Volume 76 — Tennessee Reports

PROM KNOX. Appeal from the Chancery Court at Knoxville. W, B. Stalky, Ch. The court adopted the opinion of Chancellor Staley as the opinion of the court upon the point embodied in the last syllabus above.

<p>FROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. R. M. Barton, Sp. J.</p>

<p>Pleadings and Practice. Forcible entry and detainer. Appeal. Pauper ■ oath. The defendant in an action of forcible entry and detainer before a justice of the peace may appeal from the judgment against him, awarding to the plaintiff a writ of possession, by taking the oath prescribed for poor persons, although the writ of possession be not executed at the time by the voluntary forbearance of the plaintiff..</p>

<p>FROM MONROE.</p> <p>Appeal in error from the Circuit Court of Monroe county. S. A. Rodgers, J.</p>

<p>District Attorney. Fees. Where a party tried and convicted of rape, appeals to supreme court, and pending the appeal breaks jail and escapes, after return of capias and retirement of case, under sec. 4542 of Code, attorney general is only entitled by act .of 1874, amending sec. 4542, to a fee as on nolle prosequi, or acquittal. The conviction was not a final conviction.</p>

<p>1. Husband ahd Wife. Glioses in action of wife. A husband is entitled to receive and reduce to jjossession during coverture all dioses in action, whether in the form of notes, debts or legacies, belonging to the wife at the time of her marriage, or accruing to her afterwards.</p> <p>2. Same. Same. If the husband fail to reduce them to possession during the coverture, and survive the wife, then his administrator is entitled to them and may sue for and recover the same; but if the wife survive her husband, then she is entitled to all such dioses in action as have not been actually reduced to jmssession by the husband.</p> <p>3. Same. Same. Seduction to possession by husband. A wife was entitled to a legacy and was owner of bank stock, the husband 'received .the legacy, receipting for it in his wife’s name, and the bank stock was transferred to him by her; held, he had reduced them to possession, and she surviving him, was not entitled to recover. Sec. 2488 of th e Code refers to receipt of funds in court, and not to receipt of a legacy-in the hands of an executor, where the money is not brought under the control of the court.</p>

<p>1. Partners. Admissions. A partner can bind other partners by his admissions only during his connection with the firm. He binds himself by admissions made at any time.</p> <p>2. Contract. Evidence. Where parties do not intend that the written contract should contain the whole of their intentions, evidence of an independent verbal agreement not contradicting the writing is admissible.</p>

<p>Cbiminal Law. Lewdness. Evidence. Testimony showing acts of lewdness ¡woven on a trial on a former indictment, on which party was acquitted, is admissible to show the nature and character of subsequent conduct and association between the same parties.</p>

<p>1. Vendob’s Lien. Administrator. Statute of limitations. Although the estate of a deceased debtor ruay be protected by the statute of limitations of three and seven years from the recovery of judgment against the personal representative on particular debts created by the purchase of land by the debtor, yet the lien retained on the land by the reservation of the title, would not be impaired thereby, and may be enforced against the heirs. It would be otherwise in the case of a mere equity growing out of the existence of a debt, not secured by contract lien.</p> <p>2. Vendob and Vendee. Mortgagor and mortgagee. Lien of vendor. Adverse possession. The relation of a purchaser of land by title bond to his vendor is similar to that of mortgagor and mortgagee, and his possession is not adverse to the lien of the vendor until it is made so by notice of a hostile holding; nor is the possession of his privy in blood or estate, the condition of tlje title being notice of the outstanding equity.</p> <p>3. Same. Title bond. Notes for piirehase money. "Where the notes mentioned in a title bond as given for the purchase of land are not described, and the notes actually executed embrace other considerations, the reservation of title will enure to the security of the purchase money in the notes.</p> <p>4. Same. Evidence, If the vendor of land may show by parol proof that certain notes calling for a larger sum of money than that mentioned in the title bond were given for the land, or were to be secured by the reservation of the title to the land, the burden of proof would be on him, and, after the lapse of over forty years, the proof should be clear and conclusive.</p> <p>5. Payments. How applied. Where the debtor directed payments made by him to be applied on certain notes, given in part consideration for land sold by bond for title, and in part .for other considerations, and the debtor at the time applied the payments accordingly, equity will apportion the payments pro rata between the two considerations.</p> <p><5. Tenants in Common. Sale of respective shares by title bond. When tenants in common of land sell their several shares at a given price for each share, separate notes being executed to each tenant for the purchase money of his share, each tenant can only subject his share of the land to the satisfaction of the purchase money due him, although all the tenants may join in executing one title bond.</p>

<p>1. Assignment. Hule of construction. It is a rule of construction, that where a general clause in an instrument of conveyance is followed hy special words in accox-d therewith, the grant will he limited to the specification; and, thei-efore, a com^ance “ of all property of every description, the same being- embraced in a schedule annexed,” will only pass the property mentioned in the schedule.</p> <p>2. Same. Act of 1881, eh. 121. If such omitted property be held to pass „ by virtue of the act of 1881, ch. 121, sec. 4, which provides: “ That the trustee or assignee [under a general assignment for the benefit of creditors], shall be entitled to any other property of the debtor not embraced in the assignment,” it will be by operation of law, not by the instrument.</p> <p>8. VENDOR and Vendee. Vendor may disaffirm sale. When, If a person purchase goods with the fraudulent intention of not paying for them, the vendor may, by prompt action, disafiim the sale, although the goods be delivered, and revest the property in him, and he may equally do so as against an assignee by operation of law.</p> <p>4. Same. Mere insolvency of vendee not sufficient to (woicl sale. Fraudulent intent may he inferred. When. Mere insolvency will not suffice to avoid the sale, but the fraudulent intent may be inferred from the facts and circumstances, full knowledge bv the purchaser of his insolvency being always a controlling element.</p> <p>5. Same. When properly will revest in vendor. Assignee. Tlie hopeless insolvency oí the purchaser at the time, coupled with the refusal on his. part to treat the property as his, and the expressed wish to restore the property to the vendor, will revest the property in the vendor against an assignee by operation of law.</p>

<p>Cleric Coramr Court. The power to fill a vacancy in the office of county court clerk belongs to the justices of the county, and not to the county judge.</p>

<p>Witness. Accommodation endorser. An accommodation endorser is a competent witness, in a suit brought against Mm by an innocent holder for value before maturity, to pirove that a materia] alteration of the note had been made after he had endorsed it and before its delivery to the person for whose benefit it was made.</p>

<p>1. Pbactice and Pleadings. Ghatrge of the court. The trial judge cannot be put in error by the inaccurate use of words, not excepted to at the time, where the court can see that it was intended to convey a particular and correct meaning, and could not, when taken in connection with the residue of the charge, have misled the jury. If the charge assumes a fact- to be conceded, contrary to the truth, it is the duty of the party to object to the assumption at the time.</p> <p>2. Same. Proof necessary to revive a debt barred by statute of limitations. To revive a debt barred by the statute of limitations, the same proof is required, whether the promise or acknowledgment were made pending the running of the bar or after the bar had attached.</p> <p>■3. Same. Affidavit for new tried. The affidavit of the unsuccessful party alone is insufficient to sustain a motion for a new trial, so far as it is rested on the information of others, or on the allegation that the opposite party had sworn falsely in a particular matter, and therefore taken him by surprise, where the information aud the matter deposed to relate to the very point in issue between the parties.</p>

<p>Injubies Besotting in Death. Statute. Construction. Husband entitled to damages for injury to wife. Under the provisions of the statutes allowing a recovery of damages for a personal injury where death ensues, the husband is entitled to the damages which may be recovered for an injury to the wife resulting in death.</p>

<p>Cbihinal Law. Selling liquor within four miles of incorporated institutions of learning. Buyer nqt guilty. Under the act of 1877, ch. 23, which makes it a misdemeanor, subject to both fine and imprisonment, to sell or tipple any intoxicating beverage within four miles of an incorporated institution of learning, the buyer of the liquor is not guilty of the offense.</p>

<p>1. Judicial Department. Powers of. Legislative department. The judicial' department of Tennessee has no authority to invalidate an act of the Legislature because it ivas procured to be passed by bribery of the members of the Legislature.</p> <p>Freeman, J., dissenting, and Turney, J., expressing no opinion.</p> <p>2. Constitutional Law. Coupons receivable for taxes. The act, entitled “an act to compromise and settle the bonded indebtedness of the State of Tennessee,” approved April 6, 1881, making coupons receivable for taxes, is unconstitutional and void.</p> <p>Deaderick, C. J., and Ewing, Sp. J., dissenting.</p> <p>3. Same. Legislative, department. State sovereignty. The legislative department cannot surrender the powers and attributes of sovereignty essential to the well-being and existence of the State.</p> <p>4. Same. Powers of the legislative department. Revenue. The Legislature cannot irrevocably appropriate (though in the form of a legislatorial contract) a material part of the public revenue, to purposes preferred above, and which postpone the matters of public current necessary expense.</p> <p>5. Same. Same. The Legislature cannot make such an appropriation for a period beyond the term of its existence.</p> <p>Deaderick, C. J'., and Ewing, Sp. J., dissenting.</p> <p>■6. Suit against the State. - A bill to enjoin the funding board, created by the act of 1881, from funding the bonded indebtedness of the State, is not a suit against the State, nor a suit against officers of the State, within the meaning of the act of 1873, ch. 13.</p> <p>Ewing, Sp. J., dissenting.</p> <p>7. Same. Unconstitutional act. An officer while executing an unconstitutional act, is not acting by authority of the State.</p> <p>8. Chancery Pleadings and Practice. Bill quia timet. Tax-payers, citizens of the State, may maintain a bill quia timet to restrain the executive officers of the State from funding the public indebtedness under an unconstitutional and void act.</p> <p>Ewing, Sp. J., dissenting.</p> <p>9. Same. Sanie. Necessary parties. The holders of Tennessee bonds are not necessary parties to such a suit.</p>

<p>1. Ohder of Business. Power of court to regulate. ■ In the absence of statutory restrictions, the Supreme Court has an inherent power to regulate the order of business therein, and to advance causes of public interest on the docket.</p> <p>2. Act of 1871. Construction of. The act of 1871, ch. 125, is not an enabling, but a-mandatory statute. While it requires the enumerated cases to be advanced, it does not affect the exercise of the inherent power of the court as to cases other than those named.</p>

<p>Weuls. Construction of. A devise oí land in lee, with, remainder over to take effect in the event the first taker “ should die before he marry or have any bodily heirs,” means that the devise over shall take effect even though the first taker marry, if he die before he have any bodily heirs.</p>

<p>MARRIED WOMAN. Separate estate. Power of disposition. The giving of a power of disposition to a married woman to dispose of her separate estate in a particular mode or for a particular purpose, is not an express withholding of all other powers of disposition, in the meaning of the statute of 1869-70.</p>

<p>PROM GILES.</p> <p>Appeal in error from the Circuit Court of Giles -county. W. S. McLemore, J.</p>

<p>Cbimikau Law. Murder in the first degree. Intoxication. The rule ex tracted from the decisions of this State in regard to drunkenness in trials for murder in the first degree is: If drunkenness exists to such an extent as to render the defendant incapable of forming a premeditated and deliberate design to kill, then of course he cannot be guilty of murder in the first degree; still if drunkenness be not to this extent, nevertheless the jury may consider the drunkenness in connection with all the facts to see whether the purpose to kill was formed in passion produced by a cause operating upon a mind excited with liquor, not such adequate provocation as would reduce the killing to manslaughter, but nevertheless such as produced passion in fact and reduce the killing to murder in the second degree, or whether notwithstanding the purpose to kill was formed with deliberation and premeditation, for a drunken man may be guilty of murder in the first degree if the drunkenness be not to such an extent as to render his mind incapable of deliberation and premeditation.</p>

<p>1. CaiMiNAit Law. Perjury. Indictment. Challenges. Where the defendant is charged in an indictment in two counts with perjury at different times and places, he is only entitled to ten challenges.</p> <p>2. Same. Same. Same. Two cornts. Election. It was not error to refuse to quash an indictment for perjury, which in two counts charged the defendant with perjury at different times and places, nor was it error in the trial judge to refuse to compel the attorney-general to elect upon which count he would prosecute.</p>

<p>1. Homestead. Under Act of 1868. Under the act of 1868 homestead was allowed to the head of the family, and; if the husband being head of the family conveyed the land not reserviug homestead, although his wife did not join in the deed, the homestead was thereby lost.</p> <p>2. Same. Fraudulent conveyance. Homestead right is dependent upon and attached to some right in the property, and the transfer of the property itself carries with it the right of homestead unless it is expressly reserved. A deed, therefore, by husband to wife surrendered the homestead under the act of 1868, and if said deed at the instance of creditors was set aside as fraudulent by the chancery court, the right of homestead would not revert to him; but homestead would be lost by the fraudulent conveyance. Cowan v. Johnson and Gibbs v. Patton cited and approved.</p>

<p>Trustee. Fees. Sale of land for taxes. A county trustee is not entitled to a fee of fifty cents for the sale of each tract of land for taxes due in 1879-80.</p>

<p>CRIMINAL Law. Assault. It is error on the trial of an indictment for assault and battery to charge the jury thus: .“ If you find from the evidence that the defendant provoked the assault by word or act, and then willingly engaged in the fight, he. would be guilty although he may have been first assailed or stricken by the prosecutor.”</p>

<p>Taxation. Joint-stoek companies. Share-holders. ' Real estate. Under the act of 1873, ch. 118, joint-stock companies are liable to pay the tax imposed upon their share-holders and also upon their real estate, though the real estate may have- been purchased with money paid in as capital stock.</p>

<p>EROM DAVIDSON.</p> <p>Appeal in error from the Criminal Court of Davidson county. J. M. Quarles, J.</p>

<p>1. RaiIROADS. Mules and regulations for depot and other buildings. A railroad company may make and enforce by its agents reasonable and necessary rules for the transaction of its business, and for the proper and orderly management of its depot and other buildings open to the irablic. These rules, however, must be reasonable and such as do not unnecessarily infringe upon the rights of the public and others having or carrying on business in connection with railroad traffic and travel.</p> <p>2. Same. Same. A regulation forbidding hackmen, peddlers, express-men and loafers from coming within the passenger depot is reasonable.</p>

<p>1. Cbimihai. [Law. Change of venue. The application for change of venue, is addressed to the sound discretion of the court, and after the defendant has introduced his affidavits to sustain his motion, and the judge has satisfied himself by an examination of by-standers, it is not error for the court to refuse to hear any further proof offered by defendants.</p> <p>2. Same. Severance. New trial. Where two defendants have been jointly indicted, and a severance denied, and they have been prosecuted in good faith upon reasonable grounds, and not merely for the purpose of preventing one from being a witness for the other, and one is acquitted, and the other is convicted, the latter will, not necessarily be entitled to a new trial for the purpose of obtaining the evidence of his co-defendant, even though it appear that the latter had full knowledge of the facts. If the conviction be well sustained, and the presiding judge is satisfied with the result, it will not constitute reversible error, even if he, on this ground, refuse a new trial, otherwise, a severance must be had, or a new trial, if one of the parties are acquitted, in every case where the one acquitted has knowledge of material facts.</p>

<p>1. JRailroads. Charters. Amendments. The Nashville & Chattanooga Railroad Company was incorporated by an act ol the Legislature, and afterwards the charter was amended by an act passed January, 1848, as follows: “That said company be required to estimate and pay, semi-annually, to the several holders thereof, a sum equal to six per cent, per annum on the capital stock of said company, actually paid in, to be charged to the cost of construction, provided, a majority of the stockholders at their first regular meeting agree thereto.” The amendment was accepted. In 1852 the Tennessee & Alabama Railroad Company was chartered; having “ all the rights, powers and privileges, and subject to all the liabilities and restrictions conferred and imposed upon the charter of the Nashville & Chattanooga Railroad Company, and all the various amendments thereto.” JELeld, that the amendment to the charter of the Nashville & Chattanooga Railroad Company, by acceptance, became a part of the charter, and thereby became a part of the organic law of the Tennessee & Alabama Railroad Company, and did not require the action of a majority of its stockholders to accept it at its first regular meeting.</p> <p>2. Same. Same. Same. By an act of the Legislature, February 14, 1856, it was provided “.that the Tennessee & Alabama Railroad Company, * * shall, by and with he consent of the county court of Davidson county, be required to issue stock to the tax-payers of said county, for the amount of the annual tax which has already, and may hereafter be paid by said tax-payers, to provide for the interest on the bonds issued by said county for said Railroad Company, on presentation of the tax receipts; said tax receipts shall be negotiable by endorsements, and no stock shall be issued for a less amount than one share, provided said Railroad Company shall not be required to issue stock for said tax receipts until the first dividend is ready to be made, at which time, or any time thereafter, shall issue the same.” The county court of Davidson gave its assent, and thereupon, upon a meeting of the stockholders of the said Railroad Company, it was “Resolved that this Company accept, as an amendment to its charter, the act of the General Assembly of the State of Tennessee, entitled “ an act for the benefit of the railroad tax-payers of Davidson county,” passed February 14, 1856, provided this Company shall not be bound to issue any stock to the tax-payers upon the presentation of tax receipts, of any tax imposed after the declaration of the divi-idend which shall he made by this Company; and provided, further, that said stock shall not be issued but by and with the consent of the county court of Davidson county.” Held, that the Railroad Company did not accept the contract contained in the act. The acceptance is qualified by a proviso introducing a new condition to the contract, not authorized by the act of the Legislature.</p>

<p>1. Raieroads. Carrier. Passenger. Failure to pay fare. Offer of paymen by another before eviction. A passenger who gets upon the cars of a railroad company in good faith, in ignorance of the fact that a tax certificate would not pay his fare, having no intention to impose upon the carrier, cannot he treated as a mere trespasser, but on failure or refusal to pay his fare, after request and after reasonable opportunity allowed to comply, he may be ejected or put off the cars by the conductor, but if before eviction another person offer to pay the fare, the carrier is bound to receive the fare and convey the passenger.</p> <p>2. Same. Same. Punitive damages. Punitive damages may be given where the act done, was in the strict line of the duty of the conductor, but done under a state of facts not justifying the act, or done in a wrongful or careless manner to the injury of plaintiff.</p> <p>3. Pleadings and Pbactice. New trial. Remittitur. Oonditimal Upon a motion for a new trial, the trial judge stated he thought the damages too high and would require a remittitur, if the defendant would abide the judgment and not appeal, to which defendant refused to agree, therefore he allowed the judgment to stand. Such practice is reprehensible.</p>

<p>EROM WARREN.</p> <p>MOTION TO DISCHARGE SUPERSEDEAS.</p>

<p>FROM GILES.</p> <p>Appeal from the Chancery Court at Pulaski. W. S. Fleming, Ch.</p>

<p>FROM SUMNER.</p> <p>Appeal in error from the Circuit Court of Sumner county. ,J. W. Judd, Sp. J.</p>

<p>1. Supersedas. Motion to discharge. Upon an application for a supersedeas under the Code, 3933, the question is not whether the order asked to he superseded, was erroneous, hut whether it is within the meaning of the statute, namely, one to he actively enforced, and which may deprive the petitioning litigant of money or property in advance of the final hearing. And if the writ is granted by one of the judges of the court in vacation, all the court can do, upon a motion to discharge, is to see that the order is of the character contemplated by the statute.</p>

<p>1. ConteAOT. Partly in writing and partly in •parol. A contract partly in writing and partly in parol is an oral contract, and this will he the case where the written contract is imperfect or incomplete for the want oi a signature, or because it contains no obligation on the part of one of the contracting parties.</p> <p>2. Same. Same. Where, therefore, a contractor and a sub-contractor, for the grading of certain sections of a railroad, undertook to reduce the contracts between them to writing, using the printed forms of the railroad company, and the draftsman filled up the forms so unskillfully, that the one contract expressly purported to be between the contractor and sub-contractor of the one part, and the railroad company of the-other part, and both contracts stipulated that the payment' of the price of the work to be done by the sub-contractor should be made by the company, the railroad company being no party to the transactions, and contained no obligation on the part of the contractor to the sub-contractor, it was held, in an action at law by the sub-contractor against the contractor on the contracts as oral, that the writings were incomplete, but might be looked to, in connection with the parol testimony, to ascertain what the contracts were.</p> <p>3. Same. Action for breach of. Measure of damages. In an action upon a contract for the grading of a railroad, to recover damages for a breach of the contract by the defendants in preventing the iffaintiff from completing the work, the difference between the probable cost of doing the work and the contract price is a proper measure of damages.</p> <p>4. Same. Same. Same. Evidence. In such an action, it is competent to prove by the plaintiff the amount of the work remaining to be done, tity its probable cost; and the fact that after stating that the quan- and might be so much, he confesses that he does notknow and cannot pretend to state the quantity, will not make the evidence incompetent, although it may render it of little value.</p> <p>5. Same. Same. Same. But the loss which the plaintiff may have sustained by the foreclosure of a trust assignment on the stock used by him in performing the work, or by the levy upon his tools, after he has been compelled to stop the work, is not an element in ascertaining- the damages occasioned by such stoppage, and it was error to permit the plaintiff, over the objection oí the defendant, to make such proof.</p>

<p>1. Scire Facias. Justices’ Judgment. A scire facias issued by a justice reciting the rendition oí a judgment by his predecessor in office, more than thirteen years before, in favor of the plaintiff against one defendant, which was stayed by the other defendant, that a small payment had been made leaving the residue of the judgment in full force; that the books of the predecessor had been mutilated, and that the judgment could not be found; and directing the officers to make known the facts to the defendants, and to summon them to appear before the justice at a given time to show cause why the judgment should not be revived, is a scire facias to revive the judgment, which the justice was authorized to issue, and which contains all material averments.</p> <p>2. Same. Same. Trial in circuit ocurt. If, on the trial of the action in the circuit court on the scire facias, the only evidence introduced was offered by the plaintiff, and was directed solely to the establishment of the original judgment, the issue would be record or no record and triable by the court, and the judge might properly instruct the jury to find the facts to be as established to his satisfaction by the record ; and a variance between the judgment as proved and the-judgment as recited in the scire facias would not be fatal, there being no exception to the admission of the evidence On the ground of the variance, and the court being satisfied that the judgment produced ivas the judgment intended to be revived.</p> <p>3. Same. May be amended to conform to record. It would have been competent for the trial court, in such a case, and eminently proper, if exception had been taken to the evidence because of the variance, to have permitted the scire facias to be amended to conform to the record of the original judgment.</p> <p>4. Same. Proper judgment on sci. fa. The proper judgment in favor of the plaintiff, upon a scire facias to revive, is that the original judgment stand revived, and that the plaintiff have execution against the defendants therefor, with interest and costs, and the costs of the proceeding. ,</p> <p>5. Same. Judgment in circuit court upon appeal from justice. Where the action on the scire facias is tried in the circuit court, upon appeal from the justice, the court should render such a judgment as the justice ought to have rendered, without a procedendo, and, upon a further appeal to this court, the judgment creditor is entitled to the same judgment.</p>

<p>1. Damages. Gontraet. In simple breaches of contract, the contract itsef must give the measure oí damages, and a jury would not be warranted in estimating- the damages as in an action of tort or quasi tort..</p> <p>2. Life Insubance. Damages. The contract oí life insurance is based upon statistics, and governed by settled rules, and the damages resulting from a breach thereof by the insurer, admit of being ascertained with unusual accuracy.</p> <p>3. Same. Same. Reserve fund. A part of every premium paid on a life policy is absorbed in the running expenses of the business; a part is the compensation of the insurers for the risk during the period for which the premium is paid, to be used in the payment of losses on other policies or divided-as profits; and the remainder is accumulated on interest as a reserved fund to respond to the demand of the particular policy, and constitutes its equitable value. Damages are not allowable beyond such value for the breach of a stipulation to re-return a fair proportion of the premiums, if applied for before the policy expires.</p> <p>4. Same. Prospectus not part of contract. A prospectus of an insurance company is not made a part of the policy by an endorsement on the policy that it may be had gratis, and its statements would only be representations, not parts of the contract.</p> <p>5. Same. Entire contract. Non-payment of premiums. A contract of insurance for life is an entire contract, subject to discontinuance and forfeiture for non-payment of premiums, and subsequent representations of the officers or agents of the insurance company, or subsequent promises or agreements not based upon a new consideration, will not enter into the original contract.</p>

<p>1. Pleading and Practice. Declaration, Effect of a verdict. An impar- . feet statement oí a cause of action in a declaration, such as the failure to allege a special demand necessary to the recovery, or to a-Yer the time of breach, will be cured by verdict.</p> <p>2. Life Insurance. Ccmtraet. Measure of damages. The contract of life insurance is based upon statistics, and subject to settled rules which admit of being worked out with mathematical accuracy, and the damages resulting from a breach thereof by the insurer, admit of being ascertained with precision.</p> <p>S. Same. Premium. Reserve fund. A part of every premium paid on a life policy is absorbed in the exjjenses of the business; a part is earned by the insurer in carrying the risk during the period for which it is paid, to be used in the payment of losses on other policies or divided as profits, and the remainder is accumulated on interest as a reserved fund to respond to the demand of the particular policy, and constitutes its equitable value.</p> <p>4. Same. Contract. Damages. Reserve fund. In an action upon a mutual or participating life policy to recover damages for the breach of a stipulation that it is non-forfeiting, if application is made for a settlement while the policy is in force, and after three annual premiums have been paid, it is error to charge the jury that the reserved fund would not control in fixing an equitable settlement, and that the ability or inability of the pompany to pay, could not be looked, .to*.</p> <p>5. Same. Value of paid up policy. A holder of a participating policy is . not entitled to recover more than his fair proportion of the reserved fund, or the value of a paid up policy which the proportion will buy, but the presumption in the case of a company in active business would be that it had ready the full share of the policy holder.</p> <p>6. Same. JSmdence, parol. Statement of agent. Parol testimony is not admissible to explain a written contract, and it was therefore error, in an action for the breach of the non-forfeiting clause of a policy of life insurance, to admit oral evidence that, at the time of taking out the policy, the plaintiff enquired of the agent of the company the meaning of the clause, and was informed that he would receive a paid up policy for the full amount of the money paid by him, and to charge the jury, if they found the facts that way, that the company should have given such a paid up policy, and they should render a verdict for the value of such a policy.</p>

<p>Plea in Abatement. Jurisdiction. Where suit is brought against a resident oí the county and counterpart issued to another county lor other defendants, it is a good plea in abatement by the defendants by counterpart that the other defendant has no interest in the cause of action, and was fraudulently made a defendant in order to draw the cause of action within the jurisdiction of the court of the plaintiff’s county. Propess must be served upon a real and material defendant before counterpart can be issued to other counties. -Rick v. Rayle, 2 Hum., 403, overruled.</p>

<p>1. Fire Insurance. Policy. When stipulations will he considered waived. When a policy of insurance on a distillery is issued and delivered containing a condition against running at night, but with full knowledge on the part of the general agent of the company, who countersigned and delivered the policy, that the distillery had always been, and was then being run at night, the condition will be considered as waived.</p> <p>2. Same. Same. Subsequent insurance. A general provision of a policy of insurance allowing additional insurance to a specified amount, waives to that extent a condition of the policy requiring notice and endorsement upon the policy of existing or subsequent insurance.</p> <p>S. Same. Same. Same. When stipulations mil be considered waived. If the general agent of a foreign insurance company who delivers and countersigns a policy, and whose duty it is to endorse on the policy existing or subsequent insurance, has knowledge of such insurance, and is ready to make the endorsement, but postpones doing so to suit his own convenience, when the' assured offers to produce the policies for the purpose, and in the meantime the property is destroyed by fire, a condition of the policy requiring such insurance to be endorsed on the policy will be considered as waived, notwithstanding another condition contained in it that the use of general terms, or anything less than a distinct specific agreement, clearly expressed and endorsed on the policy, shall not be construed as a waiver of any printed or written condition or restriction therein.</p> <p>4. Same. Same. Same. Agent. If the agent, in such case, have knowledge of additional insurance to a specified amount, and consents to it without knowing precisely the insurance company or companies in which it is taken, a change of that insurance to a different company, otherwise unexceptionable, will not alter the result.</p> <p>5. Same. Over insurance. Charge of court. It was error to charge the jury that the only object of the clause against other insurance was to guard against the over insurance of property, and the consequent temptation to crime, and if the loss in this • case far exceeded the amount of'the insurance of all the policies, the temptation guarded against never existed.</p> <p>6. Same. Powers of company and powers of agent to waive conditions. It was also error to blend together in the charge the power of the company to waive conditions and forfeitures and the power of the agent, without clearly and separately presenting the law regulating the agent’s power, the evidence requiring such a charge.</p>

<p>iNSTOAsros Policy. Effect of subsequent insurance. A policy of insurance which is conditioned to be void if the assured shall have, or shall hereafter make any other insurance on the property, or any part thereof, without the consent of the company written thereon, is avoided by subsequent valid insurance of which the first company had no notice, although two other companies, whose policies on the same property issued contemporaneously with the first policy, were also released by the same over insurance as adjudged by the courts, and although the prior avoidance of these policies reduced the amount of the insurance within the additional insurance allowed by the first policy.</p>

<p>1. IiiSTJEAU'OE. Policy. Stipulation as to payment of premiums. When waived. A condition in a policy of insurancce that it shall not he considered as binding until the actual payment of the premium, is waived by the delivery of the policy without exacting the payment of the premium, and, a fortiori, if in a suit upon the policy the company makes no defense on this ground," and successfully defends on another ground.</p> <p>2. Same. Same. Same. A waiver of the pre-payment of the premium may be inferred from any circumstance fairly implying that the insurer did not intend to insist upon the payment as a condition precedent, and it was error, therefore, to charge the jury that the sending of the policy by a foreign company by mail to the agent of of the plaintiffs to be by him delivered to the plaintiffs, would not of itself be sufficient to sustain the inference.</p> <p>3. Same. Pleading and practice. Over insurance. If, in an action upon a policy the defense to -which is over insurance without notice, the as■sured can put in issue the validity of other policies equally avoided by the same over insurance, it can ouly be upon some ground which the companies issuing those policies could maintain.</p> <p>4. Same. Over insurance The question of over insurance, where the issue turns upon the validity of several policies equally affected by the over insurance, must depend upon the validity of the policies on their face at the date of the issuance of the over insurance, and not at the date of the loss.</p>

<p>FROM DAYIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson county. Frank T. Reid, J.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal from the Chancery Court at Clarksville. Geo. E. Seay, Ch.</p>

<p>Supbeme Cou’bt Pbactice. Lost record. How supplied. Clerhh compensation. If the transcript of a record in this court properly filed is lost, it may he supplied by the parties upon an order made for that purpose, or by consent, but the court has no authority to compel the clerk of the inferior court to make out a new transcript and file the same without compensation.</p>

<p>Cbimimal Law. Disturbing public worship. Upon the trial of defendant for wilfully disturbing' an assemblage of persons met for religious worship, it is not error to charge that if the defendant voluntarily entered into a fight at the church door, and .thereby disturbed a wor-shipping assemblage in the church, he would be guilty.</p>

<p>1'. Wilis. Construction. A will provided as follows: “ I direct that the remainder of my estate, both real and personal, be divided among my heirs according to the laws of the State of Tennessee now in force, none preferred, none discriminated against.” Held, that the heirs of the testator wonld take his land as provided by the statute of descents, and his next of kin would take the personalty as prescribed by the statute of distributions.</p> <p>2. Same. Pkecutor. Power to sell land. A testator by his will appointed an executor “ to take charge of my entire estate, and execute this, my last will and testament, and to do so without any bond, or any liability for error and defects'either to my heirs or to any court, relying on his integrity and judgment entirely.” Held, that the clause did not convert the testator’s realty into personalty, or give the executor any authority to sell the land.</p>

<p>1. CbjdiinaIí Law. Souse burning. A^barrel house attached to a cooperage establishment is a “house” within the meaning of the Code, sec. 4668, lor the burning of which a person may be convicted under that section.</p> <p>2. Same. Venice. The venue is sufficiently proved in a trial for arson by the proof of the prosecutor that he lives in the county in which the indictment is found, and the house burned was his property, fifty yards from his dwelling, and outside of its enclosure.</p>

<p>1. Execution. Omission therein. The omission of the word “hundred” in the recital of the amount of the judgment in the body of an execution may he supplied by the amount of the judgment, endorsed on the back of the execution, as required by law.</p> <p>2. Same. Not invalid. When. An execution is not rendered invalid as to the debt by the failure to set out the items of costs in words on the back thereof.</p>

<p>1. Judcijeent. Presumption of payment. Where, upon the supersedeas of a justice’s execution, the defense was payment of the judgment, the only direct evidence of payment of very doubtful character, and, although more than eight years had elapsed from the rendition of the judgment, there had been no such period in which the courts were not closed by the late war, or the judgment creditor in litigation with the debtors in attempts to collect his debt, and there was no property subject to the execution of the judgment except that of the superseding creditor, who did not claim to have ever paid the debt, it was error to charge the jury as-follows: “If eight years have elapsed since the rendition of the judgment, and the plaintiff has been shown, to be a prompt collector, and all of the defendants, or either of them solvent, and their property open and accessible, you may infer from these circumstances that the judgment has been paid, and on this point you will look to the whole case and every fact.”</p> <p>2. Evidence. General reputation. It is incompetent to prove the relation between a creditor and a constable as his agent, by general reputation.</p> <p>3. Bums and Notes. Same. Parol testimony.' Agreement of agent. It is incompetent to prove by parol testimony that at the execution of a note for money borrowed through an agent, it was agreed by the agent that he would receive the amount by accounts on third persons.</p>

FROM DAVIDSON. Appeal in error from the Circuit Court oi Tavid-■son county. Frank T. Eeid, J. Judges Coopee and Turney being incompetent, •Special Judges T. M. Jones and John Y. Wright were commissioned and were of the court who heard ■this cause.

<p>Justices of the Peace. Jurisdiction. Forfeiture. The act of 1875, ch. — provides that any person guilty of turbulent or riotous conduct within or about any hotel, theater, inn or public house, “ shall be liable to a forfeiture of five hundred dollars, and the owner or persons so offended against, may sue in his own name for same.” A suit for the recovery of the forfeiture should be brought in the Circuit Court. Justices of the peace have no jurisdiction of such suits.</p>

<p>1. Criminal Law. For abduction, for prostitution and concubinage, under section 4618 of the Code, the defendant is guilty, though the abduction may be with the consent of the female.</p> <p>■2. Same. Indictment. An indictment containing two counts, one for abduction for prostitution and one for abduction for concubinage, is good. Two offenses of like nature, punishable alike, may he included in the same indictment.</p>

<p>Taxes. Corporation. The Commercial Hotel, in the city of Nashville,, was assessed in 1874 by the city assessor, at $39,750. The corporation tax being $2. The State and county valuation was $35,725, and the State tax was 40 cents upon the $100. By an ordinance of the city, a tax of $40 and one per cent upon the rental value of a hotel was levied for the privilege of keeping hotel, said ordinance providing that small hotels of less than ten rooms, shall pay no privilege tax-Held,</p> <p>First. That the corporation might assess the property at a higher value than the value placed upon it by the State, if it be not assessed higher than its actual value. The constitution providing it shall be levied upon the same principles as the State tax, to-wit, at its value, and maintaining uniformity.</p> <p>Second. Corporations may levy a higher rate of taxation than the rate levied by the State and county.</p> <p>Third. The requirement of the payment of $40 and one per cent on rental value for the privilege of hotel keeping, and the exemption of small hotels of less than ten rooms, does not render the ordinance objectionable, but the same is reasonable and valid.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson county. N. Baxter, J.</p>

<p>1. Pleadings AND Practice. Beturn of officer. Evidence. At law no averment can be made against the return of the officer by a party to the record, but the rule is different when the averment or attack is made by a third party, or stranger to the record, he may, by parol testimony, dispute the truth of the return, at law.</p> <p>2. Conveyance. By insolvent debtor. Not fraudulent. When. A sale of property by an insolvent debtor to a purchaser, who purchases in good faith, for a fair price, without intending to defraud the vendor’s creditors, is not guilty of fraud, and the sale is valid.</p> <p>3. Charge on Court. To charge that the “defendant cannot ‘gouge’ the plaintiff in any such way,” while inelegant and not of poetic rhythm, and perhaps not aesthetic in taste, and might have been stated more “mildly,” and yet as “firmly,” is not reversible error.</p>

<p>1. CRIMINAL Law. Gontinuance. Undue excitement. Tlie continuance of a State case at the first term of the court, on the grounds of too great excitement to the prejudice of the defendant, rests in the sound discretion of the court below, but this sound discretion does not mean an arbitrary discretion, but a sound judicial discretion, and if a clear case of- abuse of this discretion is made out, it is the imperative duty of this court to reverse and correct it.</p> <p>2. Same. Evidence. Different offenses. It is error on trial of a defendant for one offense, to allow proof of a wholly different offense committed by the defendant, which is wholly unconnected with, and in no way elucidates the question of the guilt or innocence of the defendant. To allow such proof will prejudge the minds of the jury against defendant.</p>

<p>Pleadings AND Pbactice. Suit on official bond. An individual cannot bring suit upon the official bond of a clerk, to account for revenue, for a wrong done him by the clerk. The bond is given to the State to enforce the performance of official duties and to indemnify the public against delinquency.</p>

<p>Motion against Officer. Execution. Insufficient return,. The return upon an execution cannot be amended by one who has gone out of office.</p>

<p>Mandamus. Costs in criminal cases. An account lor boarding several juries was made against the State in felony cases where the State had been adjudged liable for costs, andón motion a judgment was entered against the State for the aggregate amount. Held, the judgment was a nullity. Costs had already been adjudged and should have been, certified with the other costs. No other mode is by statute provided. The proceeding was not a motion to re-tax costs.</p>

<p>CRIMINAL Lav. Self-defense. The trial judge in his charge, after saying to the jury, that “ the son has the right to tight for the father and the father for the son, under the rules that one has a right to fight in his own detense,” adds: “If the father is in fault in bringing on the conflict, then the son cannot lawfully fight in his defense until the father has declined to fight, or offered to decline it, and this is true if both parties are in fault in bringing it on, and both fight willingly.” The charge would have been more strictly accurate if it had been qualified to this effect: If the father was in fault by beginning the combat, before the son could be excused in stabbing in defense of the father, it should appear that the latter had abandoned or offered to abandon, the combat, provided the fierceness of Ms adversan/ permit, or he have time to do so.</p>

<p>PROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson County. N. Baxter, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from tRe Chancery Court at Nashville. A. G. Merritt, Ch.</p>

<p>1. PRACTICE and Pleading. New trial. If the trial judge is dissatisfied’ with the verdict, upon weighing the evidence adduced, it is his duty to set it aside and grant a new trial.</p> <p>2. Samis. Same. When the case shows that the trial judge distinctly expresses his dissatisfaction with the verdict, and ought, for the reasons stated by him, to have granted, unconditionally, a new trial, this court will grant the new trial on failure of the trial judge to grant it.</p>

<p>Chancery Court. Jurisdiction. Discovery. Under Code, secs. 4283, 4284, the, Chancery Court has jurisdiction upon bill filed by complainant, whose execution has been returned unsatisfied, to discover any specific property, and compel the judgment debtor to discover where the property is, and also to compel the defendant, by process of attachment for contempt, to deliver up the property to the satisfaction of complainant’s judgment, and the bill may be filed against the debtor alone.</p>

<p>FROM MADISON.</p> <p>Appeal in error from the Common Law Court of Madison county. L. B. Horrigan, J., sitting by interchange.</p>

<p>1. Statutes. Construction. In constrii ing an act of the Legislature, the intention will be allowed to prevail over the literal sense of the terms used. *</p> <p>2. Same. Same. Where, therefore, in an act of the Legislature creating a new county, and providing for its organization out of fractions of four old counties, the boundaries of the new county were set out, and its area designated, the calls for distance in the lines, and of quantity in the area being put in figures with the usual sign of a degree, instead of a decimal point, between the figures, the calls being altogether unmeaning, if the sign be taken in its ordinary sense, but entirely consistent and appropropriate if read as a decimal notation, the latter reading will prevail.</p> <p>8. Chancery Pleadings and Practice. New comities. Evidence. Burden of proof. Upon a bill filed by citizens of an old county to enjoin tlie organization of a new county, because it will reduce tbe old county below its constitutional area, and because the line of the new county will run within the constitutional distance from the county seat of the old county, the burden of proof is upon the complainants, and they must make out their case before the hearing by competent legal testimony, that is, by actual surveys and measurements, not by mere opinions upon insufficient and improper data.</p>

<p>CaniiNAL Law. Convicts. Corporal punishment Convicts in the penitentiary, cannot be punished except as authorized by statute, except by authority of the Board of Inspectors of the prison. The warden ' of tire penitentiary has no power to inflict corporal punishment, except the Board, in its discretion, authorize such punishment in each particular case. The Board has no authority to delegate this discretion to inflict such punishment to the warden.</p>

<p>Criminal Law. County convicts. Corporal punishment, The County Court, in the absence of exprrss legislative authority, cannot adopt rules and regulations prescribing corporal punishment for workhouse convicts.</p>

<p>Conveyance. Mortgage. Priority of mortgagor over purchaser at execution sale. A conveys his land to B by an absolute deed, but the conveyance was, in iact, a mortgage to secure B as his security. A creditor of B’s having execution, levies upon the land and sells the same. Held, that A, the mortgagor, is entitled to the land upon the payment of the mortgaged debt. A creditor, at execution sale, can obtain no higher or better title than his debtor had to the property.</p>

<p>Justices op the Peace. Selation to parties litigant. Judgment not void. When. Certiorari. A judgment rendered by a justice of the peace who is related to one of the parties within the prohibited degree, without objection made by the judgment, debtor on that ground, is not void, but voidable only; and, therefore, a certiorari.for that cause will not lie to quash an' execution issued on the judgment.</p>