Volume 148 — Tennessee Reports

<p>BRIDGES. County not liable for damages from collapse of county bridge.</p> <p>A county exercises delegated sovereign power in maintaining roads and bridges, and is not liable for negligence in the exercise of that power, though it would be liable for a nuisance which was an active continuing wrong beyond the scope of that power, and there can be no recovery against it for damages resulting from the collapse of a county bridge.</p> <p>Cases cited and approved: White’s Creek Turnpike Co. v. Davidson County, 84 Tenn., 24; Wood v. Tipton County, 66 Tenn., 112; Williams v. Taxing Dist., 84 Tenn., 531; McAndrews v. Hamilton County, 105 Tenn., 400; Rhea County v. Sneed, 105 Tenn., 581; State v. Wayne County, 108 Tenn., 262.</p> <p>Case cited and distinguished: Chandler v. Davidson County, 142 Tenn., 266.</p>

<p>1. MUNICIPAL CORPORATIONS. Speed ordinance held applicable though street ended at intersection.</p> <p>An ordinance limiting speed of automobile to nine miles when crossing through thorough-fares of cross-section streets, and fifteen miles elsewhere, applied, though the street involved ended at the point of intersection. (Post, p. 208.)</p> <p>2. MUNICIPAL CORPORATIONS. Automobile driver held guilty of contributory negigence.</p> <p>Plaintiffs failure to see an approaching car, although warned by a companion in the front seat, and to turn around the center of intersection to streets, and give the arm Signal for turning, as required by ordinances, held negligence continuing concurrently with defendant’s negligence in exceeding the speed limit until the collision occurred, so as to preclude recovery. (Post, p. 209.)</p> <p>Cases cited and approved: Chattanooga Light & Power Co. v. Hodges, 109 Tenn., 333; Railroad v. Williford, 115 Tenn., 115; Railroad v. Roe, 118 -Tenn., 602; Todd r. Railroad, 135 Tenn., 92; Grigsby v. Bratton, 128 Tenn., 507.</p>

<p>1.. SCHOOLS AND SCHOOL DISTRICTS. Statute requiring counties to maintain high school in location where greatest number of pupils may be benefited held not class legislation.</p> <p>Pub. Acts 1921, chapter 40, making it obligatory upon counties to maintain within their borders at least one first-class high school to be located where the greatest number of pupils may be benefited, held, not invalid as class legislation, in violationof Constitution article 11, section 8. (Post, p. 214.)</p> <p>Acts cited and construed: Acts 1921, ch. 40.</p> <p>Constitution cited and construed: Art. 11, sec. 8.</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS. County board of education required to make reasonable effort to establish first-class high school in location most convenient for greatest number of pupils.</p> <p>Under Public Acts 1921, chapter 120, section 5, subsection 2, it is incumbent upon the board of education of a county to make a reasonable effort to comply with Public Acts 1921, chapter 40, requiring counties to maintain at least one first-class high school to be located where the greatest number of high school pupils may be benefited. (Post, pp. 214, 215.)</p> <p>3. SCHOOLS AND SCHOOL DISTRICTS. Location of high school within county discretionary with county board of education.</p> <p>Under Public Acts 1921, chapter 40, section 1, requiring a county to maintain a high school to be located where the greatest number of pupils may be benefited, and Public Acts 1921, chapter 120, section 5, subsection 2, conferring on the county board of education power to administer the school system within ihe county, the location of the high school is within the sound discretion of the county board of education. (Post, pp. 214, 215.</p> <p>Acts cited and construed: Acts 1921, chs. 40, 120.</p> <p>Cases cited and approved: State ex rel. v. Board of Education, 122, Tenn., 162; Cross v. Fisher, 132 Tenn., 31; Walker v. Monger, 6 App. Cas., 261.</p> <p>4. MANDAMUS. Will lie to compel county. hoard of education to locate high school within county as required hy statute.</p> <p>If a county board of education refuses to select a location for a high school within the county after having an opportunity to so do, under Public Acts 1921, chapter 40, section 1, requiring every county to maintain a high school to be located where most convenient for most pupils, or acts unreasonably or capriciously in the exercise of the discretion given it by such statute in the location of such high school, mandamus will lie to compel compliance with the statute. (Post, p. 215.)</p>

<p>CRIMINAL LAW. Acts held to warrant belief offense was about to be committed in officer’s presence, justifying arrest and search, and evidence seized was admissible.</p> <p>Where an officer sees the accused entering a house of auest ion-able reputation with a package partially concealed by a raincoat, and on the approach of the officer the accused jumps into .an automobile and flees, and on being overtaken whiskey in broken jars is discovered. in his possession, the officer is justified in arresting the accused, under Shannon’s Code, section 6997, providing that an officer may lawfully arrest without a warrant to apprehend one who is violating the law, and the evidence thus obtained is admissible against the accused.</p> <p>Cases cited and approved: Hughes v. State, 145 Tenn., 544; Temp-ton v. State, 252 S. W., 1007; State v. Reichman, 125 Tenn., 653.</p> <p>Code cited and construed: Sec. 6997 (S.).</p>

<p>1. MASTER AND SERVANT. “Total loss of sight” within Compensation Act defined.</p> <p>Under Workmen’s Compensation Act, Section 28, subd. e, providing that the total and permanent loss of the sight of both eyes, or any other injury which totally incapacitates the employee from working at an occupation which brings him an income, shall constitute total disability, such a degree of permanent loss of the sight of both eyes as totally incapacitates from working at an income-yielding occupation which requires the use of eyesight constitute such a loss of sight as is contemplated. (Post, pp. 223, 224.)</p> <p>2. MASTER AND SERVANT. One capable of performing only work of blind man is totally disabled within Compensation Act.</p> <p>Under Workmen’s Compensation Act, Section, 28, subd. e, relating to total and permanent disability, a condition resulting from loss of sight, which leaves the employee restricted to work which normally one can perform if totally blind, is total disability. (Post, pp. 223, 224.)</p> <p>Acts cited and construed: Pub. Acts 1919, ch. 123.</p> <p>Case cited and approved: Moore v. Peet Bros., Mfg. Co., 99 Kan. 443,</p> <p>3. MASTER AND SERVANT. Compensation as “for total loss of sight’’ of both eyes held proper, though two and one-half per cent, of normal vision remained.</p> <p>A claimant under the Workmen’s Compensation Act who has lost one eye altogether, but retains five per cent, of the other, which percentage of normal sight might be increased to fifteen per cent, by tlie use of proper corrective glasses, so that he has remaining but two and one-half per cent, of his total vision with a possibility of increasing it to seven and, one-half per cent., held entitled to compensation as for total and permanent loss of the sight of both eyes. (Post, p. 244.)</p> <p>4. MASTER AND SERVANT. Finding of fact in compensation case final.</p> <p>The question as to what constitutes incapacity within the Workmen’s Compensation Act is largely one of fact, and the supreme court will not distui’b the finding of the trial court on a question of fact where there is evidence to sustain it. (Post, pp. 224-226.)</p> <p>Cases cited and approved: Milne v. Sanders, 143 Tenn., 602; Key-worth v. Atlantic Mills, 42 D. I., 391; Sofia Boscarino et al. v. Carfagno et al., 220 N. Y., 323; Cline v. Studebaker Corp., et al., 189 Mich., 514; Valentine v. Sherwood Metal Co. et al., 189 App. Div., 410.</p> <p>5. MASTER AND SERVANT. Payments may be commuted under Compensation Act only upon agreement.</p> <p>Workmen’s Compensation Act, Section 36, providing for commutation of payments to a lump sum only with the consent of the circuit court, implies the presentation of an agreed stipulation or order, and hence requires an agreement between the employer and employee as the basis of the consent, negativing any arbitrary or initiatory action on the part of .the court. (Post, pp. 226, 227.)</p>

<p>1. MASTER AND SERVANT. Compensation for loss of entire hand proper without deduction for fingers previously lost.</p> <p>Under Workmen’s Compensation Act, Section 20, where an employee had lost three fingers from his left hand nineteen years before when not employed by defendant, an award for loss of the entire hand was proper without deducting the value of the three lingers previously lost. (Post, pp. 228-234.)</p> <p>Acts cited and construed: Acts 1919, ch. 123.</p> <p>Cases cited and approved: Madden’s Case, 222 Mass., 487; Bright-man’s Case, 220 Mass., 17; Ball v. William Hunt & Sons Ltd. (1912), A. C. 496; Lee v. William Baird & Co. Ltd., 45 Sc. L. R. 717; Schwab v. Emporium Forestry Co., 167 App. Div., 614; Wabash Railway Co. v. Industrial Com., 194; In re Branconnier, 223 Mass., 273.</p> <p>Cases cited and distinguished: Industrial Com. v. State Fund, 71 Colo., 109; Matter of Schwab v. Emporium Forestry Co., 216 N. Y., 712; Branconnier’s Case, 223 Mass., 273;' Mark Mfg. Co. v. Industrial Comm., 286 Ill., 620; Wabash Ry. Co. v. Industrial Comm., 286 Ill., 199.</p> <p>2. MASTER AND SERVANT. Payments may be commuted under Compensation Act only upon agreement.</p> <p>Workmen’s Compensation Act, section 36, providing for commutation of payments.to a lump sum only with the consent of the circuit court, implies tlie presentation of an agreed stipulation or order, and henee requires' an agreement between the employer and employee as the basis of the consent, negativing any arbitrary or initiatory action on the part of the court. (Post, p. 235.)</p> <p>Case cited and approved: Am. Zinc. Co of Tenn. v. Lusk, 255 S. W., 39.</p>

<p>1.STATUTES. Not construed to alter common law further than expressly declared or necessarily implied.</p> <p>A statute will not be construed to alter the common law further than the act expressly declares, or is necessarily implied from the fact that it covers the whole subject-matter. (Post, pp. 242-244.)</p> <p>Acts cited and construed: Acts 1907, eh. 441; 457.</p> <p>Cases cited and approved: Lillienkamp v. Rippetoe, 133 Tenn., 64; Bennett v. Hutchens, 138 Tenn., 73.</p> <p>2. INSURANCE. Statutory provisions requiring application to be attached to policy held not applicable to reinstatement of lapsed policies.</p> <p>Neither Acts 1907, chapter 441 (Shannon’s Code, section 3275al), requiring an insurance policy to contain the entire contract, nor Acts 1907, chapter 457, section 1, requiring provision that no statement by insured shall avoid the policy unless contained in the written application, a copy of which shall be indorsed on or attached to the policy, requires application for reinstatement of lapsed policies or copy thereof to be attached. (Post, p. 244.)</p> <p>Case cited and approved: Arnold v. Ins. Co., 131 Tenn., 720.</p> <p>3. INSURANCE. Misrepresentation in application for reinstatement of policy held available as defense although application not attached to policy.</p> <p>The question of reinstatement of a lapsed life insurance policy being governed by the common law,, which does not require the application to be attached to the policy, insurer in an action on a policy alleged to have lapsed was not precluded - from relying on misrepresentations in the application for reinstatement, though not attached. (Post, pp. 244, 245.)</p> <p>Case cited and approved: Goodwin v. Provident Savings Life Assur. Soc., 97 Iowa, 226.</p>

<p>1. HIGHWAYS. Hoad commissioners may compete roads benefiting greatest number where proceeds of bond issue are insufficient for all enumerated roads.</p> <p>Where the proceeds of road bonds issued under Pub. Acts 1st Ex. Sess. 1913, chapter 26, are not sufficient to enable road commissioners of the county to macadamize all of the roads enumerated in the resolution submitting the question, of the bond issue to the people, the commissioners are not required to prorate the fund to the enumerated roads, but are empowered to complete the roads by which according to their best judgment the greatest number of people will be served, though some .of the enumerated roads will receive no benefit, notwithstanding section 12. (Post, pp. 247, 248.)</p> <p>Case cited and approved: Pope v. Dykes, 116 Tenn., 230.</p> <p>2. HIGHWAYS. Hoads enumerated in resolution submitting bond issue to people need not be constructed in order named.</p> <p>Roads enumerated in resolution submitting question of bond issue to the people under Pub. Acts 1st Ex. Sess. 1913, chapter 26, need not be constructed in the order in which they are enumerated, the enumeration being merely descriptive. (Post, p. 248.)</p> <p>3. HIGHWAYS. Resolution submitting, question of road bond issue to people can require that roads be constructed simultaneously, or that fund be prorated, if insufficient.</p> <p>Resolution submitting question of road bond issue to .people can require that roads enumerated be constructed simultaneously or that funds be prorated if insufficient for completion of all roads. (Post, pp. 248-250.)</p>

<p>CRIMINAL LAW. Where defendant furnished competent evidence of his guilt, no reversal because of evidence obtained by unlawful search.</p> <p>Even if the search of defendant, whereby evidence of his transporting whisky was obtained, was unlawful, it will not work a reversal; he having taken the stand and admitted that he had whisky in his pocket at the time of his arrest, thus furnishing competent evidence of his guilt.</p> <p>Case cited and approved; Lowry v. State, 254 S. W., —.</p>

<p>1. NEGLIGENCE. Ordinary care required as to invitee.</p> <p>When one expressly or impliedly invites others to come upon his premises he must exercise ordinary care to render the premises reasonably safe for the visitor. (Post, pp. 275, 276.</p> <p>2. NEGLIGENCE. Duty to invitee extends only to place where he is expected to go.</p> <p>Duty of-owner of premises to keep them in a reasonably safe condition for those impliedly invited thereon extends only to the parts of the premises where the invitee is expected to be. (Post, pp. 275, 276.</p> <p>Case cited-and approved: Bennett v. L. & N. Railroad Co., 102 U. S., 577.</p> <p>Case cited and distinguished: Warehouse & Cold Storage Co. v. Anderson, 141 Tenn., 293.</p> <p>3. NEGLIGENCE. Evidence held to show contractors were in exclusive occupation of premises.</p> <p>Evidence held to show that, when plaintiff was injured by a falling brick while leaving a building, defendant contractors, engaged in remodeling the building, were the exclusive occupiers of the premises where the injury occurred. (Post, p. 276.)</p> <p>4. NEGLIGENCE. One entering to remove his property from builing held a licensee.</p> <p>Even if a former employee of a former tenant of a building in the process of reconstruction by defendant contractors had a right to remove from the basement machinery belonging to him, if he entered for that purpose without defendants’ invitation or knowledge, he did so as a licensee, and not as an invitee, and the only duty defendants owed him was not wantonly to injure him, and they owed no higher duty to one invited by the employee t.o inspect the machinery with a view of buying it. (Post, pp. 270, 277.)</p> <p>5. NEGLIGENCE. One entering building in course of reconstruction held to have no invitation to use door which was obstructed.</p> <p>Where a cellar of a building in process of reconstruction was dark, torn up, and lumber piled therein, and the basement door and the lot in the rear of the building were obstructed, and the foundation was being made for the new walls, one entering the basement by reguest of employee of former tenant, who had some machinery in the basement, for sale, held to have no invitation to use the basement door. (Post, pp. 276. 277.)</p> <p>C. NEGLIGENCE. One struck by falling brick while leaving building held negligent.</p> <p>An injury to plaintiff resulting from a falling brick while he was leaving the rear of a building during the course of its reconstruction, held chargeable to his own negligence where he was not invited by defendants to enter the building, and he knew' the building, was being torn down, and on leaving it did not take the safer course by. which he entered it. (Post, pp. 276, 277.)</p>

<p>1. STATUTES. Amendment to Bulk Sales Law held unconstitutional.</p> <p>The subject of Acts 1921, chapter 84, attempting to amend Ads 1901, chapter 133 (Bulk Sales Law), so as to subordinate a sale of fixtures employed in a business to the same regulations as a sale of a stock of merchandise, does not appear in its caption, and is not embraced in the caption of the act it purports to amend, in that the title of the attempted amended act authorizes only the regulation of the sale in bulk of d stock of merchandise and not of fixtures, and hence the act of 1921 is void, as violating Constitution, article 2, section 17. {Post, pp. 279-281.)</p> <p>Acts cited and construed: Acts 1901, ch. 133; Acts 1921, ch. .84.</p> <p>Case cited and approved: Straus Cigar Co. v. Bon March, 142 Tenn., 129.</p> <p>2. STATUTES. If amendment is germane to original act and embraced in title of latter, particulars of amendment act need not be shown in its title.</p> <p>If the amendment be germane to the original act and embraced in the title of the latter, the particulars of the amending act need not be shown in its title. (Post, p. 281.)</p> <p>Cases cited and approved: Railroad v. Transportation Co., 128 Tenn., 277; Memphis .Street Railway Co. v. State, 110 Tenn., 598</p>

<p>1. MASTER AND SERVANT. Findings of facts on evidence in compensation case final.</p> <p>Where there is any 'material evidence to support the trial court’s findings of fact as to an employee’s disability, the judgment thereon must be affirmed. (Post, p. 286.)</p> <p>Case cited and approved: Milne v. Sanders, 143 Tenn., 602.</p> <p>3. MASTER AND SERVANT. Finding refusal of compensation claim-pensation claimant’s disregard of physicians’ advice warranted.</p> <p>A finding of the court in compensation proceedings that an employee’s incapacity front a broken leg did not result front his willful misconduct and refusal to follow the advice of physicians held supported by evidence. (Post, pp. 286-288.)</p> <p>2. MASTER AND SERVANT. Finding Incapacity not due to com-ant to submit to operation was not unreasonable warranted.</p> <p>A finding that refusal of an injured employee to submit to an operation to remove a disability growing out of a broken leg w'as not unreasonable so as to deprive him of further compensation under Public Acts 1919, chapter 123, section 25, held sustained by the‘evidence, (Post, pp. 288-290.)</p> <p>Acts cited and construed: Acts 1919. sec. 25, ch. 123.</p> <p>4. MASTER AND SERVANT. Refusal of compensation claimant to submit to operation involving risk of life not unreasonable.</p> <p>Under Public Acts 1919, chapter 123, section 26, denying further compensation to an injured employee, who unreasonably refuses to submit to an operation, a refusal to submit to an operation wbicb involves a risk of life is not unreasonable. {Post, pp. 290-292.</p> <p>Cases cited and approved: McNally v. Hudson & M. R. R. Co., 87 N. J., Law, 455; Henly v. Oklahoma Union R. R. Co., 81 Oltla., 224; Rotbwell v. Davies, 19 Times Law Rep., 423; Tutton v. The Majestic, 2 K. B.. 45; Donovan v. N. O. R. & Light Co., 132 La., 239; McNamara v. Met. Street R. Co., 133 'Mo. App., 645; Guild v. Portland R. Light & P. Co., 64- Or., 570; Jendrus v. Detroit Steel Products Co.. 178 Mich., 265; Donnelly v. "William Baird Co., S. C., 536; Reabon Coal Co. v. Themas, 3 B. "W. C. C. (Eng.). 32; Hay’s Wharf v..Brown, 3 B. W. C. C., 84; Burgess & Go. v. Jewell, 4 B. W. C. C., 145; Shirt v. Calico Printers’ Association, 2 K. B„ 51; Sun Coal Co. v. Wilson, 147 Tenn., 188.</p>

<p>1. INSURANCE. Iron safe clauses must he substantially complied with.</p> <p>Iron safe clauses in fire policies on stocks of merchandise must be substantially complied with, and, though expert bookkeeping is not required, the insured must keep such books as will fairly show to a man of ordinary intelligence all purchases and all sales, both for cash and credit, and make an effort, at least, to keep such books in a safe place. (Post, pp. 293-300.)</p> <p>2. INSURANCE. Iron safe clause held to preclude recovery in view of failure to keep record of credit sales in safe.</p> <p>Where general merchants did not keep books showing cash sales, and did not keep books showing credit sales in the safe, so that the value of the stock, at the time of the fire destroying the books showing credit sales, could only be proved by parol evidence as to value of stock on hand and as to portion of bank deposits representing cash sales, an iron safe clause of the fire policy precluded recovery, notwithstanding Thompson-Shannon Code, section 3006, making warranties immaterial unless the matter represented increased the risk of loss. (Post, pp. 298-300.)</p> <p>Cases cited and approved: McNutt v. Virginia F. & M. Ins. Co., 45 S. W., 61; Insurance Co. v. Whitaker, 112 Tenn’., 151; Liverpool, etc., Ins. Co. v. Kearney, 180 U. S., 132; Volunteer State Life & Ins. Co. v. Richardson, 146 Tenn., 589; Mutual Life Ins. Co. v. Dibrell, 137 Tenn., 529.</p> <p>Code cited and construed: Sec. 3306 (T.-S.).</p> <p>3. INSURANCE. Rule as to materiality of representation or warranty under statutes requiring them to “increase risk of loss’’ stated.</p> <p>A representation or warranty increases the risk of loss, within Thompson-Shannon Code, section 3306, making a misrepresentation of warranty immaterial “unless the matter represented increased the risk of loss,” if the representation relates to a matter of sufficient importance to naturally and reasonably influence the judgment of insurer in making the contract. (Post, p. 301.)</p> <p>4. INSURANCE. Statute as to materiality of misrepresentation or warranty held applicable to a promissory warranty.</p> <p>Thompson-Shannon Code, section. 3306, making a “misrepresentation or warranty” immaterial unless made with actual intent to deceive, or unless the matter represented increased the risk of loss, held applicable to a promissory warranty. {Post, p. 301.)</p> <p>5. PLEADING. Permitting amendment of insurer’s answer so as to rely on iron safe clause held not error.</p> <p>In "action on fire policy, commenced after the insurer had notified the insured that payment was resisted because of noncompliance with iron safe clause, the court did not err in permitting the insurers to amend answer so as to rely on the iron safe clause. {Post, p. 302.)</p> <p>BachmaN, J., dissenting.</p> <p>Case cited and approved: Real Estate Co. v. Kyoleum Co., 142 Tenn.. 2^5;</p> <p>Case cited and distinguished: Snyder v. Mystic Circle, ,122 Tenn., 250.</p>

<p>1. GIFTS. Mere possession of note alleged to be gift held not to raise presumption of ownership in possessor.</p> <p>In a suit by an executor to recover possession of a note payable to deceased but claimed by defendant as a gift from deceased, the mere possession of the note by defendant after decedent’s death did not raise a presumption of ownership. (Post, pp. 307-311.</p> <p>Cases cited and distinguished: Mason v. Willhite, 61 S. W., 298: Roy y. Duff, 170 Iowa, 319; Gano v. McCarthy, 79 Ky., 409.</p> <p>2. GIFTS. Possession by alleged donee of little weight where such possession can be accounted for in another way than that of gift.</p> <p>That a person, claiming property as a gift, has it in his possession after the death of the alleged donor, has little, if any, weight, where claimant has had access to the property and effects of his alleged donor during his last sickness or after his death, or where its possession can be reasonably accounted for in any other way. (Post, pp. 311, 312.)</p> <p>Cases cited and approved: Maxler v. Hawk, 233 Pa., 316; Chambers v. McCreery, 106 Fed., 364.</p> <p>3. GIFTS. Testimony of beneficiary alone held insufficient to establish gift from decedent.</p> <p>In a suit by an executor to recover possession of a note payable to decedent and claimed by defendant as a gift from him, the testimony of the beneficiaries of the gift was insufficient to show delivery when uncorroborated by other evidence. (Post, pp. 312, 313.)</p> <p>4. WITNESSES. Alleged donee of gift from deceased held incompetent in suit by executor to testify as to conversations with deceased.</p> <p>In a suit by an executor to recover possession of a note payable to deceased, and.which defendant claimed as a gift from deceased, defendant was not competent to testify as to transactions and conversations with deceased under Shannon’s Code, section 5598, though specified amounts were bequeathed to defendant and another from the proceeds of the note, it being the plaintiff’s duty to take charge of the assets of the estate, and distribute the proceeds to the beneficiaries named. (Pont, pp. 313-318.)</p> <p>Cases cited and approved: Gibson v. Parltey, 142 Tenn., 99; Turner v. Huggins, 130 Tenn., 181; Hale v. Kearly, 67 Tenn., 49.</p> <p>Cases cited and distinguished: Gibson v. Buis, 142 Tenn., 133; Harris v. Cable, 113 Mich., 192.</p> <p>Code cited and construed: Secs. 4026, 5598 (S.)</p> <p>5. GIFTS. Delivery and intent to give essential.</p> <p>Delivery and intention to give must accompany each other to make a valid gift. (Post, pp. 319-325.)</p> <p>6. GIFTS. When mere declaration of donor that he has made gift insufficient to establish it stated.</p> <p>To establish a gift, the fact of delivery must be shown by other evidence than the mere declaration of the donor, when such declaration goes no further than to express a gift, and fails either distinctly to state a delivery or facts from which actual delivery may be inferred. (Post, pp. 319-325.)</p> <p>Cases cited and approved:) Davis v. Davis, 1 Nott & McC. (S.C-), 225; Fouts v. Nance, 55 Okla., 266; Jüwing v. Fwing, 2 Leigh, 337; Liebe v. Battmann, 33 Or., 241; Rock wood v. Wiggins, 16 Gray, 402; Yancy v. Field, 85 Va„ 756.</p> <p>Cases cited and distinguished: Ridden v. Thrall, 125 N. Y., .572; Keepers v. Fidelity Title & D. Co., 56 N. J. Law, 302; Chamber v. McCréery, 106 Fed., 364.</p> <p>7. GIFTS. Evidence held insufficient to establish gift.</p> <p>In an action by an executor to recover possession of a note payable to decedent, which defendant claimed decedent had given to her, evidence held insufficient to establish the gift. (Post, p. 325.)</p>

<p>1. WEAPONS. Taking and. presenting pistol held to sustain conviction for carrying.</p> <p>Where defendant, when caught operating a still, reached over a nearby log, secured a pistol, and presented it in a threatening manner, held, that there was a sufficient carrying of a pistol for the purpose of being armed to sustain a conviction. (Post. p. 327.)</p> <p>Case cited and approved: Page v. State, 50 Tenn., 199.</p> <p>2. WEAPONS. Instruction that ownership of pistol had nothing to do with guilt in carrying it held proper.</p> <p>In a prosecution for unlawfully carrying a pistol, an instruction that the ownership of the pistol had nothing to do with defendant’s guilt held proper. (Post, p. 327.)</p>

<p>CHARITIES. Trust deed held to authorize trustees to sell all land conveyed and change location of college founded thereon.</p> <p>A trust deed, authorizing the trustees to found a college and to sell the land conveyed only in pursuance of the direction of a certain presbytery “for the more successful and convenient prosecution of the objects of this conveyance,” by implication empowers the trustees to' sell and convey all of the land and change the location of the college under such direction; a further clause directing that the proceeds of sale shall be used “to improve or aid in improving the residue of the property,” applying to the disposition of the fund rather than the power of sale.</p>

<p>PROM GREEN.</p> <p>Appeal from the Chancery Court of Green County.— Hon. Hal H. Haynes, Judge.</p>

<p>1. SHERIFFS AND' CONSTABLES. Anti-fee act held applicable to sheriff elected in August, 1922, whose term began September 1, 1922.</p> <p>Public Acts 1921, chapter 101, providing that certain officers shall receive salaries and shall account for their fees, and that the act shall take effect from and after September 1, 1922, as to all officials whose terms of office expire on or before September 1, 1922, and that as to all officials whose terms expire after said date the act is to take effect at the expiration of said term held applicable to a sheriff elected in August, 1922, and who began his term of office on or after September 1, 1922. (Post, p. 365.)</p> <p>Acts cited and construed: Acts 1921, ch. 101.</p> <p>2. CONSTITUTIONAL LAW. Complainant held estopped to deny constitutionality of act.</p> <p>Where complainant ran for the office of sheriff, stated his express purpose during campaign and after election to operate his office in conformity with Public Acts 1921, chapter 101, and, further rec-organizing the validity of the act, qualified under it and made the required reports, and accepted the aid of deputies in performing his duties, he is estopped from denying that the act is unconstitutional. (Post, pp. 365-368.)</p> <p>Cases cited and approved: Dickerson v. Colgrove, 100 TJ. S., 578; Kirk v. Hamilton, 102 U. S.., 68; Electric Light Co. v. Gas Co., 99 Tenn., 371; Evans v. Belmont Land Co., 92 Tenn., 348; Covington v. McMurry, 4 Hig., 378.</p> <p>3. INJUNCTION. Not granted to protect right complainant estopped to assert.</p> <p>An injunction will not be granted to protect a right that complainant is estopped to assert. (Post, p. 368.)</p> <p>4. INJUNCTION. Laches not amounting to estoppel may bar right to injunction.</p> <p>Even laches not amounting to an estoppel in many cases will deprive complainant of his right to an injunction. (Post, pp. 368, 369.)</p> <p>Cases cited and approved: Madison v. Copper Co., 113 Tenn., 331; Foster v. Jeffers, 140 Tenn., 446.</p> <p>5. SHERIFFS AND - CONSTABLES. Sheriff having collected excess fees as property of county cannot challenge title of county thereto.</p> <p>In view of Public Acts 1921, chapter 101, providing that the various county officers should be deprived of all their fees in excess ol' salary and office requirements, complainant sheriff having accepted and ratified the act and collected the excess fees of his office as the property of the county, he can no more challenge the right of his principal to such property than could any other agent question the title of his principal previously admitted. (Post, pp. 369-372.)</p> <p>Acts cited and construed: Acts 1921, ch. 101.</p> <p>Cases cited and approved: People v. Bunker, 70 Cal., 212; Duplin County Board of Education v. Kenan, 112 N. C., 566; Spokane County v. Allen, 9 Wash., 229; Mayor, etc., of City of N. Y. v. Gorman, 26 App. Div., 191; Outagamie County v. Zuehlke, 165 Wis., 32; Green Co. v. Lydy, 263 Mo., 77; Bonner v. Belsterling, 104 Tex., 432.</p> <p>Cases cited and distinguished: Collier v. Montgomery Co., 103 Tenn., 705; Daniels v. Tearney, 102 U. S., 415.</p> <p>6. ESTOPPEL. Suit questioning validity of statute held not to affect public interest precluding estoppel.</p> <p>A suit involving only tlie constitutionality of a statute ■ requiring a sheriff to turn over all fees in excess of the salary and office requirements does not affect the public interest to such an extent as to prevent the invoking of .the principle of estoppel. (.Post, pp. 372-374.)</p> <p>7. STATUTES. Suit held not such controversy as to require construction of statute.</p> <p>A suit involving only the constitutionality of a statute requiring a sheriff to turn over all the fees in excess of his salary and office requirements is not such a controversy as to require any construction of the act. (Post, pp. 372-374.) ></p> <p>Cases cited and approved: Weaver v. Davidson Co., 104 Tenn., 315; Hickman v. Wright, 141 Tenn., 412; State ex rel. v. Mayor, etc., of Nashville, 83 Tenn., 697, State ex rel. v. Purdy, 36 Wis., 213; State ex rel. v. Collier, 72 Mo., 13; Carrothers v. Russell, 53 Iowa, 346; Alvord v. Collin, 20 Pick. (Mass.), 428.</p>

<p>Cases cited and approved: State ex rel. Kercheval v. Mayor, etc., Nashville, 83 Tenn.. 697; Montague v. Massey, 76 Va., 307; Burch v. Baxter, 59 Tenn., 603; Galpin v. Chicago, 269 Ill., 27; Collier V. Montgomery County, 103 Tenn., 705.</p>

<p>HUSBAND AND WIFE. Husband held not entitled to collect rents of wife’s property; “curtesy.”</p> <p>Under Public Acts 1913, chapter 26, and Public Acts 1919, chapter 126, removing disabilities of coverture from married women without affecting the husband’s right of “curtesy,” a husband has no right in or control over the rents accruing from his wife’s land except with her consent, under the doctrine of curtesy or of jure uxoris; the word “curtesy" within the statute having reference to tenancy by the curtesy proper or '¡onsummate, and not to tenancy by the curtesy initiate.</p> <p>Acts cited and construed: Acts 1913, ch. 26; Acts 1919, ch. 126; Acts 1849-50, ch. 36; Acts 1879, ch. 14.</p> <p>Cases cited and approved: Lucas v. Rickerich, 69 Tenn., 726; Taylor v. Taylor, 80 Tenn., 490; Baker’s Ex’rs. v. Kilgore, 145 U. S., 487; Abies v. Abies, 86 Tenn., 333; Parlow v. Turner, 132 Tenn., 346; Day v. Burgess, 139 Tenn., 559; Tellico Bank & Trust Co. v. Loomis, 147 Tenn., 162.</p> <p>Case cited and distinguished: Travis v. Sitz, 135 Tenn., 156.</p> <p>Code cited and construed: Sec. 4234 (S.).</p>

<p>PROM CARTER.</p> <p>Appeal from the Chancery Court of Carter County.— Hon. Hal H. Haynes, Chancellor.</p>

<p>SEARCHES AND SEIZURES. Affidavit on information and belief supporting search warrant must disclose information.</p> <p>Though under Thompson-Shannon Code sections 7297, 7299, providing that a search warrant shall only be issued on affidavit setting forth facts tending to show probable cause, the affidavit may be made on information and belief, such affidavit must disclose the nature and source of the information so that the magistrate can determine whether probable cause exists.</p> <p>Code cited and construed: Secs, 7297, 7299 (T.-S.).</p>

<p>1. HOMICIDE. Evidence, held insufficient to show hirth alive of alleged murdered child.</p> <p>In a murder prosecution, evidence held insufficient to show that an illegitimate child, claimed to have been murdered, was born alive. (.Post, pP- 415, 416.)</p> <p>2 HOMICIDE. Child must be born alive to be subject to “murder;” “reasonable creature in being.”</p> <p>In a prosecution for murdering a child under the Code restricting, “murder” to the killing of a “reasonable creature in being,” the child must be born alive. (Post, p. 416.)</p> <p>Code cited and construed: Sec. 6438 (T.-S.).</p> <p>3. HOMICIDE. Proof of respiration by newborn child generally establishes independent existence.</p> <p>In a prosecution for murdering a child at time of birth, if respiration is established, that generally establishes an independent existence, but the test is not infallible. (Post, pp^ 416, 417.)</p> <p>Cases cited and approved: Rex v. Poulton, 5 Car. & P., 329; Rex v. Enoch, 5 Car. & P., 539; Rex v. Brain, 6 Car. & P., 349; State v. Winthrop, 43 Iowa, 519; Clarke v. State, 117 Ala., 1; Harris v. State, 28 Tex. App., 308.</p> <p>4. HOMICIDE. Child may be murdered by bruises or poison administered before birth.</p> <p>If after birth alive, an infant dies by reason of a potion or bruises received in its mother’s womb, it is murder by the one who administered or gave them. (Post, pp. 417-418.)</p>

<p>1. BILLS AND NOTES. Holder in due course, not party to alteration, may recover.</p> <p>Under Negotiable Instruments Act, section 124, tbe bolder in due course of an altered note, wbo is not a party to tbe alteration, may recover according to tbe original tenor. (Post, pp. 421-424.)</p> <p>Cases cited and approved: Moss v. Maddux, 108 Tenn., 405; Stephens v. Davis, 85 Tenn., 271; Peevey v. Buchanan, 131 Tenn., 24; Fox v. Cortner, 145 Tenn., 482; Liberty Trust Co. v. Tilton, 217 Mass., 462; Vander Ploeg v. Van Zuuk, 135 Iowa, 350; Bank v. Bank, 115 Tenn., 64; Figuers v. Fly, 137 Tenn.,- 358; Jordan'v. Jordan, 78 Tenn., 124; Lookout Bank v. Aull, 93 Tenn., 645.</p> <p>Code cited and construed: Secs. 3516a 123, 3516a 51, 3516a 29, 3516a 189 (T.-S.).</p> <p>2. STATUTES. Change of pre-existing law further than expressly declared not presumed.</p> <p>Statutes are not presumed to change pre-existing law further than expressly declared. (Post, pp. 424, 425.)</p> <p>3. STATUTES. Construed as near to rule and reason of common law as may be.</p> <p>Statutes are to be construed as near to the rule and reason oí the common law as may be. (Post, pp. 424, 425.)</p> <p>4. BILLS AND NOTES. Payee may be holder in due course under Negotiable Instruments Act.</p> <p>In view of the requirement that statutes be construed as near to the rule and reason of common law as may be, and the presumption that pre-existing laws are not changed further than -expressly declared, the payee of a note may be a holder thereof in due course, as defined in Negotiable Instruments Act (Thompson-Shannon Code, section 3516a51), and therefore entitled to recover, notwithstanding a material alteration made without his knowledge, against persons indorsing note before delivery. (Post, pp. 424, 425.)</p>

<p>1. APPEAL AND ERROR: “Damages” within contemplation of appeal Bond statute stated.</p> <p>“Damages” contemplated by .Shannon’s Code, section 1895, providing in appeals in suits at law the bond is for damages, costs, and interest, are damages in consequence of the appeal which is. interest upon the judgment from its rendition in the lower court to final judgment. (Post, p. 428.)</p> <p>Cases cited and approved: Mason v. Smith, 79 Tenn., 67; Railroad v. Leabow, 97 Tenn., 450.</p> <p>Code cited and construed: See. 4894 (S.).</p> <p>2. APPEAL AND ERROR: Liability for damages of appeal cannot be read into appeal bond by courts.</p> <p>Under Shannon’s Code, section 4937, providing that no omission or neglect to insert the proper conditions shall vitiate or impair the validity of an appeal bond, courts cannot read into such a bond conditioned that the sureties would “pay all costs adjudged against” appellant the obligation to pay damages of the appeal, including interest on the judgment rendered below, notwithstanding section 4895, providing that the bonds shall be lor costs, damages, and interest. (Post, pp. 428, 429.)</p> <p>Cases cited and approved: State v. Polk, 82 Tenn., 1; Mason v. Smith & Harris, 79 Tenn., 67; Banks v. Brown, 12 Tenn., 198; Maxwell v. Salts, 44 Tenn., 235; Ogg v. Leinart, 48 Tenn., 40; Dawson v. Holt, 80 Tenn., 29; Nichol v. McCombs, .10 Tenn., 83; Triplet v. Gray, 15 Tenn., 17; E. T. Murray & Co. v. Yeaman, 115 Tenn., 639; Denton v.. Wood, 79 Tenn., 507.</p> <p>Codes cited and construed: Secs. 4894, 4895, 4910, 4935, 4937 (S.).</p> <p>3. APPEAL AND ERROR. Rule against maker remedy for insufficient appeal bond.</p> <p>The remedy for an insufficient appeal bond is a rule against the maker requiring compliance with the law, failure in which warrants dismissal. (Post, p. 429.)</p>

<p>1. CONSTITUTIONAL LAW. Act providing circuit court with criminal jurisdiction to become effective on vote of electors invalid.</p> <p>Private Acts 1923, chapter 108, providing a circuit court with criminal jurisdiction, being so framed that it must derive its efficacy from popular vote, cannot be upheld. (Post, pp. 431, 432.)</p> <p>Acts cited and construed: Priv. Acts 1923, ch. 408; Acts 1891, ch. 4.</p> <p>Case cited and approved: Wright v. C.unningham, 115 Tenn., 445.</p> <p>2. STATUTES.' Private Act undertaking to confer criminal jurisdiction held entirely invalid.</p> <p>As Private Acts 1923, chapter 408, section 20, undertaking to provide a circuit conrt with criminal jurisdiction provides (section 20) that the act should take effect if indorsed by popular vote the entire act is invalid, as the various provisions of the act are interdependent, and there can be no elision, and this notwithstanding a further provision of the act that, if any part of it should be declared invalid, it should not affect the validity of the act as a whole. (Post, pp. 432-434.)</p> <p>Acts cited and construed: Priv. Acts 1923, cfi. 408, secs. 20, 21.</p> <p>Case cited and approved: Edwards v. Davis, 146 Tenn., 615.</p>

<p>1. INSURANCE. Life policy not rescinded by company’s letter to ■beneficiary.</p> <p>Letter of insurance company to beneficiary under life policy, after death of insured and proof of claim, denying justice of the claim and refusing to pay it,"'did not rescind the policy; beneficiary’s consent being necessary to a rescission. {Post, p. 443.) .</p> <p>2. INSURANCE. Limitation in policy for contest unaffected by Insured’s death within period.</p> <p>Provision of life policy that it “shall be incontestable after one year from date of its issue,” except for nonpayment of premiums, is unaffected by death of insured within the year, on the theory that the contract of insurance became a mature demand on death of insured and that, by that event, liability or nonliability became fixed. {Post, pp. 443-445.)</p> <p>Cases cited and approved: Royal Circle v. Achterrath, 204 Ill., 549; Flanigan v. Federal L. Ins. Co., 231 Ill., 399; Ramsey v. Old Colony Life Ins. Co., 297. Ill., 5-92; Elmer v. Ins. Co., 121 N. E., 315; Monahan v. Ins. Co., 283 Ill., 136; Mut. Life Ins Co., v. Buford, 160 Pac., 928; Clement v. Ins. Co., 101 Tenn., 22; Thompson v. Fidelity Ins. Co., 116 Tenn., 557; Wright v. Mut. Ben. Assn., IIS N. Y., 237; Carlson v. Supreme Council, 115 Cal., 466.</p> <p>Cases cited and distinguished: Clement v. Tns. Co., 101 Tenn., 22; Monahan v. Met. Life Ins. Co., 283 Ill., 136; John Hancock Life Ins. Co. v. Schlink, 175 Ill., 284; Eber v. Ohio State Life Ins. Co., 69 Ind. App., 32; Hardy v. Phoenix Mut. Life Ins. Co., 180 N. C., 180; Ins. Co. v. Peeler, ,176 Pac., 939t</p> <p>3. INJUNCTION. Limited time for contest of life policy held special circumstance warranting' injunction.</p> <p>That, before insurer could present its defense in an action on a life policy, the policy would become incontestable under its clause limiting contest to a year from its issuance, would b'e a special circumstance peculiar to the case, giving jurisdiction to equity to entertain suit to enjoin beneficiary’s action on the policy. {Post, pp. 455, 456.)</p> <p>Case cited and approved: Hamilton v. Cummings, 1 Johns. Ch. (N. Y.), 517.</p> <p>Case cited and distinguished: The Sailors v. Woelfle, 118 Tenn.. 755.</p> <p>4. TRIAL. On motion for directed verdict incontestability clause available though not pleaded in view of profert.</p> <p>Plaintiff in action on a life policy, by failing to expressly plead its clause making it incontestable after a year from its issuance, did not waive it, with the result that he could not take adyantage and rely on it in his motion for a directed verdict, he having made profert of the policy in his declaration, and introduced it in evdence, and read such clause to the court and jury, so that it became part of the record. {Post, pp. 456-45S.)</p> <p>Cases cited and approved: Kegler v. Miles, 8 Tenn., 426; Allen v. Word, 25 Tenn., 284; Ins. Co. v. Thornton, 97 Tenn., 1.</p> <p>Cases cited and distinguished: Boniar v. Hagler, 75 Tenn. 89; Water-house v. Sterchi Bros. Furn. Co., 139 Tenn., 117.</p> <p>On Petition to Rkheak.</p> <p>5. INSURANCE. Running of period for contest not suspended hy heneficiary’s action on policy.</p> <p>The running of the period of a year limited by a life policy for contest thereof is not suspended by beneficiary bringing action on the policy within the year. (Post, pp. 458-465.)</p> <p>Cases cited and approved: Lewis v. Turnley, 97 Tenn., 197; Clarlc v. Duncanson, 79 Olila., 180; Riddlesbarger v. Hartford Tns. Co., 74 U. S. 258; Wilkinson v. Ins. Co., 72 N. Y., 499; Arthur v. Ins. Co., 78 N. Y., 402; Wilson v. Ins. Co., 7 R. I., 301; Tns. Co. v. Burr, 94 Pa. St., 345; Ins. Co. v. Burr, 128 Pa. St., 386; Hocking v .Ins. Co., 130 Pa. St., 170.</p> <p>Cases cited and distinguished: Mut. Life Ins. Co. v. Buford, 61 Okla., 158; Guthrie v. Indemnity Assoc., 101 Tenn., 643.</p> <p>Laws cited and construed: Rev. Laws 1910, sec. 4746.</p>

<p>1. CREDITORS’ SUIT. Procedure in general creditors’ proceeding stated.</p> <p>In a general creditors’ proceeding, creditors may come in by formal petition, or otherwise may informally present their claims, and, after a hearing had in more or less informal manner, the chancellor determines upon the entire record, and ^ all the facts before him, the rights of the' various creditors as against the fund for distribution, and as between themselves. (Post, pp. 470,' 471.)</p> <p>2. BANKRUPTCY. “Preference” defined.</p> <p>A transfer made within four months of the filing of the petition' in bankruptcy when the debtor is insolvent and the creditor has reasonable cause so to believe constitutes a “preference.” (Post, p. 471.)</p> <p>ll. BANKRUPTCY. Transfer applicable to antecedent debt a preference irrespective of belief as to insolvency.</p> <p>If a transfer made within four months of the filing of the petition in bankruptcy is made partly for a present consideration, and partly for an -antecedent or■ pre-existing debt, that portion of the transfer applicable to the antecedent. or pre-existing debt will be set aside as a preference, regardless of whether the creditor knew or had reasonable- cause to believe that the debtor was insolvent. (Post, p.. 471.)</p> <p>4. BANKRUPTCY. Transfer of note to bank to secure pre-existing debt held a preference.</p> <p>Transfer of note to a bank, within four months of filing of petition to have maker adjudged a bankrupt, as collateral to secure pay-" ment of indebtedness created at time of transfer, and also a preexisting debt, will be set aside.as a preference in so far as note secured preexisting debt, regardless of whether the bank ’had reasonable ground to believe that the maker was insolvent at the time. (Post, %>V• 471-473.) .</p>

<p>1. INTOXICATING LIQUORS. Proviso in amendatory act held to limit the amendment and not the orignal act; “this act.”</p> <p>Public Acts 1923, chapter 14, amending Acts 1909, chapter 10, prohibiting the manufacture of intoxicating liquor, by striking out the words “for the purpose of sale,” with a proviso that “this act shall apply only to the manufacture or attempt to manufacture whisky or brandy,” amends the act of 1909 only so far as it applies to whisky or brandy, and does not except liquor other than whisky or brandy from the operation of the act of 1909; “this act” meaning the amendatory act. {Post, pp. 477-480.)</p> <p>Acts, cited and construed: Acts 1923, ch. 14; Acts 1909, ch. 10.</p> <p>2. STATUTES. Effect of proviso in amendatory statute to be limited to that statute.</p> <p>Unless a contrary intent appears, the effect of a proviso in an amendatory statute should be limited in its application to the statute in which it is found, and not extended to the original statute of which the statute containing the proviso is an amendment. {Post, pp. 480, 481.)</p> <p>3. STATUTES. Body of amendatory act held not broader than caption thereof.</p> <p>Public Acts 1923, chapter 14, amending Acts 1909, chapter 19, making attempt to manufacture liquor unlawful, held not broader than caption, because of the provision of section 2 that the offense of attempting to- manufacture liquor shall include the assembling of necessary apparatus for the manufacture of liquor, etc. (Post, p. 481.)</p> <p>4. CRIMINAL LAW. — Section of amendatory act relating to manufacture of liquor held not ambiguous or inconsistent.</p> <p>Public Acts 1923, chapter 14, which amends Acts 1909, chapter 10, relative to- attempts to manufacture intoxicating liquor, and provides' that the offense shall be deemed to have been committed by a person assembling the necessary apparatus or doing any act preparatory to such manufacture, merely defines the acts made • unlawful and is not ambiguous and inconsistent as declaring that an attempt shall constitute manufacture, (Post, pp. 481, ,482.)</p> <p>5. CRIMINAL LAW. General objection to evidence in part competent is insufficient. ,»</p> <p>A general objection to evidence, a part of which is competent, cannot be sustained, as it is not incumbent upon the court to sustain the objection in part and overrule it in part. (Post, pp. 482, 483.)</p> <p>6. CRIMINAL LAW. Failure to exclude evidence found before permission to search held not error; objection being general.</p> <p>Where to all of the testimony of police officers as to what evidence they found on accused’s premises before and after accused gave them permission to search accused made only a general objection, it was not error to fail to exclude evidence of beer found before accused gave permission to search, as accused’s objection was not sufficient. (Post, pp. 482, 483.)</p> <p>7. CRIMINAL LAW. Admission of evidence of beer found before permission to search, if error, held harmless.</p> <p>Assuming it was error for the trial court to permit officers to testify as to beer found on accused’s premises, before he gave them permission to search, such error was harmless where, if that testimony had been excluded, the result would have been the same, in view of the evidence found after permission to search was given. (Post, pp. 482, 483.)</p> <p>8. INTOXICATING LIQUORS. Accused held to have waived right to reciuire officers to obtain search warrant.</p> <p>Where accused without coercion permitted police officers without a warrant to search his premises for intoxicating liquors, after they had informed him that unless permission was, given they would be compelled to go back to town and procure a search warrant, he waived the right to require the officers to obtain the warrant before searching. (Post, pp. 483, 484.)</p> <p>Case cited and approved: Hampton v. State, 252 S. W., 1008.</p>

<p>1. CONSTITUTIONAL LAW. Licenses. Blue Sky Law held not unconstitutional.</p> <p>Blue Sky Law is not unconstitutional as a violation of the Fourteenth Amendment, or of article 1, section 8, or article 11, section 8, of the State Constitution; the classification of those affected by it affecting alike those in the same condition and not being arbitrary or capricious. (Post, pp. 487-490.)</p> <p>Acts cited and construed: Acts 1891, ch. 122.</p> <p>Cases cited and approved: Hall v; Geiger-Jones Co., 242 U. S., 539; Merrick v. Halsey Co., 242 II. S., 508; Standard Home Co. vl Davis, 217 Fed. 904; King v. Commonwealth, 197 Ky., 128; Stewart v. Brady, 300 Ill., 425; State v. Gopher Tire & Rubber Co.. 146 Minn., 52; Edward v. loor, 15 A. L. R., 256; Gutterson v. Pearson, 24 A. L. R., 524; Goodyear v. Meux, 143 Tenn., 287; Dixie Rubber Co. v. McBee, 253 S. W.. 353.</p> <p>Constitution cited ‘and construed: Art. 1, sec. 8; Art. 11, sec. 8 (Tenn.).</p> <p>Laws cited and construed: Laws 1913. p. 904.</p> <p>2. LICENSES. That foreign corporation has domesticated under general law does not relieve it from compliance with Blue _ Sky Law.</p> <p>That a foreign corporation desiring to do business in the State has domesticated by complying with Acts 1891, chapter 122. does not relieve it from compliance with Blue Sky Law, when it desires to sell its stock within the State. (Post, pp. 490, 491.)</p> <p>Case cited and approved: Edward v. loor, 205 Mich., 617.</p> <p>3. LICENSES. Exchange of corporate stock .for land without compliance with Bue Sky Law illegal.</p> <p>An exchange or sale of corporate stock for land by a corporation which has not complied with Blue Sky Law is void and constitutes no consideration for the land. (Post, p. 491.)</p>

<p>1. MASTER AND SERVANT. Evidence in compensation case held insufficient to show employee’s movements were controlled hy purpose of unlawfully hoarding moving train.</p> <p>"Where decedent, while on his way home from work in defendant's .railroad yards, crawled under a train and was killed, evidence held insufficient to show tliht decedent’s movements were controlled by the purpose of unlawfully boarding a moving train, so as to par recovery of compensation. (Post, pp. 561-563.)</p> <p>2. MASTER AND' SERVANT. Employee held not guilty of willful misconduct within Compensation Act.</p> <p>In an action under the Workmen’s Compensation Act to recover for the death of decedent, killed while crawling under a train going in the direction of his home, held, that decedent was not guilty of such willful misconduct as, under section 10 of the act, would cut off recovery, where the alternative way, which decedent might have more safely followed in the exercise of caution, was nol free from the difficulties of travel, or danger, and it was the custom of the defendant’s employees to cross the tracks at the most convenient point. (Post, pp. 561-563.)</p> <p>Daws cited and construed: Laws 1919, ch. 123.</p> <p>3. MASTER AND SERVANT. Injury’to employee while leaving place of employment held ‘‘arising out of and in course of employment” . and compensable.</p> <p>Where decedent, killed while crawling under a train going in the direction of his home, used an exit which was commonly used bv other employees, and against which employer had made no provision for danger, and where in addition decedent’s employment extended over the same territory that he was traversing when' the accident occurred, under the equitable construction required by Workmen’s Compensation Act, section 47, held, that the accident grew “out of and in the course” of decedent’s employment, within the act. (Post, pp. 563, 564.)</p> <p>Cases cited and approved: Patten Hotel Co. v. Millner, 145 Tenn., 638; Tennessee Chemical Co. v. Smith, 145 Tenn., 552; Johnson Coffee Co. v. McDonald, 143 Tenn., 505; Milne v. Sanders, 143 Tenn., 602.</p> <p>4. MASTER AND SERVANT. Reviewing court may reach own conclusion on undisputed facts in compensation case.</p> <p>ON Petition to Rehear.</p> <p>While the court will not disturb a finding of the trial judge on a question of fact in a workmen’s compensation case, where there is evidence to support such finding, where there is' no conflict of evidence, it is for the court to construe and give legal effect to the undisputed facts, and, in so doing, may properly reach a different conclusion from that of the trial court. (Post, p. 564.)</p> <p>Case cited and approved: Milne v, Sanders, 143 Tenn., 603.</p> <p>5. EVIDENCE. When evidence insufficient to establish fact in general stated.</p> <p>Evidence is insufficient to establish a fact when it fails in a legal sense to establish the fact to such a degree or extent as is necessary to entitle it to judicial consideration. (Post, pp. 565, 566.)</p>

<p>1. BANKRUPTCY. Trustee may maintain "bill to set aside conveyance by bankrupt.</p> <p>A trustee in bankruptcy can maintain a bill to set aside ior the benefit of bankrupt’s creditors a conveyance made by the bankrupt in disregard of the Bulk Sales Law. (Post, p. 570.)</p> <p>Cases'cited and approved: Stellwagen v. Clum, 245 U. S., 605; Ad-cock v. New Crystal Ice Co., 144 Tenn., 511.</p> <p>Code cited and construed: Sec. 3118a65 (T.-S.).</p> <p>2. BANKRUPTCY. Bill to set aside conveyance neecl not set out names and amounts due creditors.</p> <p>A bill by a trustee in bankruptcy to set aside for creditors a conveyance made by bankrupt in disregard of the Bulk Sales Law need not set out the names and amounts due each of the creditors. (Post, pp. 570, 571.)</p> <p>3. FRAUDULENT CONVEYANCES. Transfer held violation of Bulk Sales Law. Where corporation operated a system of chain stores and had a sort of wholesale house which served as a depot where a large stock was assembled, from which the orders of the retail stores were supplied, a sale of all of the stock in the wholesale house or depot fell within the prohibition of the Bulk Sales Law (Thomp, Shan. Code, section 3118a65.) (Post, pp. 571, 572.)</p> <p>4. FRAUDULENT CONVEYANCES. Sale need not be unprecedented to be out of “ordinary course of trade’’ under Bulk Sales Law.</p> <p>The fact that a corporation operating a system of chain stores would sell any particular store when it proved unprofitable, and had been doing so, did not prevent* a sale of a particular store from being one out of the'“ordinary course of trade" within the meaning of the Bulk Sales Law (Thomp.-.Shan. Code, section'3118a65.) (Post, p. 572.)</p> <p>Cases cited and approved: Daly v. Drug Co., 127 Tenn., 412; Howell v. Howell, 142 Tenn., 31.</p> <p>5. FRAUDULENT CONVEYANCES. Creditors not required to look to specific property transferred but may recover value.</p> <p>A trustee in bankruptcy, suing to set aside for the benefit of creditors a conveyance under the Bulk Sales Law, was not required to look to the specific property transferred, but could recover its value where the fraudulent vendee commingled, the goods with other goods and sold part of them. (Post, pp. 573-576.)</p> <p>Cases cited and approved: Daly v. Drug Co., 127 Tenn., 412; Dillard & Coffin v. Smith, 105 Tenn., 372; Bank v. Haller, 101 Tenn., 83. . , '</p> <p>6. FRAUDULENT CONVEYANCES. Amount creditors entitled to receive.</p> <p>A trustee in bankruptcy, suing to set aside for the benefit of the bankrupt’s creditors a conveyance made in disregard of the Bulk Sales Law, is entitled to recover from the vendee a sum equivalent to the security of which the creditors were deprived by the trans- ' fer to the stock of goods, that is, the real value of the stock and the price agreed to be paid by the vendee cannot be used as a measure of the creditor’s recovery. (Post, pp. 576-578.)</p> <p>Case cited and approved: Loos v. Wilkinson, 113 N. Y., 485.</p> <p>Case cited and distinguished: Hamilton Nat. Bank v. Halstead, 134 N. Y., 520.</p> <p>7. FRAUDULENT CONVEYANCES. Buyer entitled to subrogation . to claims of creditors.</p> <p>Where the' money of the purchaser, although the transfer is in violation of the Bulk Sales Law, goes to the payment of existing creditors of the seller, he is entitled to be subrogated to the claims of the creditors paid with his money, and recovery against him in action by trustee in bankruptcy of seller must be reduced by an allowance of the pro rata share of the assets of the bankrupt which the creditors paid would have received had they' not been so paid. (Post, pp. 578, 579.)</p> <p>Cases cited and approved: Fecheimer-Keefer Co. v. Burton, 128 Tenn., 682; , Elledge v. Anderson, 133 Tenn., 478.</p> <p>8. BANKRUPTCY. Trustee held not entitled to recover payment as preference.</p> <p>Where stock of goods was sold in violation of Tennessee Bulk Sales Law, part of the purchase price to be paid in cash and part by credit on indebtedness to purchaser, and purchaser gave one check for cash payment and another check for the amount owing to the seller, whfereupon the seller gave the purchaser a check for such latter amount, the exchange of checks being obviously only a device of the bookkeepers by way of carrying out the .contract to credit the seller witlj. the amount of his indebtedness, trustee in bankruptcy of se’ler cannot claim that the giving of the check to the fraudulent vendee was an unlawful preference under the Bankruptcy Act (U. S. Comp. St., sections 9585-9656.) (Post, p. 579, 580.)</p>

<p>1. PLEADING-. In petition for review of assessment, allegation that valuation was “fictitious, illegal, exorbitant, and oppressive” held mere conclusion.</p> <p>Petition for writs of certiorari and supersedeas for review of assessment for paving purposes under Private Acts 1911, chapter 501, alleging that defendant assessed petitioner’s property at $1,866 when in fact it was worth only $600, and that this valuation was “fictitious, illegal, exorbitant, and oppressive,” held insufficient to give the circuit court jurisdiction, under Shannon’s Code sections 4853, 4854, 6063, 6072, in the absence of allegations that defendant exceeded its jurisdiction, or in any manner violated the statute,.or that the defendant, or the improvement commissioners, acted fraudulently, arbitrarily, or in bad faith- in fixing the value on petitioner’s property, since the petition, in absence ejf such allegations, pleaded a mere mistake of judgment, not reviewable on certiorari; the quoted allegation being a mere conclusion. (Post, pp. 595-602.)</p> <p>Acts cited and construed: Priv. Acts 1911; ch. 501.</p> <p>Cases cited and approved: Town of Morristown v. Hamblen County, 136 Tenn., 251; Arnold v. Knoxville, 115 Tenn., 195; Staples v Brown, 113 Tenn., 639; Tonawanda v. Lyon, 181 U. S., 389; Springfield v. Sale, 127 Ill., 359; Montgomery v.,Moore, 140 Ala., 638; Coates v. Nugent, 76 Kan., 556; Ludlow v. Cincinnati So. R. Co., 78 Ky„ 357; Louisville v. Bitzer, 115 Ky., 359; Smith v. Wor-chester, 182 Mass., 232; Railway Co. v. Barber Asphalt’Paving Co,. 197 U. S., 433; Pittsburg, etc., R. Co. v. Taber, 168 Ind., 419.</p> <p>Cases cited and distinguished: Smith v. Carter, 131 Tenn., 7; French v. Barber Asphalt Paving Co., 181 U. S., 324; Tomlinson v. Board of Equalization, 88 Tenn., 1.</p> <p>Codes cited and construed: Secs. 4853-54, 6063-72 (S.).</p> <p>2. MUNICIPAL CORPORATIONS. Special Assessment exercise of sovereignty.</p> <p>The levy of a special assessment is similar to the levy of an ordinary tax,' and is the exercise governmental sovereignty. (Post, pp. 602, 603.) .</p> <p>3. MUNICIPAL CORPORATIONS. Assessments not reviewable for mere error of judgment.</p> <p>Á special assessment cannot be reviewed by the courts where no principle of law is violated in making it, and the complaint is simply of an error of judgment, since the levy of an assessment is not a judicial act or a judicial proceeding which gives the owner the right to have the courts pass on the matter and substitute their judgment for that of the assessment tribunal or body. (Post, pp. 602, 603.)</p> <p>4. TAXATION. Action of assessing board reviewable where statute not complied with.</p> <p>If assessing board or tribunal does not comply with the statute, its action is subject to .review by certiorari. (Post, p. 603.)</p> <p>Case cited and approved: Louisville & N. R. Co. v. Bate, 80 Tenn., 573.</p> <p>5. TAXATION. Levy of tax under illegal act reviewable.</p> <p>C.ertiorari may be invoked to review the levy of a tax under an illegal act. (Post, p. 603.)</p> <p>Case cited and approved: Friedman Bros, et al. v. Mathes, 55 Tenn., 488.</p> <p>6. MUNICIPAL CORPORATION'S. Correction of description of lot assessed for improvement held proper.</p> <p>Where owner of land abutting on street in petition for creation of * improvement district under Private Acts 1911, chapter 501, requested that the" entire lot be included in the district, but the engineer in preparing the plat of the district cut the lot into two parts, and included only one-half thereof in the- district, the correction of the description of the lot after assessments had been made so as to include the whole of the lot, instead of one-half of it, held proper under section 24,' since the change was merely the correction of an error, and was neither a reassessment on or a supplemental assessment of the owner’s property. (Post, p. 604.)</p>

<p>1. MASTER. AND SERVANT. Compensation Act inapplicable to injury to minor in unlawful employment.</p> <p>Tbe Workmen’s Compensation Act cannot be claimed by any employer to be applicable to bar an action to recover for the death of a minor where the minor was killed at a time of the day when his employment was unlawful, and 'the employer did not have on file an employment certificate, in view of Shannon’s Ann. Code, sections 4433a84, 4433a87, and 4433a88, it being immaterial that the minor’s employment would have been lawful during certain hours of the day, if his employer had had on file the required employment certificate, or that, the minor, or his representatives, might elect to ratify his employment, and thereby become entitled to claim benefits under the Workmen’s Compensation Act. (Post, pp. 617-622.)</p> <p>Cases cited and approved: Acklin Stamping Co. v. Kutz, 98 Ohio St., 61; Kruczkowski v. Polonia Pub. Co., 203 Mich., 211; Los-tuter v.-Brown Shoe Co., 203 Ill. App., 517; Messmer v. Industrial Bd., 282 Ill., 562; Taglinette v. Sydney Worsted Co., 42 It. I., 133; Pettee v. Noyse, 133 Miiin., 109; Fulton Co. v. Mass. Bonding & Ins. Co., 138 Tenn., 278.</p> <p>Case cited and distinguished: Manning v. American Clothing Co., 147 Tenn., 274.</p> <p>Codes cited and construed: Secs. 4433a84, 4433a87, 4433a88 (S.); Sec. 1465-61 (Gen.).</p> <p>2. INFANTS. Minor’s contracts are voidable, but contracting party-bound at minor’s election.</p> <p>Usually a minor’s contracts are voidable, though, the party con-tractihg with him'is bound if the minor elects. (Post, pp. 622-624.)</p> <p>Cases cited and approved: Smith v. Evans, 24 Tenn., 70; Wheaton v. East, 13 Tenn., 41.</p> <p>Case cited and distinguished: Biggs v. Reliance Life Ins. Co., 137 Tenn., 598.</p> <p>3. MASTER AND SERVANT. Unlawful employment held proximate cause of minor’s death.</p> <p>Where a minor was employed after seven p. m. to deliver telegrams in violation of Shannon’^. Ann.' Code, sections 4433a81, 4433a87, and while so working after that hour was killed by collision be-</p> <p>^tween an automobile and the bicycle which be was riding-, held, that the unlawful employment was the proximate cause of his death. (Post, pp. 624-627.)</p> <p>Acts cited and construed: Acts 1911, sec. 1, ch. 57; Acts 1913, sec. 1, ch. 47;' Acts 1917, sec. 1, ch. 77.</p> <p>Cases cited and approved: Iron & Wire Co. v. Green, IOS Tenn., 161; Harrison v. Rascoe, 139 Tenn., 511.</p> <p>Case cited and distinguished: Queen v. Dayton Coal & Iron Co., 95 Tenn., 458.</p>

<p>1. MASTER. AND' SERVANT. Failure to name dependent as party in petition for compensation held cured.</p> <p>Failure to name a deceased employee’s dependent sister as a party plaintiff in his father’s petition for compensation under Workmen’s Compensation Act, held cured by amendment of the petition so as to recover for her benefit, and offering proof of her dependency without objection. (Post, pp. 630, 631.)</p> <p>Acts cited and construed: Acts 19Í9, ch. 123.</p> <p>2. MARRIAGE. Doctrine of estoppel applicable though common-law marriages are not recognized.</p> <p>While common-law marriages are not recognized in Tennessee, the doctrine of estoppel applies to the rights of interested parties. (Post, pp. 631, 632.)</p> <p>Cases cited and approved: Smith v. Bank, 115 Tenn., 12; Gamble v. Rucker, 124 Tenn., 415.</p> <p>Case cited and distinguished: Johnson v. Johnson, 41 Tenn., 626.</p> <p>3. MARRIAGE. Marriage may be presumed or established by reputation, especially where question of legality arises incidentally. ■</p> <p>In all cases except prosecutions for bigamy and criminal conversation, a marriage may be presumed qr established by reputation after- a lapse of many years, especially when the question of the legality thereof arises incidentally, in a controversy not between persons claiming under conflicting rights of heirship. (Post, p. 633.)</p> <p>Case cited and approved: Rogers v. Park’s Lessees, 23 Tenn., 480.</p> <p>Case cited and distinguished: Ewell v. State, 14 Tenn., 364.</p> <p>4. MARRIAGE. Employer cannot question existence of valid marriage between decedent’s parents living together as husband and wife for many years.</p> <p>In proceedings under the Workmen’s Compensation Act for compensation to the father of a deceased employee, the employer could not deny the existence of a valid marriage between claimant and deceased’s mother,' where they lived together as man and wife far twenty-five years and reared several children and the mother was treated, and referred to in the record by both parties, as claimant’s wife; such question being purely incidental. (Po.st, p.</p> <p>, 633.)</p> <p>5. MASTER AND SERVANT. Illegitimate child may recover coni-pensation for death.</p> <p>Under Thompson-Shannon Code, section 4166, an illegitimate daiigh-ter'may inherit from a deceased son of her mother, and hence may recover compensation under Workmen’s Compensation Act for his death, if dependent on him. (Post, pp. 633, 634.)</p> <p>Code cited and construed: Sec. 4166 (S.).</p> <p>6. MASTER AND SERVANT. Dependents entitled to % compensation to limit and in proportion fixed by statute.</p> <p>Under Workmen’s Compensation Act, both the dependent father and dependent sister of a ^.deceased employee may recover up to the limit and in the proportion fixed by section 30, subsections 12, 15. (Post, p. 634.)</p> <p>Case cited and approved: Marcum v. Hickle, 144 Tenn., 460. '</p> <p>7. MASTER AND SERVANT. Compensation allowable to dependent father and sister of deceased employee.</p> <p>The father and sister of a.deceased employee, on whose earnings of $23 per week, together with the father’s earnings of $5 per week, all three lived, held entitled under Workmen’s Compensation Act section 30, subsection 15, to $3,56 and $37-8 per week respectively; the maximum and minimum provisions of subsection 16 applying only where the entire benefits allowed all dependents would exceed the maximum or fall below the minimum, (post, pp. 634-636.)</p> <p>Acts cited and construed: Acts 1919, ch. 123, sec. 30, subsec. 12.</p> <p>Case cited and approved: Marcum v. Hickle, 144 Tenn., 460..</p> <p>8. MASTER AND SERVANT. Operation of motor truck in violation of ordinance held not “willful” misconduct within Compensation Act.</p> <p>Operation of a motor truck in violation of city ordinances held not a willful failure to perform a duty required by law, so as to relieve the driver’s employer from liability, ' under Workmen’s Compensation Act, section 10, for compensation for his death. (Post, p. 636.)</p> <p>•Acts cited and construed: Acts 1919, ch. 123, sec. 10.</p> <p>Case cited and approved: Nashville, C. & St. L. Ry. v. Wright, 147 Tenn., 620.</p>

<p>1. NEGLIGENCE. Contractor’s employee licensee.</p> <p>A contractor and his employees working in a building are not mere licensees, but are entitled to protection from negligence in the operation of an elevator therein. {Post, pp. 641-644.)</p> <p>2. Master AND SERVANT. Master must resign full control of servant to escape responsibility.</p> <p>To escape responsibility for a servant’s negligence on the theory that he was loaned to an independent contractor, the master must have resigned full control of him for the time being. {Post, pp. 641-644.)</p> <p>3. MASTER AND SERVANT. Elevator operator held not employee of independent contractor.</p> <p>An elevator boy instructed to run the elevator as directed by an independent contractor’s employee while repairing the signal system held not a lent servant entirely beyond the control of the building owners, so as to absolve them from liability for injuries to the contractor’s employee as a result of the boy’s negligence. {Post, pp. 641-644.</p> <p>Cases cited and approved: Sanford v. Keef, 140 Tenn., 368; Powell v. Construction Co., 88 Tenn., 692; Beatty v. Metropolitan Bldg. Co., 63 Wash., 207; Siegel y. Norton, 209 Ill., 201; Rink v. Lowry, 38 Ind., App., 132; Donovan v. Gay, 97 Mo., 440; Harmer v. Reed Apt., etc., Co., 68 N. J. Law, 332; Pelzel v. Schepp, 83 App. Div., 444; ' Walsh v Riesenberg, 94 App. Div., 466; George A. Fuller Co. v, McCloskey, 35 App. D. C., 595.</p> <p>4. APPEAL AND ERROR. Instructions held harmless in view of proper submission of sole question on which evidence was conflicting.</p> <p>In an action against building owners for injuries to an independent contractor’s employee in consequence of an elevator boy’s negligence in moving the car, where the only conflict in the evidence was as to whether he moved it at plaintiff’s direction, which was ’ fairly left to the jury, who found against defendants, other instructions were not prejudicial to them. (Post, pp.-644, 645.)</p> <p>5. MASTER AND SERVANT. Instruction on owners’ liability for negligence of elevator operator held properly refused.</p> <p>In an action against owners of a building for injuries to an independent contractor’s employee in consequence of elevator boy’s negligence in moving the car without an order, an instruction that, if he thought plaintiff ordered him to do so, plaintiff could not recover, though the boy misunderstood or was mistaken as to plaintiff’s order, was properly refused as ignoring the boy’s care and attention to plaintiff at the time. (Post, p. 645.)</p> <p>6. TRIAL. Correct request for supplemental instruction must be framed.</p> <p>To supplement an instruction correct as far as it goes, a correct request must be framed. (Post, p. 646.)</p>

<p>COURTS. Supreme court without jurisdiction of appeal from circuit court involving commitment of minor.</p> <p>The supreme court is without jurisdiction of an appeal from the circuit court involving the commitment of a minor to the training school for delinquency, such proceedings not being criminal, and not being one of the cases enumerated in Shannon’s Code, section 6321, designating the jurisdiction of the supreme court, and such case will be transferred to the court of civil appeals.</p> <p>Cases cited and approved r Juvenile Court of Shelby County v. State, ex rel., 139 Tenn., 549; Childress v. State, 133 Tenn., 121.</p> <p>Code cited and construed; Sec. 6321 (S.).</p>

<p>1. VENDOR AND PURCHASER: Writ of possession lies against subsequent purchaser not party in suit to foreclose lien if be takes possession pendente lite.</p> <p>In a suit by a vendor against original purchaser to enforce a registered vendor’s lien, a subsequent purchaser is not a necessary party if the object is only to secure a decree against the original purchaser and a sale of such title and interest as he may have, and a writ of possession may properly issue against him and any other parties entering "into possession under him pendente lite. (Post, pp. 652-654.)</p> <p>Cases cited and approved: Mims v. Mims, 20 Tenn., 425; Rowan v. Mercer, 29 Tenn., 359; Fletcher v. Coleman, 39 Tenn., 384; Wilkes v. Smith, 51 Tenn., 86; Cook v. Davis, 2 Cooper, Chy., 496; Planters’ Bk. v. Fgwlker, 36 Te'nn., 461; Thomasson v. White, 65 Tenn.,» 148; Terrell v. Allison, 21 Wall., 289.</p> <p>2. PARTIES. Who should be made parties.</p> <p>Generally all parties having equitable or legal rights in the subject of the litigation should be made parties. (Post, pp. 654, 655.)</p> <p>Cases cited and approved: Clements v. Motley, 120 Ala., 575; Bogan v. Hamilton, 90 Ala., 454; Grodon v. Johnson, 186 Ill., 18-29; Wells v. Francis, 7 Colo., 396; Priddy v. Smith, 44 L. R. A,. 286; Dickinson v. Duckworth, 74 Ark., 138.</p> <p>3. VENDER AND PURCHASER. In suit to foreclose vendor’s lien, subsequent purchaser already in possession must be made defendant in order to be bound.</p> <p>While subsequent purchasers are not always necessary parties to a suit by a vendor to enforce a vendor’s lien, it is always necessary to make them parties defendant, if -they are to be bound by the decree so as to authorize a writ of possession to issue against them where they have gone into possession before commencement of the suit. (Post, p. 635.)</p>

<p>1. STATES. State is entitled to preference upon insolvency of its depositary.</p> <p>The State is entitled to a preferential payment of its deposit, in the event of insolvency of its depositary. (Post, p. .659.)</p> <p>Case cited and distinguished: Fidelity & Guaranty Co. v. Rainey, 120 Tenn., 357. '</p> <p>2. STATES. Identity of State money not lost hy accepting interest.</p> <p>The identity of money raised for school purposes, and which is therefore a governmental purpose, is not lost by a deposit thereof in a bank at four per cent, interest; State officials being required by law to deposit funds in solvent banks, and the profit being but incidental. (Post, p. 660.)</p> <p>3. STATES. State engaging in business for profit has no higher rights than an citizen.</p> <p>Where a State engages in a business enterprise for profit, it has-no higher rights than a citizen. (Post, pp. 660, 661.)</p> <p>Cases cited and approved: Ballentine v. Pulaski, 83 Tenn., 633; Quinn v. Hester, 135 Tenn., 373; Bank of Tennessee v. Dibrell, 35 Tenn., 379; White v. Railroad Co., 54 Tenn., 518..</p> <p>4. SUBROGATION. Surety entitled to subrogation against principal upon payment of indebtedness to creditor.</p> <p>Where a surety, on the insolvency of a bank, satisfied the entire indebtedness ■ of the bank to the State, it was entitled to be subro-gated to the rights of the State with reference to such debt, which right was not affected by being a surety for hire. (Post, pp. 661, 662.)</p> <p>Cases cited and approved: Knaffi v. Bank & Trust Co., 133 Tenn., 655; Fidelity Guaranty Co. v. Bank, 127 Tenn., 720; Cass v. Smith, 146 Tenn., 218.</p> <p>Case cited and distinguished: Bittick v. Wilkins, 54 Tenn., 307.</p> <p>5. STATES. Statute held not to affect right of State to preferential payment of claim against insolvent bank.</p> <p>Acts 1913, chapter 20, regulating the liquidation of insolvent banks and distribution of their assets, does not affect the right of the State to preferential payment of any claim it has against an insolvent bank, in absence of a designation, .expressed or implied, that the statute was intended to apply to the State. (Post, p. 662.)</p> <p>Acts cited and construed: Acts 1913, ch. 20.</p> <p>Cases cited and approved: State Highway Dept. v. Mitchell’s Heirs, 142 Tenn., 58; Railroad v. Mayor & Aldermen of Union City, 137 Tenn., 491; Mayor & Aldermen of Morristown v. Hamblen County, 136 Tenn., 252..</p> <p>6. BANKS AND BANKING. Superintendent of banks held not to acquire title to assets of insolvent bank when winding up its affairs.</p> <p>The superintendent of banks does not acquire title to the assets of an insolvent bank when, acting under Acts 1913, chapter 20, he winds up its affairs, in view of section 10 of the act and others, which do not make him a statutory receiver who takes title to the property of the institution in his hands. (Post, pp. 662-664.)</p> <p>7. BANKS AND BANKING. Resolution of directors turning assets over to State officer held not a formal assignment.</p> <p>A mere resolution of the directors of an insolvent bank acting in pursuance to Acts 1913, chapter 20, in turning over the assets of tlie bank to the superintendent of banks, is not equivalent to a formal assignment and would not transfer title to bank’s assets. (Post, pp. 662-664.)</p> <p>Cases cited and approved: Publishing, Co. v. Car Wheel Co., 95 Tenn,. 669; Hardee v. Wilson, 129 Tenn., 513.</p> <p>Case cited and distinguished: Relfe v. Rundles, 103 U. S., 222.</p>

<p>1. MASTER AND SERVANT. Evidence in compensation case held to warrant finding disease resulted from injury arising out of and in course of employment.</p> <p>Evidence, though conflicting, held to warrant finding that a disease of the kidneys, described as pyelitis, with which employee was found to be afflicted seven weeks after an injury to his back, sustained while performing duties for his employer, was the result of injury arising out of and in the course of his employment, within workmen’s compensation statute. (Post, pp. 669-671..</p> <p>Acts cited and construed: Acts 1919, ch. 123.</p> <p>2. MASTER AND SERVANT. Trial court’s finding on evidence in compensation case conclusive.</p> <p>On appeal from a judgment for compensation under the workmen’s compensation statute, the supreme court must take the view of the evidence most favorable’ to petitioner’s claim, and if there is any material evidence to support a finding of the trial judge, his finding will be treated as conclusive on questions of fact, though the preponderance of the evidence be against the finding. (Post, pp. 671- 672.)</p> <p>Case cited and approved: Milne v. Sanders, 143 Tenn., 603.</p> <p>3. MASTER AND SERVANT. Settlement, not approved by court, held no bar to claim for additional compensation.</p> <p>Where employee’s settlement with insurance company was not approved by the circuit court, as required by Workmen’s Compensation Act, section 27, and by employee’s receipt, the employee was not barred from claiming further compensation, and the court did not lose its jurisdiction, where suit was instituted within one year after employer’s default as required by Workmen’s Compensation Act, section 31, subsec. 3. (Post, pp. 672, 673.)</p> <p>4. CONSTITUTIONAL LAW. Employer, electing to operate under workmen’s compensation statute, may not challenge its validity.</p> <p>The workmen’s compensation statute is elective, and employer who elected to operate under it and to accept its terms could not challenge the validity oí any of its provisions, as being violative of Constitution, article 1, sections 8, 21, prohibiting the deprivation of rights and of property without due process and without just compensation. (Post, pp. 673-675.)</p> <p>Cases cited and distinguished: H. G. Goelitz Co. v. Industrial Board, 27.8 III., 164; Wabash R. Co. v. Industrial Commission, 286 Ill., 194.</p> <p>Constitution cited and construed: Sec. 8, art. 1, sec. 21, art. 1.-</p> <p>5. MASTER AND SERVANT. Employer held to have waived written notice of injury to compensation claimant.</p> <p>Where an employee, who sustained an injury, in less than two weeks orally reported it to employer’s foreman, who made out a report, after which employee was sent to the employer’s physician and was treated by him for the injury, and three months later the employer made a settlement with employee, taking a receipt acquitting it in full of further liability, the employer waived the written notice required by Workmen’s Compensation Act, section 22. (Post, p. 675.)</p> <p>Cases cited and approved: Davies v. Point of Ayr Collieries, 2 B. W. C. C. (Eng.), 157; Turnbull v. Vickers, 7 B. W. C. C. (Eng.) 396; Ralph v. Mitchell, 6 B. W. C. C. (Eng.), 678.</p>

<p>1. APPEAL AND ERROR. Scope of review t>y appeal stated.</p> <p>Tlie supreme court can only review matters which the record shows have been considered and adjudged by the trial court, which consist of errors appearing on the face of the record proper, and also errors committed by the trial court in acting) upon' motions for new trial. {Post, pp. 678, 679.)</p> <p>Acts cited and construed: Acts 1919, ch. 3, secs. 3, 4.</p> <p>Case cited and approved: Railroad v. Johnson, 114 Tenn., 639.</p> <p>2. TAXATION. Judgment holding assessment illegal not reviewable in absence of motion for a new trial.</p> <p>Judgment in certiorari by a railway to review the legality of its assessment, holding assessment illegal, being a conclusion of the trial court, .which was a deduction from facts embodied in the record of the evidence and proceedings of the board of equalization, held not reviewable, in the absence of a motion for a new trial. {Post, pp. 679, 681.)</p> <p>Cases cited and approved: Railroad v. Johnson, 114 Term., 640; Railroad v. Egerton, 98 Tenn., 541; Road Commissioner v. Railroad, 123 Tenn., 257; Rogers v. Colville, 145 Tenn., 650; N. C. & St. L. R. R. v. Smith, 147 Tenn., 455.</p> <p>Cases cited and distinguished: - Railroad Co. v. Foster, 112 Tenn., 345; Insurance Co. v. Witherspoon, 127 Tenn., 366.</p> <p>3. APPEAL AND ERROR. When motion for a new trial necessary-stated. 1</p> <p>.Where the conclusion of a court of law is the result of a consideration of facts and an application of the law thereto, a motion for a new trial is necessary to authorize a review, whether the facts are presented to the trial court upon agreed facts, facts* disclosed in documents exhibited with the pleadings, or facts presented to the courts as exhibits to or made part of the return to a writ. (Post, p. 681.)</p> <p>4. APPEAL AND ERROR. Failure to make motion for a new trial in lower court not ground of motion to dismiss appeal.</p> <p>Failure to make motion for a new trial in the lower court is not of itself ground of motion to dismiss an appeal, since the cause may be reviewed for error apparent upon the face of the record. (Post, p. 681.)</p>

<p>1. NAMES. Variant orthography does not avoid indictment when substantially same sound is preserved.</p> <p>Variant orthography as respects nam.e of person charged 'with an offense does not avoid an indictment when substantially the same sound is preserved. {Post, p. 684.)</p> <p>2. NAMES. Gooden and Goodwin held idem sonans.</p> <p>The names Gooden and Goodwin held idem sonans, and a plea of misnomer was properly overruled when accused’s name was spelled in the indictment as Goodwin instead of Gooden. {Post, p. 684.)</p> <p>Cases cited and approved: Robertson v. Winchester, 85 Tenn., 171; Truslow v. State, 95 Tenn., 189.</p> <p>3. CRIMINAL LAW. Judgment will not be set aside for clerical mistake.</p> <p>When a party has had a hearing) and 'a day in court, the effect of the judgment or decree rendered will not be defeated by reason of a clerical mistake. {Post, p. 684.)</p> <p>Case cited and distinguished! Nelson v. Trigg, 3 Shannon Cases, 742.</p> <p>4. ARREST. Arrest without warrant for public drunkenness held, proper.</p> <p>Public drunkenness being a public offense, an officer may without warrant arrest one who is drunk in public, in view of Shannon’s Code, section 6997. (Post, pp. 6S5, 686.)</p> <p>5. ARREST. One causing belief he is drunk subjects himself to arrest without a warrant; arrest is lawful, and riight to search person follows.</p> <p>One who so conducts himself in public as to justify the impression that he is drunk, whether he does so purposely or otherwise, subpects himself to arrest even though he is in fact sober, and the arrest is lawful, and the right to search the person follows. (Post, pp. 685, 686.)</p> <p>Cases cited and approved: Wilson v. State, 79 Tenn., 314; Terry v. Burford,' 131 Tenn., 464.</p> <p>Code cited and construed: Sec. 6997 (S.).</p> <p>6. CRIMINAL LAW. Cross-examining accused as to matters not testified to on direct, 'and thus obtaining confirmation of guilt, held not reversible error.</p> <p>In prosecution for unlawfully carrying a pistol alleged to have been found on person after an officer arrested accused without warrant for being drunk in public, where accused took the stand only to show that his arrest and subsequent search was illegal, and testified he was not drunk, permitting prosecutio'h to cross-examine him, and thus to obtain from him a confirmation of his guilt, held not reversible error, where the case had been conclusively established by the State subject to rebuttal proof, and if the testimony on cross-examination had been wholly excluded the conviction for having carried the pistol would have followed; accused not having) denied the carrying of the pistol, and the fact of actual drunkenness not being the material issue. (Post, pp. 686, 687.)</p> <p>7. CRIMINAL LAW. Timely objection to evidence should be made when it is offered to expedite trial of main issue.</p> <p>An objection to evidence on the ground that it . is incompetent because the result of an unlawful search ■ should be made at the time the evidence is offered, and disposed of by the trial judge in his discretion upon presentation before him, apart from the jury, of all pertinent facts, so that the trial of the main issue r may be proceeded with unconfused by issues relating only to the admissibility of evidence. (Post, p. 687.)</p> <p>Case cited and approved: Dickason v. State, 139 Tenn., 606.</p>

<p>1. MUNICIPAL CORPORATIONS. Reasonableness of an ordinance involves indefiniteness.</p> <p>As respects validity of an ordinance the question of uncertainty or indefiniteness is involved in the rule of reasonableness. (Post, pp. 690, 691.)</p> <p>'2. MUNICIPAL CORPORATIONS. Court should adopt valid construction of ordinance.</p> <p>Where an ordinance is susceptible 'of two construction, the court should adopt the one, which will render it valid. (Post, p. 691.)</p> <p>Case cite'd and approved: Carroll Blake Cons. Co. v. Boyle, 140 Tenn., 181.</p> <p>3. MUNICIPAL CORPORATIONS. Municipality may regulate keeping of calves.</p> <p>A municipality has the power to enact an ordinance regulating keeping of calves within the corporate limits under the general governing authprity of a community to preserve the health and comfort of- its inhabitants. (Post, pp. C91, 692.)</p> <p>Case cited and distinguished: Maxwell v. -.Corporation of Jones-boro, 58 Tenn., 257.</p> <p>4. MUNICIPAL CORPORATIONS. Execution of ordinance should not be left to caprice.</p> <p>Ordinances should be certain in their application and operation, and their execution not left to the caprice of those whose duty it is to enforce them. (Post, pp. 692, 697.)-</p> <p>Cases .cited' and approved: Jones v. Nashvj.lle, 109 Tenn., 558; Standard' Oil Case, 221 XI. S., 1; Tobacco Trust Case, 221 XJ. S., 107; State v. Goldstone, 144 Minn., 405; Schultz v. State, 89 Neb., 34; State v. Smith, 29 R. I., 245.</p> <p>Case cited and distinguished: State v. Schaeffer, 96 Ohio St., 215.</p> <p>Code cited and construed: Secs. 2857, 6776 (S.).</p> <p>5. MUNICIPAL CORPORATIONS. Ordinance must be definite.</p> <p>An ordinance must be certain and definite, so that the average man, with due care, after reading the same, will understand whether he will incur a penalty for his actions or not. (Post, pp. 697, 698.)</p> <p>6. MUNICIPAL CORPORATIONS. Ordinance regulating the keeping of calves held' valid.</p> <p>An ordinance making) it unlawful. to keep calves within the corporate limits of a town overnight for the purpose óf sale or shipment in such a manner ■ as to disturb the residents by their noises held valid as sufficiently, certain. (Post, p. 698.)</p>

<p>1. TAXATION. Property of hospital held not exempt as belonging to “Charitable, scientific, or educational institution.” .</p> <p>Where hospital with research laboratory and X-ray outfit was erected and maintained by certain physicians as a place to treat their' patients and to perform their operations and to conduct a school for training nurses,' and the big majority of patients were charged very substantial prices for their accommodation, the property held not exempt from taxation under Constitution, article 2, section 28, and Arts 1907, chapter 602, exempting properly belonging to “charitable, scientific, or educational institutions. (Post, pp. 703, 704.)</p> <p>Acts cited and construed: Acts 1907, ch. 602; Acts 1919, ch. 3S8.</p> <p>Cases cited and approved: Cumberland Lodge v. Nashville, 127 Tenn., 248; Ward Seminary v. Mayor and City Council, 129 Tenn., 412; Chamber 'of Commerce v. City of Memphis, 144 Tenn., 291; Nashville Labor Temple v. City of Nashville, 146 Tenn., 429.</p> <p>Constitution cited and construed: Sec. 28, Art. 2.</p> <p>2. STATUTES. Provision for collection of taxes held, embraced within title of amendatory act.</p> <p>Private Acts 1919, chapter 358, the title of which states it is an act to amend an act (Acts 1907, chapter 207) incorporating the city of Knoxville, etc., held valid as against ‘ contention that provision in body of act for collection of taxes was not covered by the title. (Post, p. 705.)</p> <p>Acts cited and construed: Acts 1907, ch. 207; Acts 1919, ch. 358.</p> <p>3. TAXATION. Statute providing for assessment of all .property except that of public utility corporations by tax assessor held not arbitrary or lacking in uniformity.</p> <p>Private Acts 1919, chapter 358, providing for the assessment by the tax assessor of all property except that of public utility cor-, porations, held not unconstitutional as preventing uniformity and equality, and making) arbitrary distinction. (Post, pp. 705-707.)</p> <p>Case cited and approved: Franklin County v. Railroad, SO Tenn.,' ■ 521.</p> <p>Case cited and distinguished: City of Chattanooga v. Railroad Co., 75 Tenn., 561.</p> <p>Constitution cited and construed: Sec. 28, art. 2.</p> <p>4. MUNICIPAL CORPORATION'S. City tax assessor required to make assessment in accordance with principles established in regard toi state taxation.</p> <p>Private Acts 1919, chapter 358, providing for assessment by^ city tax assessor of property other than that of public utility corporations, does not permit assessment of property at other than its • actual cash value in accordance with the General Assessment Act, Acts 1907, chapter 602, and acts 1919, chapter 3, regulating the assessment of public utility corporations, in view of constitution, article section 29,. providing that municipal assessments shall be made “upon the principles established in regard to state taxation.” (Post, p. 707.)</p> <p>Acts cited and construed: Acts 1907, ch. 602; Acts 1919, ch. 3.</p> <p>5. TAXATION. Statute fixing different assessment date for assessment by city tax assessor held valid.</p> <p>Private Acts 1919, chapter 358, providing for the assessment of property other than that owned by public utility corporations by city tax assessor, held not void by reason of provision fixing a different.time of the year as assessment daté. (Post, p. 708.)</p> <p>Case cited and approved: Reeves v. City of Nashville, decided Dec. 22, "1923 (not for publication).</p>