Volume 88 — Tennessee Reports

<p>FROM GRAINGER.</p> <p>Appeal in error from Circuit Court of Grainger County. W. R. Hicks, J.</p>

<p>PROM SEVIER.</p> <p>Appeal from Chancery Court of Sevier County. H. R. Gibson, Ch.</p>

<p>FROM MORGAN.</p> <p>Appeal from Chancery Court of Morgan County.II. It. Gibson, Ch.</p>

<p>FROM SULLIVAN.</p> <p>Appeal in error from Circuit Court of Sullivan County. A. J. Brown, J.</p>

<p>I. Measure of Damages. Market value at place of delivery.</p> <p>Market value at place of delivery is the true measure of damages for negligent destruction of timber by one who has contracted with the owner to cut and deliver it at a specified place “ in a good, workmanlike manner.”</p> <p>2. Same. Proof of market value.</p> <p>If market value at place of delivery be incapable of direct proof, it may be shown indirectly by proof of market value of the commodity involved, at other convenient and accessible points, where transactions of like magnitude had, or could reasonably have, occurred, the cost of transportation being deducted from the latter value.</p> <p>Cases cited and approved: Henegar v. I. C. Company, I Cold., 241; Fort v. Saunders, 5 Heis., 487; Railroad v. Mason, n Lea, 116; Railroads'. Hale, 85 Tenn., 69.</p> <p>3. Same. Same.</p> <p>Where the only direct evidence of the existence of a market value for a commodity at a particular place is the opinion of witnesses based wholly upon two comparatively insignificant,transactions, the indirect evidence of market value at other accessible points will not be excluded, especially where it appears that, for want of material, a transaction of the. magnitude involved could not have occurred at such place.</p> <p>4. Parol Evidence,. Admissible, -token.</p> <p>Parol evidence, that shows the situation and knowledge of the parties at time of entering into a written contract, is not obnoxious to the rule excluding evidence to enlarge, restrict, or vary the terms of such contract.</p> <p>5. Costs. Decree for not reversed unless error manifest. i</p> <p>Adjudication of costs rests so largely within the Court’s discretion that his decree on this point will not be reversed unless error is very manifest.</p>

PROM ROANE. Writ County. of error to Chancery Court of Roane H. R. Gibson, Ch. Bill by a creditor against bis debtor and alleged fraudulent grantees to set aside a fraudulent conveyance of land. The bill was filed December 21, 1887. The deed attacked was executed March 5, 1877, and registered March 9, 1877. It conveyed, upon a recited consideration of $5,000, certain lands from defendant, Thos.

<p>1. INJUNCTION. Inhibiting meeting of Board of Education.</p> <p>Member of Board of Education, wrongfully excluded by bis fellows from participation in tile proceedings of such Board, may obtain injunction against their meeting and acting as a Board without giving him notice and opportunity, to be present.</p> <p>2. Elections. Validity of open to inquiry, when.</p> <p>Validity of an election to office may be contested and inquired into, in any proceeding by mandamus- or otherwise, whereby the claimant seeks to compel others to admit his right and title to the office; especially where no other means of contest are provided by law.</p> <p>Cases cited and approved : Marshall v. Kerns, 2 Swan, 67, 68 ; Packets'. Bean, II Heis., 600; Lewis v. Watkins, 3 Lea, 181, 182.</p> <p>3. Same. By municipal authorities, how made. Blank ballot.</p> <p>In elections by Boards of Mayor and Aldermen, or other definite body of electors, the rule is, in the absence of statutory provision to the contrary, that a majority of those present and acting — there being a quorum — must concur in voting for a candidate in order to elect him; and those voting blank ballots are to be counted as present and not concurring.</p> <p>4. Same. Case in judgment.</p> <p>Board of Mayor and Aldermen had authority to fill an office, voting by ballot. That Board consisted of a Mayor and nine Aldermen. A majority constituted a quorum for transaction of business. The Mayor had no vole except in case of a tie. At an election held to fill said office — there being present the Mayor and eight Aldermen —four votes were cast for L., three for F., and one blank ballot. The Mayor declared L. elected. Upon motion to reconsider there were four votes for and four against reconsideration. The Mayor, without casting his vote, declared the motion lost. The Recorder issued certificate of election to L.</p> <p>Held: That L. was not elected, nor entitled to recognition as such officer.</p> <p>5. Same. Same. Mayor's action ineffectual.</p> <p>The Mayor’s action, in declaring JL. elected and the motion to reconsider the election lost, was wholly ineffectual. In neither case did he actually cast his vote. He could not have voted in an election effectually except by ballot. There was no tie in the first instance.</p> <p>6. Same. Same. Issuance of certificate.</p> <p>Issuance of certificate of election to L. upon the assumption that he was elected, being wholly unauthorized, gave no protection to L.’s claim to the office.</p> <p>7. Same. Same. Raiificaiio?i.</p> <p>Refusal of Board to reconsider the election cannot be invoked in aid of L.’s claim to the office. The vote was not by ballot. A majority did not concur.</p>

<p>1. Administration. Marshaling assets. Discharge of liens on lands descended.</p> <p>The heir is entitled, as against the distributee, to have the personal estate of an intestate applied in extinguishment of liens upon the lands descended for purchase-money, which the intestate, by contract with his vendor, agreed to pay either to the vendor directly, or to some third person designated by the vendor in discharge of a preexisting lien on the land.</p> <p>Cases cited: 3 Johns. Ch., 229, 254, 257; 2 Brown’s C. C., 101, 604; 2 P. Wins., 664; 20 Beavan, 380, 383; Salk, 449; 5 W. R., 747; 3 Vesey, 128; 5 Vesey, 534; 7 Vesey, 336; 14 Vesey, 418.</p> <p>2. Contracts. Promise for benefit of third person.</p> <p>Vendee’s agreement with his vendor to pay the purchase-price of land to a third person, designated by the vendor — being a former incum-brancer — renders the vendee liable to such third person for the amount, and the same may be recovered by suit of such person against the vendee or his personal representative.</p> <p>Cases cited and approved: Moore v. Stovall, 2 Lea, 543; 20 N. Y., 268; 24 N. Y., 178; 14 Iowa, 476; 4 Ohio St., 333.</p> <p>(See Railroads. Houston, 85 Tenn., 224.)</p>

<p>FROM BRADLEY.</p> <p>Appeal in error from Circuit Court of Bradley County. D. C. TREwhitt, J.</p>

<p>1. LAN d Law. Special entry in Hiwassee District.</p> <p>An entry is prima facie special upon its face, though open to attack by extrinsic evidence, when, having been made after the division of the Hiwassee District into ranges, townships, fractional townships, etc., as provided by Act of 1819, it calls for its beginning corner in said District and in Blount County, “ at the south-west corner of Lot 21, Second Fractional Township, Range 7, east of the meridian”— the point called for being one established by a public survey made by direction of law, and capable of easy ascertainment.</p> <p>Case cited and approved: Berry v. Wagner, 5 Lea, 564.</p> <p>2. Same. Hiatus. Case in judgment.</p> <p>H. made a special entry, but suffered a hiatus to intervene before obtaining his grant. Upon an extension of time subsequent to this hiatus he procured his grant.</p> <p>M. claimed under junior special entries of same lands made anterior to said hiatus in H.’s title, but did not obtain grants until after expiration of this hiatus. M.’s grants are older than H.’s, and one of them was issued within the time allowed by law, or an extension thereof, without the occurrence of any hiatus.</p> <p>Held: That H. has the superior title. M.’s entries, being unauthorized and void in their inception, could not become valid on the occurrence of the hiatus in Ii.’s title.</p> <p>Case cited and approved: Tipton v. Sanders, 2 Head, 691.</p> <p>Cited and distinguished: Sampson v. Taylor, 1 Sneed, 600; Williams v. Throop, 11 Hum., 265; Blevins v. Crew, 3 Sneed, 151.</p>

<p>I. Railway Companies. Power to consolidate or moi’tgage property.</p> <p>Railway corporations cannot, without legislative permission, consolidate with each other, or sell, lease, or mortgage their property; and therefore the Legislature may couple with the grant of those powers such conditions and limitations as it chooses to impose.</p> <p>Cases cited and approved: Mallory v. Oil Works, 86 Tenn., 603; Thomas v. Railroad, 101 U. S., 71. '</p> <p>2. Same. Limitation of Act of 1877 upon power of consolidated roads to make mortgages, valid.</p> <p>That is a valid and constitutional limitation upon the power of consolidated railway companies to make mortgages imposed by third proviso of the third section of the Act of 1877, amendatory of “ the law in relation to the consolidation of railways,” which inhibits any railway corporation thereafter “ to give or create any mortgage or other kind of lien on its railway property in this State, which shall be valid and binding against judgments and decrees and executions therefrom for timber furnished and work and labor done on, or for damages done to persons and property in the operation of its railroad in this State.”</p> <p>Acts construed: Acts 1877, Ch. 72, #3, proviso 3.</p> <p>(See kindred Acts: Acts 1877, Ch. 12, §3, and Acts 1S73, Ch. 8, £5.)</p> <p>3. Same. Same. Claim for “ damages done to persons.”</p> <p>Claim has priority under said proviso as “damages done to persons,” when due upon breach of a contract whereby the railway company agreed to pay a person injured by its negligence $i,'8oo cash and $90 per month for five years, in consideration of his release of all claim for damages, the injured person agreeing to perform, during that period, such labor in the company’s shops as he was able to do and called upon to perform.</p> <p>Act construed: Acts 1877, Ch. 72, £3.</p> <p>4. Same. Same. Same. No set-off allowed company for vahee of injured person's services.</p> <p>Set-off will not be allowed the railway company, in such case, for value of services performed by the injured person in the prosecution of his private affairs, where it appears he was not able to work in the company’s shops, and was not called upon to do so.</p> <p>5. Same. Same. Property liable for preferred claims. Creditors' Bill.</p> <p>The property of a consolidated railway company in the hands of the purchaser, other than an innocent one, is liable to the claims given priority by said proviso of the Act of 1877, where it was sold upon foreclosure of a mortgage made by such company subject to the provisions of said Act; and it may be subjected to such claims by Creditors’ Bill filed by one, on behalf of himself and all other creditors of the preferred class, against the insolvent company and the purchaser of its mortgaged property.</p> <p>Code cited: {$1492-1496, 3431, 4294, 4295 (T. & S.); §§1719-1723, 4168, 5037, 5038 (M. & V.).</p> <p>6. Same. Mortgagee cannot become innocent purchaser.</p> <p>Mortgagee of railway property purchasing at his own foreclosure sale, made under a mortgage executed subject to the provisions of said Act of 1877, in a proceeding to which the claimants given priority by that Act were not parties, is not protected, as an innocent purchaser, against such preferred claims.</p> <p>7. Same. Charter atethority to issue bonds and mortgage property.</p> <p>Provision in charter of a railway company allowing it to “increase its capital to a sum sufficient to complete its road, and to stock it with every thing necessary to give it full operation and effect, either by opening books for new stock, or by selling new slock, or by borrowing money on the credit of the company, and on the mortgage of its charter and works,” gives only the limited power to the company to issue bonds and mortgage its property to complete and equip its road, and for no other purpose.</p> <p>Act corstrued: Acts 1847-8, page 195.</p> <p>8. Same. Same. Mortgage subject to limitations of the general law, when.</p> <p>Mortgage executed by such company upon its property, to secure bonds issued twenty-five years after completion of its road, will not be referred to the power granted in its charter, in the absence of allegation and proof that the bonds were issued for the purposes authorized by the charter, or in renewal of such; but, if made after the passage of the Act of 1877, and falling within its provisions, it will be subjected to the limitations imposed by that Act upon the power of consolidated railway companies to make mortgages.</p> <p>9. Same. Power to make mortgages. Act of 1881 does not repeal limitations contained in Act of rSj'j.</p> <p>The Act of 1881, conferring the power to make mortgages upon all railway companies, in very broad terms, does not repeal the special limitations imposed by the Act of 1877 upon the power of consolidated railway companies to make mortgages of their property.</p> <p>Acts construed: Acts 1877, Ch. 72, § 3, proviso 3 ; Acts 1881, Ch. 9, ?¿ 1.</p> <p>10. Same. Judicial notice of charier.</p> <p>Judicial notice is taken of a railway charter granted by special Act of the Legislature, published as a public Act, and referred to in other public Acts subsequently passed.</p> <p>■tases cited and approved: 55 Ala., 413; 58 N. H., 93.</p> <p>11. Statutes. Repeal by implication. Rule.</p> <p>Repeals of statutes by implication are not favored. The repugnancy between the two statutes must be.plain and unavoidable before one will be held to have repealed the other by implication.</p> <p>Cases cited and approved: Hockaday v. Wilson, 1 Head, 114; Buchanan v. Robinson, 3 Bax., 152; Insurance Company v. Taxing District, 4 Lea, 644. (Also 13 Lea, 672).</p> <p>12. Constitutional Law. Title and subject of Act. General rules.</p> <p>The generality of the title of an Act does not render it obnoxious to constitutional objection, so long as it is not made to cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection. Within these limitations, the Legislature must determine for itself what particularity shall be employed in- the titles of Acts.' And “ any provision, of an Act directly or indirectly relating to the subject expressed in the title, and having a natural connection therewith, and not foreign thereto, should be held embraced in it.”</p> <p>Constitution cited: Art. II., §17.</p> <p>Cases cited and approved: Cannon v. Matlies, 8 Heis., 504'; Morrel v. Fickle, 3 Lea, 79; State v. McConnell, 3 • Lea, 333; Luehrman v. Taxing District, 2 Lea, 428. •</p> <p>Case cited and distinguished: Ragio v. State, 86 Tenn., 272.</p> <p>13. Same. Same. Case in judgment.</p> <p>Act 1877, containing the restrictive pj'oviso set out in the second headnote ante, was entitled “An Act to amend the law in relation to the consolidation of railways.” It extended the powers granted to existing railroads by Acts of 1871 and TS75 1° any railroads, then existing or thereafter created, with the limitations therein set out. The former Acts had conferred upon existing railway corporations very ample power to consolidate and to issue bonds and make mortgages.</p> <p>Held: The proviso in Act of 1877, limiting power of consolidated railway corporations to make mortgages, is germane to the title of the Act; and that the Act, as a whole, has but one subject, which is. sufficiently expressed in the title.</p>

<p>FROM MORGAN.</p> <p>Appeal from Chancery Court- of Morgan County. H. K. Gibson, Ch.</p>

A testator’s intention, however clearly shown by proof aliunde, will not be regarded or enforced if inconsistent with the intention disclosed by the language of his will when read in the light of the facts and circumstances surrounding him at time of its execution. FROM BRADLEY. Appeal from Chancery Court of Bradley County. W. H. Dewitt, Ch.

<p>PROM HANCOCK.</p> <p>Appeal iii error from Circuit Court of Hancock County. A. J. Bkown, J.</p>

3?R0M MARION. Appeal in error from Circuit Court of Marion County. D. C. Teewhitt, J. Action for seduction and breach of marriage promise brought by Lucretia McReynolds against John Graham. The plaintiff obtained judgment for $25,000 damages, from which defendant appealed, and assigned errors.

<p>I. Assault. Actual and personal.</p> <p>The assault is not constructive merely, but actual and personal, where one, intending violence to another sheltered within a house, casts upon the roof of the house lighted dynamite cartridges, known to possess sufficient explosive force to crush the house and kill the inmates, but failing of that result only by reason of the fortunate accident that they rolled from the roof before explosion.</p> <p>Case cited and approved : Cowley.». State, io Lea, 285.</p> <p>Cited and distinguished: Evans v. State, 1 Hum., 394; State». Freels, 3 Hum., 228.</p> <p>2. Same. Sufficient in cases of felonious assaults.</p> <p>Such assault constitutes the felony defined by Code, §5375 (M. & V.) and §4626 (T. & S.), if made feloniously, with malice aforethought, and with intent to commit murder in first degree.</p>

<p>1. Statute of Limitations. Seven years. Act of 1715 protects heir.</p> <p>The heir, who takes title to land by descent and claims and holds it for seven years after the ancestor’s death, is protected, without having had any actual possession of the land, under the provisions of the Act of 1715, from suit thereafter instituted against him to enforce a written contract, breached by the ancestor before his death, whereby the latter took and agreed to hold the title of the land in trust for the party suing.</p> <p>Code construed: §§ 3119, 3483 (M. & V.) ; §§.2281, 2786 (T.&S.).</p> <p>Cases cited and approved : Love v. Welch, MS., citing Smith v. Hickman, Cooke’s Rep., 329; Lewis v. Hickman, 2 Tenn., 316; Peck v. Wheaton, M. & Y., 353; Williams v. Conrad, 11 Hum., 412; Earles v. Earles, 3 Head, 366.</p> <p>2. Same. Recognition of claim by personal representative.</p> <p>Recognition of such claim or trust by the personal representative, having only a naked power to sell the land, does not prevent the running of the statute of 1715 in favor of the heir. Nor does such recognition by the heir himself stop the running of that statute, unless it is equivalent to a valid assumption of the claim or trust on the part of the heir.</p> <p>Cases cited and approved: Loyd v. Loyd,- 9 Bax., 406; Cooper v.. Lyons, 6 Lea, 597.</p>

<p>PROM SUMNER.</p> <p>Appeal in erroi’ from Circuit Court of Sumner County. A. H. Munpord, J.</p>

<p>1. Demurreb. Overruled, if too broad.</p> <p>Demurrer going to whole declaration, and good as to some but bad as to other distinct grounds of action therein averred, is too broad, and should be overruled.</p> <p>2. Husband and Wife. Deserted wife's right to sue.</p> <p>Deserted wife can maintain suit, in husband’s name, upon any cause of action that had accrued to the husband, and which he could have asserted, and in her own name upon any causes of action accruing subsequently to the desertion.</p> <p>Code cited: ?3505 (M. & V.); § 2805 (T. & S.).</p> <p>3. Same. Same. What is desertion.</p> <p>The husband’s conduct and treatment of the wife may afford plenary proof of desertion without actual separation.</p>

<p>i. Homestead. Marriage of debtor.</p> <p>A debtor who acquires the right to homestead by reason of his marriage, can assert that right against antecedent debts in lands owned by him at the time such debts were contracted, if his creditors had fixed no lien upon the lands at the date of the marriage.</p> <p>Cases cited and approved: 15 Tex., 174; 38 Miss., 198.</p> <p>Question reserved: If creditors have fixed lien upon the lands at date of his marriage, can the debtor take homestead?</p> <p>Case cited: 37 Am. Rep., 720.</p> <p>2. Same. Same, Obligation of contract is not violated.</p> <p>Obligation of contract between debtor and creditor is not impaired by allowance of homestead to debtor in such case.</p> <p>Constitution construed : Art. I., \ 20.</p> <p>Cases cited: Kennedy v. Stacy, 1 Bax., 220; Hannum v. Mclnturf, 6 Bax., 225; 15 Wall., 610.</p>

<p>1. Jurisdiction. Over non-resident. Ptiblication.</p> <p>Courts of Law cannot entertain suit against a non-resident for a personal demand upon publication alone, without attachment or other impounding of his property situated within the jurisdiction of the Court.</p> <p>Cases cited and distinguished: Taylor v. Roundtree, 15 Lea, 725; Kyle v. Phillips, 6 Bax., 43 ; Walker v. Cottrell, 6 Bax., 257.</p> <p>2. Same. Same. Service of process on co-defendant.</p> <p>Want of jurisdiction over the non-resident is not, in such case, cured by the fact that a co-defendant, jointly sued, but severally liable for the demand, was duly served with'process.</p> <p>3. Negotiable Paper. Indorsement of check by payee.</p> <p>The payee of a bank check is liable upon his indorsement, after it has been duly presented to the drawee and protested for non-payment, although the indorsee or holder, before accepting it, obtained the assurance of the drawee that the check was good and would be paid.</p> <p>Cases cited: Bank v. Merritt, 7 Heis., 190; Andrews v. Bank, 9 Heis., 211.; Schoolfield v. Moon, 9 Heis., 171; 10 Wall., 152, 647.</p>

<p>PROM HUMPHREYS.</p> <p>Appeal County.’ from Chancery Court of Humphreys Geo. E. Seay, Ch.</p>

<p>1. Mortgage. Mortgageor may recover for injury to mortgaged chattel, when.</p> <p>Mortgageor in rightful possession before default may recover the damages for the wrongful destruction of a mortgaged chattel.</p> <p>Case cited and approved: 18 Am. Rep., 547, 552.</p> <p>2. Action. By fart owner of chattel.</p> <p>Judgment for full value of chattel rendered in favor of a part owner in an action for its wrongful destruction, to which the other part owners are not parties, is erroneous, even where it is proved that the latter assented by an arrangement made after the capse of action accrued.</p>

<p>EROM MONTGOMERY.</p> <p>Appeal from Chancery Court of Montgomery County. 'Geo. E. Seay, Ch.</p>

<p>PROM SUMNER.</p> <p>Appeal from Circuit Court of Sumner County. A. II. Munpord, J.</p>

<p>FROM MAURY.</p> <p>Appeal in error from Circuit Court of Maury County. E. E. PatteRSOn, J.</p>

<p>I. RAILWAY Companies. Responsibilities as carriers of live stock.</p> <p>The duties and responsibilities of railway companies, as shippers of live animals, are precisely those of a common carrier with respect to other properly committed to its care for transportation, except that they are not insurers against losses and injuries resulting from the inherent nature, propensities, or habits of the animals themselves.</p> <p>Cases cited and approved: io Lea, 304; 6 Heis., 271; 85 Tenn., 69; 86 Tenn., 198; II Lea, 116; 112 U. S., 331; 36 Minn., 539 (S. C., 1 Am. St. Rep., 692); 71 Wis., 372 (S. C., 5 Am. St. Rep., 226); 31 Minn., 85 ; 30 ICan., 645 ; 60 Miss., 1017; 52 Ala., 368; 85 Ala., 47; 92 Mo., 343 (S. C., 1 Am. St. Rep., 721).</p> <p>2. Common Carrier. Invalidity of contracts exempting from liability for negligence.</p> <p>Common carrier, whether of live animals or other property, cannot validly stipulate for exemption to any extent, either in whole or in part, from liability for losses caused by its negligence.</p> <p>Cases cited and approved: 16 Lea, 225; 2 Lee, 288; 85 Tenn., 529; 86 Tenn., 397; 87 Tenn., 559; 31 Minn., 85; 30 Kan., 645; 25 Md., 3345 60 Miss., 1017; 28 Ohio St., 144; 55 Wis., 319; 52 Ala., 606; 71 Ala., 611; 103 Ind., 121; 35 Am. and Eng. R. Cases, 666; 69 Ill., 62; 97 Ill., 525 (S. C., 34 Am. Rep., 197); 17 Wall., 357-384; 112 U. S., 338; 74 Mo., 538; 92 Mo., 343 (S. C., 1 Am. St. Rep., 721).</p> <p>Cited and distinguished: 112 U. S., 331; 137 Mass., 33; 74 Mo., 539; 25 Md., 329; 84 Ala., 178.</p> <p>Cited and disapproved: 98 Mass., 239; 52 Ala., 615; 56 N. Y., 168; 50 Ark., 551 (S. C., Am. and Eng. R. Cases, 635).</p> <p>3. Same. Burden of proof upon carrier to show that loss was not caused by negligence.</p> <p>Burden of proof rests upon carrier of live animals to show that loss resulted, not from its negligence, but from some other cause, for which it was not responsible.</p> <p>Cases cited and approved: 7 Yer.,.340; 8-fi[um., 498; 9 Bax., 188; 2 Lea, 296; 86 Term., 393; 71 Ala., 6x1; 63 Penn. St., 14; 36 Minn., 539 (S. C., i Am. St. R., 692); 60 Miss.; 1017; 28 Ohio St., 144; 55 Wis., 319. _ . ■' :</p> <p>4. Same. Case in judgment.</p> <p>The shipper of a fine mare, worth $800, accepted of the carrier a bill of lading containing a statement that its liability for loss of a “horse or mule ” should not, in any case, exceed $100. There was no agreed valuation of the mare adopted a's basis'for freight charges. The mare was in good condition when delivered to carrier, but died before reaching destination.</p> <p>Held: That stipulation limiting carrier’s liability to $100 is invalid as to a loss caused by its negligence; and that burden of proof was upon the carrier to show that the .mare-died from other cause than its negligence.</p> <p>5. Practice. As to omissions in charge.</p> <p>Mere omissions in the Court’s charge is not reversible error in a civil case where no requests for the proper'instructions were made in the Court below. V</p> <p>Cases cited: 9 Heis., 27; 12 Heis., 375; 12 Lea, 157; 7A, 762; 7 Lea, 201. " ■■</p> <p>6. Same. As to construction of written instruments offered in evidence.</p> <p>The interpretation of written contracts or" instruments is a matter for the Court, and should not be submitted to the jury; and, if improperly left to the jury, this Court will reverse, unless it is made clear upon the record that the jury gave the contract or instrument its proper construction. ’</p> <p>Cases cited: 11 Hum., 245; 12 Piéis., 431; 13 Lea, 250, 280.</p>

<p>PROM MONTGOMERY.</p> <p>Appeal from Criminal Court of Montgomery County. C. W. Tyler, J.</p>

<p>1. Voluntary Conveyance. Valid if sufficient assets retained by donor to meet his debts.</p> <p>Voluntary conveyance, made without any fraudulent purpose, is valid against all creditors of the donor, if he has retained assets sufficient at its date to meet his existing debts.</p> <p>Cases cited: Farnsworth v. Bell, 5 Sneed, 531; Patrick v. Ford, 5 Sneed, 5325 Vance v. Smith, 2 Heis., 343, 350.</p> <p>2. Same. Same. What debts to be provided for.</p> <p>But a possible liability of the donor for fraud in sale of land, which has not been asserted by suit or demand, is not such a debt as the donor is required to retain assets to meet.</p> <p>Case cited: Arendale v. Morgan, 5 Sneed, 703.</p> <p>•3. Decree. Coram non judice.</p> <p>A decree is inoperative and void so far as it undertakes to adjudicate matters not within the scope of the pleadings.</p> <p>4. Statute of Limitations. Seven years.</p> <p>Seven years’ continuous adverse possession of land, held in part under a verbal gift, and in part under deed made in confirmation of such gift, gives to the possessor such possessory right, under the second section of the Act of 1819, as will enable him to defeat an action brought to recover the land.</p> <p>(See Code: ¡5jS 3460, 3461 (M. & V.); $§2764, 2765 (T. & S.)</p>

<p>FROM STEWART.</p> <p>Appeal in error from Circuit Court of Stewart County. Jo. C. Stark, J.</p>

<p>1. Fire Insurance. Waiver of condition in policy. Building standing on-leased ground. ,</p> <p>Insurer waives the printed condition in a fire policy declaring that “if the building insured stands upon leased ground it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy will be void,” where, with full knowledge, communicated by the assured, of the fact that the building stood on leased ground, he prepared, signed, and delivered the policy, omitting the required statement, and accepted the premium from the assured, who had no actual notice either of the condition or the omission until a loss had occurred.</p> <p>Cases cited and approved: Delahay v. Ins. Co., 8 Hum., 684; Ins. Co. v. Barker, 7 Heis., 504; Ins. Co. v. Sorrels, 1 Bax., 352; Ins. Co. v. Crockett, 7 Lea, 726.</p> <p>2. Same. Insurer affected by his agents knowledge.</p> <p>Insurer is affected by notice of the fact that the building stood on leased premises, communicated to his local agent by the assured in making verbal application for the policy.</p> <p>3. SAME. Parol evidence admissible to show agents knowledge.</p> <p>And parol evidence is admissible to show that assured communicated to the agent the fact that the building stood on leased premises, notwithstanding the provision in the policy that “the use of general terms, or any thing less than a distinct, specific agreement, clearly expressed and indorsed on the policy,' shall not be construed as a waiver of any printed or written restriction therein.”</p> <p>Cases cited and approved: 28 Gratt., 389 (S. C., '26 Am. Rep., 364) ; 55 Miss., 479 (S. C., 30 Am. Rep., 521, 526).</p> <p>4. Same. Proof of extent of loss. Valued policy.</p> <p>Proof of cash value of building at time of its destruction is requisite in a suit, for its total loss, upon a fire policy wherein it was stipulated that the insurer was “ to make good all such immediate loss or damage, not exceeding in amount the sum specified, as shall happen by fire to the property specified, “ * * the amount of loss or damage to be estimated according to the actual cash value of the pr.operty al the time of the loss.” This is not a “ valued policy.”</p> <p>5. Same. Same. Preliminary proofs of loss not admissible.</p> <p>The fact or extent of the loss cannot be shown, on the trial of a suit upon a fire policy, by introduction of the preliminary proofs of loss furnished by the assured to the insurer under the stipulations of the policy.</p> <p>Cases cited and approved: 46 Md., 302; 87 Mo., 62; 65 Wis., 585.</p> <p>6. Same. Same. Sufficiency of proof.</p> <p>The fact that assured applied for $3,000 insurance on his building and was granted $2,000 is not sufficient, of itself, to prove that its cash value was $2,000 at a subsequent date, when it was totally destroyed by fire. ,</p> <p>7. Supreme Court Practice. Finding of trial Judge conclusive, when.</p> <p>Finding of trial Judge sitting without a jury, upon the facts of a case, is conclusive upon this Court, when supported by one positive witness and opposed by a single negative witness only.</p> <p>8. Same. When case will be remanded.</p> <p>Case will be remanded for another trial, where a judgment rendered in favor of the plaintiff, upon a trial before the Judge alone, is reversed for want of proof to support its amount, this Court being of opinion there is a good cause of action, and that the plaintiff below was misled without culpable negligence on his part.</p>

<p>1. Negotiable Instruments. Possession of bank check by drawee bank raises presumption of payment.</p> <p>Possession, by the drawee bank, of a bank check made payable to a particular person or order, raises a prima facie presumption of its payment by the bank, in accordance with its terms.</p> <p>Case cited and approved: Kincaid v. Kincaid, 8 Hum., 17.</p> <p>2. Same. Same. Presumption disputable.</p> <p>But this presumption is disputable, and, in this case, is rebutted by the evidence.</p> <p>3. Same. Unauthorized payment of check does not exonerate bank.</p> <p>After acceptance by bank of check drawn upon it in favor of a particular payee or order, the bank must, at its peril, see that the check is paid to the payee therein named or upon his genuine indorsement. If the bank mistake identity of payee, or pay to another upon forged indorsement, it will remain responsible.</p> <p>Cases cited and approved: II N. Y., 404; 94 U. S., 343.</p> <p>4. Same. Acceptance of check essential to mainte7iance of stiit upon it.</p> <p>Unless the drawee bank has accepted a check, or done some act equivalent to and implying acceptance, the holder of the check cannot maintain suit upon it against the bank.</p> <p>Cases cited and approved: Bank v. Merritt, 7 Heis., 177! Bank v. Keesee, 7 Heis., 200; Imboden v. Perrie, 13 Lea, 5°4J 10 Wall., 152; 94 U. S., 343; 107 Mass., 45 ; 46 N. Y., 82 ; 73 Penn. St., 485 ; 100 Penn. St., 23 (S. C., 45 Am. Rep., 353); 22 Gratt., 742.</p> <p>5. Same. Same. What is sufficient evidence of acceptance.</p> <p>Acceptance of bank check and promise to pay it in accordance with its directions will be inferred where the drawee bank receives and retains the check and charges it to the account of the drawer, who had sufficient funds on deposit to meet it, and subsequently lifted the check on settlement with the bank.</p> <p>Cases cited and approved: lo Wall., 157 > 73 Penn. St., 483 (S. C., 13 Am. Rep., 751); 100 Penn. St., 23 (S. C., 45 Am. Rep., 353); 20 Ohio St., 234 (S. C., 5 Am. Rep., 648).</p> <p>Case cited and disapproved: 94 U. S., 347.</p> <p>■6. Same. Mistake of bank in acceptance and payment of check.</p> <p>The fact that the bank, through mistake, received the check from and paid it to an unauthorized person, will not, in such case, prevent the inference of an acceptance of and promise to pay the check according to its directions. The bank will not be permitted to set up its own negligence as a defense.</p> <p>7. Same. Delivery of check essential to payee's right of recovery thereon.</p> <p>Unless drawer of bank check has delivered it to the payee, the latter cannot maintain suit upon it against (he drawee bank.</p> <p>•8. SAME. Same. Ratification of delivery to a stranger.</p> <p>But an unauthorized delivery of a check to a stranger, who, without authority, presents and receives payment thereof from the bank, may be adopted and ratified by the payee for his own benefit.</p> <p>9. Same. Same. Bringing suit is sufficient ratification.</p> <p>Bringing suit upon the check is d sufficient ratification by the payee of the unauthorized delivery.</p> <p>10. Same. Autiiority to receive check does not embrace authority to collect it.</p> <p>Authority to receive a check payable to order does not include authority to collect it; and therefore ratification of the act of receiving does not imply a ratification of the wrongful collection of such check.</p> <p>Cases citéd and approved: 20 Ohio St., 234 (S. C., 5 Am. Rep., 648) 17 N. Y., 207.</p>

<p>1. Auctioneers.. Not liable io third person for value of goods sold on commission.</p> <p>An auctioneer, who, in due course of his business, receives mortgaged chattels from the mortgaged' and sells them for him on commission and pays over their proceeds, without notice, actual or constructive, of the existence or contents of the mortgage, is not liable to the mortgagee as for a conversion of the goods, although the mortgageor acted wholly without authority.</p> <p>Case cited and approved: Roach». Turk, 9 Heis., 708.</p> <p>2. Registration. Is not constructive notice, wken.</p> <p>Registration of mortgage does not, in such case, affect the auctioneer with constructive notice of its existence and contents.</p> <p>Cases cited and approved: Napier v. Elam, 6 Yer., 108; Ingram». Morgan, 4 Hum., 66; Topp v. White, 12 Heis., 165.</p>

<p>PROM DAVIDSON.</p> <p>Appeal in eri’or from Circuit Court of Davidson County. W. K. McAlisteR, J.</p>

<p>I.Costs. Adjudicated upon dismissal''of case for want of jurisdiction.</p> <p>Our Courts have the power, conferred by statute, to adjudicate all costs upon dismissal of case for want of jurisdiction. But this power did not exist independently of the statute.</p> <p>Code construed: $394o (M. & V.); $3215 (T. & S.).</p> <p>Cases cited: Taul’s Administrator y..Collinsworth, 2 Yer., 579; Turner v. Farley, 3 Yer., 300; Welsh v. Marshall, 6 Yer., 457; Walkers. Snowden, 1 Swan, 193; Evans v. Shields, 3 Head, 70-75; Cannon v. McAdams, 7 Heis., 378; Cartmell v. McClaren, 12 Heis., 41-44; Jackson v. Baxter, 5 Lea, 344.</p> <p>Cited and overruled: Walker v. Snowden, 1 Swan, 192; Evans v. Shields, 3 Head, 70-75; Cannon v. McAdams, 7 Heis., 378.</p> <p>2.Attachment. To enforce Ken on realty for municipal taxes, not maintainable.</p> <p>Proceedings by original attachment cannot be maintained to enforce lien on land, for municipal taxes, where none of the grounds prescribed by law for issuance of such attachment are averred.</p> <p>Code cited: §4192 et seq. (M. & V.) ; §3455 et seq. (T. & S.).</p> <p>3.SAME. Judgment for debt not allowed when attachment fails.</p> <p>Judgment for plaintiff’s debt will not be rendered, where an original attachment is dismissed, unless there has been service of summons upon the defendant as provided by Act 187.1, Ch. 134.</p> <p>Act construed: Acts 1871, Ch. 134 (Code, {$4203, 4204 (M. & V.).</p> <p>Case cited: Dougherty v. Kellum, 3 Lea, 642.</p> <p>4. Supreme Court Practice. Relief refused if not asked or granted beloto.</p> <p>Supreme Court will not grant relief that was not asked or granted'below, and was sought for the first time on petition to rehear in this Court.</p>

<p>I. Measure of Damages. For negligent injury to realty.</p> <p>For negligent injury to realty, resulting from a cause susceptible of remedy or removal, the owner is entitled to recover of the person whose negligence caused the injury, only such damages as had actually accrued on account of the impaired use of the property at the commencement of the suit; and for continuance or recurrence of injury from same cause he must seek relief by successive actions. But for injury resulting from a permanent and irremediable cause, the owner may recover, in a single action, his entire damages, to wit: That amount which represents the permanent depreciation of the realty in value in consequence of the injury.</p> <p>Cases cited and approved: Harmon v. Railroad, 87 Tenn., 614; 101 N. Y., 98; 26 W. Va., 787; 37 N. Y., 472; 17 Ohio, 489; 26 Hun., 120; 79 Penn. St., 71 (S. C., 21 Am. Rep., 42).</p> <p>Cited and disapproved : 3 Foster (N. H.), 82; 103 Ind., — ;i 12 Mass., — .</p> <p>2. Same. Same. When cause of injtiry is remediable.</p> <p>When the cause of injury is abatable, either by the expenditure of labor or money, it will not be held permanent and irremediable, as that would result in the licensing of a wrong, and enable the wrongdoer to appropriate the property of another to his private use.</p> <p>3. Case in Judgment.</p> <p>Owner of lot sued city, averring unskillful construction of a public sewer, whereby storm and sewage water were forced out upon his lot through his private tributary sewer. The defect in the public sewer was remediable by expenditure of money and labor. The Court admitted evidence and charged the jury upon the theory that plaintiff was entitled to recover for the permanent impairment of the value of the lot.</p> <p>Held: This was error.</p>

<p>Insurance. Agent personally responsible for loss tinder policy taken in tmqtialified company.</p> <p>An insurance agent who lakes a policy in this State for a foreign company that is doing business unlawfully — not having complied with the requirements of our laws regulating the business of insurance— becomes personally responsible to the policy-holder for loss that occurs under that policy.</p> <p>Code construed: §2565 (M. & V.).</p>

<p>1. Common Carriers. Validity of contract limiting carrier's common law responsibility.</p> <p>A common carrier may stipulate for limitation of or exemption from his common law responsibility for loss of freight occurring through other cause than his negligence (e. g., accidental fire), provided the contract is supported by a bona fide and not merely colorable consideration, and is fair and reasonable in itself in view of all the surrounding. circumstances, and the assent of the shipper thereto is fairly .obtained.</p> <p>Cases cited and approved: Marr v. Telegraph Co., 85 Tenn., 542; Transportation Co. v. Bloch Brothers, 86 Tenn., 397; Dillard v. Railroad, 2 Lea, 288; 17 Wall., 357; 112 U. S., 338; 47 L. J., Q. B., 131; 15 Ir. C. L., 37; 3 Wall., 107; 25 N. Y., 442.</p> <p>2. Same. Same. Reasonable alternative must be offered.</p> <p>But the carrier must hold himself in readiness to ship with common law responsibility, and must offer to shippers a reasonable and bona fide alternative between that mode of shipment and the one with limited responsibility.</p> <p>Cases cited and approved: Marr v. Telegraph Co., 85 Tenn., 545; 15 Ir. C. L., 37.</p> <p>3. Case in Judgment.</p> <p>Carrier received cotton for shipment from Columbia to Nashville, giving to shipper a bill of lading providing against liability for loss by fire. The cotton was destroyed by fire without the carrier’s negligence. Shipper sued the carrier for its value. Said fire clause was interposed as a defense. The proof was that $1 per bale — the freight rate named in said bill of lading — had been, for many years, the only rate for shipment of cotton between said points; that no change of rate had been made when the fire clause was inserted in the bills of lading; that the regular tariff rates between said points was thirty-seven cents per hundred pounds, which would make the cost of shipment of cotton $1.85 per bale; that cotton was not embraced in the list of articles that could be shipped at regular rates; that the carrier’s agent at Columbia had no authority to receive cotton for shipment upon any terms except those named in said bill of lading, though he might have obtained authority by wiring the home office.</p> <p>Held: That said “ fire clause ” in the bill of lading is void.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. W. K. McAlister, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from Chancery Court of Davidson County. Andrew Allison, Ch.</p>

<p>1. State Treasurer. Official bond does not cover defaults as Insurance Commissioner.</p> <p>The State Treasurer’s bond does not cover, and his sureties thereon are not bound for, that officer’s acts or defaults as ex officio Commissioner of Insurance.</p> <p>Code construed: §253 (Ml & V.); $224 (T. & S.).</p> <p>2. Same. Personal responsibility as Insurance Commissioner. Liable only for corrupt acts.</p> <p>The act of the State Treasurer, in his character of Insurance Commissioner, in' passing upon an application for issuance of license to an insurance company and its agents, is judicial under our statutes, not ministerial; and therefore he is not personally liable for injury resulting from his illegal action in this regard, unless he acted corruptly.</p> <p>Code construed: $§2575, 2563 (M. & V.).</p> <p>3. Same. Same. " Knowingly" is not equivalent to 1‘corruptly."</p> <p>He is not liable upon an averment that he “knowingly” issued license to an insurance agent without authority of law. “Knowingly” is not equivalent to “corruptly.” It does not necessarily import willfulness or malice. While presumed to knmv the law, he may, in fad, be ignorant of it without his fault or negligence.</p> <p>Quiere: Does the Act of 1887, Ch. 178, authorize the licensing of mutual fire insurance companies or their agents?</p>

<p>PROM DAVIDSON.</p> <p>Appeal from Chancery Cou-rt of Davidson County. AndRew Allison, Oh.</p>

<p>1. Trusts. Deed creating an active trust.</p> <p>An active trust is created where a deed conveys land to a trustee for the use and benefit of H. during his life, and directs the annual rents thereof to be paid over to him or his guardian during that period, and further provides that, “At the death of said H., leaving children or the descendants of children, he (the trustee) is to convey said lands to the children, to be held by them as tenants in common, the descendants to represent their ancestor. If the said H. should die in my life-time, leaving no children or the descendants of such, said trustee is to convey said land to me. If said H. should die after I do, and leave no children or their descendants, then said trustee is to convey said lands to my heirs, whoever they may be.”</p> <p>Cases cited and approved : Hooberry v. Harding, io Lea, 398 ; Aiken v. Smith, 1 Sneed, 309; Henderson v. Hill, 9 Lea, 25; Jourolmon z/. Massengill, 86 Tenn., 93.</p> <p>2. Same. Same. Legal effect of stick deed upon the rights of the parties.</p> <p>Under such deed the trustee, being required to convey, and therefore to preserve the remainder for that purpose, must take and retain the legal title to the land; and therefore the beneficiary, H., takes no interest in or title to the land subject to levy under execution, or that can be. subjected by proceedings in equity to payment of his debts, the deed being duly registered.</p> <p>Code cited : $$ 5025-5028 (M. & V.); $$4282-4285 (T. & S.).</p> <p>3. Same. Same. Devise of rents is not equivalent to devise of land, when.</p> <p>The general rule that a devise of the rents of land is equivalent to a devise of the land itself, does not operate to invest the beneficiary, H., with the legal title for life, because of the active trust and duty imposed upon therirustee under the deed in question.</p> <p>Case cited and approved: Davis v. Williams, 85 Tenn., 546.</p> <p>4. Same. Same. Power of alienation by joint deed of trustee and beneficiary.</p> <p>But under the provisions of the deed above quoted, the power of alienation exists, as to an estate in the lands for H.’s life, by joint deed of the trustee and the beneficiary.</p> <p>5. Same. Same. Language that does not restrict power of alienation.</p> <p>This power of alienation o.ver the life estate by the joint deed of trustee and beneficiary is not restricted by the 'other language- of the deed, requiring the trustee to hold the lands “for the only proper use and benefit of” H., and “to hold said lands for the benefit of said H. only, and to account to him or his guardian for the rents of yearly issues” thereof. This language does not create a trust for the personal benefit of the beneficiary in such sense that the power of alienation would be repugnant to it.</p> <p>Cases cited and distinguished: 96 Ho., 439; 69 Md., 77.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. W. K. MoAlisteb, J.</p>

<p>EROM DAVIDSON.</p> <p>Motion to disbar attorney for unprofessional conduct.</p>

<p>FROM FRANKLIN.</p> <p>Appeal in error from Circuit Court of Franklin County. M. D. Smallman, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. W. K. McAlister, J.</p>

<p>1. Gaming. Selling pools upon horse-races.</p> <p>Selling “auction pools” upon horse-races to be run upon an unlicensed track within the State, or upon any track outside the State, is gaming within the prohibition of the statute making it a misdemeanor to “ make any bet or wager for money or any other valuable thing.”</p> <p>Code construed: §§5688, 5701 (M. & V.); §§4870, 4881 (T. &S.).</p> <p>Cases cited and approved : Edwards v. State, 8 Lea, 412 ; Dalys'. State, 13 Lea, 228; Blackburn v. State, 2 Cold., 235.</p> <p>Question reserved: Is selling “ auction pools ” upon horse-races a lottery, and therefore incapable of being legalized as to races run upon licensed tracks within the State under Art. XI., Sec. 5, of Constitution ?</p> <p>2. Same. Case of “ auction pools.”</p> <p>The facts stated in the opinion constitute a case of selling “auction pools.”</p> <p>3. Same. Construction of statute making “pool-selling” a privilege.</p> <p>A general provision in an assessment Act, declaring “ pool-selling ” a privilege for the purpose of taxation, must be restricted in its application to the selling of pools upon horse-races run upon licensed tracks within the State; and will not include “pool-selling” upon illegal races.</p> <p>Acts construed: Acts 1887, Ch. 130, p. 43 ; Acts 1889, Ch. 96, p. 168.</p> <p>4. Same. Construction of revenue Act of iSSg levying tax upon “pool-selling..”</p> <p>The revenue Act of 18S9 imposed a tax “upon each person, company, firm, or corporation, or agent engaged in selling pools upon any running, trotting, or pacing race in this or any other State.” By the assessment Acts “pool-selling” had been declared a privilege in general terms.</p> <p>Iield: That the revenue Act of 1889 had not the effect to enlarge the privilege created by the assessment Acts, or to render legal the selling of pools upon races run outside the State, or upon unlicensed tracks within the State.</p> <p>Act construed: Act 1889, Ch. 130, p. 260.</p> <p>Cases cited and approved: 32 Mich., 406; 5 Wall., 462.</p> <p>Cited and distinguished: Duns'. Cullen, 13 Lea, 202; States'. Duncan, 16 Lea, 81.</p>

<p>1. Gaming. “ Book-making" on horse-races.</p> <p>“Book-making” on horse-races to be run on unlicensed tracks within the State, or on any tracks outside the State, is gaming. ■</p> <p>Case cited: Edwards State, 8 Lea, 411.</p> <p>2. Same. Example of l< book-making. ^</p> <p>The facts stated in the opinion constitute what is called “ book-making ” on horse-races.</p> <p>3.Same. Effect of privilege tax imposed upon ii book-making.”</p> <p>The privilege tax imposed by the revenue Act of 1889 upon “ bookmakers on horse-races ” is a tax upon book-making on legal faces run upon licensed tracks in the State; and cannot operate to license one who has paid the tax, to bet on races run outside the State, or upon unlicensed tracks within the State.</p> <p>Act construed: Acts 1889, Ch. 130, p. 261.</p>

FROM DEKALB. Appeal in error from the Circuit Court of De-Kalb County. M. D. Smallman, J. Action by the American National Bank to re- . cover of J. Ii. Snoddy upon a note given by him to Williams & Co., and indorsed by them to the bank for value, before due, and in due course of trade.

<p>FROM WILLIAMSON.</p> <p>Appeal fróm Chancery Court of Williamson County. Andrew Allison, Ch.</p>

<p>i. Voluntary Conveyance. Of Imsband to toife valid.</p> <p>■Voluntary conveyance of land from husband to wife is valid, and will be upheld in a contest between the husband’s and the wife’s heirs. Creditors of husband alone can impeach such conveyance.</p> <p>Cases cited: Hollingsworth v. Miller, 5 Sneed, 473; Wade v. Cantrell, i Head, 346.</p> <p>2.Same. Same. Case in judgment.</p> <p>Husband held title-bond for land. His vendor had purchased it at chancery sale, but had taken no deed. Husband entered into written contract with his wife, in which his vendor joined, relinquishing to the wife all his “right, title, claim, and interest” in the land, and directing that title should be vested in her, and that the Clerk and Master’s deed be made accordingly. .Husband and wife went into possession under wife’s claim. Before deed was made the husband and wife died, leaving distinct sets of heirs. Wife died first.</p> <p>Held: That wife took a valid equitable title, which, upon her death, was inherited by her heirs, to the exclusion of the husband’s heirs, but subject to his tenancy by the courtesy.</p> <p>3.Same. Delivery of contract.</p> <p>It is a sufficient delivery of the written contract, in such case, that it was left in the possession of the husband’s vendor. It could be properly lodged with any one of the contracting parties.</p> <p>4.Same. Registration of contract is not essential.</p> <p>It is not essential to the validity of such written contract, as between the parties to it and their heirs, that it should be registered or acknowledged for that purpose.</p> <p>5. Statute of Limitations. Effect of joint possession of husband and wife.</p> <p>Joint possession of land by husband and wife, held under the wife’s color and claim of title, inures to her benefit.</p> <p>6. Same. Remainder-man protected pending life estate.</p> <p>Statutes of limitation do not begin to run against remainder-man until termination of the life estate.</p> <p>Cases cited: Miller z\ Miller, Meigs-, 484; McCorry v. King, 3 Hum., 267; Aiken v. Suttle, 4 Lea, 109; Garth v. Fort, 15 Lea, 688; 4 Johns. Ch., 390; 5 Cowan, 74.</p> <p>7. Tenancy by the Courtesy. Essentials to its existence.</p> <p>Four things are essential to the existence of the right of tenancy by the courtesy, to wit: (1) Marriage, (2) seizin of wife, (3) birth of issue alive, (4) death of wife.</p> <p>8. Same. Stifficieni seizin of equitable estate to support tenancy by courtesy.</p> <p>The surviving husband takes an estate by the courtesy in lands to which the wife acquired an equitable title, and of which she took possession jointly with her husband claiming under her muniment of title and for herself.</p> <p>9. Same. Seizin and issue need not co-exist.</p> <p>It is not essential that issue should be living at the time the wife’s seizin accrues, or during its continuance. Where issue capable of inheriting the land from the wife, if it had survived her, has been bom alive and dies before the wife’s seizin accrues, the husband’s estate by the courtesy will nevertheless arise.</p> <p>Case cited and distinguished: Haywood v. Moore, 2 Hum., 584.</p>

<p>PROM SMITH.</p> <p>Appeal from Chancery Court of T., W. Wade, Sp. Ch. Smith County.</p>

<p>i. Murder in First Degree. Facts that do not support defense of insanity.</p> <p>The opinion discloses a state of facts upon which this Court is content to affirm a judgment of the lower Court pronouncing sentence of death upon one convicted of murder in first degree, whose only defense was insanity, and who attempted suicide at time of the murder.</p> <p>2.INSANITY. Presumption as to mental slate.</p> <p>That state of mind, whether of sanity or insanity, in which a defendant is shown to have been recently before the commission of a crime, is presumed, in the absence of proof to the contrary, to have continued and existed at the latter date.</p> <p>Cases cited and approved : Haynes v. Swann, 6 Heis., 587 ; Puryear v. Reese, 6 Cold., 28; Overall v. State, 15 Lea, 672.</p> <p>3.Same. Plea of present insanity.</p> <p>Present insanity must be specially pleaded in a criminal case, and cannot be shown under plea of not guilty.</p> <p>Code construed: §2065 (M. & V.); §1554 (T. & S.).</p> <p>Cases cited and approved : Dove v. State, 3 Heis., 374; Firby v. State, 3 Bax., 358.</p> <p>4.Indictment. Variance in name of foreman of grandjury.</p> <p>The minutes of Court showed that “ C. J. Davis” was appointed foreman of grand jury. The indorsement on the indictment — “a true bill” — was signed by “J. C. Davis, foreman of the grand jury.” There is no explanation of this discrepancy in the record. No question was made upon it in the lower Court.-</p> <p>Held: That this Court will presume that the discrepancy arose from mere clerical error, and that it is immaterial.</p>

<p>Criminal Practice. As to suspected present insanity where it is not pleaded</p> <p>"Where no plea of present insanity has been interposed in defendant’s behalf in the lower Court, and there is any thing in the record or conduct of the defendant to raise a just suspicion of his present insanity, this Court will, of its own motion, make inquiry into his present mental state; and if he is found to be insane will make proper recommendation for commutation of his sentence, and for his removal to the Aslyum for the Insane.</p>

<p>FROM FAYETTE.</p> <p>Appeal.from Chancery Court of Fayette County. H. J. Livingston, Ch.</p>

<p>i. Exemptions. Statutes creating have no extraterritorialforce.</p> <p>Statutes exempting properly from execution have no extraterritorial force.</p> <p>Cases cited and approved: Hawkins w. Pearce, n Plum., 45; Lisenbee v. Holt, 1 Sneed, 50; Emmett v. .Emmett, 14 Lea, 370; Prater v. Prater, 87 Tenn., 83 ; Holland v. Railroad, 16 Lea, 418.</p> <p>2. Same. Garnishee need not claim exemptions for his debtor.</p> <p>A resident of this State cannot, when sued in another State, obtain the benefit of exemptions secured to him by our statutes, and therefore his garnisheed debtor could not, in such case, obtain such exemptions for him, and need not endeavor to do so.</p> <p>Cases cited and approved : 16 Am. & Eng. R. Cases, 460; 9 lb., 158.</p> <p>Cited and disapproved: 36 Wis., 288.</p> <p>Perhaps garnishee need not ordinarily claim the exemption for his creditor where the proceedings are wholly within this State. But he may do so, and thus defeat the garnishment. Davenport v. Swan, 9 Hum., 186.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.</p>

<p>PROM SHELBY.</p> <p>'Appeal from Circuit Court of Shelby County. L. H. Estes, J.</p>

<p>1. Supreme Court Practice. Charge not considered if not made fart of record.</p> <p>Charge of lower Court cannot be looked to in this Court unless it has been made part of the record by the bill of exceptions. Merely copying it into the transcript is not sufficient.</p> <p>Cases cited and approved: Huddleston v. State, 7 Bax., 55; Basse/. State, 6 Bax., 583; McGhee v. Grady, 12 Lea, 96; Owens v. State, 16 Lea, 1.</p> <p>2. Charge of Court. Office of special or additional instructions.</p> <p>The legitimate office of special or additional instructions to the jury, to be given at the request of the parties, is not to suggest or supply the original charge, but to cure and supply defects and omissions in that charge — “ to present some material question not treated at all, or to limit or extend, eliminate or more accurately define, some proposition already submitted to the jury.”</p> <p>Case cited and approved: Roller v. Bachman, 5 Lea, 158, 159.</p> <p>(See Railway Cos. v. Hendricks, post, p. 710.)</p> <p>3. Same. Same. Must be presented after original charge.</p> <p>And therefore such special or additional instructions must be presented after — not before — the delivery of the original charge to the jury. “At the conclusion of the evidence ” is too early.</p> <p>4.Same. Same. Effect of omission of the original charge from record.</p> <p>And therefore requests for instructions will not be held to be for additional instructions, where the original charge is not made part of the record. The presumption that the Court charged fully and correctly prevails in such case.</p> <p>Cases cited and approved: Lane v. Keith, 2 Bax., 189; Insurance Company v. Sturges, 12 Heis., 339.</p> <p>5. CONTRIBUTORY NEGLIGENCE. As defense to suit against railroad for injury resulting from non-observance ofprecautions.</p> <p>Contributory negligence of the plaintiff, however gross, does not operate as an absolute bar to an action against a railway company for injury resulting from non-observance of the statutory precautions for prevention of accidents; but such negligence goes only in mitigation i of damages.</p> <p>Code construed: 129S et seq. (M. & V.) ; 1166 et seq. (T. & S.).</p> <p>Cases cited and approved: Railroad is. Smith, 6 I-Ieis., 174; Hill v. Railroad, 9 Heis., 823; Railroad v. Walker, 11 Heis., 383; Railroad v. Nowlin, I Lea, 523 ; Railroad v. Smith, 9 Lea, 470.</p> <p>Cited and distinguished: Railroad v. Swaney, 5 Lea, 119.</p>

<p>t. Independent Contractor. Who is.</p> <p>“An independent contractor is One who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to result of his work.”</p> <p>2. Same. Employer of not responsible for his negligence, when.</p> <p>For damages inflicted by negligence of independent contractor, or his servants, while performing his employer’s work, the latter is not responsible if the contractor was a fit and proper person for the particular employment, and the work agreed to be done was not unlawful, nor in itself a nuisance, nor necessarily attended with danger to others.</p> <p>3. Same. Liable for acts of his employer's servant loaned to him.</p> <p>Where the master employs an independent contractor to perform a specified piece of work, and furnishes his own general servant, being a competent person, to aid the contractor and be under his exclusive control and direction in the performance of that particular work, the contractor, and not the general master, is responsible for the acts and negligence of- the servant while thus engaged.</p> <p>Cases cited and approved: 2 Law Rep. Common Pleas, 208; 38 Am. & Eng. R. R. Cases, 234; 51 Texas, 503 (S. C., 32 Am. Rep., 632); 46 Ga., 417; 42 Iowa, 246; 50 Mich., 516 (S. C., 45 Am. Rep., 54).</p> <p>Cited and disapproved: 62 Miss., 565; 61 Texas, 526.</p> <p>4. Case in Judgment.</p> <p>The Virginia Construction Company, having undertaken to build the Midland Railroad from Memphis to Jackson, sublet to Meredith & Horton the laying of the track from a point near Memphis “as far as the chief engineer” of the company “ may determine and order,” at the price of $475 per mile. Meredith & Plorton agreed to unload the rails, ties, and fastenings on their arrival, to reload and unload them in making their distribution, and to lay and surface the track. The construction company agreed to “furnish push-cars, locomotive, flats, and engineer, fireman, and one brakeman,” to be used and controlled by Meredith & Horton in doing this work. The whole work was to be done “in a thorough and workmanlike manner, to the satisfaction of the chief engineer ” of the company. The servants furnished by the company in compliance with its contract were competent, but Meredith & Horton, having supplied the engineer with the fireman furnished, the plaintiff, while acting as brakeman, was injured by the negligence of this inexperienced acting engineer.</p> <p>Held: I. That Meredith & Horton are independent contractors, an(d not servants of the construction company.</p> <p>2. That the crew furnished with the construction train were the servants of Meredith & Horton while engaged in this work.</p> <p>3. That Meredith & Horton were liable to plaintiff for his injury, but that the construction company was not responsible therefor.</p> <p>5. Same. Effect of requirement that work shall have approval of engineer.</p> <p>The requirement “ that the work shall be done in a thorough and workmanlike manner, to the satisfaction of the engineer” of the construction company, does not imply or authorize such control over the details or methods of doing the work as would constitute the contractors or their servants the servants of the construction company.</p> <p>Cases cited and approved : 8 N. Y., 222 ; 85 Pa. St., 247 ; 36 Mo.., 202.</p> <p>6. Same. Engineer’s discretion as to qtiantity of work to be done.</p> <p>Nor does the provision that the contractors shall lay the track “as far as the chief engineer” of the company “may determine and order” make them or their employes servants of the company.</p> <p>Cases cited and approved: 15 Am. & Eng. R. R. Cases, 100.</p> <p>7. Evidence. Parol, admissible to show relation of parties different from that stated in written contract.</p> <p>Although upon the face of their written contract tile relation between the company and Meredith & Horton appeared to be that of employer and independent contractor, yet it was competent to prove by parol evidence that their relation was in fact that of master and servant.</p>

<p>EROM SHELBY.</p> <p>Appeal from Ch.an.cery Court of Shelby County. B. M. Estes, Ch.</p>

<p>I. Removal of Causes. Separable controversy.</p> <p>Whether a sejiarable controversy exists, such as entitles a non-resident, sued jointly with a resident in a State Court, to removal of the cause to the Federal Court, must be determined solely from the face of the record in the State Court as it appears at time of the filing of petition for removal, without any aid from the averments of the petition or affidavit, unless the petitioner both alleges and proves that his joinder with a resident defendant was wrongful, and done for the fraudulent purpose of preventing such removal.</p> <p>Case cited and approved: 132 U. S. Rep., 601.</p> <p>2.Same. Same. Record showing no cause for removal upon its face.</p> <p>The record discloses no separable controversy upon its face, which shows a joint suit against two railroads — one resident and the other non-resident — for personal injuries inflicted by their joint negligence.</p> <p>3.Same. Same. Insufficient cause shown by petition.</p> <p>Removal of cause is properly refused by State Court, where the petition averring sufficient cause for removal, is not verified by affidavit, and is fully denied by answer and is not supported by pr&of.</p> <p>4.Same. Rower and duty of State Court.</p> <p>Before granting removal of a cause to the Federal Court, the State Court has the power, and it is its duty, to ascertain and determine whether a case for removal has been made out. The mere filing of a proper petition accompanied by bond does not deprive the State Court of its jurisdiction.</p> <p>Case cited and approved: 117 U. S. Rep., 432.</p> <p>5. Verdict. For $75,000 held not excessive.</p> <p>Verdict for $15,000 against railroad companies, for injuries inflicted by their gross negligence, and resulting in death, is held not excessive upon the facts set out in this opinion.</p> <p>6. Charge OF Court. Time for presentation of requests for further in-</p> <p> structions. </p> <p>Requests for further instructions must be presented after the general charge is delivered, or the Court will commit no error in refusing to give them.</p> <p>Cases cited and approved: Roller». Bachman, 5 Lea, 159; Railroad». Foster, ante, p. 671.</p> <p>7.PRACTICE. Method of embodying evidence in bill of exceptions.</p> <p>The practice of setting out in bills of exception only the results shown by the proof, and not a verbatim copy of the entire body of the evidence, is commended by the Court.</p> <p>8.Same. Setting out ground of motion for new trial.</p> <p>The practice of setting out in motion for new trial the grounds relied upon is commended; and it is suggested that the lower Courts probably have the power to enforce this practice by proper rules.</p> <p>9.Same. Defect in record cannot be supplied on petition to rehear.</p> <p>The omission of a material paper from the record cannot be supplied on petition to rehear. Suggestions of diminution must be made before the cause is called for trial; and if not then made all objections to the state of the record are waived.</p>

FROM DYER. Appeal in error from Circuit Court of Dyer County. T. J. Elippin, J. Action brought by R. S. Daughtry, administrator of John W. Daughtry, deceased, against the Kansas City, Memphis and Birmingham Railroad Company and the Kansas City, Port Scott and Memphis Railroad Company for the negligent killing of his intestate. The case was dismissed as to tbe first named company, and there was verdict and judgment for $8,000 against the latter named company.

<p>EROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. L. II. Estes, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County, L. H. Estes, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.</p>

<p>Growing Crops. On homestead go to •widow.</p> <p>Where homestead or dower is assigned to a widow while the crops growing at her husband’s death still remain upon the land, she takes the crops, as against the decedent’s creditors and next of kin.</p> <p>Code cited: §§2943, 2944, 3250 (M. & V.); §§21190, 2119^ (Ad.) (M. & V.).</p> <p>Cases cited: Carson v. Browder, 2 Lea, 701; Edwards v. Thompson, 85 Tenn., 721; Shofner v. Shofner, 5 Sneed, 95; Pickens v. Reed, 1 Swan, 80.</p>

<p>FROM SHELBY. .</p> <p>Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.</p>

EROM SHELBY. Appeal from Chancery Court' of Shelby County. B. M. Estes, Oh. Bill filed by the State on relation of certain citizens to remove the defendant, J. J. DuBose, from the office of Judge of the Criminal Court of Shelby County. The cause for removal stated in the bill is that said DuBose aided and abetted and acted as second in a duel in Arkansas since the adoption of the Constitution .of 1870, and was tlierefore disqualified to' enter upon and. hold said office.

EROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. II. Estes, J. Action brought by Mattie H. Caldwell against the Arlington Insurance Company for loss upon a fire policy. Judgment below for the plaintiff. Defendant appealed and assigned errors. It was assigned as error that' the Court allowed the plaintiff a jury trial, over defendant’s objection, without a sufficient demand. The plaintiff demanded a jury in her declaration, filed May 20, 1889.

<p>l.Chancery Sale. Non-complyingpurchaser not entitled to excess realized tipon resale.</p> <p>A purchaser at chancery sale who fails to comply with the terms of sale, is not entitled to an excess over his bid realized upon a resale of the property at his risk, made necessary by his default.</p> <p>2.Same. Such purchaser not entitled to rents accruing between the sales.</p> <p>Such purchaser is not entitled to rents of the property accruing during the interval between the sales.</p> <p>3.Same. Practice as to making resale. Case in judgment.</p> <p>The Master reported sale, and that purchaser failed to comply with terms. This report and the sale were confirmed, and the purchaser ordered to show cause for his non-compliance. The purchaser failing to show cause, the Court ordered resale, upon terms of original sale, at the purchaser’s risk, unless he should comply within twenty days. At the resale an excess over the bid at the first'sale was realized.</p> <p>Held: The practice was proper, and the purchaser was not entitled to the surplus.</p>

<p>Practice. Demanding jury. Act i8Sg construed.</p> <p>A party who has failed to demand a jury in an appealed case “within the first three days of the trial term,” as required by the Act of 1875, Ch. 4, is authorized by the Act of 1889, Ch. 220, to make the demand on the first day of any subsequent trial term.</p> <p>Act construed: Acts 1889, Ch. 220.</p> <p>Cases cited: Coulter ¶. Sewing Machine Co., 3 Lea, 116; Arlington Insurance Co. v. Caldwell,- ante, p. 758.</p>

<p>i. Circuit Court. Has no jurisdiction of cause appealed out of time.</p> <p>Circuit Court acquires no jurisdiction of a cause appealed from a Magistrate’s Court, where the appeal is taken after the expiration of the time allowed by statute for that purpose.</p> <p>Code construed: $3861 (M. & V.); §3145 (T. & S.).</p> <p>Cases cited and approved: Jackson v. Baxter, 3 Lea, 344; Taul v. Collingsworth, 2 Yer., 579.</p> <p>Cited and overruled: Gilbert v. Driver, 3 Head, 462.</p> <p>2. Same. Same. Proper judgmetti.</p> <p>Upon the appellee’s motion to dismiss such appeal, the proper judgment is not affirmance of the Magistrate’s judgment, but judgment dismissing the appeal and awarding procedendo to the lower Court, and adjudging costs of the Circuit Court against the appellant.</p> <p>Code construed: $3940 (M. & Y.) ; §3215 (T. & S.).</p> <p>(See Nashville v. Wilson, ante, p. 407.)</p>

<p>FROM GIBSON.</p> <p>Appeal from Chancery Court of Gibson County. H. J. Livingston, Ch.</p>

<p>PROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.</p>