the entries of a journal showing that the act was signed in open session in each house by the respective speakers and was approved and published raises every reasonable presumption and inference in favor of the regularity of its passage unless the journals furnish affirmative proof of the contrary. (Post, pp. 290, 291.)</p> <p>Acts cited and construed: Acts 1917, ch. 771; Acts 1921, ch. 840.</p> <p>Gases cited and approved: Brewer v. Mayor and Aldermen of Hunt-ingdon, 86 Tenn., 732; State ex rel. v. Algood, 87 Tenn., 163; State v. McConnell, 71 Tenn., §33; Williams v. State, 74 Tenn., • 549; Nelson v. Haywood County, 91 Tenn., 603; Telegraph Co. v. Nashville, 118 Tenn., 9; , State v. Swiggart, 118 Tenn., 562; Richardson v. Young, 122 Tenn., 568; Jackson v. Mfg. Co., 124 Tenn., 424.</p> <p>Case cited and distinguished: Wilson v. State, 143 Tenn., 55.'</p> <p>2. STATUTES. Journal entries held not to overcome presumption of regular passage of act. '</p> <p>The entries in the House Journal showing that, when an act was placed upon its final passage, it failed to receive the constitutional majority, does not affirmatively show that it was not thereafter regularly passed by such majority, as might be, and frequently is, done, so as to overcome the presumption of regularity of passage from journal entries showing it was regularly signed in open session and approved and published. (Post, pp. 291, 292.)</p>

<p>1. TAXATION. Packing plant a “manufacturer” 'within tax law.</p> <p>A corporation engaged in the business of buying and slaughtering of live stock, and the buying of meats for curing, rehandling, packing, and manufacturing into all forms known to commerce, expects to make a profit by changing or adding property after its purchase, and hence is a “manufacturer” within Laws 1907, chapter 602, section 22, requiring manufacturers to pay a tax. (Post, p. ‘301.)</p> <p>Acts cited and construed: Acts 1907, ch. 602, sec. 24.</p> <p>Cases cited and approved: Sebastian v. Ohio Candle Co., 27 Ohio St., 459; Jackson v. State, 15 Ohio, 652.</p> <p>Cases cited and distinguished: Chattanooga Plow Co. v. Hays, 125 Tenn., 148; Engle' v. Sohn & Co., 41 Ohio St., 691.</p> <p>-. EVIDENCE.. General knowledge that many things are manufactured from slaughtered animals.</p> <p>It is a matter of general knowledge that many things are now manufactured from slaughtered animals that were unheard of a quarter of a century ago, and large packing plants are generally referred to as manufacturers. (Post, pp. 301, 302.)</p> <p>Case cited and distinguished: Carlin v. Assurance Co., 57 Md., 528.</p> <p>3. TAXATION. “Produce of the state” does not include horses, cattle, etc.</p> <p>The term “produce of the state,” as used in Constitution article 3, section 30, exempting from taxation all 'articles manufactured “of the produce of the State,” is limited to articles produced or grown “from or on the soil,” or that that may be “found in the soil,” and excludes cattle, horses, sheep, and hogs, even though manufactured into food products within the State. (Post, mi. 302, 303.)</p>

<p>1. GUARDIAN AND WARD. Guardian acting as parent cannot charge ward for support.</p> <p>A guardian who has taken a ward into his home and acted as a parent without showing an intention to charge for support or filing annual statements of account with the county court clerk, as required by Thompson’s Shannon’s Code, section 4296, by which he could disclose that intention, may not charge therefor; the intention not to charge being inferred. (Post, pp. 306, 307.)</p> <p>Cases cited and approved: Guión v. Guion’s Adm’r, 16 Mo., 48; McDowell y. Caldwell, 2 McCord, Eq. (S. C.), 43; Abrams v. U. S. Fid., etc., Co., 127 Wis., 579; Maguinay and Sandek, 37 Tenn., 147; Norton v. Ailor, 79 Tenn., 563.</p> <p>Code cited and construed; Sec. 4296 (T.-S.).</p> <p>2. GUARDIAN AND WARD. Guardian may recover reasonable charge for clothing bought, where ward’s funds were insufficient.</p> <p>A guardian, who acted as a parent of his ward, but used her available money to buy clothing for her, supplementing it with his own money in order to dress her suitably, may recover a reasonable charge therefor, where his conduct showed no intention not to make such charge. (Post, pp. 307, 308.)</p>

<p>1. CROPS. Execution. Growing crops are personalty subject to sale by execution or otherwise without passing any interest in the land.</p> <p>At common law growing crops are personal property, and are subject to sale by execution or otherwise without passing any interest in the land. (Post, p. 312.)</p> <p>Cases cited and approved: Carson v. Browder, 70 Tenn., 701; JM-wards v. Thompson, 85 Tenn., 720.</p> <p>2. CROPS. Sale of land carries with it growing crops unless excepted.</p> <p>On the sale of land, either private or judicial, a conveyance passing title to the land carries with it growing crops thereon, unless they are specially excepted from the conveyance. (Post, p. 313.)</p> <p>3. EXECUTORS AND ADMINISTRATORS. Wills. Growing crops go to devisee and to personal representative of intestate landowner.</p> <p>If a landowner dies testate, growing crops pass with land to a de-visee, but if he dies intestate they go to his personal representative. (Post, pp. 313.)</p> <p>Cases cited and approved: Pickens v. Reed, 31 Tenn., 80; Shofner v. Shofner, 37 Tenn., 95; Vaughn v. Vaughn, 88 Tenn., 745.</p> <p>4. VENDOR AND PURCHASER. Title to growing crops held to go to purchaser of land at sale under vendor’s lien.</p> <p>Where a vendor of land retained a vendor’s lien in a deed, and after wards, in the exercise of power conferred in the deed, sold the land, to a purchaser, who immediately took charge of the land under' a memorandum contract reciting the fact o£ sale, tire purchaser took title to crops then unsevered, whether matured or not, regardless of the fact that they were harvested before the execution of deed from the vendor to the purchaser about a month after the sale. (Post, pp. 313-318.)</p> <p>Cases cited and approved: Oldham v. Kennedy, «22 Tenn., 262: Pickens v. Reed, 31 Tenn., 80; Speicher v. Lacy, 28 Okla., 541.</p> <p>Case cited and distinguished: Barker v. Smith, 35 Tenn., 289.</p>

<p>1. HOMICIDE. Evidence held to support conviction.</p> <p>Evidence held sufficient to sustain a verdict finding defendant guilty of murdering Ms wife, who, defendant claimed, committed suicide. (Post, pp. 322-365.)</p> <p>Cases cited and approved: Telephone & Telegraph Co. v. Mill Co., 129 Tenn., 374; State v. Perry, 41 W. Va., 650; State v. Lee, 65 Conn., 208;</p> <p>2. CRIMINAL LAiy. Opinion of expert that wound could not have been self-inflicted held properly admitted.</p> <p>On a trial for murder, the jury were not as well qualified as a doctor who examined deceased’s body, the bullet wounds thereon, and the courses and exits of the bullets, and was accustomed to examining such wounds and familiar with the various organs of the body, to determine whether the wounds- could have been self-inflicted, and he was properly permitted to express his opinion that they could not have been. (Post, pp. 365-368.)</p> <p>3. CRIMINAL LAW. Motion to exclude evidence may be made at any time before jury’s retirement.</p> <p>A party adversely affected by the introduction of incompetent testimony may move to have it excluded at any time before the jury retires, provided he has not waived his right to have it withdrawn. (Post, pp. 368-370.)</p> <p>Cases cited and approved: Price v. Allen, 28 Tenn., 703; Creed v. White, 30 Tenn., 549; Carper v. Barnes, 36 Tenn., 452; Birchfield v. Bussell, 43 Tenn., 229.</p> <p>Case cited and distinguished: Mahon v. State, 127 Tenn., 555.</p> <p>■J. CRIMINAL LAW. Judicial notice not taken of ability of wounded person to fire another shot.</p> <p>Though an authority ón medical jurisprudence states that one receiving a wound in the heart may live for some time, the court cannot judicially know that a person so wounded possessed sufficient consciousness and physical control of his hand to fire a pistol, and hence testimony that she could not fire another shot is not inadmissible as contrary to facts of which the courts take notice. {Post, p. 370.)</p> <p>5. CRIMINAL LAW. Expert may testify as to whether person shot through the heart could have fired another shot.</p> <p>On the issue of murder or suicide a doctor having superior knowledge of anatomy and of the effects of wounds could express his opinion that deceased, after being shot through the heart, could not have fired another shot; this being a matter as to which a layman, as a rule, is ignorant. {Post, p. 370.)'</p> <p>6. CRIMINAL LAW. Admission of evidence held harmless because un-contradicted evidence showed murder rather than suicide.</p> <p>On the issue of murder or suicide, where the evidence showed deceased was shot twice through the heart, and an expert testified in effect without contradiction that after receiving one of such wounds she could not have fired another shot, the admission of evidence as to possibility of self-infliction of the wounds in view of their location and courses was not prejudicial, as on such uncontradicted evidence, defendant was necessarily guilty. {Post, p. 870.)</p> <p>7. CRIMINAL LAW. Admission of subpoena issued for an absent witness who had died held not prejudicial.</p> <p>The admission of supoena issued for an absent witness who had died was not prejudical as importing an insinuation that her testimony would have been injurious to defendant,'where defendant admitted that he obtained a pistol from the deceased witness by falsely stating that her husband sent him after it, and there was nothing to indicate that she would have given any other evidence. (Post, pp. 3.70-272.)</p> <p>8. CRIMINAL LAW. Defendant’s statements some time after shooting of wife not admissible as res gesta.</p> <p>Where defendant after the murder or suicide of his wife went to a bridge and jumped off, and was taken to a hospital in an ambulance, a statement to the ambulance driver some time after the shooting that the wife shot herself was not admissible as res gestae. (Post, p. 372.)</p> <p>9.CRIMINAL LAW. Defendant’s self-serving statements when not fully conscious held not admissible.</p> <p>Under no rule of evidence were defendant’s self-serving declarations admissible^ if made while he was unconscious or only semiconscious. (Post, p. 372.)</p> <p>10. CRIMINAL LAW. Defendant’s statement that his wife shot herself inadmissible as self-serving.</p> <p>Defendant’s statement that his wife shot herself was incompetent as a self-serving declaration if made when he was conscious. (Post, pp. 372, 373.)</p> <p>11. CRIMINAL LAW. Newly discovered evidence on immaterial point held not to require new trial.</p> <p>Though there was a dispute in a murder case as to where the shooting took place, where this was wholly immaterial, newly discovered evidence as to the hearing of pistol shots at the place claimed by defendant did not require a new trial. (Post, pp. 373-375.)</p> <p>12. CRIMINAL LAW. Failure to charge on circumstantial evidence not error when there is evidence of confssion.</p> <p>Where there was positive evidence of a confession by defendant that he killed his wife, supported by circumstantial evidence, the failure to charge the law of circumstantial evidence was not error-(Post, p. 375.)</p> <p>Case cited and distinguished: Barnards v. State, 88 Tenn., 183.</p>

<p>1. HUSBAND AND WIFE. Land purchased hy husband, hut con-i veyed to wife, her separate estate.</p> <p>Where an interest in land was purchased by a husband, and paid for by him, but at his direction was conveyed to the wife, the wife owed the land as her separate estate. (Post, pp. 379, 380.)</p> <p>Cases cited and'approved: Ferguson v. Booth, 128 Tenn., 259; Barnum v. Le Master, 110 Tenn., 638.</p> <p>2. ACKNOWLEDGMENT. Notary’s certificate to married woman’s deed showed execution by her uncferstandingly.</p> <p>Where the notary’s certificate to a deed relating to the pi-ivy examination of a married woman stated that, she “having been examined by me separate and apart from and out of the hearing of her husband, and the contents and meaning of the instrument, and all her rights under the homestead laws of the State having been by me made known and fully explained to her,” the certificate was a substantial compliance with the requirements of Shannon’s Code, section 3753, that the deed be executed and acknowledged by her "understandingly.” (Post, pp. 380, 381.)</p> <p>Code cited and construed; Sec; 37)53 (S.).</p> <p>3. ACKNOWLEDGMENT. Not necessary to use very words of statute if words of equivalent meaning used.</p> <p>Shannon’s Code, section 3757, providing that the unintentional omission by the clerk of any words in a certificate of acknowledgment shall in no wise vitiate the validity of such deed, but the same shall be good for all intents and purposes if the substance of the authentication required by law is in the certificate, applies to the certificate of acknowledgment of a married woman, in view of the following section, which makes provision for the correction of the omission of words in the certificate of a privy examination. (Post, pp. 381, 382.)</p> <p>Case cited and approved: Edmondson v. Harris', 2 Tenn., Ch., 431.</p> <p>Code cited and construed: Sec. 3757 (S.).</p> <p>4. ACKNOWLEDGMENT. Officer’s duty to attach certificate if satisfied married woman fully understands deed executed; and purchaser entitled to have imperfect certificate corrected.</p> <p>If a married woman shows by her privy examination that she understood the contents and effect of her deed, and that its execution was voluntary, and had not been brought about by any compulsion by her husband, then she was bound by the execution of the deed, and it was the duty of the officer, in view of Shannon’s Code, section 3759, to attach to the deed a proper certificate if he was satisfied from his examination that she fully understood it, and the purchaser may have imperfect certificate" corrected. (Post, pp. 382-386.)</p> <p>Case cited and approved: Roulston v. Darby, 52 S. W., 318.</p> <p>Case cited and distinguished: Murdock v. Memphis & Ohio R. R. Co., 66 Tenn., 557.</p> <p>Code cited and construed: Secs. 3763, 3759 (S.).</p> <p>5. ACKNOWLEDGMENT. Notary’s certificate to wife’s deed relinquishing all interest in certain land showed execution “for purposes therein expressed.’’</p> <p>Where the purpose of a married woman’s deed was to convey and relinquish all her rights in the land mentioned in the deed, and the notary’s certificate to the deed stated that she “acknowledged it to be her act and deed, and that she had executed the same, and relinquished her dower and all other right, title, and interest in and to the lands mentioned, and expressly waived and relinquished all her rights by virtue of all laws relating to the exemption of homesteads,” the certificate showed the purpose of the execution of the deed just as fully as if she had said, “for the purposes therein expressed,” as required by Shannon’s Code, section 3753. (Post, pp. 386, 387.)</p> <p>0. COSTS. Party guilty of gross fraud taxable with all costs of appeal.</p> <p>Where bill was filed to recover an interest in land, and also for timber cut and removed from the tract, and defendant was guilty of gross fraud in dealing with complainants relative to the land and timber, on an unsuccessful appeal from an adverse decree of the chancellor he is taxable with all costs of appeal. {Post, pp. 387, 388.)</p> <p>f. TENANCY IN COMMON. One cotenant cannot convey good title to merchantable timber.</p> <p>Timber is a part of the realty, and is dealt with as such; and one cotenant cannot convey a good title to merchantable timber on the land any more than he can convey a-good title to the land itself.</p> <p>(Post, p. 388.)</p>

<p>1. NEGLIGENCE. Firemen responding to call invitees.</p> <p>City firemen coming to a fire on premises outside of city at request of owner, but under no duty to do so, are not mere licensees, as when attending fire in city, but invitees, as regards tbe duty . owing to them by such owner, relative to bis liability on tbe ground of negligence for injury in fighting tbe fire. {Post, pp. 393, 394.)</p> <p>Case cited and approved: Burroughs, etc., Co. v. Fryar, 132 Tenn.. 612.</p> <p>2. NEGLIGENCE. Duty to invitees stated.</p> <p>The owner of premises must use reasonable care to see that it is safe_ to those whom be invites there, and if there are dangers there not obvious to them, of which he knows, or with reasonable care should have known, it is his duty to give warning thereof. {Post, p. 394.)</p> <p>Cases cited and approved: Chattanooga Warehouse, etc., Co. v. Anderson, 141 Tenn., 288; Clapp v. La Grill, 103 Tenn., 164; Rosen baum v. Shoffner, 98 Tenn., 624; Hines v. Willcox, 96 Tenn., 328:</p> <p>3. NEGLIGENCE. Mill owner under no duty to notify firemen of pipe on roof.</p> <p>The owner of a mill in the country, inviting experienced city firemen under the direction of the chief to help put' out a fire in a shed thereof, is under no duty to warn them of a large heavy iron pipe on the roof; it being something that a casual observance would disclose, if it was not concealed by the smoke, and heavily burdened roofs being a thing that experienced firemen should except to encounter. (Post, pp. 394-396.)</p> <p>4. NEGLIGENCE. Verdict cannot be based on conjecture.</p> <p>A verdict for negligence cannot be based on a conjecture, as to whether fall of a burning shed let down a pipe thereon, or fall of the pipe knocked down the shed. (Post, pp. 396, 397.)</p>

<p>1. INTOXICATING LIQUORS. States surrendered no power under Eighteenth Constitutional Amendment other than the power to authorize or sanction what it prohibits.</p> <p>The States did not surrender, by the Eighteenth Constitutional Amendment, their power or right to deal with the subject of intoxicating liquors by appropriate legislation not authorizing or sanctioning what the amendment prohibits, and State laws tending toward the enforcement of the amendment still rest on the authority of the State. (Post, p. 402.)</p> <p>Acts cited and construed: Acts 1917, ch. 12. -</p> <p>Case cited and approved: Mugler v. Kansas, 123 U. S., 623.</p> <p>Cases cited and distinguished: Greenwood v. State, 65 Tenn., 567; Rhode Island v. Palmer, 253 U. S., 350.</p> <p>Constitution cited and construed: Art. 1, sec. 10.</p> <p>2. CRIMINAL LAW. Plea of former jeopardy in federal court not available in State court.'</p> <p>The State and federal laws as to intoxicating liquors emanate from different sovereignties denouncing different offenses, and the same act may be an offense against the two governments punishable by both; hence a plea of former jeopardy in a tribunal of one government is not available in a tribunal of the other. (Post, pp. 402-412.)</p> <p>Cases cited and approved: State v. Smith, 199 Pac., 194; Barron v. The Mayor & City Council of Baltimore, 7 Peters, 243; Pox v. State of Ohio, 5 How., 410; U. S. v. Marigold, 9 How., 560; Moore v. People of State of Ill., 14 How., 13; Cross v. North Carolina, 132 U. S. v. Regan, 273 Fed., 727; Bryson v. State, 108 S. B., 63; Moore 639; Martin v. U. S., 271 Fed., 685; U. S. v. Bostow, 273 Fed., 535; U. S. v. Regan, 273 Fed., 727; Bryson v. State, 108 S. E. 63; Moore v. State, 108 S. E. 65; Greenwood y. State, 65 Tenn., 567; State v. Mason, 71 Tenn., 649; State v. Taxing Dist., Shelby Co., 84 Tenn., 240; O’Haver v. Montgomery, 120 Tenn;, 448; ü. S. v. Amy, 14 Md., 149; Youmon y. Commonwealth, 193 Ky., 536.</p> <p>Cases cited and distinguished: State y. Rankin, 44 Tenn., 145; Pearson y. State, 1 Shan. Cas., 311; Ex parte Siebold, 100 U. S., 371.</p>

<p>FROM LAUDERDALE.</p> <p>Appeal from the Chancery Court of Lauderdale County. —Hon. V. H. Holmes, Chancellor.</p>

<p>1. MASTER AND SERVANT. Compensated employee may not sue third person causing injury.</p> <p>Under Workmen’s Compensation Act, section 14, providing that an employee injured through the negligence of a third person may at his option claim compensation or proceed at law against such person to recover damages, or proceed against both the employer and such person, but shall not be entitled to collect from both, the injured employee, after recovering compensation from his employer, may not maintain an action against a third person liable for his injuries. (Post, pp. 421-427.)</p> <p>Acts cited and construed: Acts 1919, ch. 123.</p> <p>Cases cited and approved: Barry v. Bay State St. R. Co., 222 Mass., 366; Turnquist v. Hannon, 219 Mass., 560; Pawlak v. Hayes, 162 Wis., 503; McGarvey v. .Independent Oil, etc. Co., 156 Wis., 580; Woodcock v. London, etc., R. Co., 3 K. B., 139; Page v. Burtwell, 2 K. B., 758; Oliver v. Nautilus Steam Shipping Co., 2 K. B., 639; Hall v. Thayer, 225 Mass., 151; Powell v. Main Colliery Co., A. C., 366.</p> <p>2. MASTER AND SERVANT. Employee not precluded from suing third person for injury until he collects compensation from employer.</p> <p>Under the Workmen’s Compensation Act, section 14, providing that an injured employee may, at his option, claim compensation from his employer or sue a third person liable for his injuries, or proceed against both, but that he cannot recover from both, and permitting an employer paying compensation to sue the third person to recover the indemnity paid or payable to the' injured employee, the employee does not lose his right to proceed against third person until he collects compensation from his employer, although section 32 permits the employer to file a petition and have the amount of compensation fixed. (Post, p. 427.)</p> <p>3. CONSTITUTIONAL LAW. Master and servant. Workmen’s Compensation Act not unconstitutional as depriving employee of right.</p> <p>Workmen’s Compensation Act, section 14, providing that an injured, employee may at his option claim compensation from his employer or proceed against a third person liable for his injuries, or proceed against both, but that he cannot recover against both, is not contrary to Constitution Tennessee article 1, section 8, as depriving the employee of any right. (Post, pp. 427x 428.)</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>4. STATUTES. Section of Workmen’s Compensation Act held not unconstitutional as containing subjects which are opposed to each other.</p> <p>Workmen’s Compensation Act, section 14, providing that an injured employee may at his option claim compensation from his employer or proceed against a third person in whom • legal liability exists for his injuries, or proceed against both, but that he cannot recover from both, and that the employer, on paying compensation, or becoming liable therefor, may collect from a third person in whom legal liability for damages exists the indemnity paid or payable to the injured employee, is not contrary to Constitution Tennessee article 2, section 17, as containing more than one subject which are diametrically opposed to each other, since the question of the employee’s and the employer’s rights against third parties is one entirely germane to the subject of workmen’s compensation. (Post, p. 428.)</p> <p>5. CONSTITUTIONAL LAW. Workmen’s Compensation Act held not unconstitutional as granting special privileges.</p> <p>Workmen’s Compensation Act, section 14, providing that an injured, employee may at his option claim compensation irom his employer or proceed against third person in whom legal liabilities for his injuries exists, or may proceed against both his employer and such third person, but cannot recover from both, is not contrary to Constitution Tennessee article 11, section 8, forbidding granting to individuals immunities other than such as may be under the same law extended to any member of the communty who may be able to bring himself within the provisions of the law. (Post,p. 428.)</p> <p>Case cited and approved: Scott v. Nashville Bridge Co., 143 Tenn., 86.</p>

<p>1. TAXATION. Labor temple held, exempt as an “educational institution.’’</p> <p>The legal title to property was in a non-profit corporation known as a labor temple, the beneficial ownership being in labor union3 which had contributed the purchase money to buy the property. A board composed of elected members from the participating unions controlled the’ temple, and the expense of maintenance was derived from rentals paid by the unions for rooms set apart for their use. At the union meetings lectures and instruction without remuneration were given by the members in their arts and crafts. Mechanical drawing was taught by an instructor whose salary was paid by an outside institution and the federal government jointly. The purpose of the governing board was also to establish schools of mechanical arts and general instruction in law for the public as well as the union members, either free or at low cost. The purpose of the labor organizations, as shown hy b^-laws of one typical of all, was to elevate social and intellectual standards, etc. Held, that the temple, while not a charity, was on “educational institution,” and as such exempt from taxation under Constitution, article 2, section 28, and Acts 1907, chapter 602, section 2, subd. 2. (Post, pp. 439, 440.)</p> <p>Acts cited and construed: Acts 1907, sec. 2, ch. 602.</p> <p>Cases cited and approved: Chamber of Commerce v. City of Memphis, 144 Tenn., 291; Ward Seminary v. City Council, 129 Tenn., 412; State v. Fisk University, 87 Tenn., 242; 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, subsecs. 2, 5, and 6 (S.).</p> <p>Constitution cited and construed: Art. 2, sec. 28.</p> <p>2. TAXATION. Corporation holding legal title to property for common use of labor unions held not a “charitable institution.”</p> <p>Where labor unions own a beneficial interest in and jointly use property, the legal title tS which is in a holding corporation, the fact that the labor unions dispense charity to their indigent members and their families does not render the holding company in its corporate capacity*' a “charitable institution,” whose property is exempt from taxation, especially where no part of its revenue received from the unions is expended by the corporation for charity. (Post, pp. 440, 441.)</p> <p>3. TAXATION. Assessment upon property exempt because used for educational purposes is void.</p> <p>An assessment upon property exempt under Acts 1907, chapter 602,. section 2, subd. 2, because used for educational purposes, is void. (Post, p. 441.)</p> <p>4. TAXATION. Assessment upon property used for educational purposes may be challenged, although no protest was made.</p> <p>The fact that the owner of property did not protest its assessment to the tax assessor or the city board of equalizers does not estop the owner from challenging the assessment by showing 'that the property is used for educational purposes such as to exempt it from taxation as provided by Acts 1907, chapter 602, section 2, subdivision 2. (Post, p. 441.)</p> <p>Acts cited and construed: Acts 1907, ch. 602, sec. 2, subsec. 2. Cases cited and approved: Bank et al. v. Board of Supervisors et al., 168 Iowa, 501; Briscoe v. McMillan, 117 Tenn., 115.</p>

<p>1. CRIMINAL LAW. Claim of offender that he acted according to command of God no defense.</p> <p>In criminal prosecutions, the fact that the offender claims to have committed the act in question in obedience -to a command of God is no defense. (Post, pp. 447-449.)</p> <p>Case cited and distinguished: Watson v. State, 133 Tenn., 198.</p> <p>2. CRIMINAL LAW. Person able to distinguish between right and wrong is responsible. for criminal acts.</p> <p>If a defendant has capacity and reason to enable him to distinguish between right and wrong as to the particular act he is then doing, he is liable for his criminal acts. (Post,p. 449.)</p> <p>Case cited and approved: Bond v. State, 129 Tenn., 75.</p> <p>3. HOMICIDE. Defendant held sufficiently aware of the wrong of his offense to be liable therefor.</p> <p>Where defendant killed a man, and claimed that he did so in obedience to a command of God, and his mind was normal in all respects, except that he was eccentric as to matters of religion, a verdict of guilty was proper. (Post, p. 449.)</p> <p>4. CRIMINAL LAW. Exclusion of testimony of expert witness as to insanity of defendant held not error.</p> <p>In prosecution for murder, defended on the ground of insanity, exclusion of expert testimony by two country physicians, who were not specialists in mental diseases, but who had encountered cases of insanity in the course of their practice, was proper. (Post, pp. 449, 450.)</p> <p>Case cited and approved: Ashby v. State, 124 Tenn. 684.</p> <p>5. CRIMINAL LAW. Ruling of trial court on whether a witness is an expert will not be overruled, unless discretion was abused.</p> <p>The qualification of a witness as an expert is a matter largely within the determination of the trial court as a matter of discretion, and that determination will not be overruled on appeal, unless there was an abuse of discretion. (Post, p. 450.)</p> <p>Cases cited and approved: Powers v. McKenzie, 90 Tenn., 167; Bruce v. Beall, 99 Tenn., 303; Roper v. Memphis St. Railway Co., 136 Tenn., 23.</p>

<p>1. SALES. Seller cannot cancel contract after accepting incomplete performance without giving notice to buyer.</p> <p>Where a seller is entitled to a strict compliance with the contract, but accepts irregular and incomplete performance by the buyer, he cannot insist upon complete performance, or cancel the contract for the defaults of the buyer, without giving notice of such intention to the buyer, and allowing him a reasonable time in which to perform. (Post pp. 460, 461.)</p> <p>Cases cited and approved: Wildberg Box Co. v. Darby, 143 Tenn., 73; Gibson v. Rouse, 81 Wash., 102-107; Prentiss v. Lyons, 106 La., 382; Taylor v. Goelet, 208 N. Y., 253; Monson v. Bragdon, 159 Ill., 61-67; Wilt v. Hammond et al., 179 Mo. App., 406; Hen-ningsen v. Tonopah, etc., R. Co., 33 Nev., 208-257.</p> <p>2. SALES. Letter from seller to buyer held not a notice of seller’s intention to cancel contract on nonperformance.</p> <p>A letter from the seller that: “We hereby tender you sulphuric acid due you as per the terms of your contract. Kindly furnish us with shipping orders at once, and oblige” — written to the buyer after incomplete and irregular performance by the buyer, was not a notification of the seller’s intention to cancel the contract. (Post, pp. 461-463.)</p> <p>3. SALES. Buyer’s intention to resell, where not known to seller, held immaterial on measure of damages for failure to deliver.</p> <p>The measure of damages for seller’s breach of contract to deliver is the difference between the contract price and the market price at dates of delivery fixed by the contract, and, where resale by buyer was not in the parties’ contemplation at the time the contract was made, the price at which the buyer had contracted to resell to another has no bearing. (Post, pp. 463-471.)</p> <p>Cases cited and approved: Cement Co. v. Oliver, ^.25 Tenn., 136; Mayberry v. Lilly Mill Co., 112 Tenn., 56S; Cole v. Zuearello, 104 Tenn., 65; Gardner v. Deeds & Hisig, 116 Tenn., 128; John Deere Plow Co. v. Shellabarger, 140 Tenn., 123; Ill. Cent. R. Co. v. Johnson & Fleming, 116 Tenn., 624; Chisholm v. U. S. Canopy Co., Ill Tenn., 204; Ill. Cent. R. Co. v. So. Seating & Cabinet Co., 104 Tenn., 568; Clinton Oil & Mig. Co. v. Carpenter, 113 S. C., 10-19; Palestine Cotton Seed Oil Co. v. Corsicana Cotton Oil Co., 25 Tex. Civ. App., 614; Potomac Bottling Works v. Barber & Co., 103 Md., 509-514; Wertheim v. Chicoutimi Pulp Co., 104 L. T. N. S., 16 Com. Cas„ 297; Great Western Ry. Co. v. Redmayne, L. R., 1 C. P., 329; Foss v. Heineman, 144 Wis., 146.</p> <p>Cases cited and distinguished: Rodocanachi v. Milburn, 18 Q. B. D., 67-77; Williams Bros. v. Agius, 110 L. T. N. S., 865.</p> <p>4. APPEAL AND ERROR. Amendments of pleading are presumed to be authorized in absence of showing to contrary.</p> <p>Amendments of pleadings are presumed to have been authorized by the chancellor in the proper exercise of his legal discretion, and in furtherance of justice, in the absence of a showing to the contrary. (Post, p. 471.)</p> <p>5. SALES. Contract for delivery and payment in installments is regarded as an entirety; “each month’s shipment to stand as separate sale and contract.’’</p> <p>A contract for the delivery of and payment for goods by installments is regarded as an entirety, and a violation of installment terms as to delivery or payment will authorize a rescission of the entire contract, and a provision in such a contract, under the subdivision “Terms,” that “each month’s shipment is to stand as a separate sale and contract,” being referable to payment and method of accounting, cannot be extended so as to divide an other, wise entire contract. (Post, pp. 472, 473.)</p> <p>Cases cited and approved: Cement Co. v. Oliver, 125 Tenn., 138; John Deere Plow Co. v. Shellabarger, 140 Tenn., 123; Foundry Co. v. Wheel Co., 113 Tenn., 370; Norrington v. Wright, 115 U. S., 188.</p> <p>6. INTEREST. Interest as a matter of right is purely statutory.</p> <p>Interest as a matter of right is purely statutory, and its positive allowance must be confined to those obligations and demands specified in statutory provisions, and in cases not so included, it is a matter of discretion in the jury or chancellor. (Post, pp. 473-475.)</p> <p>7. SALES. Refusal to allow interest held not an abuse of discretion.</p> <p>The refusal of the chancellor to allow interest in buyer’s action for seller’s breach of contract to deliver goods was not an abuse of discretion, in view of Shannon’s Code, sections 3494, 3498. (.Post, pp. 473-475.)</p> <p>Acts cited and construed: Acts 1786, sec. 5, ch. 4; Acts 1835-36, sec. 2, ch. 50.</p> <p>Cases cited and approved: Cherry’s Ex’rs. v. Mann, 3 Tenn., 269-272: Railroad v. Fort, 112 Tenn., 432; Railroad v. Cabinet -Co., 104 Tenn., 568; Williams v. Inman, 45 Tenn., 267.</p> <p>Codes cited and construed: Sec. 3494 (S.); Sec. 1949 (1858).</p>

<p>1. RAILROADS. Fencing statute enacted for public safety.</p> <p>Acts 1891, chapter 101, requiring railroad companies to fence their tracks, was enacted primarily in the interest of the general .public, and for the safety of public travel, and must be given a construction which will not defeat the salutary purposes of its enactment. (Post, pp. 484-489.)</p> <p>Acts cited and construed: Acts 1891, ch. 101; Acts 1875, ch. 142; Acts 1903, ch. 59.</p> <p>Cases cited and approved: Railroad v. Crider, 91 Tenn., 496; Railroad v. Thompson, 101 Tenn., 201; Stem v. Interurban Railway, 142 Tenn., 503; Muskogee Electric Traction Co. v. Doering, 2 A. L. R., 94; Massachusetts Land & T. Co. v. Hamilton, 88 Fed., 588; Riggs v. Railroad, 120 Mo. App., 335; Evans v. Utica & M. Valley Ry. Co., 44 Mise. Rep., 345.</p> <p>2. RAILROADS. Electric interurban railway held a “railroad,” within fencing act.</p> <p>The railroad fencing act (Acts 1891, chapter 101), requiring “railroad” companies to fence their tracks, applies to an electric interurban railway operating under a commercial railroad charter granted under Shannon’s Code, section 2412, as a carrier of both freight and passengers transported along a private right of way of its own. (Post, pp. 484-489.)</p> <p>3. RAILROADS. Fencing of private crossing required by statute.</p> <p>An electric interurban railway company, killing a bull which strayed on an unfenced crossing over a private way which led to a grass lot or pasture, held liable under the fencing act (Acts 1891, chapter 101, sections 2, 3); it being practicable to'fence the track and to maintain gates, and the obstruction of such way not being prohibited by statute. (Post, pp. 488-491.)</p> <p>Case cited and approved: Greer v. Railroad, 104 Tenn., 243.</p> <p>4. EVIDENCE. Excluding testimony of expert -witness as to value of pure-tired cattle held not error, in view of witness’ admissions as to qualifications.</p> <p>In an action for damages for killing of a Jersey hull hy defendant’s train, excluding testimony of a witness in the nature of that of an expert as to the value of the animal, held not error, where the witness admitted he had never raised pure-hred Jersey cattle, and admitted he had not informed himself in such matters, and stated that he could not tell any thing about the pedigree of the animal in question, and that he was not familiar with pedigrees. (Post, pp. 491, 492.)</p> <p>Cases cited and approved: Roper v. Memphis Street Railway, 136 Tenn., 29; Powers v. McKenzie, 90 Tenn., 167; Bruce v. Beall, 99 Tenn., 303.</p> <p>5. APPEAL AND ERROR. In an action for the killing of a Jersey hull, statement of court as to procuring expert witnesses who knew value not prejudicial error.</p> <p>In an action against an interurban railroad for the killing of a Jersey bull by its train, the trial judge’s statement, in excluding the testimony of an expert witness as to value, that, if he were ruling on ' something that counsel could not get, he would say that his ruling would not be sound in every respect, but there . were many people thoroughly conversant with such things, and he thought it better to have the testimony of such people thereon, held not equivalent to saying that the jury should not regard the testimony of another witness who had testified, nor that the defendant did not want to introduce witnesses who would show the real value of the animal, and hence not prejudicial error. (Post, pp. 492, 493.)</p> <p>6. EVIDENCE. Evidence of seller’s price, asked one year prior to killing of animal, held inadmissible to show value.</p> <p>In an action for killing a Jersey bull, testimony that plaintiffs offered to sell witness the' animal in question about a year and a half before he was killed, for $100 is clearly incompetent to establish the the value at the time the animal was killed. '(Post, pp. 493, 494.)</p> <p>7. TRIAL. Refusal of cantionary instruction on evidence of experts not held error.</p> <p>In an action against an interurban railroad company for the negligent killing of a bull, refusing an instruction cautioning on expert testimony as to value or market price held not error. (Post, pp. 494-496.)</p> <p>Cases cited and approved: Persons v. State, 90 Tenn., 291; United States v. Pendergrast, 32 Fed., 198; Fisher v. Insurance Co., 124 Tenn., 450.</p> <p>Case cited and distinguished: Wilcox v. State, 94 Tenn., 106.</p> <p>8. DAMAGES. Evidence held to sustain verdict for $1,750 for killing of a Jersey hull.</p> <p>In an. action against an interurban electric railway for killing a Jersey bull, evidence as to value of the animal held to sustain a verdict for plaintiff for $1,750. (Post, pp. 496, 497.)</p> <p>9. EVIDENCE. Pedigree and records of registration to be considered in determining animal’s value.</p> <p>Evidence as to pedigree and records of registration are to be considered by the jury in determining value of animal killed. (Post, p. 497.)</p> <p>Case cited and approved: Citizens’ Rapid Transit Co. v. Dews, 100 Tenn., 317.</p>

<p>1. SALES. Time not of essence as regards tender of price.</p> <p>Time was not of the essence of a contract of sale between neighboring farmers of a lot of cows to be delivered the next day, so as to require tender of price on that day; there being nothing to indicate that the seller would have suffered any loss, injury, cr inconvenience by a day’s delay, or that the cows had depreciated in value. (Post, pp. 501-506.)</p> <p>Cases cited and approved: Furlong v. Barnes, 8 R. I., 226; New Jersey Co. v. Nathaniel Wise Co., 55 Mise. Rep., 294.</p> <p>2. SALES. Buyer held entitled to time to get cash on seller refusing check.</p> <p>Where seller of cows refused checks tendered in payment on day of delivery, the buyers were entitled to time to procure and tender •the money, where they had had every reason, from previous dealings, to believe checks would be accepted. (Post, pp. 506-510.)</p> <p>Cases cited and approved: Skinner v. Stone, 144 Ark., 353; Servel v. Jamieson, 255 Fed., 892.</p> <p>Gases cited and distinguished: Bass v. White, 65 N. Y., 565; Pickle v. Areble, 4 N. J. Eq., 315.</p>

<p>1. MASTER AND SERVANT. Compensation Act told not to'prevent employee’s common-law action against negligent third person.</p> <p>Under Workmen’s Compensation Act, section 8, making the remedy granted exclusive, and providing in section 14 that an employee injured under circumstances creating in a person other than employer liability for damages may at his option either claim compensation or proceed against such person, an employee may maintain a common-law action against a third person whose neg ligence, concurring with that of employer, caused the" injury. (.Post, pp. 518-524.)</p> <p>Acts cited and construed: Acts 1919, ch. 123; Comp. Acts, p. 139, sec. 167.</p> <p>Cases cited and approved: Smale v. Wrought Washer Mfg. Co., 16.0 Wis., 331; Lester v. Otis El. Co., 90 Mise. Rep., 649; Hall v. Thayer & Co., 225 Mass., 151; Swain v. Tennessee Copper Co., 111-Tenn., 430; Electric Railway Co. et al. v. Shelton, 89 Tenn., 423; Peet v. Mills, 76. Wash., 437.</p> <p>2. ELECTRICITY. In death action evidence held to support verdict for decedent’s representative.</p> <p>In an action against an electric company for death of an employee of a telephone company hy electrocution, due to defective insulation, evidence held to support a verdict for decedent’s representative. (Post, pp. 524-527.)</p> <p>Cases cited and approved: Nashville Interurhan Railway Co. v. Gregory, 137 Tenn., 430; Street Railroad & Telephone Cos. v. Simmons, 107 Tenn., 392; Consolidated Gas & Electric Co., v. Simpson, 109 S. W., 1155.</p> <p>3. ELECTRICITY. In death action, instruction held to cover question of decedent’s duty to exercise care.</p> <p>In an action against an electric company for death by electrocution, instructions hel^l to sufficiently cover question of decedent’s duty to exercise care. (Post, pp. 527, 528.)</p> <p>4. TRIAL. Instruction on effect of an ordinance held error, there being no evidence that electrocution occurred within city.</p> <p>In an action for death by electrocution, though an ordinance requiring the insulation of electric wires was offered in evidence without objection, an instruction on the effect of this ordinance was error, there being no evidence that the place where decedent was electrocuted was within the corporate limits of the city. (Post, pp. 528, 529.)</p> <p>5. EVIDENCE. Judicial notice taken that designated city is incorporated.</p> <p>A' court can take judicial notice of the fact that a designated city is incorporated. (Post, pp. 529, 530.)</p> <p>6. EVIDENCE. Judicial notice not taken of location of city streets and boundaries.</p> <p>A court cannot take judicial notice of the location pun sgeouqs jo boundaries of a city. (Post, pp. 529, 530.) ^</p> <p>Cases cited and approved: Alexander v. Railway Co. 139 Tenn., 52; Vonkey v. City of St. Louis, 219 Mo., 42; Breckenridge v. Insurance Co., 87 Mo., 68; Anderson v. Commonwealth, 100 Va., 860.</p>

<p>1. CORPORATIONS. Application of manufacturing company to amend its charter to increase its capital stock and pay for it in .profits held illegal and void.</p> <p>in view of Constitution, article 11, section 8, providing that no corporation shall be created or its powers increased or diminished by 'special law, but organization of all corporations shall be provided for by general laws, and Shannon’s Code, sections 2024-2026, 2028, 2029, 2031al, 2054, 2055, 2060al, 2330, 2335, 2345, 2351,' application by a manufacturing company to amend its charter, which contained the general powers enumerated in Shannon’s Code, section 2076al et seq., and the provision of the General Corporation Act of 1875 (Shannon’s Code, section 2335) that nothing but cash or land at a fair cash valuation shall be taken in payment for stock, and the provision of the act of 1881 (Shannon’s Code, section 2351) for receiving an assignment of a patent in payment for stock, could only be made in the form prescribed by Shannon’s Code, section 2028, and an application to amend, not only to increase its capital stock, but to grant it the right to pay for it in surplus and undivided profits, consisting of both tangible and intangible assets, was illegal and void, because the legislature has not granted it the right or power to thus pay for its stock. (Post, pp. 539-546.)</p> <p>Acts cited and construed: Acts 1875, ch. 142, Acts 1881.</p> <p>Code cited and construed: Secs. 2024-26, 2028, 2029, 2031al, 2054, 2055, 2060al, 2330, 2335, 2345, 2351, 2076al, 2542-43.</p> <p>Constitution cited and construed: Sec. 8, Art. 11.</p> <p>2. CORPORATION'S. Secretary of stat'e is only authorized to register and certify a charter in form prescribed hy statute.</p> <p>The powers and duties of the Secretary of State with respect to registration of charters of incorporation and the certification thereof are purely ministered, and he is only authorized to register and certify a charter in the form prescribed by the statute. '(Post, pp. 547-549.)</p> <p>Cases cited and approved: Maine v. Butler, 130 Mass., 196; Stemple v. Bruin, 57 Fla., 173; Tasker v. Wallace, 6 Daly, 364; Priest v. Consolidated Tank Line Co., 51 Mo. App., 205; Henry v. Vermillion & A. R. Co., 17 Ohio, 187; Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass., 138; People v. Troy House Co., 44 Barb. (N. Y.), 625; Knox v. Childersburg Land Co., 86 Ala., 180.</p>

<p>1. WATERS AND WATER COURSES. Evidence justified finding of contamination of spring by sewage.</p> <p>In suit to enjoin defendants from maintaining a nuisance in the operation of a school and sanitarium by means of conducting sewage from its plant in such a way as to contaminate water in plaintiff’s spring located on adjacent premises, evidence held to justify finding of contamination. . (Post, pp. 554-562.)</p> <p>Code cited and construed: Sec. 2513, subsecs. 1, 2, 4 (S.).</p> <p>2. WATERS AND WATER COURSES. Party rend'.ring spring of another impure creates nuisance.</p> <p>If a person render the spring of another impure by filth, offal, etc., to his injury, he thereby creates a nuisance, which can be abated as such. (Post, pp. 562-570.)</p> <p>Cases cited and approved: Franklin v. Armfield, 32 Tenn., 305; Hall-Moody Institute v. Copass, 108 Tenn., 582; Roosen v. Peter Bent Brigham Hospital, 235 Mass., 66; Vermillion v. Woman’s College of Due West. 104 S. C., 197.</p> <p>Cases cited and distinguished: Abst-on v. Waldon Academy, 118 Tenn., 24; Gaipble v. Vanderbilt University, 138 Tenn., 616; Bennett v. Wyndham, 4 De G., F. & J., 258, 262.</p> <p>3. CHARITIES. Educational institution liable in damages for maintaining nuisance.</p> <p>In view of Shannon's Code, sections 6750, 6751, defining certain nuisances and providing for their abatement, although as a general rule the trust funds of a charitable educational corporation organized under Shannon’s Code, section 2513, subsecs. 1, 2, 4, cannot be diverted by means of a judgment on account of negligence of its employees and servants, nevertheless it may nor enjoy immunity from damages where those damages result from the maintenance and operation of a nuisance. (Post, pp. 570-572.)</p> <p>Cases cited and approved: Kolb v. Knoxville, 111 Tenn., 314; Pierce v. Gibson .County, 107 Tenn., 233; Pierce v. Gibson County, 107 Tenn., 224; Chattanooga v. Dowling, 101 Tenn., 345; Atlanta v. Warnock, 23 L. R. A., 301; Nashville v. Mason, 137 Tenn., 169; Kolb v. Knoxville, 111 Tenn., 314; Knoxville v. .Klasing, 111 Tenn.. 134; Chandler, v. Davidson County, 142 Tenn., 265.</p> <p>Code cited and construed: Secs. 6750, 6751 (S.).</p> <p>4. CORPORATIONS. Corporations are criminally liar/.e, and may be prosecuted independently of fact that act was performed by means of agents.</p> <p>Corporations are even criminally liable, and may be prosecuted independently of the fact that the criminal act was performed by means of agents, and is indictable for committing a public nuisance whether the committing of the act involves nonfeasance or misfeasance. a Post, pp. 573-577.)</p> <p>Cases cited and approved: Louisville, etc., Railroad Co. v. State, 40 Tenn., 523; Turnpike Co. v. State, 96 Tenn., 249; Drake v. Hagan, 108 Tenn., 265; Erwin v. Davenport, 56 Tenn., 44; Elmore v. Brooks, 53 Tenn., 45; Deaderick v: Bank, 100 Tenn., 457; Caulkins, • v. Gas Light Co., 85 Tenn., 683; Roosen v. Peter Bent Brigham Hospital, 235 Mass., 66; Vermillion v. Woman’s College of Due West, 104 S. C., 197.</p> <p>5. MASTER AND SERVANT. Principal -liable to third person for agent’s negligence.</p> <p>The rule of nonliability for the negligence of an agent or servant on account of nonfeasance is limited to the breaches of duty owed by the agent to his principal, and has no application where there . is a breach of duty owing by the agent himself to third persons. [Post, pp. 577, 578.)</p> <p>Case cited and approved: Gamble v. Vanderbilt University, 138 Tenn., 616.</p> <p>6. WATERS AND WATER COURSES. Elements of damages for contaminating spring stated.</p> <p>In an action for contamination of a spring by sewage, damages to the reputation of the. spring as pure and medicinal water, the value of the property, and the proceeds of the spring were proper elements to be considered. [Post, p. 578.)</p>

<p>1. CORPORATIONS. Suit cannot tie brought against foreign corpor ation not doing business in the State.</p> <p>As a general proposition, a corporation cannot be sued in any State-other than that of its origin, unless it is doing business in such other State; and no State has the power to- authorize suit against foreign corporations or the service of process on them, unless they are doing business within the State. (Post, pp. 584, 588.)</p> <p>2. COURTS. Federal question whether foreign corporation doing busi ' ness in State.</p> <p>Whether a corporation is doing business in a State, so as to be suable therein, or so as to render it subject to service of process, is a federal question. (Post, pp. 584, 586.)</p> <p>Acts cited and construed: Acts 1887,' ch. 226.</p> <p>Cases cited and approved: Peterson y. Chicago, R. I. & P. R. Co., 205 XJ. S., 364; Conley v. Mathieson Alkali Works, 190 U. S., 406; Wold v. 1. B. Colt Co., 102 Minn., 386; Saxony Mills v. Wagner & Co., 94 Miss., 233; Green v. Chicago, B. & Q.' R. Co., 205 TJ. S., 530; Case v. Smith L. & Co. (C. C.), 152 Fed., 730; Carpenter v. Willard Case Lumber Co. (C. C.)¡ 158 Fed., 697; Swarts v. Christie Grain & Stock Co. (C. C.), 166 Fed., 338.</p> <p>3. CORPORATIONS. Service of process cannot be had on sales agent of foreign corporation.</p> <p>Service of process against a foreign corporation on a sales qgent is not a service on the corporation, where the agent is without apparent authority to represent it otherwise. (Post, w¡). 587, 588.)</p> <p>Cases cited and approved: Hefner v. American Tube & Stamping Co. (C. C.), 163 Fed., 866; Tyler Co. v. Ludlow-Saylor Wire Co., 236 U. S., 723; Telephone Co. v. Turner, 88 Tenn., 265; Life Ins. Co. v. Spratley, 99 Tenn., 322.</p> <p>Cases cited and distinguished: People’s Tobacco Co. v. American Tobacco Co., 246 U. S., 79; Railroad v. Richardson, 121 Tenn., 458.</p> <p>4. CORPORATIONS. Foreign corporation held, not doing business in State, so as to warrant service of process on brokers as agents thereof.</p> <p>That brokers solicited orders for a corporation, which, when received, were transmitted to it in another State for its acceptance, did not constitute the doihg of business in the State, so as to warrant service of process on the brokers as agents of such foreign corporation, under Acts 1887, chapter 226. (Post, %>. 588.)</p>

<p>1. TRIAL. Finding of fact hy court as to provisions of polity must he given reasonable meaning.</p> <p>While ambiguous language in an insurance policy is to be interpreted most strongly against the insurer, the rule does not obtain in the interpretation of findings of fact of the court with respect to the provisions of the policy, but such finding must be given a reasonable and natural meaning. (Post, pp. 595, 596.)</p> <p>Code cited and construed: Sec. 3306(S.).</p> <p>2. INSURANCE, Whether misrepresentations by insured increased risk of loss a question of law for court.</p> <p>Under Shannon’s Code, section 3306, as to effect of misrepresentations as to matters increasing the risk of loss, after it had been determined that representations by an insured person as to his use of intoxicating liquor were false, whether the misrepresentations increased the risk was a question of law for the court. (Post, pp. 596-604.)</p> <p>Cases cited and approved: Hunter v. Guaranty Co., 129 Tenn., 572; First Nat. Bank v. Fidelity & G. Co., 110 Tenn., 10; Hale v. Sov ereign Camp W. O. W., 143 Tenn., 555; Rand v. Life Assurance Society, 97 Tenn., 291.</p> <p>Cases cited and distinguished: Mutual Life Ins. Co. v. Dibrell, 137 Tenn., 528; Schas v. Equitable Life Ins. Co., 166 N. C., 55; K. of P. v. Cogbill, 99 Tenn., 28; Blackman v. Casualty Co., 117 Tenn., 585</p> <p>3. INSURANCE. Statement of opinion of applicant as to trival matter will not avoid policy.</p> <p>Under Shannon’s Code, section 3306, as to effect of misrepresentations, a mere statement of a trival matter in answer to a question in negotiating insurance, in no way relating to the cause of death, the answer depending upon the opinion of the applicant, will not make the answer-false. (Post, pp. 604-606.)</p> <p>4. INSURANCE. To avoid policy, misrepresentations must reasonably affect insurer’s judgment.</p> <p>Under Shannon’s Code, section 3306, to avoid a policy because of misrepresentations the matter misrepresented must be of that character which the court can say would reasonably affect the insurer’s judgment. (Post, pp.. 606, 607.) ~</p> <p>5. INSURANCE. Cancellation of policy held proper for misrepresentations as to using liquor.</p> <p>Under Shannon’s Code, section 3306, misrepresentations by the insured that he did not use intoxicating liquors constituted ground for cancellation of the policy, where it' was established insured was an habitual user of intoxicating liquors. (Post, p. 607.)</p>

<p>1.EXECUTORS AND ADMINISTRATORS. Minor child of deceased held not a “citizen of State’’ so as to he entitled to year’s support.</p> <p>Where a wife obtained a divorce in Georgia, and was given the custody of their minor child at the time, the father’s domicile no longer controlled the domicile of the child, hut it was at the domicile of the person having the custody and control, and the minor was not a citizen of the State of Tennessee at the time of his father’s death in that State so as to he entitled to benefit of the year’s support provided by statute. {Post, pp. 610, 611.)</p> <p>Cases cited and approved: Sudler v. Sudler, 121' Md., 46; Hunt v. Hunt, 94 Ga., 257.</p> <p>Code cited and construed: Sec. 4022(S.).</p> <p>2. EXEMPTIONS. Grant of year’s support to minor child of deceased does not extend to nonresidents.</p> <p>The statutes granting a year’s support 'to the widow or to a minor child of deceased is an exemption in favor only of the citizens of the State, and such exemption'does not apply in favor of nonresidents. {Post, pp. 611, 612.)</p> <p>Cases cited and approved: Crenshaw v. Moore, 124 Tenn., 532; Emmet v. Emmet, 82 Tenn., 369; Briscoe v. Vaughn, 103 Tenn., 308; Coile v. Hudgins, 109 Tenn., 217.</p> <p>3. INSURANCE. Proceeds of insurance on life of resident of State", payable to his estate, inures to benfit of nonresident minor'child.</p> <p>Under Shannon’s Code, section 4030, providing that a life insurance effected by a husband on his own life shall inure to the benefit of the widow and next of kin, to be distributed as personal property, free from the claims of his creditors, and section 4231 thereof, providing that any life insurance effected hy a husband on his own. life shall, in case of his death, inure to the benefit of his widow and children, and be divided between them according to the law of distribution, without being subject to the debts of the husband, whether by attachment, execution, or otherwise, an insurance policy on the life of a resident of Tennessee, payable 'to his estate, inured to the benefit of his minor child, a legal resident of the State of Georgia; such statutes not being limited in their operation, like the exemption laws, to citizens of the State. {Post, %>p. 612-614.)</p> <p>Gases cited and approved: Hawey v. Harrison, 89 Tenn., 476; Lisen-bee v. Holt, 33 Tenn., 50.</p> <p>Codes cited and construed: Secs. 3985, 4030(S.)</p>

<p>1. CONSTITUTIONAL LAW. Schools and school districts. Act providing for payment of part of school taxes to town as sinking fund for bonds held void.</p> <p>Acts Extra Sess. 1920, chapter 83, section 12, providing that twenty per cent, of taxes levied for school purposes are to be paid to the town as a sinking fund for school bonds, held unconstitutional as making property owners outside the corporate limits contribute to the town’s indebtedness and to deprive them of property without due process of law. (Post, pp. 622, 623.)</p> <p>2. STATUTES. Entire statute void where valid part would not have been enacted without remainder.</p> <p>Where only a part of a statute is void and the residue is so connected and dependent with the void part that it cannot be presumed that the legislature would have passed the one without the other, both are void.. (Post, pp. 622, 628.)</p> <p>Acts cited and construed: Acts 1920, ch. 83, sec. 12; Acts 1907, ch. 238; Acts 1909, ch. 105.</p> <p>Cases cited and approved: Burkholtz v. State, 84 Tenn., 71; Jones v. Memphis, 101 Tenn., 188; State v. Scott, 98 Tenn., 254; Reelfoot Lake, etc. v. Dawson, 97 Tenn., 151.</p> <p>3. STATUTES. Statute in part void will no be sustained unless remainder complete in itself.</p> <p>The upholding of a part an act is not favored, where a portion is unconstitutional, and it will not be sustained unless that which remains is complete in itself, capable of being executed in accordance with the apparent legislative intent wholly independent of that which is rejected. (Post, p. 623.)</p> <p>Case cited and approved: Malone v. Williams, 118 Tenn., 390.</p> <p>4. STATUTES. Taxing law containing void section Reid entirely void.</p> <p>'Since Acts Extra Sess. 1920, chapter 83, section 12, devoting a portion of school district taxes to sinking funds for bonds, is void and if elided and section 7 is allowed to stand taxpayers would be required to pay a tax part of which could be devoted to no purpose, it cannot be presumed that the legislature would have passed the act except with such section 12, and hence the entire act is void. (Post, pp. 623, 624.)</p> <p>5. STATUTES. School taxing law held void as to title.</p> <p>The purpose of section 12 of Acts Extra Sess. 1920, chapter 83, relating to the establishment of a high school and to support thereof, being to devote funds collected to illegal uses, which purpose is not expressed in the title and is antagonistic to the subject expressed therein, the act is within the prohibition of Constitution article 2, section 17, requiring the subjects of acts to be expressed in the'title. (Post, pp. 623, 624.)</p> <p>6. STATUTES. Provisions as to'subject and title applicable to amending act only where act amendatory upon its face.</p> <p>Where an act does not purport to be an amendatory act, it is not necessary that the substance or title of the amended act should be embraced in its title; the constitutional provision applying only when the act is amendatory upon its face. (Post, p. 625.)</p> <p>Case cited and approved; Greenwood v. Rickman, 235 S. W., 425.</p>

<p>1. SHERIFFS AND CONSTABLES. Sheriff not liable for unauthorized acts of son acting on impulse without authority.</p> <p>Where a sheriff in the discharge of his duty undertook with the assistance of his deputy to arrest the occupants of a notorious gambling house, firing a shot through the ceiling of the building to intimidate them, and in the confusion following, the sheriff’s son, there without invitation and acting on impulse and on his own account, fired into the crowd, his father, as sheriff, was not liable for any injury resulting from the son’s act. {Post, pp. 632, 633.)</p> <p>2. APPEAL AND ERROR. Bill of exceptions sufficient, if record affirmatively shows it contains all the evidence, although not specific words.</p> <p>A bill of exceptions is sufficient if the record affirmatively shows that it contains all the evidence and it is not necessary that it should contain the specific words. {Post, pp. 633, 634.)</p> <p>3. SHERIFFS AND CONSTABLES. Action on sheriff’s official bond payable to Mississippi cannot be maintained in Tennessee by a resident of Mississippi.</p> <p>An action against a sheriff of a county in Mississippi on his official bond, which was by Hemingway’s Code, Miss, section 2802, made payable to the State of Mississippi for a cause of action arising in such State, cannot be maintained in Tennessee by a resident of Mississippi. {Post, pp. 634-646.)</p> <p>Cases cited and approved.: Town of Cady v. Bailey, 95 Wis., 373; Huntington v. Attrill, 146 IT. S., 657; Spokane & I. E. Ry. Co. v. Whitley, 237 U. S., 495; Indiana v John, 5 Ohio, 217; Boston & Maine Railroad v. Hurd, 108 Fed., 116; Patty v. Williams, 71 Miss., 840.</p> <p>Cases cited and distinguished: Pickering v. Fisk, 6 Vt., 102; Carmichael v. Moore, 88 N. C., 30.</p> <p>Code cited and construed: Sec. 3079 (Hen.).</p> <p>Constitution cited and construed: Act. 4, sec. 2.</p>

<p>1. COVENANTS. Restrictions to residence purposes valid.</p> <p>An owner of land in selling a portion of it may restrict its use to residential purposes for the benefit of himself and those to whom he sells other portion with similar restrictions. (.Post, p. 653.1</p> <p>2. ESTOPPEL. Facts held not to raise an estoppel against enforcement of building restriction.</p> <p>That the grantee of a lot fronting on two streets, B. and M., and extending around two sides of the lot on the corner, is permitted without objection to erect a business building on the part fronting on M. street and extending back-over the part forming the common baste for the two frontages, leaving the portion fronting on B. street too small for residential purposes, does not estop his grantor and others from insisting on enforcement of the restriction in his . deed that any house on the B. street side should be used for residence purposes only. (Post, pp. 653, 654.)</p> <p>3. INJUNCTION. Encroachment of business held not such that restriction of use to residential purposes would not he enforced.</p> <p>Enforcement of restriction in deed of lot to use for residential purposes will not be denied on account of encroachment of business in the vicinity; it not being such that the use of the lot for business purposes would not materially affect the value or use for residential purposes of the remaining lots of the grantor. (.Post, pp. 654, 655.)</p> <p>4. COVENANTS. Building restriction construed in favor of free use of property.</p> <p>Restriction in deed of lot fronting on two street, B. and M., and extending around two sides of the lot on the corner, that any house ereGted on the B. street side should he used for residence purposes only, will he construed in favor of free use of property, to allow of business property on that part of the lot forming the common base of the two frontages. (Post, pp. G55-657.)</p> <p>5. COVENANTS. Restriction to use for residence purposes construed.</p> <p>Restriction, in deed of lot fronting on two streets, B. and M., and extending around two sides of lot on the corner, that any hoiüe erected on the B. street side should be used for residence purposes only, permits any use of that part of the lot which would he consistent with its use for residential purposes only, as for decorative purposes; such as flower beds or a walkway, there being no building on it, hut does not permit it being used in such a-way that the manifest purpose-> would be to serve the business houses on the remainder of the lot and the corner lot, as by affording an intentional passageway or entrance thereby, by a concrete driveway or otherwise. (Post, pp. 657-059 )</p>