Volume 56 — Tennessee Reports

<p>Statement. In 1867, Berry H. Brown, a citizen of Nashville, walking on Market Street, stepped into a pile of sand left upon the sidewalk by some contractors of the city engaged in laying a pavement. In the effort to recover his equilibrium his hip bone was broken in the joint. It was at night and dark; and there was no signal light or guard to warn him of danger. The pile of sand was from one to three feet high. Brown was 67 years of age, and was, by the injury, lamed and compelled to use crutches. Before the accident he was a stout, able-bodied man, a carpenter by trade, and dependent upon his labor for the support of himself and family. Brown sued the City and obtained a verdict for $9,500. A new ti'ial was refused on condition the plaintiff would remit $2,250, which was done, and the defendant appealed.</p> <p>The chief error assigned is upon the following portion of the charge: “ It is the duty of the Corporation to use care and vigilance in the selection of agents, servants, and contractors, in making improvements; to retain the requisite degree of control and superintendence over them in the performance of their duty; and to enforce such measures of vigilance and care as will guard against exposure to injuries of any kind.” Held • This was not error.</p> <p>1. Municipal Cobpobation. Street. Easement. Trust. A Municipal Corporation, for the government of a City or Town, is the proprietor of its streets, which it holds as easements, in trust, for the benefit of the Corporation. To this trust attaches the duty of exercising care and vigilance in the selection of agents, servants, and contractors, for its due execution.</p> <p>Case cited: Humes v. Mayor ete. of Knoxville, 1 Hum., 403.</p> <p>2. Same. Agent. Servant. Contractor. Such a Corporation can not divest itself of its duty, as trustee, to superintend and control all improvements and repairs made by its agents, servants, and contractors.</p> <p>Case cited: Mayor ete. of Memphis v. Lasser, 9 Hum., 757.</p> <p>8. Same. Respondeat Superior. A contractor is a quasi agent or servant; and if, by his negligence or wrongful act, an injury is caused, the rule respondeat superior applies, and the Corporation is liable.</p> <p>Cited: American Law Register, 1864.</p> <p>Case criticised: Painter v. City of Pittsbwg, 46 Penn., 213.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the judgment of the Circuit Court, January Term, 1871. Nathaniel Baxter, J.</p>

<p>Statement. Annie Connor, an infant 18 months of age, was run over and killed by a train of cars on the defendant’s Road. The mother sued and obtained a judgment for $3,000, from which the Company appealed.</p> <p>1. Ineant, Right oe Action eoe. Killing. Under Section 2291 of the Code, a personal representative can maintain an action against a wrong-doer for killing an infant.</p> <p>Case cited: Bream v. Brown, 5 Col., 168.</p> <p>2. Evidence. Onus Probandi. Section 1169 expressly puts the burden upon the defendant to prove that it has 'complied with the requirements of Section 1166 et seq.: — and, to do this, it must of necessity show, that it had ail the requisite means to be thus employed.</p> <p>3. Same. Section 1169 affirms the Common Law principle, viz: the killing being proved, the onus is upon the defendant to show that it was guilty of no negligence and that the accident was unavoidable.</p> <p>Case cited: Home v. M. & N. B. B. Co., 1 Col., 72.</p> <p>4. Same. Machinery. Equipments. The burden is also upon the defendant to show, that its Road, machinery, and equipments were in good order and conformed to the present state of the Art.</p> <p>5. CHARGE. Employé. Duty. The Circuit Judge told the jury that, “ It is the duty of all engaged in running the train, in whatever department employed, to give the entire energies of their bodies and minds to bring into requisition all of the means at their command: to stop the train and prevent the accident.” Held: This language is not stronger than the letter of the Statute, and is correct.</p> <p>6. PASSENGER. Danger. Employé. ’ Inability A slight increase of’ danger to passengers is no excuse for not following the positive mandates of the Statute. Nor will employés be heard to excuse themselves from obeying its positive requirements by a mere expression of opinion that to do'so would endanger the passengers. The nature- and extent of the danger must be clearly shown.</p> <p>7. Practice. Appeal. ■ Error. The judgment of the inferior Court is prima fade correct,and it devolves upon the appellant to show, affirmatively, the errors. If the evidence conflict, and the verdict is al-. lowed by the Circuit Judge to stand, this Court will not disturb it.</p> <p>8. Statutory Precautions. Unless the defendant show that all the-Statutory precautions were observed, it is liable, though the jury be of opinion that the accident would have occurred had they been observed.</p> <p>Arguendo — Per Justice McFarland. The Statute is stringent; but in proportion to the danger from unrestrained power in the hands of these great• and powerful Corporations, must be the degree of diligence to which they are ■ held in the protection and preservation of human life, though it result in hard verdicts against them.</p> <p>Code construed: Sections 1166 — 1169 inclusive, and 2291.</p>

<p>Statement. George Sweeny, a fireman in the employ of the Nashville & Decatur Railroad Company, was killed by the explosion of a boiler, which was alleged to have resulted from negligence, and defective machinery. The administrator sued the Company, and obtained a verdict for $9,000. A remittitur of $4,500 was entered; thereupon judgment was rendered for $5,000, and the defendant appealed.</p> <p>1. CHARGE. Error. H a charge on a given point be correct as far as it goes, yet not a full statement of the law on the point, it is not error, if there be no request far additional instruction.</p> <p>2. Fellow Servant. Respondeat Superim-. Subordinates under the control of a superior, are entitled to hold him as representing the master,, and the master as responsible for his incompetency, or misconduct.</p> <p>See L. & N. JR. B. v. Bowler, Post, 866; Erwin v. Davenport, Post, 44.</p> <p>3. Negligence. When an employé of a Railroad Company, in the discharge of his duty, is injured by reason of the negligence of a co-employé of the same Company, engaged in a separate department, having no. immediate connection with that in which the injured party is engaged, the Company is liable.</p> <p>Case cited and re-affirmed: N. & G. B, B. Co. v. Canoll, 6 Heis., 347.</p> <p>4. Railroad. Passenger. Employé. Machinei'y. The legal obligation imposed on Railroad Companies by their contracts with passengers and employes is, that their machinery is suitable, suificient, and as safe as care and skill can make it; and, that they will be responsible for injuries resulting from defects therein, which might have been detected by their agents upon a careful and skillful application of the proper and approved tests.</p> <p>Case reviewed and qualified: N. & C. B. B.-Co. v. Elliott, 1 Col., 611. *</p> <p>5. Same. Manufacturer. The Company does not insure passengers and employés against the negligence of the manufacturer.</p> <p>Case criticised: liegeman v. W. B. B. Co., 16 Barb., 353.</p>

<p>Statement. Thomas B. Culver, an employé, was thrown from, run over, and killed by a train of cars on the Winchester & Alabama Railroad. The administrator sued the receiver, appointed under Section 1101 of the Code, for $10,000 damages. The declaration averred that the injury occurred by reason of negligence, inattention, and want of caution, on the part of the defendant and its employés. This was demurred to, because it showed no cause of action against the defendant, and the demurrer sustained^ with leave to file a new declaration. The second declaration contained the same averment with the additional charge that the injury resulted from material defects, in the machinery and equipments of the train, which were known to the defendant. To this a similar demurrer, assigning as an additional cause that the defendant was controlled by the Governor and could not act without orders, was sustained and the suit dismissed; from this judgment the plaintiff appealed.</p> <p>I. Receiver oe Railroad Company. Public Agent. A receiver, appointed under Section 1101 of the Code, is vested with the powers and duties of the board of directors in managing the affairs of the company, and is a public agent of the State.</p> <p>2. Agency. State. Agent. The State'does not guarantee the fidelity of its agents; and, hr-laches cannot be imputed to it, it is not responsible lor their misfeasance or non-feasance in office.</p> <p>"3. Agents, Public and Si-bordinate. With some qualifications, public agents are not responsible for the misfeasance or nonfeasance of sub-agents properly employed by them in the discharge of official duty.</p> <p>•4. Same. Liability. Where the public or subordinate agents of the State, in the discharge of their official functions, are guilty of positive wrong to third persons, they are liable to the same extent as private agents. They are responsible for misfeasance, but not for nonfeasance, in office.</p> <p>5. Pbactioe. Declaration. Demurrer. The first declaration having charged only a nonfeasance on the part of the defendant, who was the agent of State in managing the Road, and could not be responsible for mere negligence, was insufficient, and the demurrer was properly sustained. The second charged a misfeasance, and was sufficient. In such case the agent is personally responsible, whether he did the wrong intentionally or ignorantly, as the principal could not confer authority on him to commit a tort upon the person or property of another. Such an averment would have been sufficient to hold the Company for the injury. The second declaration, therefore, states a good cause of action, and the demurrer was erroneously sustained.</p> <p>Cases cited: N. <6 C. RR. Co. v. Elliott, 1 Col., 611; N. & D. RR Co. v. Janes, ante., 27.</p> <p>Code construed: Section 1101.</p>

<p>FROM FRANKLIN.</p> <p>Appeal in Court, March error from the judgment of the Circuit Term, 1870. J. W. Phillips, J.</p>

<p>Statement. The Nashville & Chattanooga Bailroad Company, on different days in February and March, 1867, at Nashville, received from Lamont & Co. certain goods consigned to points south of Chattanooga. The goods were started from two to ten days after receipt, and arrived at Chattanooga from the 4th to the 6th of March, where about the 8th of March, they were lost by an unprecedented rise in the Tennessee river. Lamont & Co. sued the Boad, alleging that the loss occurred by reason of its negligence. The defence was that the loss was occasioned by the “Act of God,” and without fault or negligence on the part of the defendant.</p> <p>1. Common Carrier. Delay in forwarding. Inevitable Accident. The mere failure of a common carrier to forward goods promptly will not render him liable for a loss occasioned proximately by the “Act of God,” if guilty of no wrongful detention of them at the place of shipment ; or of no negligence, or want of care and diligence, in securing them from loss in transitu.</p> <p>2. Same. Same. Liability. It is the carrier’s duty to forward freight without delay and as speedily as practicable; and, if it be unnecessarily and negligently detained by him, he is liable for the loss.</p> <p>3. Same. Accident. Vis Major. In case of emergency, or when property confided to his care is placed in jeopardy by some vis major, the carrier is bound to use actively and energetically all the means at his command, and that he might, reasonably, be expected to possess, to meet the emergency and save the property.</p> <p>Case cited: N. & G. II. R. v. L. David, 6 Heis., 261.</p> <p>4. Same. Approaching danger. Gharge. The carrier is hound to take notice of the signs of approaching danger, and if of a character to awaken apprehension at a time when the facilities and means of escape are within his control, he is hound to employ such means. It was error, therefore, to charge the jury that, in calculating the extent of the danger and means requisite to meet it, the carrier could act upon the experience, history, and tradition of the past.</p> <p>5. Same. Practice. It is for the jury to determine whether the carrier had such premonitions of approaching danger as to awaken the apprehensions of men of prudence; or whether in view of the means of escape he used actively and energetically all the means at his command to meet the emergency and save the property. If he did, and failed, he is not liable; otherwise he is.</p>

<p>Statement. McWhirter was a partner of H. & B. Douglas & Co. of Nashville for a term of three years ending December 1, 1852. Near the -close of the term he received a proposition from Gossett, Howard & Hill, of Memphis, which he was about to accept; when, to induce him to remain, Douglas made the following offer :</p> <p>“ Nashville, November 27,1852.</p> <p>“Mr. And. J. McWhirter: — I will pay you the estimated discrepancy between what the business of H. & B. Douglas & Co. promises for the next three years, as compared with an offer made by another party for the same time, which we now presume to be from $1 to $3,000, so soon as a correct amount can be arrived at. Hush Dou&las.”</p> <p>McWhirter abandoned the Memphis project, accepted the above, and renewed the partnership for three years. At the expiration of this term, to-wit: December 1,1855, he claimed that, under the contract, Douglas owed him $11,400, and upon his refusal to pay, commenced this suit. In May 1859 he obtained a judgment for $4,262, from which Douglas appealed. At the December Term 1860 the judgment was reversed and the case remanded. It was again tried in March 1868 when the jury having no evidence upon which to found a verdict adopted the suggestion of this ■court, and gave the plaintiff $1,500 with interest, making $2,610; and Douglas again appealed.</p> <p>1. Contbact. Construction. The parties did not intend by the contract to await the results of the business of the two firms: but presumed within certain limits, the difference in the propositions, and left the exact amount to be determined as soon as it could be correctly done.</p> <p>Case cited: Douglas v. McWhirter, 1 Col., 591.</p> <p>2. Evidence. Onus prdbandi. The contract, in presuming the difference in the offers to be from $1 to $3,000, admits an absolute liability only of $1; and to recover more the plaintiff must show a greater difference and the true amount.</p> <p>3. Charge. Error. The Circuit Judge assumed that the terms of Cossett’s offer were communicated to Douglas, and that the contract referred to and was based -upon this offer. Held: this was a fact for the jury, and was error.</p> <p>4. Same. Same. Instructions. The court should have told the jury the legal effect upon the rights and obligations of the parties in the event the offer referred to in the contract was an annual guaranty of the sum of $7,000 ; and not a partnership of an estimated profit of $7,000- or $8,000 per annum, as alleged in the declaration. If the former, it devolved upon the plaintiff to establish the amount due him by showing the difference between the annual sum promised by the business of Douglas and the offer of $7,000, not to exceed $3,000 for the three years. If the latter, then'by showing the difference in the profits of the business of the two firms for the three years.</p> <p>5. Same. The difference in the offers must be ascertained from the estimates made by witnesses, with the terms of the respective offers before them, based upon their knowledge of the past business of the house- or houses, and the characters of the members of the firm or firms, as the case may be, for skill, energy, and success in business.</p> <p>See: State v. Ward & Briggs, Post, 100</p>

<p>1. CONTRACT. Rescission. Upon' a bill for rescission a Court of Equity demands a strong ease to authorize its interposition. It is the policy of the law to uphold contracts fairly and deliberately made without fraud or extraordinary circumstances of hardship. Thus where a vendor is unable to make a perfect title and the bill discloses no other ground of interference, it is in the discretion of the Court to entertain the case or leave the parties to their remedies at Law.</p> <p>Cases cited: J3umbard v. Humbard, 3 Head, 100; Mamey v. Porter, 3 Hum., 347; Qwinther v. Gerding, 3 Head, 197; Trigg v. Read, 5 Hum., 529.'</p> <p>2. Chancery Practice. Title. A Court of Equity will allow a reasonable time to perfect a title; and when valid, in the absence of fraud, will compel the vendee to accept it.</p> <p>Cases cited : Kennedy v. Woolfolk, 3 Hay., 138; Prost v. Brunson, 6 Yer., 36 ; Woods v. North, 6 Hum., 309 ; Blachmore v. Shelby, 8 Hum., 439.</p> <p>3. Aliens. Power to hold and convey lands. At common law an alien has no inheritable blood, but could hold and convey lands by will or deed, burthened with the right of escheat in the sovereign. This principle, as part of our legal system, we have inherited from the mother country; and, with modifications, carried into the Code.</p> <p>Cited: Code, Sec. 2138, et seq.</p> <p>4. Same. Treaty Stipulations. ' Section 1998 of the Code and the treaty of 1853 between the United States and Prance annul the right of escheat in the State, and a' subject of France can hold and convey land as a citizen of Tennessee.</p> <p>Code construed: Section 1998.</p>

<p>1. Peactice. Fees of Counsel. Lien. Counsel are entitled to a lien upon tke fund recovered by tbeir clients for reasonable fees; and this lien attaches to real estate, -when the subject of litigation; but not until it has been sold and the sale confirmed for the client’s benefit.</p> <p>Case cited: Hunt v. MoClanahan, 1 Heis., 508.</p> <p>2. Same. Same. Clients sui juris. Where the client is sm jwris and no definite fee is agreed upon, the Court should merely declare the lien and leave counsel to enforce it by an appropriate proceeding: but, if the fee be fixed by agreement, the Court should enforce it.</p> <p>3. Same. Same. Clients wnder disability. Where the client is under disability and a reference is allowed, the parties assume an opposing attitude ; and, as the counsel cannot represent his client, the latter must have actual notice.</p>

<p>1. Abbitration and Award. State. Citizen. The State may divest itself of its sovereignty and meet its citizens on equal terms in establishing a board of arbitration to settle matters in dispute. In doing so it necessarily waives its exemption from suit, so far as to give the parties all the benefits of the award, or protect them from the consequences of an illegal one. In such cases, the arbitrators are governed by the rules of law applicable to ordinary arbitrations: and, the remedies being mutual, the award may be impeached for any cause which would vitiate one made between individuals.</p> <p>2. Same. Finality. In every submission to arbitration the decision is intended to be final. It is presumed it will be. free from legal objections. But such submissions are made subject to the rules of law applicable to awards procured by improper means, or that contain apparent errors or mistakes of .law or fact.</p> <p>3. Same. Construction. Where a reference is in general terms, to “ examine and determine all questions between the parties,” and there is no enumeration of the matters in dispute, a failure to decide a disputed claim not presented' to the arbitrators will not invalidate the award.</p> <p>4.Same. Same. Mistake. Error.. Where the reference submits “all questions between the parties” to arbitrators “ learned in the law,” they are presumed to decide according to law. When it is clear the arbitrators intend to follow, but misapprehend the law, the award may be impeached for mistake or error of law.</p> <p>Cited: Nance v. Thompson, 1 Sneed, 321; Fain v. Neaderielc, 4 Col., 327.</p> <p>8. Agency. State. Governor. Pardon. Where, within a few weeks the Governor pardoned 350 convicts and the lessees, being suddenly deprived of three-fourths of the labor'they had hired, sought to make the State responsible for damages resulting from this violent abuse of the pardoning power, — held: The Government does not guaranty the-fidelity of its officers; and as the lessees made the contract with reference to prevailing law, they assumed the risk of its proper exercise or abuse.</p> <p>'6. Same. Same. ‘Public Agents.. Where the Directors of the Penitentiary, who were constituted agents by the legislative enactment and empowered to lease it on terms prescribed, injected into the contract stipulations not in the law, but which were alleged to be essential to the proper execution of their authority, — held: The stipulations do not bind the State: if any responsibility attaches, it is to the Directors individually. There is no exception to the rule that a public agent has no authority not actually conferred.</p> <p>7. 'Same. Illegal acts. Ratification. To make valid the illegal acts of public agents, appointed by legislative enactment, the act must be legislative and show unequivocally that the illegal acts were intended to be ratified and adopted.</p> <p>H. Contract. Breach. Damages. Damages for breaches of contracts are such as are incidental ‘to or directly caused by the breach and may reasonably be supposed to have entered into the contemplation of the parties. The contract itself must give the measure of damages.</p> <p>Cited: Hendricks v. Stewart, 1 Tenn., 476; Pettee v. T. M. Go., 1 Sneed, 381; McWhirter v. Douglas, 1 Col. 602; et ante, 69.</p> <p>9. CHANCERY Practice. Arbitrations inter partes. Courts of Equity have jurisdiction to interpose in cases of arbitrations inter partes and correct or set aside awards that contain clear errors or mistakes of law.</p> <p>See: Toof, Phillips & Go. v Oirode, MS., Jackson, 1872.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from tbe judgment of tbe Circuit Court, January Term, 1868. Geo. W. Reeves, J.</p>

<p>1. Buis and Notes. , Payee. Endorser. A party wlio merely endorses a note before it has been endorsed and transferred by the payee, becomes a second endorser, subject only to the liability which the law attaches to that relation.</p> <p>2. Same. ■ Same. Same. The payee of a negotiable note is in legal in-tendment the first endorser, whether he has actually endorsed it or not. Oases cited: 3 Hum., 411; 11 Hum., 355; 4 Sneed, 336.</p> <p>Obiter. 1st. The endorsement of the payee is essential to pass the title to a negotiable note.</p> <p>2d. Written contracts, in the shape of negotiable commercial paper, cannot be varied, altered, or modified by parol testimony, as to the-intention of the parties, in a court of law.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, April Term, 1868. WilliaM M. Smith, Ch.</p>

<p>1.CHANCERY Practice. Sale. Petition. Before the confirmation of a sale, the proper mode to have it set aside is by petition.</p> <p>2. Same. Confirmation. Bill. After the sale is confirmed and the Term is passed, it can only he set aside for fraud, accident, mistake, or other sufficient ground, set out in an original bill.</p> <p>3. Same. Purchaser. Belief. A purchaser at a Chancery sale can not, after confirmation, set up, as a ground of relief against his purchase» facts known to him before it was completed.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, September Term, 1868. G. W. WaldroN, J.</p>

<p>1. Evidence. Notice to produce. A notice to the adverse party, filed with and embodied in a plea, to produce books and papers in his possession, is sufficient. •</p>

<p>1. PRACTICE. Judgment by default. If the defendant is guilty of laehes in making defense, the judgment by default will not be set aside.</p> <p>2. Same. Same. Nune pro tune. Where a judgment by default is noted on the docket of the Judge but not entered by the clerk, it should, at a succeeding term, be entered to supply the omission and perfect the record.</p> <p>3. Same. Same. When he takes a judgment by default, the plaintiff can proceed instanter to have his damages assessed by the jury: if he fail, the case goes over to the next term, takes its place on the docket, and must be tried in its order unless for special reasons.</p> <p>■4. Same. Statute. Construction. See. 2947 of the Code is not imperative, but is so far obligatory that an arbitrary departure from it resulting in the defeat of justice is error.</p> <p>Case cited: Fanning v. Fly, 2 Col., 486.</p> <p>Code construed: Sec. 2947.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, May Term, 1868. Geo. W. Waldron, J.</p>

<p>1. Practice. Writ of error corara nobis. The proper practice is, on the return of the writ, to assign errors on the record; but, if it appear, the-writ was improperly granted and no valid assignment of errors can he based on the facts stated, the petition may be dismissed on motion.</p> <p>2. Same. Same. Appeal. An appeal in the nature of a writ of error does-not vacate, hut only suspends the judgment of the court below, and no errors can be corrected except those committed against the party-prosecuting the writ or appeal.</p> <p>Code construed: Section 3118.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, May Term, 1868. Geo. W. Waldron, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the Muni-pal Court, September Term, 1868. Geo. W. Waldron, J.</p>

<p>PROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, 'October Term. 1867. William M. Smith, Ch.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, September Term, 1868. Geo. W. Waldron, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, September Term, 1868. Geo. W. Wal-DRON, J.</p>

<p>1. COMMERCIAL Law. Sank Check. Drawer. Holder. To render liable tbe drawer of a clieck, certified by tbe bank as “ good,” tbe holder must present it for payment within the business hours of tbe next day after it is received.</p> <p>2. Practice. It is a question for the jury, whether a check, certified as “good” by the bank and taken in payment of a note or draft, is an absolute or only a conditional discharge of the debt.</p> <p>Case cited: Sehoolfield & Hanauerv. Mom, <mte 171.</p> <p>'Obiter. 1st. As between the holder of a check certified “good,” and the bank which certified it, the bank becomes liable as on an acceptance, and if is as binding as its certificates of deposit or notes,of circulation.</p> <p>2. In such case the law of demand and notice has no application; and the bank becomes so far the primary debtor that no delay in presenting, at least not for a year or more, will affect its obligation.</p>

<p>1. Contbacts. Rescission. Inadequacy of pnce. In cases of gross, inadequacy of price and great hardship, Courts of Equity will readily seize upon any incident of surprise, undue advantage, or other inequitable circumstance, to give relief.</p> <p>2. Assignments. Trustee. Duty of. The trustee in an assignment is the agent of the grantor as well as the beneficiary, and must sell the property in a manner to command the best possible price.</p>

<p>1. Practice. Statute. Construction. Where a right is given and a remedy provided by the same statute, the right can he pursued in no other-way. Therefore under Sections 2291-2 of the Code the acúon can be-maintained only in the name of the personal representative.</p> <p>2. Same. Amendments. Statute of Limitations. For some purposes an amendment relates back to the issuance of the original summons: but this doctrine of relation is a mere fiction of law, and can not be-applied so as to effect the rights of others or defeat the defense of the-Statute of Limitations when complete.</p> <p>Cases cited: Girdner v. Stephens, 1 I-Ieis., 280; Crofford v. Cothran, 2: Sneed, 492; Nance v. Thompson, 1 Sneed, 321.</p> <p>3. Same. Same. New parties. When a defendant is in court for a particular cause of action, a new plaintiff can be substituted without the-expense and delay of new process.</p> <p>4. Same. Pleading. Incompetence/ of Court. When a judge, who is incompetent in a cause permits a plea to be filed, and at a subsequent term a judge who is competent submits it to the jury, this makes it valid.</p> <p>Code construed: Section 2291-2.</p>

<p>Rahjsoad Companies. “ Through Tickets.” Baggage. Liability. The Pennsylvania Central Railroad Co. sold and delivered, in New York, “a through ticket” and “a through check” to Furstenheim, and undertook to transport him and his baggage over its own road and others designated, making a continuous line, from that City to Memphis: Furstenheim sued the Memphis & Ohio Co., the last Road along the route, for the loss of his baggage on the first :■ — in the absence of proof that the first Company was the agent of the last, or that there was a contract or arrangement, either expressed or implied, or a custom . from which such contract or arrangement could be inferred, between the several Companies, as to the transportation of passengers and baggage,- — Held: The first Company acted for itself; arid, as no privity was shown between the plaintiff and- the defendant, the latter was not responsible for the loss.</p> <p>See: N. é C. B. It. Co. v. Sprayberry, Post, 852.</p>

<p>EKOM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, May Term, 1869. William M. Smith, Ch.</p>

<p>1. Arbitration. Aivard. Validity of. Where in a submission to arbitration it was “ agreed that the decision of the above referees shall be final and bind the parties without appeal,” — Held: It was essential to the validity of the award that all the referees should unite in it</p> <p>2. Practice. Limitation of actions. Where an action for personal injuries was commenced within a year after the injury was received and the plaintiff took a non-suit, and subsequently instituted a new suit within a year from the dismissal of the first, but more than one year after the injury was received, — Held: Under Sec. 2755 of the Code the Statute of Limitations was no bar to the action.</p> <p>Case cited : Cole v. Mayor and Aldermen of Nashville, 5 Col., 639.</p> <p>5. Evidence. Incompeiency of. Where the statement of a party, not fully identified as. the conductor of the train by which the plaintiff was injured, that “the train was behind time and running at a furious rate,” was admitted, — Held: This was' error.</p> <p>4. Practice . Jury. Verdwt. Where the jury agreed to let three of their number determine the amount of the verdict, — Held: In so doing the remainder surrendered their judgments and wills, and were mere instruments for the registration of the decision of the three and the verdict was void.</p> <p>Cases cited; Crabtree v. The State, 3 Sneed, 302; 1 Hum., Blledge v. Todd, 43; Bennett v. Baker, lb., 399.</p> <p>Code construed: Section 2755.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the First Circuit Court, May Term, 1871. C. W. Heiskell, J.</p>

<p>1. Insurance. JParfeitme. Waiver. If, with knowledge of an act of forfeiture, an insurance company makes and collects assessments on premium notes, the forfeiture of the policy is thereby waived.</p> <p>2. Evidence, Parol. Written agreement. Parol evidence is competent to show that a party was induced to apply for a policy of insurance by fraudulent mis-statements and omissions of the agent; and, by reason of his fraudulent conduct, kept ignorant of its stipulations when delivered and accepted.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court,. October Term, 1869. William M. Smith, Ch.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1870. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1870. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, October Term, 1867. 'William M. Smith, Oh.</p>

<p>PROM SHELBY.</p> <p>Appeal from the decree of the' Chancery Court, October Term, 1868. William M. Smith, Ch.</p>

<p>1. Real Estate. Minot'. Partition. Sale." A minor,-who is tenant in. common, can, by next friend, enforce a partition of land : and, if a division is impracticable, can have it sold for that purpose. The-right can not be denied because of the infancy of "either complainant or defendant.</p> <p>2. Bemautdekmen Not In Esse. This right may be enforced against re-maindermen not in esse, where half the land was given a brother in fee, and the other half a sister during life and at her death to such of-her children as should be living.</p> <p>3. Courts. Jurisdiction. Courts of Law have jurisdiction to partition and. sell land concurrent and co-extensive with Courts of Chancery.</p>

<p>EROM SHELBY.</p> <p>. Appeal from the decree of the 1st Chancery Court October Term, 1871. R. J. Morgan, Ch.</p>

<p>1. PRACTICE. Officer’s return. Construction. In a suit against J. W. Left-wick and wife, the summons to answer was returned — “Executed and delivered copy of bill to J. W. Leftwick, April 1st, 1867.” Held: J. W. Leftwick, only, was summonsed.</p> <p>2. Semble. The decisions, that an officer’s return on a leading process, can not be contradicted, were 'made in proceedings at Law, and hare been adhered to by a majority of the present Bench through deference to precedent and not from conviction of original correctness, — the entire Court concurring that it may be impeached in a proceeding in Chancery.</p> <p>3. Husband and Wipe. Femme coveii. Next friend. When a married woman sues by next friend, he is a proper party to make oath to the ' truth of facts.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from tlie judgment of the 1st Circuit Court, September Term, 1871. C. W. Heiskell, J.</p>

<p>1. PniNcreiA. The power to impose and collect taxes is essential to governmental organization; and is inherent in American governments, , State and Federal, with written constitutions in which powers are created and defined, and duties imposed and distributed among the several departments in their various functions. To discharge the charges incident to the proper exercise of the powers and the performance of the duties prescribed in the Constitution of Tennessee, the power of taxation is assigned to the Legislative Department. In the employment of this power the Legislature must be restrained by the regulations imposed in the Constitution, and it devolves upon the Judiciary to determine whether it has exceeded these limitations. Taxation is a mode of raising revenues for public purposes only, and must he laid according to some rule of apportionment. Equality is of the essence of the power; therefore, a State burden cannot be placed upon any territory less than the entire State, nor a county burden upon territory greater or smaller than the county. If the tax be laid upon one of the municipal sub-divisions of the State alone, the purpose must not only be public, as regards the people of that municipality, but also local. These principles are fundamental, and inhere as conditions in the power to impose every burden which taxation is to provide: — and, only when they are observed, does the Legislature exercise legitimate authority.</p> <p>2. Constitutional Law. Taxation., Power of. The Constitutions of New York, California, and other Northern and Western States, recognize two modes of taxation : — the one for general purposes, the other for local assessments.</p> <p>3. Same. Same. The Constitution of Tennessee does not include the exaction of services from an individual in the power to tax. Nor does it recognize the. principle that taxation maybe apportioned according to the benefit each taxpayer is supposed to receive from the object on which the tax is expended. It expressly regulates taxation on the principle of “ equality ” and “uniformity,” and this excludes the power to tax on any other principle, either for general or local purposes.</p> <p>4. Same. Same. Section 28, Article 2, of the Constitution, provides that all property shall be fared according foils vahe.” This includes the whole subject of taxation for State purposes. Section 29, Article 2, provides that counties and incorporated towns shall tax property according to its value and “ upon the principles established in regard to State taxation.” These Sections prescribe the sole rule by which a tax can be fastened on the State, counties, and incorporated towns; and the spirit of the Constitution imperatively demands that it be observed in all cases falling within the range of burdens for State, County, and Corporation purposes.</p> <p>5. Same. Same. Taxation in the sense of the Constitutional provisions, and in the form therein prescribed, being the only legitimate means of providing revenues for the State, counties, and incorporated towns, no other can be employed: — no change in name can change the essential features of the thing, so as to escape constitutional regulation by a mere play on words, or by giving a different designation.</p> <p>6. Semble. Special Assessments. Apart from the exercise of the taxing power, property cannot be taken to satisfy a special assessment unless under the power of eminent domain, — which, under the Constitution, can only be exercised by making just compensation.</p> <p>7. Public Impbovements. In the case under consideration the assessment for improvements, made upon the basis of the frontage of lots on the streets to be improved, is absolutely void: — being unconstitutional and opposed to fundamental principles in containing neither the elements of “equality” and “uniformity” if assessed under the taxing power;— and, equally void, if in the exercise of the right of eminent domain, no compensation having been provided.</p> <p>8. Same. The improvements were for a legitimate corporation purpose, a-nd should have been performed in the legitimate mode of imposing the burden by a tax, laid as prescribed in the Constitution.</p> <p>9. Cases Reviewed and Restbicted. The decisions in the cases of Mayor and Aldermen of Franklin v. Mayberry, 6 Hum.. 368, and Washington v. Mayor and Aldermen of Nashville, 1 Swan, 177, are to be limited strictly to the precise state of facts on which they are made.</p> <p>Constitution construed : Sections 28 and 29, Article 2.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, April Term, 1869. William M. Smith, Ch.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the Law Court, October Term, 1869. Henry S. Lee, J.</p>

<p>1. Notary. Notice. Inability. It is the official duty of a notary to give notice of protest. The act is that of a public officer under his official oath, and not that of a private agent. A failure to discharge this duty is a breach of his bond.</p> <p>Case cited: Barr v. Marsh, 9 Yer., 255.</p> <p>2. Evidence. Admissions The declarations’ of the principal, made after the act complained of, as to what he had done, are not admissible against his sureties.</p> <p>Case cited: White v. German, National Bank, post,-475.</p> <p>3. Practice in the Supreme Court. If a jury is waived and the cause heard by the Circuit Judge, the Supreme Court will not remand it because of the.admission of illegal testimony: — but, rejecting the illegal testimony, will determine it upon the evidence that remains, and render the verdict he should have rendered.</p> <p>Code construed: Sections 1800-3.</p>

<p>INTERNATIONAL Law. ' Contract made during war. A contract made during the war, between a citizen of Tennessee and a corporation of Connecticut to forbear to sue for twelve months, is valid; and, constitutes a sufficient excuse for not suing within that time.</p>

<p>Statement. McCarger, a cotton speculator, exhibited to the Merchants National Bank of Memphis a letter of credit from Pattérson & Co. of Philadelphia authorizing him' to draw on them for the value of cotton to be purchased by him. On the faith of this letter, the bank agreed to’ advance him money to pay for the cotton McCarger accordingly bought 1,235 bales; and, upon the transfer and delivery of the original bills of lading and the drafts drawn on Patterson & Co., the bank advanced $189,274.75. But, because of the non-performance of conditions expressed in the letter of credit, Patterson & Co. refused to accept the drafts, and the bank was notified by telegram of their protest. Thereupon McCarger left for Philadelphia, and the bank filed a bill attaching the cotton. About the time or before the attachment, and without the knowledge of the bank¡ the drafts were again presented to Patterson & Co. and accepted. Subsequently other parties attached the cotton and sought to avoid the first attachment on the ground that the suit was premature, and that Mc-Carger’s liability depended on the acceptance or non-payment of Patterson & Co. Held:</p> <p>1. Bills oe Exchange. Drawer. Drawee. Payee. Patterson & Co. were under no obligation to accept the drafts. The non-acceptance made McCarger’s liability absolute; and the first attachment was valid.</p> <p>2. Same. ■ Acceptance after protest and suit. The right of action having accrued, it could not be defeated by the subsequent acceptance: the only effect of which was to give the bank the election to proceed against McCarger, or look to Patterson & Co.</p> <p>3. Same. Non-Acceptance. Notice. A formal notice of the non-acceptance was not necessary—mere knowledge on the part of the bank was sufficient to authorize the attachment.</p> <p>4. Attachment. Section 3456 of the Code only intends that an attachment shall not issue for a debt not due when the sole cause laid for the attachment is non-residence.</p> <p>Code construed: Section 3456.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the 1st Chancery Court, April Term, 1870. R. J. Morgan, Ch.</p>

<p>1. PRACTICE. Protest. Notice. When the facts of a notice of protest are all ascertained, and there is no conflict, — the question, whether it is sufficient, is one of law for the Court to determine.</p> <p>Case cited; Whirley v. Whiteman, 1 Head, 610; 2 Hay., 46.</p> <p>2. Notes and Bides. Endorser. Demand. Notice. Excuse. The circumstances, which excuse the demand and the notice necessary to hind an endorser, are such as interpose a moral or physical impossibility to make the demand or give the notice.</p> <p>3. Same. Impossibility. Delay. The excuse of an impossibility, which is not permanent, is only an excuse for delay until it is removed.</p> <p>4. Same. Holder. The circumstances, which excuse the demand, do not relieve the holder from giving the notice to the endorser, if like circumstances do not intervene to prevent that also.</p> <p>■5. Same. Knowledge. Director. Bank. The mere personal knowledge of the endorser will not dispense with the notice: nor will the fact that he is a Director in the Bank.</p> <p>Case cited: Alton v. Bobinson, 2 Hum., 341.</p> <p>6. Lost Instrument. Indemnity, Tender of. If the note be lost, the presentment must be made on a copy, or by a written statement describing it; and, the demand must be accompanied by a tender of indemnity.</p> <p>Case cited: Apperson v. Union Bank, 4 Col., 445.</p> <p>7. Endorser. Maker. It is not incumbent on the endorser, when no application is made to him, to show the holder where the maker can be found.</p> <p>8 Laches. Presumption of Law. Detriment. The law presumes a detriment to the endorser, if the holder has been guilty of laches.</p> <p>9. Presentment. Place of Business. If the note be payable at a particular Bank, and, at maturity, the Bank has no place of business and another occupies its room, it is sufficient to present it for payment at such room.</p> <p>10. Bams. Stockholder. Director. Cashier. Trustee. Duties. The Directors of a Bank are the trustees of the stockholders, and are equally bound with, the Cashier to constant activity and thorough acquaintance with its daily course of affairs and dealings. They must know its debts and its securities; and, in the absence, illness, or negligence of the Cashier, must perfect and collect them,---and perform all the duties devolving upon him.</p> <p>11. Ultra Vires. Corporate Existence. Mights. Franchises. Assets. Though the assets of a Bank be forced out of the State by Military Power, yet its corporate rights and franchises still remain: — these can not be expelled: — nor can the Bank exercise them or transplant its corporate .entity beyond the bounds of the Sovereignty,which created it.</p> <p>12. Comity. Contract. Charter. A Bank may, however, by the comity of States, if not forbidden by its charter, make a contract in another State; but the general franchises, conferred by its charter, can only be exercised within the Government whose creature it is.</p> <p>Case cited: Tcdmadge v. American Coal Co., 3 Head, 337.</p> <p>13. Lsternational Law. - War. Belligerent. Allegiance. Citizenship. During the recent Civil War, a citizen of one Belligerent, by his voluntary presence within the lines of the other, was, for all the rights and purposes of citizenship, completely divested of his former allegiance.</p> <p>' 14. Vis Major. Negligence. Discharge. In the case under consideration, the Bank had a corporate life in this State during the entire period of the War, which was neither in abeyance nor paralyzed as to its lawful rights and franchisesnor was its corporate existence affected by the absence of its assets, or the presence of the Federal Army. The Directors were not affected by the Vis Major, which expelled its assets; — they could have been guilty of no breach of allegiance to the Confederate States in any act they might have done in its behalf; and they will not now be heard to urge any considerations of broken faith with the Confederate Government, as an excuse for the nonperformance of their duties. It was not “ morally or physically impossible ” for them to have made due presentment, and given due notice. The absence of all duress discloses a case of gross and inexcusable negligence in the Bank, which the law will not tolerate to make absolute the contingent contract of an endorser, whom such laches must discharge.</p> <p>Note.—All the propositions embodied in the above synopsis were raised in the record, and elaborately argued by counsel:—though, in two or three instances, they appear as obiter—because the statement of facts is, perhaps, hardly sufficient to authorize them.—-J. C. M.</p>

<p>No®es and Bills. Endorser. Discharge. Liability. To hold an endorser, who has been discharged, liable on his promise to pay, — it must appear that when he made the promise, he was under no mis- • take or misapprehension as to either the law or the facts; — and, that he knew he was fully discharged, by reason of the facts and the law applicable to them.</p> <p>Cases cited: Martin v. Ewing, 2 Hum., 559; 8pm lock v. Union Bank, 4 Hum., 3S6; Ford v. Dallam, 3 Col, 67.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1871. C. W. Heiskell, J.</p>

<p>Statement. The plaintiff, a Branch of the Planters Bank at Nashville, was formally authorized by the pm-ent Bank — on the 4th of September, 1861 — to lend money to the Confederate States for military purposes. In a written application — which appears in the minutes of the official proceedings of the Board of Directors — asserting that he liad contracted with the State for the manufacture of arms, Jones — on the 17th of September, 1861 — asked the Bank for a loan of §5)000 to enable him to execute his contract. The loan was unanimously granted by the Board of Directors. Subsequently, several of the Directors expressed their gratification that he had procured the money for that purpose, and assured him that he could have obtained it for no other. "When sued, he alleged that the money was borrowed for an illegal purpose, and was loaned with the intent to aid the Southern Army. Held:</p> <p>1. Contract, Inhibited. This was a private loan of money to the defendant for his individual profit, and not a loan to the Confederate-States under the authority from the parent Bank.</p> <p>2. Same. Knowledge of intent. Mere knowledge of the purpose for which the money was borrowed will not defeat a recovery: — nor will the private declarations of a minority of the Directors, that it could have been obtained for no other purpose, bind the Bank.</p> <p>Case cited : Pnryear v. McOavoek, post. 461.</p> <p>3. Same. Same. To hold the Bank for such an intent, there must be some corporate act to show it, and it must appear in the record of the official proceedings of the Board of Directors.</p>

<p>Statement. It appears of record that in the Autumn of 1861, Plum-ley, defendant’s Intestate, petitioned the Branch Bank of Tennessee at Sparta to discount his note for $500, — alleging that he had contracted with the Nitre and Mining Bureau at Nashville to make and furnish Saltpetre to “ The Gonfederate States of America.” At that time, the Bank was discounting hut' little: — -but, because of the purpose for which the loan was designed, it was allowed. The money was faithfully appropriated to the design for which it was granted; and, by reason of the loan, Plumley was enabled to make and ship large quantities of Saltpetre to Richmond and other points, which was used by the Confederate Authorities in the manufacture of gunpowder. Suit was instituted on the note, and the defense relied on was, that the money was loaned and borrowed with the intent of aiding the Confederate States in the War then flagrant with the United States.</p> <p>1. GOVERNMENTAL I/AW — The CONFEDERATE STATES OP AMERICA — A Government De Jure. The Government of “ The Confederate Stales of America” was organized and called into real active existence in the most solemn and formal mode; and was an integral, independent Government, complete in its several Departments — was clothed with all the powers and discharged all the functions incident to a Sovereign State. In common with its constituent Members, it had the power, and exercised it, of making laws for its own government and that of its citizens.</p> <p>2. Same. Allegiance — juris el de jure. Obedience to its authority in civil and local matters was not only a necessity, but a duty.</p> <p>Cited: Thorrington v. Smith, 8 Wallace, 12-13; Vattel, 97.</p> <p>3. International Law. Belligerent Eights. Gunpowder. The use of gunpowder is a belligerent right of primal importance: — the right to use carries with it the right to purchase or manufacture, and in the manufacture the right to the means requisite for its achievement.</p> <p>Case cited: Smith v. Brozletm, 1 Heis., 46.</p> <p>4. State. Bight. A State having a right, may employ the means necessary for its perfection and enjoyment, and to this end may engage its citizens, or they may voluntarily contribute to it.</p> <p>-6. Case at Bar. In the present case the contract was freely and voluntarily entered into, and was, therefore, legal and binding.</p> <p>Note.—The opinion above was delivered at Nashville, December Term 1872, and introduced here as conclusive of the numerous cases, still pending in the Courts of. the State, involving the principles it determines. It was recently re-affirmed, without a written opinion in the case of The Union Bank of Tennessee v. Alexander Pattison, at Jackson, September Term, 1876.—J. C. M.</p>

<p>FROM SHELBY</p> <p>Appeal from the decree of the 2d Chancery Court;, Oct., Term, .1871. R. J. Morgan, Ch., sitting by interchange.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, April Term, 1869. Geo. W. Waldron, J.,</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1870. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, May Term, 1869. Geo, W. Waldroh, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of tbe Municipal Court, January Term, 1870. G. P. Foute, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Cirenit Court, January Term, 1872. S. P. Walker, Sp. Ji</p>

<p>■1. Set-Oi'I'. Insolvency. Burden of Proof. Where a defendant, who is sued on a note by the receiver of an insolvent Bank which has failed and filed a bill asking to be wound up, offers, as a set-off, a certificate of deposit given by the Bank, the burden is upon him to show that he received it previous to the filing of the bill by which the assets of • the Bank were impounded for the benefit of all its creditors.</p> <p>"See: Banter v. Gayoso Savings Institution, post., 506.</p> <p>2. Statute. Construction. The Gayoso Savings Institution was only a Bank of deposit, and the Act of 1859-60 for the protection of hill-holders has no application to this case.</p> <p>dited: Act of 1859-60.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of • the Chancery Court, May Term, 1869. William M. Smith, Ch.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit •Court, September Term, 1871. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1871. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Cir--cuit Court, January Term, 1871. C. W. Heiskell, J.</p>

<p>1. CORPORATION, Power oe. A corporation is the creature of the law, and possesses no authority or powers except such as are expressly enumerated in its charter, or as are necessarily implied.</p> <p>Case cited: Cook v. Sumner 8. & M. Co., 1 Sneed, 698.</p> <p>■2. Same. To attain its legitimate aim, a corporation may deal precisely as an individual, who seeks to accomplish the same end.</p> <p>3. Same. Memphis. The Corporation of Memphis had the power to procure a supply of gas by subscribing for stock.in a Gas Company.</p> <p>Case cited: Nichol v. Mayer, etc., of Nashville, 9 Hum., 252.</p> <p>4. Same. Agent. Ratification. If a corporation, or its agent, perform an act or make a promise that is forbidden by its charter, or that is not either expressly or by fair implication authorized thereby, such act or promise is a nullity and can not be made valid by subsequent ratification.</p> <p>•5. Same. Same. Same. But if the corporation have the power either by express grant, or by fair implication, to do the act or make the promise, and it is done or made defectively, then a subsequent ratification will make it valid.</p> <p>3. Eyidenoe, Competency oe. To show that an agent was authorized to accept a proposition, and if not, that the corporation afterward ratified his acceptance, it was competent to prove such circumstances as would enable the jury to determine whether the offer was accepted or ratified.</p>

<p>1. Pleading. Declaration. It is sufficient if the averments in a declaration contain a reasonable certainty of meaning and show a substantial cause of action.</p> <p>Cited: Code, Sec. 2884.</p> <p>2. Aid-Verdict. If a cause of action be defectively stated and the defendant take no exception to the sufficiency by demurrer, but go to trial under the general issue, he can not, after verdict, object. In such case the defects in tire averments will be presumed to have been supplied by the proof.</p> <p>Cases cited : Gayoso Gas Go. v. Williamson, ante. 314; Gannon v. Phillips,. 2 Sneed, 185; 2 Hum., 419; 4 Hum., 3Ó6.</p> <p>3. Corporation. Stock. Subscription. Subscriptions for stock in a corporation must be governed by the terms and conditions of its charter of incorporation.</p> <p>4. Same. Same. Assessment. It is an essential condition in all corporations, where the amount of capital is fixed, that the whole stock be subscribed before a valid assessment can be made.</p> <p>5. Same. Capital. This principle also applies where the charter authorizes the company when organized under a fixed capital to increase it. When so increased, the amount fixed becomes the capital which must be subscribed before legal assessments can be made.</p> <p>6. Same. Directors. When several assessments have been made, the Directors may waive or abandon one that is void and sue for those that are valid.</p> <p>7. Same. Mules. Special Meetings. Although, by the rules of a Corporation, the Directors are to have stated meetings, yet it is a necessary power incident to the faithful discharge of their trust, that they have special or informal meetings when the interest of the Corporation requires it. And it recorded as part of their official action, such meetings are legal and binding.</p> <p>8. Same. Call. Notice. When the President is authorized by the Board to make a “call” for payment on stock subscribed, and he makes a,nd advertises it as President, alone — his action must be regarded as that of the Board.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, January Term, 1872. C. W. Heiskell, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from tbe judgment of the Law-Court, January Term, 1868. R. J.. MORGAN, Sp. J.</p>

<p>EDOM SHELBY;</p> <p>Appeal from the decree of the Chancery Court,. May Term, 1868. William: M. Smith, Ch.</p>

<p>1. Attachment. Judgment. Idem. To perfect a iien created by tbe levy of an attachment, the judgment must contain an order of condemnation, and must be certain and specific,—so describing the property that a venditioni exponas may issue, deriving its direction and authority exclusively from it.</p> <p>2. Same.. Venditioni Exponas. The writ of venditioni exponas is an important link in the purchaser’s chain of title, and the Clerk must look alone to the judgment for authority to issue it.</p> <p>3. Same. IAen. Abandonment. 'When a suit is commenced by attach- ' ment and judgment is taken without an order of condemnation, it is an abandonment of the lien created by the attachment.</p> <p>4. Taxes. State. Lien. The right of the State to collect taxes follows land inherently, and no judgment or attachment can have priority over it.</p> <p>5. Same. Purchaser. Sale. Qaveat Emplor. If taxes are due on land sold by constraint of law, the purchaser takes it thus encumbered, and becomes a debtor to the Sovereign for their payment.</p> <p>'6. Same. Same. Abatement. A purchaser at such sale may look to the owner for taxes due, but can not abate the price agreed to be paid for the benefit of .creditors by unpaid taxes. Nor will the fact that the decree of sale was consented to make any difference.</p> <p>'7..Obiter. It is otherwise if the sale of the Master is made by the parties merely to convert their interest into money or for a like purpose.</p> <p>Note.—The cases of Elizabeth F. Harris v. Valentine Werner, Emmett Mix et als. v. Same, Josiah D. Williams v. Same, Coleman Boyd v. Same, and Hillman Bros. v. Same, were consolidated and tried with the above.</p>

<p>EROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, October Term, 1868. William M. Smith, Ch.</p>

<p>FROM SHELBY.</p> <p>Taken by writ of error from the judgment of the-Circuit Court, May, 1870. George W. Reeyes, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, ‘October Term, 1868. William M. Smith, Ch.</p>

<p>1. Insurance. Agent. Policy. Premium. Waiver. A general agent, in the absence of special instructions, may waive the cash payment and deliver a policy. And the delivery, if unconditional and without fraud, will bind the Company.</p> <p>2. Same. Same. An agent, who — acting under general directions — has charge of a Company’s affairs, and is authorized to deliver policies and receive premiums, — -without instructions limiting his power,— is a general agent: even though his authority be restricted to a single State.</p> <p>3. Same. Same. Delivery. If such agent waive the cash payment and deliver a policy, — unconditionally and without fraud, — the contract can not be avoided by a provision in the application, that the policy shall not be binding until tho cash premium is received by the Company, or its agent, “ during the lifetime of the person therein assured.”</p> <p>4. Same. Payment. Forfeiture. Estoppel. If a policy be delivered, — un conditionally and without fraud, — and acknowledge upon its face the payment of the premium, the Company is estopped from denying the payment as a ground of forfeiture; but may show the fact in order to collect the same, or deduct it from the amount sought to he recovered.</p> <p>5. Same. Husband. Wife. A policy, issued in the name and for the benefit of a wife upon her husband’s life, becomes her separate property, beyond his reach; and, with regard to which, she is a feme sole. In procuring such a policy, the husband is merely his wife’s agent.</p> <p>6. Evtdeitoe. Principal. Agent. Declarations. Declarations of the agent are admissible against his principal only when they are a part of, or accompany and are explanatory of the act.</p> <p>7. Same. In a suit upon a policy obtained on his life by a husband for his 'wife’s benefit, the husband’s declarations, made after its delivery, as to what occurred at the making of the contract, are inadmissible.</p> <p>8. Same. In such ease, the husband’s subsequent statement, that he “ did not consider himself inswred,” is inadmissible; — it being the expression of an opinion as to legal rights, rather than the statement of a fact.</p> <p>D. Same. Proof that the husband agreed to surrender and abandon his wife’s policy is likewise inadmissible, unless it be shown that he had authority to make such an agreement.</p> <p>10. Same. Where it was claimed that the delivery of the policy was conditional, and that its validity depended upon the payment of a note which was taken up with a draft, it was competent to prove the terms upon which the draft was accepted, in order to show whether the payment of the note was waived by its acceptance.</p> <p>11. Charge, notification. It was proper for the Circuit Judge to instruct the jury not only as to what constitutes a ratification, but that certain acts, if proven, would of themselves amount to a ratification.</p> <p>Case cited: Evans v. Buchner, 1 Ileis., 291.</p> <p>12. Insurance. Answers. Warranties. Representations. In determining what constitutes untrue and fraudulent answers in the true and fair meaning of the contract, the question turns upon the distinction between those statements made by the assured in the application or policy which are held to be warranties, and those which are regarded merely as representations.</p> <p>13. Same. The former must be strictly true, whether material or not. As to the latter, the facts or circumstances stated must be material to the risk, or they must appear to have been made with a fraudulent intent.</p> <p>14. Same. Forfeiture. Where the forfeiture of the entire contract, is sought upon questions of this character, the insurers must be required to prove affirmatively that the statements are untrue and fraudulent. The jury must not be left to infer that they are false, because the proof does not, affirmatively, show that they are true.</p>

<p>FROM SHELBY.</p> <p>Taken by writ of error from the judgment of the 2nd Circuit Court, January ■ Term, 1872. IrviNG Halsey, J.</p>

<p>1. Husband and Wife. Postnuptial Settlement. A husband may, if not indebted to an amount sufficient to have the effect of delaying and defeating his creditors, make a voluntary conveyance of property to his rvife.</p> <p>2. Same.- Same. If the husband intended to discharge what he conceived to be a debt due his wife, and supposed himself bound by an agreement with her, — that she was to have to her sole use the acquisitions of her own labor, and that she could enforce the agreement, — the conveyance binds him, and is valid as to subsequent creditors.</p> <p>$. Same. Same. Registration. Notice. After the conveyance is registered, subsequent creditors are conclusively presumed to have had notice, and to have credited the husband, not upon the faith of the property conveyed, but upon the faith of his honesty, or of his ability to pay from other sources.</p> <p>4. Fraud, proof op. While fraud may, as any other fact, be shown by circumstances; the circumstances must be connected and consistent: and not supplied by intendment, or disjoined presumptions of the existence of several essential requisites from an isolated fact.</p> <p>5. Same. Fraud, being criminal in character, requires fuller proof to give preponderance to its existence than other facts of the ordinary transactions of men : the party charging it must show everything, in its proper relation, necessary to its establishment: — not, necessarily, by positive proof, but by facts and circumstances coherent and convincing in their nature.</p> <p>Arguendo. It is positively right, founded in the instinctive conviction of all right-minded men, that the future comfort and support of the wife and minor children shall be provided for: the law favors and encourages it: — and when a settlement, made for such purpose, is attacked for fraud, that fraud must be made to appear by clear and satisfactory evidence.</p>

<p>1. Evidence. Letters. Letters — received in a protracted correspondence, acted upon 'as genuine, and as the foundation of important business transactions — are admissible, as evidence, in a suit growing out of such transactions.</p> <p>2. Contbacts. Consideration. A consideration is necessary to the validity of all contracts and agreements, except bills of exchange and negotiable notes which, in the usual course of trade, have, passed into the hands of third persons.</p> <p>3 Same. The immediate parties to a bill or note, equally with parties to other contracts, are affected by the want of consideration : — it is only against third persons,- — who, for a fair and valuable consideration, have acquired the paper in due course of trade, and without notice of the original defect, — that the want of consideration can not be alleged.</p> <p>4. Bides and Notes. Prindpal. Agent. Endorsement. As between the principal and the agent, the latter in remitting a bill with his endorsement is not obliged, in order to exempt himself from liability, to do so in express terms.</p> <p>5. Same. The endorsement must be construed by the circumstances under which it is made: — and, unless there be something to show that he intended to render himself personally liable or was bound so to do, the agent can not be held.</p> <p>6. Same. A factor, — remitting a bill to bis principal in payment of goods sold on his account and receiving no consideration for guaranteeing it, nor undertaking to do so, — is not personally responsible on, his mere endorsement.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of tbe Chancery Court, ‘October Term, 1868. William M. Smith, Ch.</p>

<p>PROM SHELBY.</p> <p>Taken by writ of error and supersedeas from the decree of the 1st Chancery Court, October Term, 1871. RobeRT J. Moro AN, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, October Term, 1867. William M. Smith, Ch.</p>

<p>1. Chancery Sale. Judgment. Motion. Pe-sale. Where, to enforce a vendor’s Hen, land is sold by decree of a Chancery Court, without the right to redeem, and purchased by the original vendee, who executes his notes with security: when the nbtes mature, judgment maybe taken, by motion, against him and his surety, without notice, and a re-sale ordered.</p> <p>2. Same. In such case, the decree should allow sixty days from its date ■within which to pay the purchase money, before the re-sale is advertised.</p> <p>Cited: Mosby v. Sunt, post, 675.</p>

<p>1. Chancery Practice. Report. Notice. When there is- no contest of the question referred to the Clerk, and no error is alleged or exception filed to the report, notice to the parties interested in the subject matter of reference is unnecessary.</p> <p>2. Chancery Sale. Purchaser. Re-sale. Motion. Notice. If a purchaser of land, at a Chancery sale, pay part of the purchase money and fail to pay the balance when due, the Chancellor may — on motion and imthout notice — render a decree against him, directing the land to be advertised and re-sold for cash and without the right of redemption, if the balance due is not paid within sixty days from the rendition of the decree.</p> <p>■3. Same. Same. A purchaser of property, sold by decree of the Chancery Court, becomes a party to the cause in all that pertains to his purchase and must take notice of all proceedings affecting his rights and duties as such.</p> <p>Cases cited: Munson v. Payne, ante, 672; Beason v. Porterfield, 3 Head, 363.</p> <p>Case overruled: Gordon v. Gheeh, MS., Jackson Term, 1858.</p>

<p>1. Chancery Sale. Title. Confirmation. A sale of land under the decree ■ of a Chancery Court is incomplete, and the purchaser is invested with no title, until the Sale is confirmed.</p> <p>2. Bevivor. The death of the plaintiff or defendant to a suit is an abatement or .suspension of all authority to proceed further until the suit is properly revived. Without such revivor all subsequent proceedings are a nullity.</p> <p>3. Chancery Practice. Belief. No relief can be granted upon any matter, which does not distinctly appear in either the bill or answer. Case cited: Wheatley v. Harvey, 1 Swan, 484.</p>

<p>PROM SHELBY.</p> <p>Taken by writ of error from the decree of the-Chancery Court, October Term, 1868. William M. Smith, Ch.</p>

<p>Tbover — Hight oe Actiost. A person, who has a life estate, or joint interest, in a slave, can maintain the action of trover for his conversion.</p> <p>Case cited: - v. -, MS., Nashville, December Term, 1871.</p>

<p>1. Confederate Tbeasuby Notes. During the War, Confederate Treasury Notes were the general medium of commerce and trade, and possessed all the elements of money as defined by our Courts. They were money, both in a commercial and a legal sense, as much so as Bank notes or any other paper currency.</p> <p>Case cited: Gmtehfidd v. Robbins, 5 Hum., 15.</p> <p>2. Shebiep. Clerk. Sheriffs and Clerks are officers of the Court, and in the exercise of the ordinary functions of their offices are no more the agents of one party to a judgment than another.</p> <p>S. Judgment. Payment. Confederate Money. Bank Notes. When, during the War, payment in current Bank notes or Confederate money was made and received by a Clerk, in good faith, it was a discharge of the judgment.”</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1870. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1871. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the 1st Circuit Court, September Term, 1871. C. W. Heiskell, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, October Term, 1868. William M. Smith, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal from the decree of the Chancery Court, April Term, 1868. William M. Smith, Ch.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the judgment of the Law Court,. February Term, 1869. HeNRY S. Lee, J.</p>

<p>1. Pleading. Issue. Replication. Similiter. A plea directly denying' the averments in the declaration makes an issue without replication or similiter.</p> <p>Case cited: Smith v. Muíanles, 9 Yerg., 20; Code, Sec.-</p> <p>2. Charge. Mr or. A charge which is meagre, but which contains no positive error, can not, in the absence of a demand for further instruc- ■ tions, be assigned for error.*</p> <p>3. Semble. Locus Contractus. Delivery. The place of contract is not the place where the note or bill is made, drawn, or dated: but, the place where it is delivered from drawer to drawee, from promisor to payee, from endorser to endorsee.</p> <p>4. Bills and Notes. Interest — •Uniform, Conventional. Where there is a uniform rate of interest, and a conventional rate, fixed by Statute, a contract in writing to pay a debt, with the simple stipulation that it shall bear the conventional rate from a designated date, carries the conventional rate as well after, as before, maturity.</p> <p>5. Same. Case in Judgment. Alexander, a planter in Mississippi, sold his. crop of cotton raised in that State, to Street, a resident of Memphis, Tennessee, for which Street executed to Dougherty, a citizen of Mississippi, his note dated at Holly Springs and bearing ten per cent, — a rate of interest lawful in Mississippi, but not in Tennessee: Dough-erty endorsed it in blank, — Alexander having required,.as a condition of the trade, the endorsement of Overton, a citizen of Tennessee, — and the note was handed to Montgomery, the agent of Alexander, who, procured the endorsement of Overton at Memphis,-explaining to-him the facts. Montgomery, as Alexander’s agent, then sold the note before due to the plaintiff, Bolton, who was ignorant' of the facts, hut was advised by counsel that the note was valid on its face: Held, 1st. The delivery of the note to Montgomery, the agent of Alexander, was a delivery to Alexander himself. 2d. The contract was lawful, and binding on Overton, who, in undertaking to assigñ it, warranted its existence, legality, and validity, which he is estopped from denying for the purpose of defeating his own liability.</p> <p>Cases cited: Tait v. jSannwn, 2 Yerg., 350; Ramsey v. Clarh, 4 Hum.,. 244.</p>

<p>1. Bills and Notes^ Blanks. Besirictions. Maker. Payee. Surety. A surety, — who signs a negotiable note, leaving the time of payment blank, a.nd delivers it to the maker to raise money upon, but restricts his power to fill the blank, — is liable to the payee, who advances money upon it in good faith and without knowledge of the restrictions, although they áre materially violated.</p> <p>15. Same. Alteration. The execution of the note is not complete until the blank is filled : — and, though the maker, who acts as agent of the surety in filling the blank and delivering the note, violate his instructions, it is not an alteration.</p> <p>3. Same. Payee. Innocent Polder. The payee of a note has the right to claim the benefit of the rule as to innocent holders.</p> <p>4. Same. Interest. If the payee contract for a rate of interest above the legal rate, he is not, thereby, deprived of the protection of the rule.</p> <p>Case cited: Gi-issom v Fite, 1 Head, 332</p>

<p>FROM WEAKLEY.</p> <p>Appeal in error from the judgment of the Circuit Court, February Term, 1872. James D. Porter, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the Municipal Court, September Term, 1869, Gr. P. Eottte, J.</p>

<p>1. Notes and Bides. Statement. To cover the insurance on his boat, Mason, as Captain oí the steamboat, “Southerner,” executed his note to Apperson, who endorsed it in blank and forwarded it to Smith at St. Louis. The note was drawn and endorsed at Memphis, Tenn.; but dated at St. Louis, Mo., and specified no place of payment. At its date and maturity, Mason liad a known and fixed residence near Memphis, and was engaged in trade between Memphis and New Orleans. During this period, Apperson resided and did business in Memphis. The Notary’s certificate shows that, at the maturity of the note, he made diligent, but ineffectual, inquiry for Mason in St. Louis; that he made demand at the most public places and the principal banks; and, payment being refused, the note was protested and notice given the endorser.</p> <p>2. Same. Charge. The Circuit Judge instructed the jury that the note having been dated at St. Louis, this was prima facie evidence of the maker’s residence; and that it was the place of payment contemplated by the parties: that demand there was sufficient unless it was shown that the holder knew the maker’s residence to be elsewhere: and that unless the defendant proved that the note came into the plaintiff’s possession a sufficient time before its maturity to enable him to make inquiry as to the maker’s residence, the duty would not be imposed upon him. Held: This was error.</p>

<p>1. Constitutional Law. Election. Statute. Qonsiructicm. The Act of 1869, eb. 28, to reorganize the Courts of Shelby county, was excepted from the general operation of the Constitution by Sec. 1 of the Schedule ; and the election held under it was legal.</p> <p>2'. Same. Section 5 Art. 7 of the Constitution has exclusive reference to the time fyom which the terms of the officers elected in August, 1870, are to be computed.</p> <p>3. Same. The Judges elected under the Act of 1869, eh. 28, hold office for thé term fixed by the Constitution, commencing from the date of their election in May, 1870, and continuing eight years from the first of September, 1870.</p> <p>Constitution construed: Sec. 1, Art. 11; Sec. 5, Art. 7; Sec. 1 Schedule</p> <p>Statute construed: Act 1869, cli. 28.</p> <p>Case cited and approved: Wetmore v. Brien, 3 Head, 723.</p>

<p>1. Notes and Bills. Who may maintain suit on. Any one in possession of a note or bill, payable to bearer or endorsed in blank, though he hold merely as trustee or pledgee, is, prima fade, the holder, and may sue until his right is disproved.</p> <p>2. Same. Title. Defense. It is no defense to an action on such paper that the real title is in another person and not in the plaintiff.</p> <p>B. Same. Exception. ' It is an exception to the above rule, that if the possession of the plaintiff is mala fides and may ivork some prejudice to the defendant, the holder’s title may be questioned. But, to render this exception available, both grounds must concur.</p> <p>'4. Same. Evidence. Mala Fides. Evidence, that the payee had filed his petition in bankruptcy and had not included the notes in suit among his assets, but had assigned them to the plaintiff to collect for his benefit and to enable him to evade the operation of the bankrupt law and defraud his creditors, was irrelevant, as the defendant was not prejudiced thereby.</p>

<p>FROM SHELBY.</p> <p>Writ of error and supersedeas from the judgment . of the 1st Circuit Court, September Term, 1870. C. W. Heiseell, J.</p>

<p>1. Descent and Distribution. Advancements. Section 2431 of the Code is a mere announcement of a rule of law of effective existence without the Statute; and, was intended by the Legislature to apply to the estate owned by the deceased at the moment of his death, without regard to advancements. It was not intended to enlarge or restrict the rule on that subject.</p> <p>2. Same. Gollation. Sec. 2432 must be interpreted with reference to the meaning of the term, “ advancements,” and construed as if it read: “A gift from a parent to a child, by anticipation, in whole or in part, of what it is supposed the child will be entitled to at the death of the parent, shall be collated and brought into contribution in the partition and distribution of the real amd personal estate, etc.”</p> <p>Case cited: Oawthon v. Coppedge,, 1 Swan, 487.</p> <p>' 3. Partition. Gift. Interest. Evidence. Under our Statutes, money or property, given a child, is, prima facie, an advancement; and must be accounted for in the distribution and partition of estates:—yet, it may be shown to have been a mere gift:—but the onus is on him, who claims it as a gift, to show that it was not intended as an advancement.. Interest will not be charged on advancements.</p> <p>4. Same. Donor. Intention. The donor’s intention must be determined from his conduct and conversation at or about the time of the gift. The agreement must depend on the circumstances at the time, and can not be made better or worse by subsequent facts.</p> <p>5. ADMINISTRATOR. Delay to Sue. Devastavit. Unless the condition of the debtor is such as to make it the imperative duty of the administrator to sue at an earlier period, a delay of six or eight months, or even longer, is not such negligence as amounts to a devastavit.</p> <p>6. Agents, Fiduciary. Duties. Courts. ■ In defining the duties of those sustaining a fiduciary relation, the Courts must look to their surroundings, and to the habits and customs of prudent men occupying such positions.</p> <p>7. Same. Confederate Treaswry Notes. If one, acting in a fiduciary capacity, in good faith, received Confederate money in discharge of a debt due his principal, he can not he held to account for more than its value; and, only then, when he has appropriated it to his own use.*</p> <p>8. Statutes oe Limitation. War. Courts. All Statutes of Limitation were suspended, during the late Civil War, from the time the Courts were closed, until they were opened or put in operation by Legislative enactment.</p> <p>Case cited: Harrison v. Henderson, 7 Heis., 315.</p> <p>9. Administrator. Settlement. An administrator shall be allowed such time after the opening of the Courts, as, when added to that which transpired previous to the close, will make the two years and six months allotted him for a final settlement.</p> <p>10. Same. Distributee. Payment. An administrator can not pay distrib-utees until the time, allowed creditors to sue, has elapsed; unless the distributee, after ascertaining or approximating his share, tender a sufficient refunding bond and demand payment.</p> <p>11. Same. Interest. Evidence. If the administrator he in no fault, and circumstances will not admit a distribution of the fund, he is not chargeable with interest; — but it devolves on him to show the excuse. Cases cited : Turney v. Williams, 7Yerg., 172; Jonesv. Ward, 10 Yerg., 160.</p> <p>12. Same. Widow. Exemption. At the death of the husband, property exempt from execution goes direct to the widow. The representative has no control over it. If he interfere with or convert, it, he is, individually, liable as a wrong-doer; but not on his bond.</p> <p>13. Same. Securities. Pond. Pelease. Inability. Where the securities of an administrator petition and are properly released: — Held, The effect of the release is to make the second set of securities primarily liable to the extent of their bond. If they prove insufficient, the first securities are responsible to tbe date of their release. The second set must account, first, for any default after their suretyship, and then for any that may have occurred before.</p> <p>Code construed: Sections 2431,'2432.</p>

<p>1. Railroads. Accidents. Ad ullimam vim terminorum. The Statute must he obeyed in its severest literality. It does not- brook the slightest speculation upon 'things that are probable or possible, either by the Court or by the Company’s agents; but, demands an absolute obedience to its Provisions, whether they seem necessary or not.</p> <p>Code construed: Section 1166, et seq.</p> <p>2. Same. It is the positive and imperative duty of the Engineer to sound the alarm whistle the instant he sees a person upon the track. We know not what might be the effect of the alarm whistle, even upon the maudlin brain of a drunken man; nor are we allowed to conjecture as to whether its timely startle may have saved his life.</p> <p>Arguendo—Per Justice Sneed. The Statute must he enforced whenever it is violated. It may seem to have the semblcmce of harshness toward JRailroad Companies:—but it is humane and wholesome, even to them :—for it is easily obeyed:—and, if obeyed, these Companies have an absolute impunity, not always vouchsafed to them under the doctrines of the Common Law.</p> <p>Cases cited and approved: Smith v. N. & C. JR. JR. Co., 6 Col., 589; ‘ Burke v. Same, 7 Heis., 451; Thomas y. Same, 5 Heis., 262; Smith v. Same, 6 Heis., 174; Stone v. L. & N. B. B Co, 7 Heis., 468; Edwards v. K & C. B. B. Co., MS., Nashville, 1875; Bouton v. Same, MS., Jackson, 1875.*</p>

<p>EEOM "WILLIAMSON.</p> <p>■ Appeal in error from the judgment of the Circuit Court, July Term, 1872. William: P. Maetin, J.</p>

<p>FROM KNOX.</p> <p>Appeal in error from the judgment of the Circuit Court, February Term, 1874. Elijah T. Hall, J.</p>

<p>1. Practice. Might of Action. Memedy. When aright of action, unknown to the Common Law, is given by Statute and a remedy-prescribed, that remedy must be pursued.</p> <p>2. Lstjurv. Might of Action. Foreign Statute. An action for an injury, predicated upon the Statute of another State, may be brought in this; but the declaration must aver the Statute under which it is brought.</p> <p>See: Hobbs v. M. & G. Mailroad, Post, 873.</p> <p>3. Common Carrier. Passenger. “Through Ticket.” Inability. If one of several Companies, composing a public line of travel, by agreement with the others, receive fare and give a “ through ticket” over the entire, route, the Company selling the ticket shall be regarded as the agent of the other Companies, when the ticket itself imports this and no- • thing else appears.</p> <p>4. Ultra Vires. The Company selling the ticket may, by contract either expressed or to be fairly implied from its acts, bind itself to be responsible for the entire route; but this will not be held conclusively established from the sale of the ticket alone, or throw upon the defendant the onus of proving that' it expressly limited its liability. Secus, if a partnership in fact appear. ■ .</p> <p>Cases cited: Furstenheim v. Memphis & Ohio Railroad Go., ante, 238; Garter v. Peck, 4 Sneed, 203; Western & Atlantic JRailroad Go. v. McEl-wee, 6 Heis,, 208.</p>

<p>1. Bailroad. Statutory Precautions. “Unavoidable Accident.” Liability. Section 1166 of the Code means, that if the Company prove that, when it occurred, all the Statutory precautions were observed, then the accident was unavoidable, and the Company is not liable.</p> <p>2. Same. Evidence. But if the Company fail to prove that the several Statutory precautions were literally obeyed, it is responsible for all damages occasioned by the accident, whether resulting from its own negligence or not. The Statute must govern as to the character of proof to be made: — the Courts and Juries are bound to administer the Law as it is written.</p> <p>•3. Same. Exoneration, To exonerate itself, the Company must show, not only, that the precautions specified were observed; but, in addition, that “ every possible means was employed to stop the train and prevent the accident.”</p> <p>4. Same. In resorting to the additional means, it was not intended that the Company should use means which would, probably, endanger the lives or property of those on the train; but that, unless each and all the Statutory precautions were observed, it is no excuse, that an attempt to reverse the engine might have ditched the train.</p> <p>•5. Case in Judgment. The plaintiff’s mule was run over and killed. On the trial, the Company proved that the Engineer was on the lookout ahead; that he saw the mule when it dashed into the Boad; that he immediately sounded the alarm-whistle’; and that one of the brakes was put down ; but, as to whether the other two brakes were put down, no proof was made. Held: To exempt itself from damages, it was incumbent on the Company to show that all three brakes were put down.</p> <p>‘6. Contributory Negligence. Damages, Mitigation of. Commons. Stock. In the case at bar, the question of contributory negligence can notarise. Our Statutes recognize the running out of stock on the Commons as lawful; and the fact, that the owner of the mule allowed him to be out of his enclosure, can not be relied on by the Company, either to-defeat the action or in mitigation of damages.</p> <p>Code construed: Sections 1166 et seq.</p>

<p>1. Eeelow Servant. Negligence. Injury. Respondeat Superior. In the employment and control of his subordinates, a “Section Boss ” acts as the agent of the Common Superior. When, by reason of his wrongful act or negligence, his subordinate is injured, .the rule res-pondeat superior applies, and the Corporation is liable for damages.</p> <p>2. Common Superior. Agent. Subordinate. Liability. A Common Superior,' which acts only through its agents, is responsible for injuries resulting to a subordinate from the negligence of his immediate superior, or the party having control over him.</p> <p>3.' Same. Disobedience. The fact, that a subordinate may elect to disobey his superior, — and, if discharged for so doing, appeal to the Common Superior, and, if right in his disobedience, be restored to his position, — can have no weight with the Courts in a suit for injuries sustained by him.</p> <p>4. Same. Negligence. In every class of cases of bailment or trust, the requisite care is proportioned to the danger of neglect or the difficulty of conservative management ,: ordinary care, in many classes of cases, might be ordinary neglect, and ordinary neglect might be gross neglect in steam operations and the conduct of work upon Railways over which trains are habitually passing.</p> <p>'5. Corporation. Accountability. Employés. The increasing number of Corporations, with their concentrated wealth, is a strong and conclusive reason why they should be held to a strict account for the acts of their officers. Bound policy demands the adoption of this rule in this State. Knowing their liability, they will employ none but competent men in responsible stations.</p> <p>Arotendo. The offices of “Section Boss” and his subordinates create the relation of master and servant. The latter have no authority to control or resist the former in his allotted sphere of service. Education, skill, and experience are essential to the discharge of his duties: whereas, they are merely required to have sufficient capacity to understand an order and physical strength to execute it. It would be absurd to hold that, as a rule, they understand the management of such work, its proper mode of execution, and the dangers attending it, equally with him who assumes to oversee, direct, and plan it.</p> <p>Cases cited and approved: * Baynes v. JE. T. & O. B. JR., 3 Col., 222; N. & O. JR. B. v. Carroll, 6 Heis., 347.</p>

<p>1. Pleading. Demurrer. Statute. Construction. The Provision, that . “ demurrers for formal defects are abolished and those only for substantial defects are allowed,” annuls demurrers, as known to the old system of pleading, under which, the special demurrer was for defects in the form of statement, and the general demurrer for substance.</p> <p>Code construed: Section 2934.</p> <p>2. Same. The Provision, that “all demurrers shall state the objection relied . on,” means that (lie objection relied on must be clearly stated, so as to give notice, distinctly, to the adverse party of the defect in his pleading. Code construed: Section 2934.</p> <p>3. Same. The' Common Law rule, that every pleading must be taken most strongly against the pleader, is abolished by the Code.</p> <p>Code cited: Section 2884.</p> <p>4. Foreign Statute. Sight of A ciiore. If a party sue in this State, to recover on a cause of action that arose in another State, he must allege that the right accrued in that State, and that, under its Law, he is entitled to recover in its Courts. He must also aver the Statute, under which, he claims his right of action.*</p> <p>Code cited: Section 3800.</p> <p>5. Same. Judicial Knowledge. Under the Code, the Supreme Court takes judicial notice of all Foreign Laws and Statutes.</p> <p>Code cited: Section 3801.</p> <p>6. Case in Judgment. The suit is for damages resulting from injuries received on the Memphis & Charleston Bailroad, which was chartered in Tennessee, and lies partly in this State and partly in others. The declaration avers a substantial cause of action under the Tennessee Statute, but fails to allege that the injuries were committed in this State. Held: It was not necessary to allege that the accident oe-curred in this State. The Court knows judicially that the Road lies, partly in this State; and, if the accident occurred in another State,, it may be shown on the trial.-</p>