Volume 147 — Tennessee Reports

<p>1. WATERS AND WATER COURSES. Lower lands burdened with servitude of receiving water from higher lands.</p> <p>Lands lying at a lower level are burdened with the servitude of receiving all water which naturally flows down to them from adjoining higher lands, and this applies not only to living streams but to surface water. (Post, pp. 6, 7.)</p> <p>2. .WATERS AND WATER. COURSES. Duty of railroad to provide means for safe passage of surface waters such as might he anticipated.</p> <p>It is the duty of a railway company in constructing and maintaining a railroad to provide sufficient means for the safe passage of accumulated surface waters, and this applies not only to ordinary- rain falls, but to such as have occurred within past experience and observation, or might reasonably be anticipated from the physical'surroundings and ’ climatic conditions. {Post, pp. 6, 7.)</p> <p>3. WATERS AND WATER COURSES. Right to have water flow upon lower lands may be lost by maintenance of artificial embankments for twenty years.</p> <p>The right of owners of land to have surface water flow therefrom upon lower lands may be lost by the maintenance of artificial embankments on lands of servient estate for twenty years, and the servient estate may acquire counter easement to flow back water upon the lands of the dominant estate by such embankments. (Post¡ pp. 6, 7.)</p> <p>Case cited and approved: Railway v. Mossman, 90 Tenn., 157.</p> <p>4. WATERS AND WATER COURSES. Prescriptive right to back water upon higher land must be exercised so as to indicate claim of right.</p> <p>As prescriptive right on part of owner of lower land to back surface water upon upper land is founded upon the supposition of a grant, it must be exercised or made use of in such a way as to indicate that it is claimed as a right. {Post, pp. 7, 8.)</p> <p>5. WATERS AND WATER COURSES. Prescription runs against owner of higher land from time cause of action arises.</p> <p>Prescription cannot begin to run against the right of an owner of higher land to have the surface water flow upon lower land, because of the maintenance of embankments backing up the water, until a cause of action arises, and it does then begin to run. {Post, pp 7, 8.)</p> <p>6. WATERS AND WATER COURSES. Prescription runs against higher owner from time culvert in railroad embankment proves insufficient.</p> <p>While a cause of action arises at once upon the construction of an embankment of a permanent character which necessarily causes injury by backing up water, where a railroad in constructing an embankment recognized the right of the upper landowner by constructing a culvert, there was no cause of action, and prescription did not run against the upper owner, until experience showed the culvert to be insufficient to take care of the natural accumulation and flow of water. (.Post, pp. 8-12.)</p> <p>Case cited and approved: Sullens v. Chicago, etc., R. R. Co., 74 Iowa, 659.</p> <p>Case cited and distinguished: llocutt v. Wilmington, etc., Railroad, 124 N. C., 214.</p> <p>7. WATERS AND WATER COURSES. Railroad claiming prescriptive right to maintain embankment has burden of proof.</p> <p>In action for damages from water backed up by railroad embankment containing insufficient culvert, the burden was on the railroad company claiming a prescriptive right to' show when the culvert first proved insufficient, and to show that more than twenty years before the cause, of action arose the embankment and culvert actually caused overflows, and that such condition continued throughout that period. (Post, pp. 12-15.)</p> <p>Cases cited and approved: Railroad v. Hays, 79 Tenn., 382; G-ulf, etc., R. Co. v. Moseley, 20 L. R. A. (N.-S.), 886; Irvine v. Oelwein, L. R. A„ 1916E, 997.</p> <p>8. ADVERSE POSSESSION. Must operate against persons capable of making grant.</p> <p>To establish a right by prescription the acts by which it is sought to establish it must operate against persons capable of making a grant and in a condition to resist such acts. (Post, p. 15.)</p> <p>Cases cited and approved: Ferrell v. Ferrell, 60 Tenn., 329; Saunders v. Simpson, 97 Tenn., 382;- McKinney#v. Duncan, 121 Tenn., 265; Ferguson v. Prince, 136 Tenn., 543.</p> <p>9. ADVERSE POSSESSION. Presumed in absence of evidence that persons against whom prescription claimed capable of,suing.</p> <p>While it is part of the case of one claiming a prescriptive right ro show affirmatively that owners of servient estate during the prescriptive period were competent to convey title, in the absence ox any proof on the subject it will be presumed that they were cap able of suing'or acquiescing in the prescription, and the fact that they were not sui juris or capable of granting a right must be pleaded and proved. (Post, pp. 15-17.)</p> <p>10. ADVERSE POSSESSION. Claimant must show facts necessary to confer title.</p> <p>One claiming title by adverse possession must make out his case by showing the facts necessary to confer title. (Post, pp. 15-17.)</p> <p>Cases cited and approved: Chaney v. Moore, 41 Tenn., 48; Cook v. Cook, 57 Tenn., 464; Alvis v. Oglesby, 87 Tenn., 172; Coal Co. v. Daniel, 100 Tenn., 65; Gross v. Disney, 95 Tenn., 592; Jones v. Coal Co., 133 Tenn., 159.</p>

<p>TAXATION. Revenue agent, collecting delinquent taxes, entitled to fifteen per cent, penalty in addition to other statutory penalties.</p> <p>Under Acts 1921, chapter 115,' section 1, which provides for an additional penalty of five per cent, if delinquent taxes are not paid before June 1st, and section 2, that if delinquent taxes are not paid in January, an additional penalty of ten per cent, accrues, and that money derived from sale of property be applied to payment of suit costs, including the fifteen per cent, penalty to the revenue agent, which is additional to his salary under Acts 1907, chapter 602, section 77, the five and ten per cent, penalties are in addition to the fifteen per cent, collected and paid the revenue agent.</p> <p>Acts cited and construed: Acts 1921, ch. 115, sec. 1; Acts 1907, ch. 602, sec. 77.</p>

<p>1. COURTS. Whether nonpayment of privilege tax prevents recovery on contracts can lie reviewed by Supreme Court.</p> <p>Where the controlling issue in an action for breach of contracts was whether the nonpayment of the privilege tax by plaintiff corporation prevented its enforcement of the contracts, the case can be reviewed by the supreme court as one involving a revenue statute, which may be said to involve the state revenue. (.Post, pp. 213-215.)</p> <p>Acts cited and construed: Acts 1919, ch. 134, secs. 4, 16.</p> <p>2. LICENSES. State privilege tax does not apply to business done outside of the state.</p> <p>The privilege tax exacted of coal dealers by Acts 1919 chapter 134, sections 4, 16, was not intended to levy a tax on business done out of the State, if the legislature had power to make such levy, and therefore does not apply to a contract for the delivery of coal mined in Kentucky to points in Kentucky, though such contracts did not relate to interstate commerce. (Post, p. 215.)</p> <p>Case cited and approved: Lumber Co. v. Moore, izc Tenn., 313. '</p> <p>3. COMMERCE. Contracts for coal to be loaded in another State and shipped to a third State form interstate commerce.</p> <p>Contracts made within the State for the sale of coal, which were breached by the omission of the seller to load at its mines in Kentucky cars of coal to be shipped to States other than Kentucky, related strictly to interstate commerce. (Post, p. 215.)</p> <p>Cases cited and approved: Dahnke-Walker Milling Co. v. Bondurant, 257 U. S., 2<82; Lemke v. Farmers’ Grain Co., 258 U. S., 50.</p> <p>4. COMMERCE. State cannot tax formation of contracts by residents for interstate commerce.</p> <p>The State cannot Impose a privilege tax on the negotiation within the State of contracts between corporations conducting their entire business within the State, for the sale and delivery of goods in interstate commerce. (Post, p. 216.)</p> <p>Cases cited and approved: Heyman v. Hays, 236 U. S., 178; Logan v. Brown, 126 Tenn., 209.</p>

<p>1. HUSBAND AND WIFE. Husband is not liable for wife’s torts in connection with ber separate property.</p> <p>Under Public Acts 1919, chapter 126, section, 1 fully emancipating married women from all disability on account of- coverture, the common-law liability of a husband for the voluntary torts of the wife is abrogated so far as those torts are connected with her separate property, and therefore a husband is not liable for the damages caused by his wife’s negligence in operating an automobile which was her separate property. {Post, pp. 220-222.)</p> <p>Acts cited and construed: Pub. Acts 1919, ch. 126, sec. 1.</p> <p>Cases cited and approved: Quilty v. Battie, 135 N. Y., 201; D. Wolff & Co. v. Lozier, 68 N. J. Law, 103; Hinds v. Jones, 48 Me., 348; Boutell v. Shellaberger, 264 Mo., 70; Henley v. Wilson, 137 Cal., 273; Harrington v. Jagmetty, 83 N. J. Law, 548; Roberts v. Lisen-bee, 86 N. C., 136.</p> <p>2. HUSBAND AND WIFE. Before emancipation acts, husband must be joined in suit for wife’s torts.</p> <p>Before the passage of the Married Women’s Emancipation Act, the wife could not be sued alone for her torts, but her husband must be joined with her; but, since the enactment of that statute, doing away with necessity of joining the husband, the reason tor suing him for his wife’s torts no longer exists. {Post, pp. 222, 223.)</p> <p>Acts cited and construed: Acts 1919, ch. 126.</p> <p>Case cited and distinguished: Price v. Clapp, 119 Tenn., 434.</p>

<p>1. TRUSTS. Deed from trustee for incompetent not invalid because signed as guardian.</p> <p>A deed by a trustee for an incompetent held not invalid because signed by him as guardian, he having power to sell the land in the capacity in which he held it, and his duties under the deed of trust not being inconsistent with those usually performed by a guardian. (Post, pp. 231, 232.)</p> <p>2. TRUSTS. Trustee for incompetent held not authorized to convey right of way to railroad company.</p> <p>Under- a deed of land in trust for an incompetent with power to convey to him only when restored to mental soundness, the trustee had no power to convey a right of way to a railroad company, though he was the holder of the legal title, and the railroad had the power to take the property by condemnation proceedings. (Post, pp. 232-234.)</p> <p>3. TRUSTS. No title acquired by trustee’s deed subsequent to absolute conveyance by owner to cestui que trust.</p> <p>Where, prior to the execution of a deed by a trustee for an incompetent, the owner of the land made an absolute conveyance to the cestui, thereby revoking the trust, grantee under the trustee’s deed acquired no title. (Post, p. 234.)</p> <p>4. LIMITATION OF ACTIONS. Railroad sued for value of land conveyed to it by incompetent’s trustee held entitled to rely on statute relating to taking of private property for public improvements, where suit treated as one for damages.</p> <p>In a suit by an incompetent’s heirs for the value of property “unlawfully taken” by a railroad company, to which it was conveyed without authority by deceased’s trustee, where the chancellor’s decree, from which no appeal was taken hy complainants, proceeded on the theory that the cause of action was that described by Shannon’s Ann. Code, section 1866, authorizing the owner of private property taken for public improvements to sue for damages in the ordinary way, held, that section 1867, the statute of limitation relating to the taking of private property for public improvements, was applicable, and not the statutes of limitations applicable to real actions. (Post, pp. 234-236.)</p> <p>Code cited and construed: Sec. 1866 (S.).</p> <p>5. DESCENT AND DISTRIBUTION. Heirs of incompetent have no right of action for damages accruing to him by taking of railroad right of way.</p> <p>Heirs of an incompetent have no right of action for damages accruing to him by the taking of land by a railroad for a right of way; such action being in his administrator. (Post, pp. 236-240.)</p> <p>6. LIMITATION OF ACTIONS. Action by incompetent’s heirs for damages for appropriation of land by railroad must be brought within year after his death.</p> <p>Under Shannon’s Ann. Code, section 4448, providing that one of unsound mind when a cause of action' accrues, his representatives or privies, may commence the action after removal of such disability within the time of limitation for the particular cause of action, an action by heirs of an incompetent to recover damages, as authorized by section 1866, for appropriation of the latter’s land by a railroad company, must be commenced within a year after his death, in view of section 1867. (Post, pp. 236-240.)</p> <p>Case cited and approved: Southern Railway v. Jennings, 130 Tenn., 460.</p> <p>Code cited and construed: Sec. 4448 (S.).</p>

<p>L LARCENY. Indictment held, to charge attempt.</p> <p>An indictment under Shannon’s Code, section 6537, .for breaking and entering a house with intent to commit a felony, which alleged that accused “did unlawfully, feloniously, and burglariously break into and enter the storehouse of B. in the nighttime, with intent, unlawfully, feloniously, and burglariously to steal, take, and carry away the personal property therein contained, the proper goods and chattels of B., with the felonious intent to convert the same to their own use and to deprive the true owner thereof,” was sufficient to charge an attempt to commit • larceny, specifying the goods being unnecessary, where the conviction is only for an attempt to commit larceny. (Post, pp. 242-244.)</p> <p>Case cited and distinguished: Womack v. State, 74 Tenn., 146.</p> <p>Code cited and construed: Sec. 6537 (S.).</p> <p>2. INDICTMENT AND INFORMATION. Conviction of attempt to commit larceny under indictment for burglary sustained.</p> <p>Under Shannon’s Code, section 7085, providing that, on an indictment for a public offense admitting of different degrees, the defendant may be convicted of such offense or any degree lower than that charged in form in such indictment, a conviction for an attempt to commit larceny founded on an indictment under section 6537, denouncing breaking or entering a house of another not a .mansion house with intent to commit a felony, can be sustained, regardless of whether section 6540, passed in 1829, authorizing a conviction under an indictment founded on certain statutes for burglary, or any other felony Included in the charge applies to section 6537, passed in 1871, or to a statute'passed in 1829, relative to breaking into a mansion house by day or night. (Post, pp. 244, 245.)</p> <p>Case cited and approved: Tucker v. State, 50 Tenn., 485.</p> <p>Case cited and distinguished: Chappie v. State, 124 Tenn., 105.</p> <p>Code cited and construed: Sec. 7085- (S.).</p> <p>3. BURGLARY. Conviction for larceny under indictment for burglary sustainable -without special legislative authority.</p> <p>Under a nindictment for burglary, in conviction for larceny can be sustained, in the absence of special legislative authority. (Post, pp. 245, 246.)</p> <p>Case cited and approved: Commonwealth v. Hope, 106 Tenn., 1.</p> <p>Case cited and distinguished: Pardue v. State, 63 Tenn., 13.</p>

<p>1. BROKERS. Client held entitled to recover from hank with which brokers pledged stock bought for client and paid for by latter.</p> <p>A bank lent money to brokers for use in a checking account to carry on business pursuant to an agreement that the brokers would not deal in stock except as agents for others. The brokers bought stock for a client through correspondents, and he paid therefor by a check to the brokers, which was deposited to their account. The correspondents sent a stock certificate indorsed in blank to the bank with draft on the brokers attached. The draft was paid by, the brokers by a check on their account, which was sufficient to pay the check, and they then pledged the certificate with other stock to secure their note to the bank for a loan, and in so doing the bank was informed that the stock did not belong to the brokers. Held, that the brokers’ client was entitled to recover from the bank the value of the stock which it had sold under the power given in the note. (Post, pp. 249-252.)</p> <p>2. BROKERS. Client held to have the title to stock purchased for him.</p> <p>From the moment that a client paid for stock bought for him by his brokers, if not from the moment their correspondents purchased it in another city, the title vested in him, and, subject to a lien on it for the purchase price advanced by their correspondents, his title -v^as absolute. (Post, p. 252.)</p> <p>3. ESTOPPEL. Sale of personal property by one without authority ordinarily conveys no title to innocent purchaser.</p> <p>Ordinarily, one intrusted with the possession of personal property by the owner, but without authority to sell or dispose of it, cannot transfer title to it even to an innocent purchaser, who oe-quires no better title than that of the seller, except where the owner has conferred on another the usual indicia of ownership, or has held him out as. having ownership or the power of disposal, lie is estopped to deny the ownership or authority of the other as against an innocent purchaser from him for value. (Post, pp. 252, 253.)</p> <p>4. CORPORATION'S. Bank accepting from brokers pledge of stock held put on notice that it did not belong to them.</p> <p>An agreement between a bank and brokers borrowing money from it to do business, binding them not to buy stock for themselves but only for others, put the bank on notice that a client’s stock pledged by them to secure a note to it did not belong to them, and it took the risk that they were authorized to pledge the stock as they did.</p> <p>5. BROKERS. Only interest of broker acquired by his pledge of his client’s stock for which he advanced purchase price.</p> <p>Though a broker may to the extent of his interest make a valid pledge of a client’s stock for which he has advanced the purchase price, the pledgee acquires only the interest of the broker. (Post, pp. 253, 254.)</p> <p>6. TROVER ANT) CONVERSION. Measure of damages stated.</p> <p>Ordinarily, in cases of conversion, the measure of damages is the market value of the property at the date of the conversion. (Post, pp. 254-266.)</p> <p>7. TROVER AND CONVERSION. Measure of damages for conversion of shares of stock stated.</p> <p>The measure of damages for conversion of shares of stock is the highest value of the stock between conversion and the expiration of a reasonable time within which the owner might have procured other like stock in the market. (Post, pp. 256-260.)</p> <p>Cases cited and approved: Romaine v. Van Allen, 26 N.- Y., 309; Markham v. Jaudon, 41 N. Y., 235; Baker v. Drake, 53 N. Y., 211; Starbuek v. Cortazzi, 2 Cr. Mees. & Rose., 165; Owen v. Routh, 14 C. B., 327; Williams v. Archer, 5 Man. Gr. & Scott, 318; Archer v. Williams, 2 Car. & Kir., 26; Rand v. White Mountains R. R. Co., 40 N. H., 79; Brass v. Worth, 40 Barb., 648; Pinkerton v. Manchester R. R., 42 N. H., 424; Suydam v. Jenkins, 3 Sandford (N. Y.), 614; Gruman v. Smith, 81 N. Y., 25; Colt v. Owens, 90 N. Y., 368; Wright v. Bank of Metropolis, 110 N. Y., 237; Morris v. Wood, 35 S. W. 1013.</p> <p>Cases cited and distinguished: Galigher v. Jones, 129 TJ. S., -193; Dimock v. United States National Bank, 55 N. J. Law, 296.</p>

<p>1. CRIMINAL LAW. If courts strike plea on improper ground, its action should he sustained if other ground stated is valid.</p> <p>Where the court’s action in striking a plea in abatement to an indictment for receiving and concealing stolen property is based upon erroneous grounds, its action should be sustained if any of the other grounds stated in the motion are well taken. (Post, pp. 326,' 327.)</p> <p>Acts cited and construed: Acts 1919, ch. 37.</p> <p>2. CRIMINAL LAW. Plea in abatement not duplicitous if facts relate to one material issue and not to different defenses.</p> <p>A plea in abatement is bad for duplicity, when it presents two issues, one of law and another of fact, but a plea is not duplicitous because it states more than one distinct fact, nor is a -plea bad because it refers to the statutes or the law rendering the facts determinative; if the facts stated relate to one material issue and not to different defenses it is not subject to attack for duplicity. (Post, p. 327.)</p> <p>Casos cited and approved: Trabue v. I-Iigden, 44 Tenn., 620; Pilelior v. I-Iart, 20' Tenn., 536.</p> <p>3. CRIMINAL LAW. Plea in abatement held not duplicitous.</p> <p>A plea in abatement to an indictment for receiving and concealing stolen property alleged the disqualification of the foreman of the jury, the defectiveness of the' jury in that it was composed of eleven jurors when twelve were required, and further referring to Private Acts 1921, chapter 615, relative to the proper selection of a grand 'jury and the appointment of a foreman, held not duplicitous as presenting a question of constitutional law to be determined before the question as to the selection of the grand jury could be inquired into; but the plea presented facts relating to but one issue, it being immaterial whether the acts of the legislature wore pleaded, as it was necessary for the court to consider their constitutionality in order to decide the issues presented. (Post, pp. 328, 329.)</p> <p>4. CRIMINAL LAW. Constitutionality of law not considered on appeal, where question not presented in brief or at trial.</p> <p>Where the trial court overruled a plea in abatement to an indictment on the ground that a statute relied on was invalid, but the constitutionality of the act is not asserted nor referred to by the State, either in the brief or at the trial, and it is not apparent from anything suggested on what grounds the acts are unconstitutional, the question will not be considered by the appellate court. (Post, lip- 328, 329.)</p> <p>Acts cited and construed: Acts 1921, chs. 534, 615.</p> <p>5. GRAND JURY. Only grand jurors selected according to law can prefer valid indictment.</p> <p>There is no such thing as a do facto grand jury, for the law undertakes to provide the method of selecting men who can prefer a valid indictment, and no others can do so. (Post, pp. 329, 330.)</p> <p>6. CRIMINAL LAW. Indictment and information. Plea in abatement held erroneously stricken without trying issues of facts.</p> <p>Where a plea in abatement to an indictment for receiving and concealing stolen property showed that the list of jurors required by Private Acts 1921, chapter 615, and the appointment of D. as foreman, by the circuit court, was certified to that court, "but the trial judge ignored the Acts of 1921 by selecting- only eleven jurors from the ‘list when twelve were required, and treated them as bystanders, and himself appointed M. foreman not on the list, held, under the facts alleged, the indictment was bad, and issue should have been taken upon the facts alleged in the plea, instead of striking it out merely on the ground that the acts of 1921 were unconstitutional. {Post, pp. 329, 330.)</p>

<p>1. MUNICIPAL CORPORATIONS. Motorists must exercise ordinary care to avoid injuries to minors unlawfully on streets.</p> <p>Motorists and others will not be. relieved of the obligation of ordinary care to avoid injuries to minors on the streets, though such minors are themselves Violating the law. (Post, pp. 333, 335.)</p> <p>Case cited and approved: Chattanooga Railway & Light Co. v. Bettis, 139 Tenn., 332.</p> <p>2. MUNICIPAL CORPORATIONS. Plaintiff’s failure to keep vigilant lookout held not to defeat recovery as matter of law.</p> <p>In an action for injuries received in a collision with an automobile when defendant made an unlawful turn around a corner, whether plaintiff’s failure to keep a vigilant lookout was proximate contributory negligence to defeat his suit held properly submitted to the jury. (Post, pp. 335, 336.)</p> <p>3. MUNICIPAL CORPORATIONS. Whether minor was contributorily negligent question for jury.</p> <p>Whether plaintiff minor, going west on a motorcycle, was guilty of contributory negligence in not anticipating that defendant motorist, going east, would violate the law by making an unlawful turn into a street by cutting the northwest corner was a question for 1 the jury. (Post, pp. 335, 336.)</p> <p>Case cited and distinguished: Railway Co. v. Hull, 88 Tenn., 33.</p> <p>4. PARENT AND CHILD. Giving minor son motorcycle to use on streets contrary to city ordinance held contributory negligence of father.</p> <p>Act of a father in buying for his minor son a motorcycle to be used on the streets, contrary to a city ordinance, held contributory negligence, which the jury should consider in mitigation of any recovery in an action by the father for loss of services. (Post, pp. 336, 337.) •</p>

<p>FROM SHELBY.</p> <p>Appeal from and Error to the Chancery Court of Shelby County. — Hon. Israel H. Peres, Judge.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal from the Chancery Court of Montgomery County. —I-Ion. J. W. Stout, Chancellor.</p>

<p>1. COUNTIES. Statute abolishing fee system in one county held arbitrary and partial.</p> <p>Private Acts 1917, chapter 77, depriving county officials in counties of more than 190,000 which applied only to Shelby county of their fees, placing them on salaries, and requiring them to remit all fees to the county treasury, requires them to render the same services as officials of other counties who are permitted to retain all their fees collected, and is invalid as arbitrary and partial. (Post, pp. 378, 379.)</p> <p>Acts cited and construed: Acts 1917, cli. 77.</p> <p>Cases cited and approved: Mayor v. Dearmon, 34 Tenn., 104; Weaver v. Davidson County, 104 Tenn., 315; The Redistricting Cases, 111 Tenn., 234; State v. Kerby, 136 Tenn., 386.</p> <p>Constitution cited and construed: Art. 1, sec. 8; Art. 11, sec. 8.</p> <p>2. STATUTES. Statute abolishing fee system in one county held invalid as suspending general law.</p> <p>Private Acts 1917,-chapter 77, depriving county officials in all counties of more than 190,000, which applied only to Shelby county, of their fees, and placing them on salaries,' is unconstitutional because it suspends a general law for the benefit of Shelby county, since under the general law the fees collected by the county officials belong to them and no portion thereof to the respective counties. (Post, p. 379.)</p> <p>3. STATUTES. Act abolishing fee system for one county held not exercise of police power nor regulation of governmental entity.</p> <p>Private Acts 1917, chapter 77, depriving county officers of fees in counties of more than 190,000, which affected only Shelby county, ' is not a valid exercise of police power, since it does not pertain to nor affect the public safety, the public health, or the public morals, but is a revenue act passed solely in the interest of the county, nor is it an act regulating county matters as a governmental or political entity. (Post, p. 379.)</p> <p>Case cited and distinguished: Motlow v. State, 125 Tenn., 547.</p> <p>4. COUNTIES. Fact act is applicable to counties having specified population does not make it one affecting governmental entity.</p> <p>The fact that Private Acts 1917, chapter 77, abolishing the fee system of county officials, applies to counties having a population of more than 190,000, there being but one such county, by the federal census of 1910, or any subsequent federal census, does not make the classification valid, since the act does not affect the county in its political or governmental capacity. (Post, p. 380.)</p> <p>Case cited and approved: State v. Turnpike Co., 133 Tenn., 446.</p> <p>5. OFFICERS. County officers have property rights in respective offices.</p> <p>County officers have property rights in their respective offices. (Post, p. 380.)</p> <p>Case cited and approved: Smiddy v. Memphis, 140 Tenn., 97.</p>

<p>TRUSTS. Proceeds of trust not traced as necessary for preferential payment.</p> <p>A ward,, for whom a bank was trustee, does not trace tbe funds, as is necessary for preferential payment, on tbe bank becoming insolvent, its credit in another bank being the proceeds of a loan, and tbe money in its own vaults being less than it held as guardian for other wards, as, even if, between the guardian and ward, what remained might be presumed to be that of the ward, the guardian, under Thompson’s-Shannon’s Code, section 4280, having no right to use a ward’s funds in its business, it is impossible to indulge a presumption in favor of one ward as against other wards.</p> <p>Acts cited and construed: Acts 1913, ch. 20, sec. 19.</p> <p>Cases cited and approved: Arbuckle v. Kirkpatrick, 98 Tenn., 221; Akin v. Jones, 93 Tenn., 353; Sayles v. Cox, 95 Tenn., 579; Klepper v. Cox, 97 Tenn., 543; Central National Bank v. Connecticut Mutual Life Ins. Co., 104 U. S., 54; Brocchus v. Morgan, 3 Shan. Cas., 671; Woodard v. Bird, 105 Tenn., 671.</p> <p>Cases cited and distinguished: McDowell v. McDowell, 144 Tenn., 452; Commonwealth ex rel. Bell v. Tradesmen’s Trust Co., 250 Pa., 378.</p> <p>Code cited and construed: Sec. 4280 (T.-S.).</p>

<p>1. WILLS. Foreign probate conclusive as to personalty and as to realty, within State of testator’s domicile.</p> <p>A decree in the State of testator’s domicile admitting the will to probate is conclusive in other jurisdictions, both as to the testator’s personal property, which follows the person of the owner, and as to the real property within the State of the testator’s domicile. (Post, pp. 392, 393.)</p> <p>Cases cited and approved: Williams v. Saunders; 45 Tenn., 60; Martin v. Stovall, 103 Tenn., 1.</p> <p>2. WILLS. Testamentary capacity and formal requisites as relating to immovable property ultimately determined by courts of State where property located.</p> <p>Under Acts 1823, chapter 31 (Shan. Code, section 3922), as supplemented by Acts 1909, chapter 87, and Acts 1903, chapter 497, as to all questions of the disposition of immovable property by will, the ultimate determination of the testamentary capacity, as well as formal requisite, lies in the courts of the State where the property is situated. (Post, pp. 393, 394.)</p> <p>Cases cited and approved: State of Montana ex rel. v. District Court of the Twelfth District et al., 34 Mont., 96; Selle v. Rapp, 143 Ark., 192; Williams v. Saunders, 45 Tenn., 60; Carpenter v. Bell, 96 Tenn., 294; Martin v. Stovall, 103 Tenn., 1.</p> <p>3. WILLS. Foreign judgments admitting to prohate may he made conclusive hy statute.</p> <p>A State may, hy statutory enactment, afford conclusiveness to foreign probate judgments and decrees. (Post, pp. 394-396.)</p> <p>4. WILLS. Full faith and credit clause inapplicable to' probate of will affecting realty in another State.</p> <p>The full faith and credit clause of the Federal Constitution and the Acts of Congress, effective thereof, are ¡inapplicable to make a judgment admitting a will to probate in one State conclusive in another State, wherein real property is conveyed by the will, nor does this limitation apply only to the questions relating to due execution, but includes as well questions of testamentary capacity. (Post, pp. 394-396.)</p> <p>Acts cited and construed: Acts 1823, ch. 31; Acts 1903, ch. 497; - Acts 1909, ch. 87.</p> <p>Cases cited and approved: Keith v. Keith, 97 Mo., 223; Evansville Ice & Cold Storage Co. v. Winsor, 148 Ind., 682; Nelson v. Potter, 50 N. J. Law, 324; Hines v. Hines, 243 Mo., 480; Bowen v. Johnson, 5 R.. I., 112; B.oberts'ón v. Pickrell, 109 U. S., 608; McCormick v. Sullivant, 26 ü. S., 192; Darby v. Mayer, 23 TJ. S., 465.</p> <p>Case cited and distinguished. Dibble v. Winter, 247 Ill., 243.</p> <p>Code cited and construed: Sec. 3922 (S.).</p> <p>5. WILLS. Though probate proceedings are in rem, they are not conclusive as to realty without State.</p> <p>Though probate proceedings are recognized as actions in rem that are conclusive as to personalty, under Shannon’s Code, section 3922, declaring any person interested to contest the validity of a will may do so in the same manner as though it.had been originally presented for probate in the courts of the State, foreign probate proceedings cannot be deemed conclusive as to realty located outside the state of probate. (Post, pp. 396, 397.)</p> <p>6. APPEAL AND EEKOR. Court’s ruling, though excepted to, not reviewable, where no error is assigned thereon.</p> <p>Though an exception may have 'been taken to a ruling of the court below, the matter is not presented for review, unless an appeal is taken therefrom and error assigned thereon. (Post, p. 397.)</p> <p>7. WILLS. Where there is evidence of testator’s unsoundness of mind, issue must go to jury.</p> <p>Where there is testimony directly asserting the unsoundness of mind of a testator, and this is the determinative issue, the case must be submitted to the jury. (Post, p. 397.)</p> <p>Case cited and distinguished: Tyrus v. Railroad, 114 Tenn., 679.</p> <p>8. WILLS. Administrator’s defense not raised till second trial in circuit court held still available.</p> <p>The defense asserted by an administrator, in a proceeding to contest the “validity of a will, not raised in the county court and not asserted until the second trial in the circuit court, held nevertheless still available to him. (Post, p. 398.)</p> <p>Cases cited and approved: Shaller v. Garrett, 127 Tenn., 665; Corn-well v. Cornwell, 30 Tenn., 485.</p>

<p>1. PLEADING. Plea to jurisdiction overruled for insufficiency maji Re amended.</p> <p>After a plea in abatement questioning the jurisdiction of the court has been overruled for insufficiency, it may under the statute of jeofails (Thompson’s-Shannon’s Code, sections 4583, 4587) be amended notwithstanding section 6205, providing, “upon a plea or demurrer argued and overruled, no other plea or demurrer shall he received, but the defendant shall answer,” an amended plea to the jurisdiction being not within the mischief intended to he remedied by that section. (Post, pp. 404-406.)</p> <p>Cases cited and approved: Brien v. Marsh, 1 Tenn. Ch., 625; Whit-taker v. Whittaker, 78 Tenn., 99.</p> <p>Codes cited and construed: Secs. 4583, 4687, 6128, 6129, 6205, (T.-S.).</p> <p>2. PLEADING. Plea in abatement held not double.</p> <p>A plea in abatement containing a denial that the funds garnished were defendant’s property, and alleging ownership in the garnishee, held not double, since no matters, however multifarious, will make a pleading double if together they constitute but one connected proposition or entire point. (Post, pp. 406-408.)</p> <p>Cases cited and approved: Waggoner v. White, 58 Tenn., 741; Pilcher v. Hart, 20 Tenn., 524.</p> <p>3. PLEADING. Failure to allege non-ownership of property within jurisdiction not fatal to plea in abatement questioning jurisdiction.</p> <p>A plea in abatement denying the jurisdiction of the court, and alleging certain garnished funds did not belong to defendant but to another, held not-insufficient for failure to allege defendant had no other property within the jurisdiction, or that defendant had not received any funds from the garnishee since commencement of the suit. (Post, pp. 408, 409.)</p> <p>4. CARRIERS. Funds paid for shipments made under draft and hill of lading subsequently sold to bank held not subject to garnishment.</p> <p>A'purchaser of yarn under contract providing for regular shipments was garnished by one suing the seller, and enjoined from making further payments at a time when nothing was owing. The seller thereupon declined to make further shipments, and the contract was modified so that an advance payment was made for one shipment and others were made through a bank by draft with bill of lading attached, which was discounted and sold outright to the bank. Held, that the garnishee was not required to insist upon strict performance of the contract, and that, since the bank purchased the draft outright, the fund paid upon delivery of the yarn belonged to it, and was not subject to garnishment. (Post, pp. 409, 410.)</p> <p>Case cited and approved: Implement Co. v. Bank, 128 Tenn., 320.</p>

<p>PRISONS. Statute authorizing erection of jail in Shelby county construed and held to vest power of "selecting jail site, jointly in county and jail commission.</p> <p>Private Acts 1921, chapter 115, authorizing the erection in Shelby county of a jail or a jail and penal farm combined, by the clause in section 11 whereby “the said county of Shelby and Shelby county jail commissioners are vested with power to acquire any land that may be deemed necessary as a site,” etc., vests the power of selecting a suitable location for the proposed jail jointly in the county and jail commission,-though after such selection is made it otherwise provides that either the county or the commission, or both, may actually acquire the lands by either purchase or condemnation.</p> <p>Acts cited and construed: Acts 1921, ch. 115.</p> <p>Codes cited and construed: Secs. 1328 to 1348 (Tenn.); Secs. 1844 to 1867 (S.).</p>

<p>1. INTOXICATING- LIQUORS. Evidence held sufficient to sustain conviction for storage.</p> <p>Evidence held sufficient to sustain a conviction for storage of liquors. (Post, p. 424.)</p> <p>2. CRIMINAL LAW. Defendant not testifying presunfahly guilty.</p> <p>A defendant, not testifying in his own defense, is presumed guilty on review. (Post, p. 424.)</p> <p>3. INTOXICATING LIQUORS. * Storage act not superseded hy Eighteenth Amendment and Volstead Act.</p> <p>The storage act (Public Acts 1917, chapter 3) was not superseded and did not become inoperative by virtue of the Eighteenth Amendment to the federal Constitution and the Volstead Act. (Post, pp. 424, 425.)</p> <p>Acts cited and construed: Acts 1917, ch. 3.</p> <p>Case cited, and approved: Tony Vigliotti v. Commonwealth of Pennsylvania, 258 U. S„ 403; State v. Rhodes, 146 Tenn., 398.</p> <p>4. STATUTES: Intoxicating liquor storage act not repugnant to constitutional provisions as to title and substance.</p> <p>Public Acts 1917, chapter 3, relating to storage of intoxicating liquors, • is not repugnant to Constitution, article 2, section 17, relating to subject-matter and titles of acts. (Post, pp. 425-428.)</p> <p>Case cited and distinguished. Bell v. Hart, 143 Tenn., 588.</p> <p>Constitution cited and construed: Sec. 17, arts. 1, 2; Sec. 7, art: 1.</p> <p>5. CONSTITUTIONAL LAW. Intoxicating liquors. Intoxicating liquor storage act does not deprive of liberty and property without due process of law; “consent.”</p> <p>Public Acts 1917, chapter 3, relating to storage of intoxicating liquors, and providing for punishment of office'rs of corporations knowingly consenting to a violation, does not violate (Constitution, article 1, section 17), as depriving corporation officers of liberty and property without due process of law; the word “consent” implying a degree of superiority, at least, the power of pre- ' venting. (Post, pp. 428, 429.)</p> <p>Case cited and approved: Cowen v. Paddock, 62 Hun, 622.</p> <p>Case cited and distinguished: Geddes v. Bowden, 19 S. C., 1.</p> <p>6. INTOXICATING LIQUORS. Statute in prosecution for unlawful storage construed.</p> <p>Ina prosecution for violating Public Acts 1917, chapter 3, relating to storage of intoxicating liquors, and providing for punishment of corporate officer consenting to a violation, the language of the .statute is to be strictly construed against the State, and will be held to mean something more than a refusal of the officer under indictment to actively dissent in order to render him guilty of a violation, and the State will be held bound to show that he had authority and' power to'control the actions of the agent actually doing the prohibited act. (Post, pp. 429, 430.)</p> <p>7. CONSTITUTIONAL LAW. Person not affected by statute, cannot raise question of validity.</p> <p>One prosecuted under Public Acts 1917, chapter 3, for unlawful storage of intoxicating liquors cannot raise the question that the statute violated Constitution article 1, section 17, in that it provided for the punishment of a corporate officer knowingly permitting a violation of the act, where he is not being prosecuted as an officer of a corporation. (Post, p. 430.)</p> <p>8.SEARCHES AND SEIZURES. Intoxicating liquor storage act not invalid.</p> <p>Public Acts 1917, chapter 3, relating to unlawful storage of intoxicating liquors, does not violate Constitution, article 1, section 7, relating to unlawful searches and seizures. (Post, pp. 430, 431.)</p> <p>Case cited and approved: Hughes v. State, 145 Tenn., 544.</p> <p>9. CONSTITUTIONAL LAW. One cannot complain as to validity of portion of act not affecting him.</p> <p>One indicted for a misdemeanor and for a first offense under Public Acts 1917, chapter 3, relating to unlawful storage of intoxicating ■ liquor, was not affected by section 3 of the act, making a second violation a felony, and was in no position to question its validity. {Post, p. 431.)</p> <p>10. STATUTES. Intoxicating liquor storage act valid, even if portion unconstitutional.</p> <p>Public Acts 1917, chapter 3, relating to intoxicating liquor, stating that the substance and principal object of the act is contained in sections 1 and 2] and that the fact that some part may be invalid is not to affect such sections, the act must stand, even though section 3, providing that a second violation is a felony, be held unconstitutional. {Post, pp. 431, 432.)</p> <p>Cases cited and approved: Richardson v. Young, 122 Tenn., 523; Tillman v. Cocke, 68 Tenn., 429; State v. Trewhitt, 113 Tenn., 561; Turnpike Co. v. Telephone Co., 118 Tenn., 88.</p> <p>Case cited and distinguished: Reelfoot Lake Levee Dist. v. Dawson, 97 Tenn., 179.</p>

<p>1. APPEAL AND ERROR. Findings of fact, when signed and filed by court, become part of record.</p> <p>Findings of fact when signed and filed by the court become a part of the record without being incorporated into a bill of exceptions. Post, 455.)</p> <p>Cases cited and’ approved: Railroad Co. v. Foster, 112 Tenn., 345; Insurance Co. v. Witherspoon, 127 Tenn., 366.</p> <p>2. APPEAL AND ERROR. Motion for new trial necessary before appeal, except for errors apparent on face of record.</p> <p>A motion for new trial is required in all cases before an appeal will lie, except where the errors complained of are apparent on the face of the record proper. {Post, pp. 455, 456.)</p> <p>Cases cited and distinguished: Wise & Co. v. Morgan, 101 Tenn., 276; Railroad. Co. v. Johnson, 114 Tenn., 627.</p> <p>3. APPEAL AND ERROR. All minute entries are part of record proper.</p> <p>All minute entries are a part of the record proper. {Post, pp. 456, 457.)</p> <p>4. APPEAL AND ERROR. Appeal not considered because no motion for new trial made.</p> <p>An appeal seeking only reversal of the judgment for errors of law committed by the court upon trial rather than in rulings on pleadings before trial cannot be heard if no motion for a new trial has been made below. (Post, iop. 456, 457.)</p> <p>Case cited and distinguished: Rogers v. Colville, 145 Tenn., 657.</p>

<p>CRIMINAL LAW. State Reid to have no right of appeal from acquittal in felony case.</p> <p>Where one accused of felony was acquitted under a directed verdict, the State could not appeal nor raise the question as to the propriety of such action by the court, in view of Shannons Code, section 7219, providing that the State has no right of appeal or other remedy for the correction of errors, upon a judgment of acquittal in a criminal case of any grade, and of Constitution article 1, section 10, providing that no person shall, for the same offense, be twice put in jeopardy of life or limb.</p> <p>Cases cited and approved: Prance v. U. S., 164 U. S., 676; State v. Sullivan, 34 Idaho, 68; State v. Wright, 20 N. D., 216; Ford v. State, 101 Tenn., 464.</p> <p>Code cited and construed: Section 5244 (1858); Section 7219 (S.).</p> <p>Constitution cited and construed: Art. 1, Sec. 10.</p>

<p>Insurance. Life policy is payable after execution of insured for crime. .In view of Constitution, article I, section 12, prohibiting corruption of blood or forfeiture of estate and deodands, which establishes the public policy of the State as opposed to forfeitures for conviction for crimes, it is not contrary to public policy for a life insurance company to pay to the beneficiary the amount of the policy upon the life of one who had been executed by the State for murder.</p> <p>Cases cited and approved: Collins v. Metropolitan Life Ins. Co., 232 Ill., 37; Mink’s Case, 123 Mass., 422; Arnold v. Insurance Co., 131 Tenn., 720; Amicable Society v. Bolland, 4 Bligh (N. R.), 194; Burt v. Union Central Life Ins. Co., 187 U. S., 362; Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S., 234; Collins v. Met. Life Ins. Co., 27 Pa. Super. Ct., 353; Knights of the Golden Rule v. Ainsworth, 71 Ala., 447;, Am. National Ins. Co. v. Munson, 202 S. W., ,987; Scarborough v. Am. Nat. Ins. Co., 171 N. C., 353.</p> <p>Cases cited and distinguished: Parker-Harris Co. v. Tate, 135 Tenn., 514; Jackson v. Loyal Additional Ben. Ass’n., 140 Tenn., 495;</p> <p>Collins v. Met. Life Ins. Co., 232 Ill., 37.</p> <p>Code cited and construed: Secs. 4231, 4030, 2265 (S.).</p>

<p>1. SCHOOLS AND SCHOOL DISTRICT. Discretion of county board of education not reviewable, unless fraud or violation of law involved.</p> <p>The court is without power to interfere with a contract of a county board of education in the exercise of its discretion, where there are no facts stated which constitute fraud or bad faith, or where the proposed action is not in violation of law. (Post, p. 484.)</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS. Contract of county board of educational not invalid because of chairman’s refusal to sign; affixing of his signature may be compelled.</p> <p>If a proposed contract between a city and a county board of education for the consolidation of schools was submitted in writing and discussed by.the board at its meeting and agreed to, the fact that the chairman arbitrarily refused to affix his signature would not invalidate the contract, and the court could decree its specific performance or could compel its chairman by mandamus to execute it. (Post, pp. 484-485.)</p> <p>3. SCHOOLS AND SCHOOL DISTRICTS. Contract approved by majority voting held valid, though majority present did not assent to contract.</p> <p>At a full meeting of a county board of education a contract was received and discussed, and upon motion to adopt three members voted ■ and two did not vote, the contract was declared adopted but the chairman refused to sign because not assented to by majority, he Id, that since Public Acts 1921, chapter 120, makes no provision as to number of votes necessary to pass measure, majority of those actually voting was sufficient to validate the contract. (Post, p. 485.)</p> <p>4. SCHOOLS AND SCHOOL DISTRICTS. Majority of board constitute quorum under common law.</p> <p>Under common law, a majority of a board such as a county hoard of education constituted a quorum. (Post, p. 485.)</p> <p>Acts cited and construed: Pub. Acts, ch. 120.</p> <p>5. SCHOOLS AND SCHOOL DISTRICTS. Generally number of votes actually cast decides question, if quorum present.</p> <p>Though greater number refuses to vote, generally the number of lawful votes actually cast decides the question, so that, if a quorum is present, an election is determined by the majority of votes actually cast, though the greater number refused to vote. (Post, pp: 486-489).</p> <p>Case cited and distinguished: Lawrence v. Ingersoll, 88 Tenn., 52.</p> <p>6. SCHOOLS AND SCHOOL DISTRICTS. County board could not rescind contract made and acted upon by approving motion to rescind.</p> <p>After a county board of education had made a valid contract and acted under it, it could not invalidate it by approving a motion made to rescind the action of the board. (Post, pp. 489-490.)</p> <p>Acts cited and construed: Priv. Acts, ch., 606.</p>

<p>TAXATION. Delegation of taxing power to officers of special school district unconstitutional.</p> <p>Private Acts 1921, chapter 416, section 7, authorizing and requiring the board of commissioners of the special school district created by the act to levy a school tax, though fixing a maximum rate, is an unlawful delegation of taxing power, which can be delegated only, as authorized by Constitution, article 2, section 29, to counties and incorporated towns.</p> <p>Acts cited and construed: Priv. Acts 1921, ch. 416, sec. 7; Acts 1867-68, ch 83, sec. 14; Acts 1921, eh. 770; Acts 1919, chs. 122, 745, 791.</p> <p>Cases cited and approved: Quinn v. Hester, 135 Tenn., 373; Keesee v. Civil District, 46 Tenn., 127; Waterhouse v. Cleveland Public Schools, 55 Tenn., 857; Lipscomb v. Dean, 69 Tenn,, 546; Smith v. Carter, 131 Tenn., 1; Arnold v. Knoxville, 115 Tenn., 195; Quinn v Hester, 135 Tenn., 373; Yertrees v. State Board of Elections, 141 Tenn., 645; Hill v. Roberts, 142 Tenn., 215; J. W. Newman et al. v. W. M. Holland et al., 249 S. W. —; Lipscomb v. Dean, 69 Tenn., 546; Keesee v. Civil District, 46 Tenn., 127; Waterhouse v. Cleveland Public Schools, 55 Tenn., 857.</p> <p>Cases cited and distinguished: Vallelly v. Board of Park Com-^ missioners, 16 N. D., 25; Reelfoot Lake Levee District v. Dawson, 97 Tenn., 151; Vertrees v. The State Board of Elections, 141 Tenn!, 645; Minsinger v. Rau, 236 Pa., 327.</p> <p>Constitution cited and construed: Art., 2, sec. 29.</p>

<p>1. CONSTITUTIONAL LAW. Legislature can neither add to nor take away from constitutional grant of power to courts.</p> <p>Constitution, article 6, section 1, providing that the judicial power of the State shall be vested in one supreme court and in such circuit, chancery, and other inferior courts as the legislature shall from time to time ordain and establish, vests all power, and the legislature can neither add to nor take away from such grant of ■ power. (Post, pp. 506-515.)</p> <p>Acts cited and construed: Acts 1921, ch. 107.</p> <p>Cases cited and approved: Hayburn’s Case, 2 Dali., 411; Memphis v. Halsey, 59 Tenn., 210; State v. Gannaway, 84 Tenn., 124; Ward v. ;Thomas, 42 Tenn., 565; State v. Hall, 65 Tenn., 7; Lawyers’ Tax Cases, 55 Tenn., 650; State v. McCann, 72 Tenn., 1; Mayor and Aldermen of Knoxville v. Lewis, 80 Tenn., 180; Acklen v. Thompson, 122 Tenn., 43; Woods v. State, 130 Tenn., 100; Selective Draft Law Cases, 245 U. S., 366; Monongahela Bridge v. U. S„ 216 U. S., 177; Union Bridge Co. v. U. S„ 204 U. S„ 364; Miller v. Mayor of New York, 109 U. S., 385; St. Louis Indep., Packing Co. v. Houston, 231 Fed., 779; Sears Roebuck Co. v. Federal Trade' Comm., 258 Fed., 307; Western Union Tel. Co. v. Myatt, 98 Fed., 335; Sabre v. Rutland R. R. Co., 86 Vt„ 347; Erie R. Co. v. Board of Pub, Utility Comm’re, 87 N. J. Law, 438; Stettler v. O’Hara’, 69 Or., 519; State v. Johnson, 61 Kan., 803: People v. Boggs, 56 Cal., 648; Prentis v. Atlantic Coast Line, 211 U. S., 210; In re McLean, 37 Fed., 648; U. S. v. Lalone, 44 Fed., 475; Vance v. Burbank, 101 U. S., 514; West v. Hitchcock, 205 U. S., 80; Fong Yue Ting v. U. S„ 149 U. S., 698; U. S. v. Ju Toy, 198 U. S., 253; Smyth v. Ames, 169 U. S., 466; C„ N. O. & T. P. R. R. v. I. C. C., 162 U. S„ 184; I. C. C. v. Brimson, 154 U. S., 447; I. C. C„ v. C„ N. O. & T. P. R. R. Co., 167 U, S., 479; L. & N. R. v. Garrett, 231 U. S., 298.</p> <p>Cases cited and distinguished: Miller v. Conlee, 37 Tenn., 432; Mar-liury y. Madison, 1 Cranch, 137; Muskrat v. U. S., 219 U. S., 348; L. & N. R. Co. v. Garrett, 231 U. S., 298; W. U. Tel. Co. v. Myatt, 98 Fed., 341.</p> <p>2. CONSTITUTIONAL LAW. Railroad and Public Utilities Commission not a “court,” within constitutional provisions.</p> <p>The Railroad and Public Utilities Commission created and given power by Acts 1897, chapter 10, Public Acts 1919, chapter 49, and Public Acts 1921, chapter 107, having primarily legislative and executive functions, the power to hear and determine controversies, being merely incidental thereto, is not a court within Constitution article 6, section 1, vesting judicial power, á court being a medium for the exercise of'the judicial power of the State, and connoting the ordinary attributes of judicial tribunals, a judges and the machinery necessary for the judicial administration of justice. {Post, p. 515.)</p> <p>Cases cited and approved: W. U. Tel. Co. v. Myatt, 98 Fed., 335; State ex rel., Godard v. Johnson, 61 Kan., 803; McNeill v. Southern Ry. Co., 202 U. S., 543.</p> <p>3. COURTS. Statutory provision for appeal from Railroad and Public Utilities Commission to supreme court held invalid.</p> <p>Since the Railroad and Pubic Utilities Commission is not a court, Public Acts 1921, chapter 107, section 7, providing for an appeal to the Supreme Court from the final finding, order, or judgment of the Commission is unconstitutional and invalid, and therefore no appeal lies from such Commission to the supreme court, which under Constitution article 6, section 2, has appellate jurisdiction only. (Post, pp. 515, 516.)</p> <p>Acts cited and construed: Acts 1921, ch. 107, sec. 7.</p> <p>Case cited and distinguished: Rex V* Mayor of Oxford,’Palmer, 453.</p>

<p>1. APPEAL AND ERROR. Pleas stricken from files in trial court sufficiently preserved where incorporated in defendant’s motion for new trial and copied in full in minute entry.</p> <p>In an action for breach, of marriage promise brought by a divorced woman against her former husband, where error was assigned on appeal to the action of the trial court in striking defendant’s pleas from the file for insufiiciency, the fact that such pleas were not made part of the bill of exceptions did not prevent defendant from raising the question of error, where the pleas were incorporated in haeo ver~ba in defendant’s motion for new trial, which motion in turn was copied in full in the minute entry, which was sufficient to preserve the pleas. (Post, pp. 521-531.)</p> <p>Cases cited and approved: Deane v. Aveling, 1 Robertson, 279; Payne v. Payne, 46 Minn., 467; W. v. H., 2 Swabey & Tristram, 240; Sanders v. Coleman, 97 Va., 690; Smith v. Compton, 67 N. J. Law, 548; Allen v. Baker, 86 N. C., 91; Gring v. Lerch, 112 Pa., 244; Gulick v. Gulick, 41 N. J. Law, 13.</p> <p>Cases cited and distingushed: Hall v. Wright, Ellis, Blackburn & Ellis, 746; Shackleford v. Hamilton, 93 Ky., 80.</p> <p>Code cited and construed: Sec. 2448, subsec. 1 (1858); Sec. 4201 (S.)</p> <p>2. TRIAL. Instruction as to defense of impotency properly refused as abstract and is ignoring evidence.</p> <p>In a suit for breach of promise of marriage brought by a divorced woman of forty-nine against her former msband, who was sixty-six years old, and who interposed natural impotency as a defense, it was not error to refuse to instruct as to the functions of sexual intercourse in marriage, and that, if defendant was impotent to plaintiff’s knowledge, she could not recover, even though there was a contract of marriage and that it had been breached, such instruction being abstract and ignoring the ages of the parties and the fact that they had cohabited as husband and wife for more than twenty years. (Post, pp. 531-536.)</p> <p>Cases cited and approved: Shafto v. Shafto, 28 N. J. Eg., 34; Brown v. Brown, 1 Hagg., 524; Shackleford v. Hamilton, 93 Ky., 80.</p> <p>Cases cited and distinguished: Hatch v. Hatch, 58 Mise. Rep., 54; Briggs y. Morgan, 3 Phill., 325; W. v. R., 1 Probate Division, 405.</p> <p>3. BREACH OF MARRIAGE PROMISE. Natural impotency held no defense where parties had formerly been husband and wife.</p> <p>In a suit for breach of promise of marriage brought by a divorced woman against her former husband, it was no defense that defendant was naturally impotent, and that plaintiff knew it, since if plaintiff, who had lived with hini for twenty-three years, was willing to make another attempt and had promised to marry him again, it was not for him to repudiate his promise on account of his physical incapacity, notwithstanding that Code 1858, section 2448, subsection 1, makes natural impotency a cause for divorce. (Post, pp. 536, 537.)</p> <p>Case cited and distinguished: A. v. B., 1 Probate & Divorce, 559.</p> <p>4. BREACH OF MARRIAGE PROMISE. $1,000 held not excess for breach of marriage promise.</p> <p>$1,000 held not so excessive as to indicate passion, prejudice, and caprice on the part of the jury in an award to plaintiff suing her former husband for breach of promise of marriage, she being forty-nine years old and defendant sixty-six, notwithstanding evidence of defendant’s worthlessness as a husband. (Post, pp. 537, 539.)</p> <p>Cases cited and approved: Railroad Co. v. Moriarity, 135 Tenn., 446; Grant v. L. & N. Ry. Co., 129 Tenn., 398; Carolina, etc., R. R* Co. v. Shewalter, 128 Tenn., 363.</p>

<p>1. WILLS. Certified copy of decedent’s will erroneously probated in another State is entitled to probate.</p> <p>Under Shannon’s Code, section 3916, providing that, where the last will and testament o£ any person deceased is proved in a court of any State or territory, a copy thereof duly authenticated may be recorded in the county court in which the decedent owned land, and have the same effect as if the original had been executed,’ proved, and allowed in the courts of the State, which was derived from Acts 1823, chapter 31, enacted to permit the probate and recordation of wills of nonresidents who devised land in the State, a certified copy of a will executed by a resident of the State, but which had been erroneously probated in the court of another State, may be admitted to probate in the county court of a county in which the decedent owned land. (Post, pp. 543-545.)</p> <p>Acts cited and construed: Acts 1823, ch. 31.</p> <p>Cases cited and approved: Buchanan v. Matlock, 27 Tenn., 390; Townsend v. Townsend, 44 Tenn., 83; Smith v. Harrison, 49 Tenn., 230; Morris v. Swaney, 54 Tenn., 591; Wisener v. Maupin, 61 Tenn., 354.</p> <p>Codes cited and construed: Secs. 5585al, 3902, 3916 (S.).</p> <p>2. WILLS. Place where made has no legal effect.</p> <p>The validity of a will of realty is determined in conformity with the lex situs, and of a will of personalty in conformity with the lex domicilii, so that the place where the will happens to be made is not significant in legal effect. (Post, pp. 545-548.)</p> <p>3. WILLS. May be probated in any State where land was situated prior to probate in domicile.</p> <p>Though the court of primary probate jurisdiction is determined by the residence of testator, the proper court of any State in which testator, owned land at the time of his death may admit his will to probate prior to the probate, thereof in the State of his residence. (Post, pp. 545-548.)</p> <p>Acts cited and construed: Acts 1823, ch. 31.</p> <p>■ Cases cited and approved: J. H. Kirkland, Ex’r, v. George R. Calhoun, et al., 248 S. W., 302; Parnell v. Thompson, 81 Kan., 119; Wisener v. Maupin, 61 Tenn., 354; Pratt v. Hargreaves, 77 Miss., 892; In re Faber, 5 Ohio S. & C. P. Dec., 575; Robert's Succession, 2 Rob. (La.), 427; Foster’s App., 87 Pa., 67; Laing v. Oakly, 98 Mass., 267.</p> <p>Cases cited and distinguished: Buchanan v. Matlock, 27 Tenn., 390; Walton v. Hall, 66 Vt., 455; In re McDonald’s Estate, 130 Pa., 480.</p> <p>4. WILLS. Foreign probate proceedings are entitled to full faith and credit.</p> <p>Proceedings in a court of a foreign State for the probate of a will are judicial proceedings to which full faith and credit must be given under Constitution, U. S., article 4, section 1, so that a certified copy of the record of probate proceedings in another State authenticated in the manner required by Act Congress, May 26, 1790. (U. S. Comp. St., section 1519), is entitled to probate. (Post pp. 548-550.)</p> <p>Case cited and approved: Thompson v. Whitman, 18 Wall., 457.</p> <p>Case cited and distinguished: Fitzsimmons v. Johnson, 90 Tenn., 416.</p> <p>Code cited and construed: Sec. 5585al (S.).</p> <p>Constitution cited and construed: Art. 4, sec. 1 (U. S.)</p>

<p>1. TRIAL. View of evidence on motion for directed verdict most favorable to opponent.</p> <p>The trial judge should take the most favorable yiew of the evidence supporting the rights asserted by the party against whom motion for directed verdict is made, and discard all countervailing evidence. (Post, pp. 556, 557.)</p> <p>Cases cited and approved: Walton v. Burchel, 121 Tenn., 715; Railroad v. Williford, 115 Tenn., 108; Knoxville Traction Co. v. Brown, 115 Tenn., 323; Kinney v. Railroad, 116 Tenn., 450; Norman v. Railroad, 119 Tenn., 401; Railroad, v. Morgan, 132 Tenn., 1; Mayor & City Council v. Reese, 138 Tenn., 471; Johnston v. Ry. Co., 146 Tenn., 135.</p> <p>2. TRIAL. Whole case not submitted to court by both parties moving for directed verdict.</p> <p>Motions by both parties for directed verdict do not submit the whole case to the court, but each motion stands as if made and remain-, ing alone, and is to be disposed of on its merits. (Post, pp. 557-559.)</p> <p>3. APPEAL AND ERROR. Action on motions of both parties for directed verdict reviewable.</p> <p>Though both parties move for directed verdict, action of the trial court in granting motion of one and overruling that of the other is reviewable on appeal. (Post, pp. 557-559.)</p> <p>Acts cited and construed: Acts 1919, ch. 118.</p> <p>Case cited and approved: Hardware Co. v. Hodges, 126 Tenn., 370.</p> <p>Cases cited and distinguished: Regina Co. v. Gately Furniture Co., 154 N. Y. Supp., 888; Maggioros v. Edson Bros., 164 N. Y. Supp., 377.</p> <p>4. SALES. Uniform Sales Act’s requirement of notice by buyer of breach applies to delay in delivery.</p> <p>Uniform Sales Act, section 49, providing that, while acceptance of goods by the buyer shall not discharge seller from liability for breach of any promise or warranty in contract, seller shall not be liable if, after acceptance of goods, buyer fails to give notice to seller of the breach of any promise or warranty within a reasonable time after buyer knows or ought to know of such breach, applies to failure to deliver at time specified. (Post, pp. 559-560.)</p> <p>Cases cited and approved: Trimount Lumber Co. v. Murdough, 229 . Mass., 254; Mason v. Valentine Souvenir Co., 180 App. Div., 823; Pennel v. N. J. Brass Corporation, 186 N. Y. Supp., 606; Shearer Co. v. Kakoulis, 144 N. Y. Supp., 1077.</p> <p>5. SALES. When questions of giving notice by seller of breach and of reasonable time are for jury and when for court stated.</p> <p>While ordinarily the question whether notice of breach has been given by buyer, and, if so, whether within a reasonable time, as required by Uniform Sales Act, section 49 are for the jury they are for the court where the facts are undisputed. (Post, pp. 560-563.)</p> <p>Cases cited and approved: Marmet Coal Co. v. People’s Coal Co., 226 Fed., 646; M. & M. Co. v. Hood Rubber Co., 226 Mass., 181;</p> <p>Chess & Wymond Co. v. La Crosse Box Co., 173 Wis., 382; Trimount Lumber Co. v. Murdough, 229 Mass., 254; Maggioros v. Edson Bros., 164 N. Y. Supp., 377; Kaufmann v. Levy. 102 Mise. Rep., 689; Mason v. Valentine Souvenir Co.. 180 App. Div., 823; Mastín v. Boland, 178 App. Div., 421; Stone v. Beim, 176 N. Y. Supp., 25; Matthes v. Benn, 107 Mise. Rep., 633; Kleeb v. Long Bell Lumber Co., 2-7 Wash., 648; Altkrug v. Wm. Whitman Co., 185 App. Div., 744.</p> <p>Case cited and distinguished: Hesse v. Gude Bros.-Kieffer Co., 170 N. Y. Supp., 211.</p> <p>6. SALES. Mere complaint not “notice” of breach.</p> <p>Uniform Sales Act, section 49, requiring “notice to the seller of the breach, of any promise or warranty” to be given by the buyer in a reasonable time, as a condition to liability of the seller, is not satisfied by a mere complaint, but there must be language or conduct advising the seller that the buyer is looking to him for damages. (Post, pp. 568-584.)</p> <p>Cases cited and approved: Trimount Lumber Co. v. Murdough, 229 Mass., 254; Rittenhouse-Winterson Auto Co. v. Kissner, 129 Mo. 102; Herbrand Co. v. Lackawanna Steel Co., 280. Fed., 11; Marmet Coal Co. v. People’s Coal Co., 226 Fed., 646; Johnston v. C. N. O. & Tel. Ry. Co., 146 Tenn„ 135; Mastín v. Boland, 178 App. Div., 421; Kaufmann v. Levy, 102 Mise. Rep., 689; Silberstein v. Blum, 167 App. Div., 660; Mason v. Valentine Souvenir Co., 180 App. Div., 823; Chess & Wymond Co. v. La Crosse Box Co., 173 Wis., 382.</p> <p>Cases cited and distinguished: Chess & Wymond Co. v. La Crosse Box Co., 173 Wis., 352; Maggioros v. Edson Bros., 164 N. V. Supp., 377; Matthes v. Benn, 107 Mise. Rep., 633; Pierce Foundation Corporation v. Eagle Pipe Supply Co., 180 N. Y. Supp., 88.</p> <p>Code cited and construed: Sec. 8449 (Gen. Code).</p> <p>7. SALES. No notice within seven months of claim for damages for failure to deliver in stipulated time.</p> <p>Evidence on counterclaim by buyer against seller for damages for failure to deliver at times stipulated machines bought held to show mere complaint, but no notice of claim of damages within seven months after failure to commence deliveries in stipulated time and knowledge of breach. (Post, pp. 584-586.)</p> <p>8. SALES. Running of time for notice of claim of damages for delays in delivery not postponed to last delivery.</p> <p>The reasonable time after buyer knows or ought to know of the breach of contract within which Uniform Sales Act, section 49, requires him to give notice of claim of damages is not determined by reference merely to the time elapsing after the last delivery, where there was delay in the first delivery, and information was then given that there>would be delays in the subsequent deliveries. (Post, pp. 586-588.)</p> <p>9. SAIiES. Notice of claim of damages for delay in delivery held not in reasonable time.</p> <p>Notice of claim of damages for delay in delivery was not in the reasonable time required by Uniform Sales Act, section 49, where it was not "given until seven months after delay in the first delivery and information that subsequent deliveries would be late. (Post, pp. 586-588.) '</p> <p>Case cited and approved: Hesse v. G-ude Bros.-Kieffer Co., 170 N. Y. Supp., 211.</p> <p>Bachman, J., dissenting.</p>

<p>1. STATUTES. Bill entitled ‘ ‘An act to reorganize the administration of the State” held to express a subject of legslation in its caption.</p> <p>House Bill No. 183, approved January 31, 1923, entitled “An act to reorganize the administration of the State,” which means the executive part of the government, expresses a subject of legislation in its caption. (Post, p. 595.)</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>2. STATUTES. Subject of bill intended as shown by caption to reorganize the State executive department held not too broad as regulating matters of a judicial and legislative nature.</p> <p>The subject of House Bill No. 183, approved January 31. 1923, intended, as shown by its caption, ¡to reorganize the executive department, is not too broad, as regulating matters of a judicial nature, because in section 39 it makes the registrar of professions and trades secretary and treasurer of the board of law examiners to receive application for licenses, and to collect fees fixed by law in conection with the work of the board, as his other duties must be performed with the consent of the board, and no judicial function is conferred on him, conceding that the board is a judicial body, nor because in sections 12, 16, and 21 it gives to an executive department and a commissioner authority over the expenditures of the supreme court, as this does not infringe on any judicial prerogative, nor because it confers quasi-judicial powers on the state equalization board and the fire prevention commissioner, as they are executive, and not judicial, officers, as to which a statute dealing with the executive department may properly legislate and confer such powers on them without making them judicial officers, and neither is the subject of the bill too broad as regulating matters of a legislative nature because it confers on commissioners power to make rules wliicli are commonly given to them and have the force of statutes, and whose formulation is the exercise of a legislative power, as their status as executive officers is not thereby changed. {Post, p. 595.)</p> <p>3. OFFICERS. Quasi-judicial powers do not make officers judicial. Quasi-judicial powers conferred on officers do not make such officers judicial. {Post, pp. 595-597.)</p> <p>Cases cited and approved: Richardson v. Young, 122 Tenn., 471; Woods v. State, 130 Tenn., 100.</p> <p>4. STATUTES. Not beyond scope of statute dealing with executive officers to confer quasi-judicial powers.</p> <p>It is not inappropriate nor beyond the scope of a statute dealing with executive officers to confer on them quasi-judicial powers. {Post, p. 597.)</p> <p>5. STATUTES. Bill to reorganize state administration affecting about sixty commissions, boards, departments, and officials not omnibus legislation.</p> <p>House Bill 183, approved January 31, 1923, to reorganize the administration of the State creating and establishing certain departments and officers, and prescribing their powers and duties, fixing certain salaries, .abolishing certain offices, boards, commissions, and other agencies, and affecting about sixty commissions, boards, departments, and officers, held not omnibus legislation, its various provisions being congruous and germane, and unity of purpose being preserved. {Post, p. 597.)</p> <p>Cases cited and approved: Cannon v. Mathes, 55 Tenn., 504; State v. Cumberland Club, 136 Tenn., 84; Railroad v. Transportation Co., 128 Tenn., 277; State v. McCann, 72 Tenn., 17; Carroll v. Alsup, 107 Tenn., 257.</p> <p>Acts cited and construed: Acts 1875, ch. 142.</p> <p>6. STATUTES. Germaneness of Provisions of act determined by court’s knowledge of affairs.</p> <p>The question whether the various provisions of an act are congruous and germane is largely one of fact to tie determined by the court’s knowledge of affairs. {Post, pp. 597-599.)</p> <p>Cases cited and approved: Frazier v. Railroad, 88 Tenn., Í38; Bowman v. Cockrill, 6 Kan., 311; Acklen v. Thompson, 122 Tenn., 43.</p> <p>7. STATUTES. Bill to reorganize state administration held to recite in its caption and otherwise title or •■substance of laws in part repealed.</p> <p>House Bill No. 183, approved January 31, 1923, entitled “An act to reorganize the administration of the State to secure better service and through co-ordination and consolidation to promote economy and efficiency in the work of the government creating and establishing certain departments and offices and prescribing their powers and duties, fixing certain salaries, abolishing certain offices, boards,” etc., and repealing conflicting acts and parts of acts, and which in section 59 thereof abolished numerous officers, commissions, boards, etc., held to be expressly repealing and to recite in its caption and otherwise the title or substance of the laws in part repealed. (Post, pp. 599, 600.)</p> <p>Cases cited and approved: Shelton v. State, 96 Tenn., 521; Turner v. State, 111 Tenn., 593; Stinnett v. State, 142 Tenn., 94.</p> <p>8. STATUTES. One descriptive word or phrase may be employed to convey purport of earlier statutes relating to one subject repealed or amended.</p> <p>Where an act proposes to repeal or amend several laws relating to one subject, it is not necessary for it to recite the title or substance of each previous law separately, but one descriptive word or phrase may be employed to convey the purport of all the earlier statutes. {Post, pp. 600-602.)</p> <p>Cases cited and approved: Heiskell v. City of Knoxville, 136 Tenn., 376; Van Dyke v. Thompson, 136 Tenn., 136; Minter v. State, 145 Tenn., 678.</p> <p>Case cited and distinguished: Greenwood v. Rickman, 145 Tenn., 361.</p> <p>9.STATUTES. Both caption and body of act considered to determine whether it identifies repealed or amended laws.</p> <p>Both the body and caption of an act may be looked to in determining whether it sufficiently identifies former laws sought to be repealed or amended. . (Post, p. 602.)</p> <p>10. STATUTES. Abolishment of office created by law repeals so much of law as creates it.</p> <p>To abolish an office created by law is a method of repealing so much of the law as creates the office. (Post, pp. 602.)'</p> <p>11. STATUTES. Presumption in favor of act when signed, fact noted on journals, and approved by Governor.</p> <p>Where an act has been signed by the respective speakers of both houses in open session, and that fact noted on the journal and has been approved by the' Governor, as required by the Constitution, every reasonable presumption is in favor of the regularity of its passage, and the act will be sustained unless the journals affirmatively show the absence of some constitutional requirements, and the court will not presume from the mere silence' of the journal that one of the legislative bodies has disregarded the Constitution. (Post, pp. 602, 603.)</p> <p>Acts cited and construed: Acts 1923, secs. 1, 2, art. 2.</p> <p>Cases cited and approved: Jackson v. Mfg. Co., 124 Tenn., 421; Home Teleg. Co. v. Nashville, 118 Tenn., 1; State v. Algood, 87 Tenn., 163; Williams v. State, 74 Tenn., 553; State v. McConnell, 71 Tenn., 341; Webb v. Carter, 129 Tenn., 182.</p> <p>12. CONSTITUTIONAL LAW. States. Bill to reorganize administration of state held not unconstitutional as depriving officers of property rights. ‘</p> <p>House Bill No. 183, approved January 31, 1923, reorganizing the administration of the state, is not unconstitutional as depriving certain officers of their property rights in violation of Constitution, article 1, section 8, and Constitution, U. S. Amendment 14, because it legislated them out of their' offices when necessary to put in effect the new scheme of government, the change made being real and not colorable for the purpose of putting one set of men out of office and another set in. (Post, pp. 603, 604.)</p> <p>Acts cited and construed: Acts 1909, ch. 298; Acts 1911, ch. 10; Acts 1915, ch. 3; Acts. 1897, ch. 125.</p> <p>Case cited and approved: Malone v. Williams, 118 Tenn., 390.</p> <p>Cases cited and distinguished: Van Dyke v. Thompson, 136 Tepn., 136; State ex rel. Linkous v. Morris, 136-Tenn., 157.</p> <p>13. CONSTITUTIONAL LAW. Municipal corporations. States. Legislature may adopt new system of government creating new officers and abolishing old officers. ' ,</p> <p>The legislature may adopt a new system of government for a municipal corporation or for such institutions and agencies of the ■ State as are not properly protected by the Constitution, and may abolish the old plan, and the officers created for the administration of the old plan in whole or in part, and the rights of officers must give way to what the Legislature conceives to be the public interest, without violation of Constitution, article 1, section 8, or of Constitution, U. S. Amendment 14, assuming that such change is real, and not colorable, for the purpose of putting one set of men out of office and another set in office. (Post, pp. 604-607.)</p> <p>Acts cited and construed: Acts 1919, ch. 39.</p> <p>14. CONSTITUTIONAL LAW. Wisdom of statute not a- matter for determination by courts.</p> <p>The wisdom of a statute is not a matter for determination by the courts. (Post, pp. 607-611.)</p> <p>15.- STATES. Bill for reorganizing State administration held not to offend Constitution because of centralization of powers.</p> <p>House Bill No. 183, approved January 31, 1923, reorganizing the administration of the State, deals alone with duties and functions essentially executive, and the centralization of powers thereby which might have been conferred on the Governor individually does not offend the Constitution. (Post, p. 611.)</p>

<p>1. SALES. Notice of sale of chattel after default by purchaser .under contract of sale need not remain posted full ten days.</p> <p>Under Shannon’s Code, section 3669, providing that, after default by the purchaser under a conditional contract sale, the vendor, upon regaining possession of the chattel, shall advertise and sell same at public auction, after having posted at least three notices of such sale ten days before the day thereof, it is not necessary that such notices so posted shall remain posted during the whole ten days, and a sale is not invalidated because, after posting, a notice has been removed or destroyed. (Post, pp. 615, 616.)</p> <p>Code cited and construed: Sec. 3669 (S.).</p> <p>2. TIME. Under conditional sales statute, not necessary that ten full days elapse after posting notices before sale by vendor after default of purchaser.</p> <p>In view of Shannon’s Code, section 60, providing “the time within which any act . . . is to be done, shall be computed by excluding the first day and, including the last,” it is not necessary that ten full days elapse from the time of posting notice by vendor of an auction sale of chattel after default of a purchaser under a conditional sales contract, and, where notices were posted on the 7th of the month, held, that sale on the 17th was valid. (Post, pp. 616-618.)</p> <p>Code cited and construed: Sec. 60 (S.).</p> <p>.3. SALES. Notices of vendor’s sale of chattel after default of purchaser under conditional sales agreement held sufficient.</p> <p>.Notices of auction sale after default of a purchaser under a conditional sales contract, posted by the vendor under such contract, which gave the name of the vendor, the vendee, described the property, named the time and place and purpose of the sale, and designated 'tile statute under which, it was made and signed by deputy sheriff, held sufficient under the statute, though the vendor’s name did not appear at the time. (Post, p. 618.)</p>

<p>FRAUDS, STATUTE OF: N.ame printed'in body of contract for deed held insufficient as “signature” within statute.</p> <p>The name of vendor’s'agent, printed in the body of a contract for deed among the recitals, and not placed thereon with intent to bind the vendor, was not, a signature to the memorandum, within the meaning of the statute.</p> <p>Case cited and approved: Evans v. Ashley, 8 Mo., 181.</p> <p>Cases cited and distinguished: Saunders v. Hackney, 78 Tenn., 194; Lee v. Vaughan’s Seed Store, 101 Ark., 68.</p>

<p>1. SALES. Holding millet seed ten months before resale after buyer’s • breach held unreasonable.</p> <p>Where buyer breached its contract for the purchase of millet seed about May 24th, at a time when there was a falling market for such seed, seller, failing to make resale of such seed until the following March, did not act within a reasonable time. (Post, p. 636.)</p> <p>Cases cited and approved: Moore v. Potter, 155 N. Y., 481; Tripp v. Forsaith Mach. Co., 96 N. H., 233; Brownlee v. Bolton, 44 Mich., 221; McCombs v. McKennan, 2 Watts & S., 216; Alden Speare’s Sons Co. v. Hubinger, 129 Fed:, 538; Gehl v, Milwaukee Produce Co., 116 Wis., 263.</p> <p>2. SALES. Buie of recovery for buyer’s breach of millet seed contract stated.</p> <p>Where millet seed was purchased in February at $3.15 per bushel, and about May 24th following buyer breached his contract, at a time when the market for millet seed was falling, and proof • showed that May was perhaps the best month for the sale of such seed and that prices ordinarily declined thereafter, seller could recover the difference between the contract price and the market price of the seed during the latter part of May. (Post, p. 636.)</p>

<p>1. EQUITY. Chancery court has concurrent jurisdiction of suits for fraud and deceit.</p> <p>Under Acts 1915, chapter 47, amending Acts 1877, chapter 97, and proving that jurisdiction of all civil causes of action now triable in the circuit court, except for unliquidated damages for injuries to person or character and except for unliquidated damages for injuries to property not resulting from a breach of oral or written contract, is conferred upon the chancery court, which shall have and exercise concurrent jurisdiction thereof along with the circuit court, the chancery court has jurisdiction of a suit for fraud and deceit. (Post, %>%>. 640, 641.)</p> <p>Acts cited and construed: Acts 1877, ch. 97; Acts 1915, ch. 47.</p> <p>Case cited and approved: Ellett v. Embury & Maury, 142 Tenn., 444.</p> <p>Case cited and distinguished: Swift v. Warehouse Co., 128 Tenn., 82.</p> <p>2. FRAUD. False statements as to financial. condition of corporation submitted to purchasers of stock held actionable fraud.</p> <p>In a suit to recover damages for false statements as to the financial condition of a corporation, in which plaintiffs bought stock from defendants,- where it appeared that before the plaintiffs would buy they demanded an audit of the company’s business, and the defendants stated to the auditors that the list of debts submitted was complete, knowing that such list was to be submitted to the plaintiffs, and that plaintiffs acted on the information thus acquired, which proved untrue, the defendants became liable for damages, though the plaintiffs made some personal investigation and considered matters other than the audit, and the defendant 1 who acted for the other defendants in approving the audit stated that which he did not know. (Post, pp. 641-644.)</p> <p>Cases cited and approved: Horrigan v. First Nat. Bank, 68 Tenn., 137; Hindman v.. First Nat. Bank, 112 Fed., 931.</p> <p>Case cited and distinguished: Wynne v. Allen, 66 Tenn., 312.</p> <p>3. FRAUD. False representation essential to sustain action; “fraud.”</p> <p>To sustain an action of deceit there must be proof of fraud, and “fraud” is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false. (Post, pp. 644, 645.)</p> <p>Case cited and approved: Derry v. Peek, L. R., 14 App. Cas., 337.</p> <p>4. FRAUD. Measure of damages for misrepresenting value of stock stated.</p> <p>The measure of damages for misrepresenting the value of corporate stock sold is the difference between its actual value and its value had the facts been as represented, and in estimating recovery the court should look to the real value of the stock rather than its market value. (Post, pp. 645, 646.)</p> <p>Cases cited and approved: Hogg v. Cardwell, 36 Tenn., 151; Smith v. Cozart, 39 Tenn., 526; Augur v. Smith, 90 Tenn., 729; Blair v A. Johnson & Sons, 111 Tenn., 111.</p>

<p>1. SALES. Where time limit for delivery waived, purchaser cannot sue for breach until reasonable notice to perform.</p> <p>Where the time limit for delivery of goods purchased has been waived, the purchaser, before he can terminate the contract and</p> <p>■ sue for its breach, must notify the seller to perform within a reasonable time. (Post, pp. 649, 650.)</p> <p>Case cited and approved: Tennessee Fertilizer Co. v. International Agr. Corp., 146 Tenn., 450.</p> <p>Case cited and distinguished: Wildberg Box Co. v. Darby, 143 Tenn., 81.</p> <p>2. SALES. Where purchaser waived time of delivery, subsequent notice demanding immediate performance not sufficient.</p> <p>Where a contract for the sale of lumber for prompt shipment was . partly performed, but the balance not delivered, and the purchaser during the succeeding two years frequently wrote requesting delivery, the purchaser thereby waived the time limit, and a subsequent letter warning the defendant that drastic action would be taken if something were not done immediately, if construed as a notice to ship the lumber, was not a sufficient notice, in that it demanded immediate performance, instead of extending to the seller a reasonable time within which to delivery. (Post, p. 650.)</p>

<p>1. ACTION. Persons separately affected "by tort must sue separately.</p> <p>Persons jointly affected by a tort must join in an action to recover for the injury, but persons having separate and distinct interests or separately affected by a wrong must sue separately. (Post, pp. 653-657.)</p> <p>2. ACTION. Parties suing jointly for joint injury cannot join separate individual causes of action.</p> <p>In an action by the owners of a life estate, in which the owners of the remainder joined as parties plaintiff, for loss of a dwelling by fire due to the negligent installation of -a heating plant by defendant, plaintiffs could not by separate counts join causes of action which they individually had against defendant for the destruction and loss of personal chattels belonging to them individually, nor could one of the plaintiffs join a count for the recovery for personal injuries sustained as a result of the -fire. (Post, pp. 653-657.)</p> <p>Cases cited and approved: Railway Co. v. Roddy, 132 Tenn., 568;' Smith v. Railway Co., 106 Tenn., 282; Carraway v. .Burton, 23 Tenn., 108.</p> <p>Case cited and distinguished: Shoemaker" v. Atkin, 58 Tenn., 294.</p>

<p>MUNICIPAL CORPORATIONS. Payment for group insurance for employees of water department held not illegal appropriation of funds. The action of a city in talcing out group insurance for employees in its water department, paying therefor with funds of the water department, held not illegal, under Const, art. 1, sections 8, ■ 21, ai't. 2, sections 24, 28, and article 11, section 8, as an appropriation of public funds for a private purpose.</p> <p>Acts cited and construed: Acts 1879, ch. 11; Acts 1899, ch. 32.</p> <p>Cases cited and approved: Scott v. Nashville Bridge Co., 143 Tenn., 86; Bowers v. City of Albuquerque, 27 N. M., 291; Matter of Mahon, 171 N. Y., 263; People of New York, etc., v. Dibble, 231 N. Y., 593; Todtenhausen v. Knox County, 132 Tenn. 172.</p> <p>Cases cited and distinguished: State ex rel. Haberlan v. Dove et al., 89 Neb., 149; Commonwealth v. Walton, 182 Pa., 373; Nichol v. Nashville, 28 Tenn., 252; East Tennessee University v. Knoxville. 65 Tenn., 166; Ryan v. Terminal Co., 102 Tenn., Ill; Nohl v. Board of Education of Albuquerque, 27 N. M., 232.</p> <p>Code cited and construed: Secs. 3450 to 3454 (Tenn.).</p> <p>Constitution cited and construed: Art. 1, secs. 8, 21; Art. 2, secs. 24, 18; Art. 11, sec. 8.</p>

<p>1. CHARITIES. Charitable municipal hospital not liable for negligence of employees, even where fees paid by patient.</p> <p>A charitable municipal hospital is exempt from liability, due to the negligence of its employees, even where fees were paid by the patient injured by such negligence. (Post, pp. 690-697.)</p> <p>Cases cited and approved: Abston v. Waldon Academy, 118 Tenn., 24; Gamble v. Vanderbilt University, 138 Tenn., 616; Weston v. Hospital of St. Vincent, 131 Va., 587; Taylor v. Flower Deaconess Home & Hospital, 104 Ohio St., 61; Schloendorff v. Society of New York Hospital, 211 N. Y., 125; Morgan v. Shelbyville, 121 S. W., 617; Jones v. City of Corbin, 98' S. W., 100; Maxmilian v. New York, 62 N. Y„ 160.</p> <p>Cases cited and distinguished: Browder v. City of Henderson, 182 Ky., 771; Bell v. City of Cincinnati, 80 Ohio St., 1; Benton v, Boston City of Hospital, 140 Mass., 13; Cook, AdmT, v. John N. Norton Memorial Infirmary, 180 Ky., 331; Caroline Tollefson, Adm’x, v. City of Ottawa, 228 Ill., 134; Watson v. City of Atlanta, 136 Ga., 370; Love v. City of Atlanta, 95 Ga., 129.</p> <p>2. CHARITIES. City and hospital commissioners held not liable for . injuries to pay patient in charitable hospital due to nurse’s negligence.</p> <p>Where plaintiff, a pay patient in a charitable municipal hospital, underwent an operation and was severely burned upon the feet by a hot water bottle placed in her bed by hospital employees before she recovered from the effects of the anaesthetic, it was not error to direct a verdict for the city and hospital commissioners, there being no claim that they did not exercise ordinary care in selecting the employees, the hospital existing for purely governmental purposes under the exclusive ownership and control of the city. (Post, pp. 697, 698.)</p> <p>3. CHARITIES. No recovery for negligence not charged in declaration.</p> <p>Where a pay patient in a charitable municipal hospital was severely burned upon the feet by a hot water bottle before recovering from the anesthetic administered during an operation, no recovery could be had as against a nurse on the ground that when her attention was called to the presence of the hot water bottle, and that it was too hot, she replied that it was supposed to be there, and failed to examine it, no such allegation of negligence being charged in the declaration. (Pos#, pp. 698-700.)</p>