89 Tenn.

Volume 89 — Tennessee Reports

72 opinions

89 Tenn. 1Mills v. Merchants' Cotton-Press Co. (1890)
FROM SHELBY. Appeal from Chancery Court of Shelby County. B. *M. Estes, Ch. STATEMENT OE CASE. This is one of a series of suits involving the liability of the compress company and various railroad companies for the loss of 14,000 bales of cotton, valued at $700,000, burned on the night of November 17, -1887, while in press No. 4 of the ■defendant compress company, at Memphis, Tenn.
89 Tenn. 63Vaccaro v. Cicalla (1890)
i.Chancery Court. Jurisdiction over imtsts. Decrees valida when. Decrees of Chancery Court are valid, when regularly entered, without objection to Court’s jurisdiction, in a suit brought by a trustee against his cestui que trust for the avowed purpose of obtaining approval by the Court of his current administration of a clear and unambiguous trust as a precaution against future litigation, no other cause for invoking the assistance of the Court being apparent or suggested. Cases cited: ICerr v. While, 9 Bax., 16.8; Caruthers v. Caruthers, 2 Lea, 71; Bowling v. Scales, 2 Tenn. Ch., 63. 2.Same. Same. Infants hound by the decrees. And infant cestui que trust, who are regularly before 'the Court, are concluded by such decrees equally with adults, except that they have longer time, by reason of their disability, to institute suit for relief. Cases cited and approved: Rogers v. Clark, 5 Sneed, 665; Winchester v. Winchester, 1 Head, 460. 3.Same. Same. Trustee's settlements; their effect. How impeached. And settlements of the' trustee, made and confirmed in due course of such legal proceedings, have the effect of decrees, and import, not mere prima facie correctness, but absolute verity; and such settlements cannot be impeached, even by infant parties, except in the manner and for the causes admissible for impeachment of regular decrees. Cases cited and distinguished: McGavock v. Bell, 3 Cold., 517; Livingston v. Noe, 1 Lea, 55; McCown v. Moores, 12 Lea, 635. 4.Same. Same. Settlements not reached by bill to surcharge andfalsify. And trustee’s settlements, thus made and confirmed, are not open to attack by mere bill to surcharge and falsify them, which does not attack them as decrees. 5. Same. Same. Trustee's settlements with County Court, their effect. Settlements made by trustee with the County Court, in his character as executor, are treated as only prima facie correct, and can be successfully attacked by bill to surcharge and falsify them. Code cited: ? 4535 (M. & V.); ¡Í 3786 (T. & S.). Case cited and approved: Matlock v. Rice, 6 Heis., 33. 6. SAME. Has no power to alter decree at subsequent term, Chancery Court has no power to alter even an interlocutory decree at a term subsequent to its rendition. 7. Appeal. Brings tip interlocutory decrees for review. An appeal in a chancery*cause brings up the whole record, including interlocutory decrees, for review, even where it is granted by an exercise of the Chancellor’s discretion under $3874 (M. & V.) Code from a decree not final, but merely determining the principles involved and ordering an account. Code cited: § 3874 (M. & V.); § 3157 (T. & S.). Case cited and approved: Bomar v. Hagler, 7 Lea, 85. 8. Trustee, Allotvance of attorney fees. Improper, when. Trustee is not entitled to credit for compensation paid to an attorney out of the trust fund, either for services that he should have performed himself, or for services rendered in a suit brought by the trustee improvidently and for his own protection. 9. Same. Same. Proper, when. But the trustee is entitled to have reasonable fees of counsel, incurred for necessary advice and litigation, paid out of the trust estate. 10.Same. Not chargeable with interest, when. A faithful and honest trustee will not be charged with more interest than he received, where, though guilty of a technical breach of trust, it appears that he acted in good faith, was diligent in making investments of the trust fluids and inflicted no loss by his unauthorized act. 11.Same. Reasonable lime for malting investments of the trust fund. Requirement that trustee shall in future invest all trust funds within three months after receiving them held reasonable upon the facts of this case. 12. Guardian and Ward. Guardian of ward’s person not appointed, •when. The Court declined to appoint a guardian for three female infants, between 14 and 21 years of age, whose entire estate was in the hands of an honest and capable testamentary trustee, who, though never having qualified as guardian, had faithfully performed fot them all the duties of that office. Cases cited: Bowling v. Scales, 2 Tenn. Ch., 63; Kerr v. White, 9 Bax., 161.
89 Tenn. 82Jackson, Orr & Co. v. Shelton (1890)
i.Homestead. In lands held jointly by husband and wife. Homestead, exists in lands held jointly by husband and wife as tenants by entireties; and the wife, who has obtained divorce and decree for the homestead, may assert that right against the husband’s creditors in such lands or their proceeds. Code construed: §§2935, 2936, 2937, 2946 (M. & V.); $2113a et seq. (T. &S.j. Cases cited and approved: Arnold v. Jones, 9 Lea, 548; Hall v. Fulghum, 86 Tenn., 451; White v. Fulghum, 87 Tenn., 281; Dickinson v. Mayer, ix Heis., 520; Ren». Driskell, ii Lea, 649; Ames v. Norman, 4 Sneed, 682. Cited and distinguished: McRoberts v. Copeland, 85 Tenn., 211; Avans v. Everett, 3 Lea, 76. Cited and overruled: Cullom v. Cboper (oral opinion at Nashville,. December Term, 1888). 2.Same. Statutes exempting liberally construed. Doctrine re-affirmed that statutes exempting homestead are liberally construed in favor of claimant of that right. Cases cited and approved: White v. Fulghum, 87 Tenn., 284; Dickinson v. Mayer, 11 Heis, 520; R'en v. Driskell, 11 Lea, 649. 3.Same. Effect of joint mortgage of husband and wife. Doctrine re-affirmed that the joint mortgage of husband and wife, made to secure one debt of the husband, does not defeat the right to homestead as against his other debts; and that homestead should be assigned out of the surplus proceeds where the lands are sold under such mortgage. Cases cited and approved: Hall v; Fulghum, 86 Tenn., 451; White v. Fulghum, 87 Tenn., 281.
89 Tenn. 101Moore v. Burrow (1890)
1. Advancements. Valuation. Interest. Advancements of property must be valued as of the date when they are made, but interest is computed on that valuation only from the date of the ancestor’s death. Cases cited and approved: Burton v. Dickinson, 3 Yer., 122, note; House v. Woodard, 5 Cold., 200; Haynes v. Jones, 2 Head, 373; O’Neal v. Breecheen, 5 Bax., 605; Johnson v. Patterson, 13 Lea, 632; Williams V. Williams, 15 Lea, 439; Steele v. Frierson, 85 Tenn., 431. 2. Same. At what date made. Case in judgment. In 1856 B. gave his daughter a tract of land by parol, and put her in possession. In 1859 he conveyed it to her by deed, “in consideration of natural love and affection.” He died several years later. In 1856 the land was worth $3,212; and in 1859, $4,280. Held: That the advancement must be treated as made in 1S56, and that the daughter is chargeable with the value of the land at that date, viz., $3,212, Cases cited and approved: Haynes v. Jones, 2 Plead, 373; O’Neal v. Breecheen, 5 Bax., 605. Cited and distinguished: Yancy v. Yancy, 5 Pleis., 357. 3. Same, Interest allowed only from ancestor's death. And interest is chargeable upon that valuation only from the date of the father’s death. Cases cited and approved: Johnson v. Patterson, 13 Lea, 632; Williams v. Williams, 15 Lea, 439; State v. Frierson, 85 Tenn., 431.
89 Tenn. 107Railway Co. v. Arnold (1890)
Depositions, Defective certificate. Certificate to deposition is fatally defective which shows that the deposition was reduced to writing, not by the witness or the officer taking it, but by some third person under the officer’s direction. Code construed: §4602 (M. &V.); \ 3848 (T. & S.).
89 Tenn. 110Thompson v. McMillan (1890)
1. Certiorari and Supersedeas. ■ Quashing exemtion satisfied in part after levy. To quash an execution pro tanto, when pressed for its full amount after satisfaction in part subsequent to levy, certiorari and supersedeas is a proper remedy. Cited: Car. Hist. Lawsuit, Secs. 549, 550. 2. Same. Same. Facts constituting satisfaction in part. After levy of execution issued upon a Magistrate’s judgment for $92.25 and costs, the creditor agreed to accept, in full satisfaction of his judgment, the payment of $50 to himself, his attorney’s fee, and the costs of the cause. The debtor paid the $50 to his creditor and all costs, taking receipt against the entire judgment. He disputed the amount of the attorney’s fee, and failed to pay it. He tendered $10 to the attorney, but the true amount was $25. Held: That the judgment was satisfied, and the execution should have been quashed, except as to the amount of $25 due to the attorney, with interest. 3. Same. Same. The proper judgment. Where an execution which has been satisfied in part only, has been superseded in tolo, the Court, after quashing it as to the satisfied part, will not remand and award procedendo as to remainder, but will enter judgment upon the bond for supersedeas therefor. Code construed: ^3852, 3853, 3854 (M. & V.); §§3136, 3137, 3138. (T. &S.). Cases cited and approved: Mallett v. Hutchinson, I Head, 558; Lit-tleton v. Yost, 3 Lea, 269.
89 Tenn. 114Railway Co. v. Smith (1890)
1. Railway Company. Not liable fot" injury to brakeman, when. For injury received by brakeman while engaged in making coupling, under order of his engineer, between his own and another section of .a freight-train, the railway company is not responsible, where it appears that a conductor was in charge of the train on which the brakeman was employed, and by which he was struck and injured; and that the brakeman knew that it “was dangerous and reckless, and against the rules and orders of the company” to make such coupling; and it further appears that the injury was not attributable to defects in the company’s road-bed or machinery, nor to incompetent servants. 2. Same. Same. Erroneous and misleading charge. In a case where it is clear that a conductor was in charge of the train, and the engineer and brakeman' therefore fellow-servants, it is misleading and erroneous for the Court, in his charge, to state imaginary cases in which the engineer might become the superior of the brakeman.
89 Tenn. 118Marble Co. v. Black (1890)
FROM KNOX. Appeal in error from Circuit Court of Knox County. S'. T. Losan, J.
89 Tenn. 126Sword v. Young (1890)
1. Common Carrier. Liable to consignor for value of goods negligently delivered to fraudulent purchaser. Common carrier is liable to consignor for value of goods shipped upon a fraudulent order to a fictitious consignee, and delivered by the carrier to the person who had made the fraudulent order and obtained the bill of lading without inquiry or knowledge as to his. identity. Cases cited: I Lawyer’s Reports, Annotated, 650; 50 N. Y., 213 (io-Am. Rep., 475); 4 Bing., 476. 2. Same. Same. Carrier's liability secondary. But the carrier’s liability is postponed to that of the fraudulent purchaser and his confederates, where they are jointly sued.
89 Tenn. 132McBee v. Bowman (1890)
1. Devisavit 'vel non. Opening and dosing argument. Upon trial of an issue of devisavit vel non the proponent’s attorneys are entitled to open and close the argument, although contestants admit of record the due execution of the particular will propounded, and seek to show its revocation by the execution of a subsequent will, whose genuineness is controverted. Cases cited and approved: Puryear v. Reese, 6 Cold., 25; Porter v. Campbell, 2 Bax., 83; Alloway v. Nashville, 88 Tenn., 527, 528. 2. Same. Proof of forgery of will. Preponderance sufficient. Upon trial of an issue of devisavit vel non, in which the proponent asserts the forgery of a revoking will, it is error for the Court to charge that the fact of forgery must be proved by any greater preponderance of evidence than ordinarily obtains in civil cases. Slight preponderance is sufficient in such case. Cases cited and approved: Chapman v. McAdams, 1 Lea, 500; Gage v. Railway Companies, 88 Tenn., 726. Cited and distinguished: Coulter v. Stuart, 2 Yer., 226. Cited and overruled: Hills v. Goodyear, 4 Lea, 236. 3. Same. Same. Parlictilar charge erroneous. Instructions to jury in such case that the forgery may be established by “a preponderance” or by “the weight” of the testimony became erroneous when followed and explained by this language: “It [the forgery] should appear with reasonable certainty.” Reasonable certainty excludes reasonable doubt.
89 Tenn. 142Carpenter v. Franklin (1890)
i.Husband And Wtfe. Htisband’s gift ofpersonally to vjife creates in her a separate estate, Direct gift of personalty from husband to wife during coverture,creates in her a separate estate by implication, without words of limitation to her sole and separate use. Cases cited and approved: Powell v. Powell, 9 Plum., 477; Templeton. v. Brown, 86 Tenn., 50; McCampbell v. McCampbell, 2 Lea, 663; 3 P. Wins., 334. 2.SAME. Same. Wife's earnings and savings become her separate estate, when. Earnings and savings of the wife, the fruits of her own toil, frugality and self-denial, become her separate estate, without any express gift or contract of the husband, where she is permitted to receive and retain them, and to loan and invest them in her own name for her own benefit. . 3.Same. Hiisband’s creditors have no right to wife's earnings. Gift to wife not fraudulent. The husband’s creditors have 110 right to compel the application of the wife’s earnings — the fruits of her own toil — to the payment of his debts, and therefore the husband’s assent that those earnings shall become her separate estate, and be invested in her name and for her • benefit, is valid even as to his existing creditors. Case cited and.approved: Leslie v. Joiner, 2 Plead, 513. 4.SAME. Wife’s savings protected from husband’s creditors, when. Not even existing creditors of the husband can compel the wife to surrender her savings, insignificant in amount, accumulated as the result of self-denying frugality from monthly allowances, reasonable in amount, paid her out of the husband’s monthly wages to meet her own and the family expenses.
89 Tenn. 151Patterson v. Patterson (1890)
PROM KNOX. . Appeal from Chancery Court of Knox County. H. R. Gibson, Ch.
89 Tenn. 157Tuttle v. Knox County (1890)
1. Public Roads. Road law of i88g unconstitutional. The “road law” of 1889 is unconstitutional to the extent that it provides for the taking of private property for public use in opening and changing the public highways. The fatal defect of this statute is its failure to designate by whom the land-owner’s damages shall be paid, and to provide an effectual remedy to enforce payment thereof. Constitution construed: Art. I., Secs. 8, 21. Acts construed: Acts 1889, Ch. 71, Sec. 8. 2. Same. Same. That Act violates Art. I., Sec. 8, of the Constitution, which ordains “that no man shall be deprived of his property, but by the judgment of his peers or the law of the land.” 3. Same. Same. And violates also Art. I., Sec. 21, of the Constitution, which provides that “no man’s property shall be taken or applied to public use without the consent of his representatives, or without just compensation being made therefor.” 4. Same. Proceedings under Act of i88g cannot be maintained under preexisting law. Proceedings to open public' road, had in conformity to Act of 1889, cannot be maintained under pre-existing laws, because (l) they are not in substantial conformity to the pre-existing law, and (2) the preexisting law is expressly repealed by the Act of 1889. Acts construed: Acts 1889, Ch. 71; Acts 1885, Ch. 2.
89 Tenn. 161McDonald v. State (1890)
i. Self-defense. Erroneous charge. Court’s charge upon the subject of self-defense is erroneous in which the phrases “great or enormous bodily harm,” and “great and enormous bodily harm,” are used instead of the oft-repeated and well-settled language — “great bodily harm.” “Enormous” is not synonymous with “great,” but is a word of stronger import. 2. COURTS. Their duty with reference to charging the law. Courts should not, in charging juries, depart from the long-settled, oft-repeated, and well-understood language in which the Court of last resort has declared the law. 3. Same. Their rights and duty with reference to asking witnesses questions. While the Court may, with propriety, propound questions to a witness, even in a criminal case, yet he should rarely do só, and never in such manner as to indicate to the jury his opinion of the merits of the case.
89 Tenn. 166Bleidorn v. Pilot Mountain C. & M. Co. (1890)
1. Will, Foreign. Passes land within this State, when. Foreign will operates, without recording or registration in this State, to pass any land here situated when such will has been executed and attested in the manner prescribed by our statutes, and duly proved and recorded in another State, the testator’s domicile, under statutes identical with our own. (Post, pp. 172, 173.) Code construed: §3022 et seq. (M. & V.) ; § 2182 et seq. (T. & S.). Case cited and approved: Smith v. Neilson, 13 Lea, 461. 2. Same. Effect of proving and recording in this State. Foreign will, upon being proved and recorded in this State, passes title to land here situated as of date of testator’s death. Therefore the devisee may have such will proved and recorded after bringing suit for the land, and introduce it to support his title. (Post, pp. 173, 174.') (See Code, §3035 (M. & V.); $ 2195 (T. & S.). Cases cited and approved: Crockett». Campbell, 2 Hum., 411; Brien v. O’Shaughnessy, 3 Lea, 725; Ward v. Daniel, 10 Hum., 607. 3. Res Adjudicata. Decree for removal of cloud against unknown party upon publication. Jurisdiction. Decree for removal of cloud from title is void, and therefore not available as res adjudicata in a subsequent suit over the same land, between the same parties or their privies, where it is pronounced against “unknown” parties upon publication alone, which does not conform in material respects to the requirements of our statutes on that subject. The Court's jurisdiction depends, in such case, upon strict compliance with these statutes. (Post, pp. 176-180.) Code construed: jij! 5095, 5096, 5101 (M. & V.); ¡$4352, 4353» 4358 (T. &S.). Case cited and approved: Ferris v. Lewis, 2 Tenn. Ch., 291-295. Cited and distinguished: no U. S., 151. 4. Same. Same. Who are unknown parties. Defendants to bill who are not otherwise described therein than as * ‘ the heirs of L. Bleidorn,” must be proceeded against as “ unknown ” parties. They are not named in the bill. {Post, p. 178.) * 5. Same. Same. Publicationfor unknown party unauthorized, when. Publication for “unknown” defendants, based solely upon the averment supported by affidavit that they are non-residents of the State, is unauthorized and void, and confers no jurisdiction upon the Court over such parties. {Post, pp. 178, 179.) 6. Same. Sanie. What is essential to Court’s jurisdiction over tmknown defendants ? It is essential to the Court’s jurisdiction over “ unknown ” defendants, whether resident or non-resident, that publication for them should be based upon a sworn statement of the complainant, his agent or attorney, made in his bill or by separate affidavit, that their names are unknown, and “cannot be ascertained upon diligent inquiry.” {Post, pp. 178, 179.) 7. Statute of Limitations. Seven years’ adverse possession will not bar remainder-man’s suit for land, when. Seven years’ adverse possession of land, begun pending a life estate therein, does not bar the remainder-man’s suit for the land brought within the saving of the statute'(three years) after the falling in of the life estate.* {Post, p. 174.) (See Code, §3451 (M. & V.); §2757 (T. & S.). 8. Same. Seven years’ adverse possession bars remainder-man’s stdt for land, when. Seven years’ adverse possession of land commenced before the inception of a life estate therein, and continued afterwards to make out the required period of seven years, bars the remainder-man’s suit for the lan'd brought at any time thereafter. {Post, pp. 180, 197.) 9. Same. Extent and effect of adverse possession. Adverse possession of land, held under color of title, extends to the boundaries therein described; but naked adverse possession is confined to its actual, visible limits. When a small naked possession becomes part of a larger tract, claimed by the possessor or his privies under color of title, the extension of boundaries and possession occur at the' same instant. There is no relation of the extended to the date of the original possession.* (Post, pp. 183, 184, iqp.) IO. Champerty. Non-resident owner's sale of land adversely holden under decree or grant, void. Non-resident owner’s “sale and conveyance” of lands situate in this State is champertous and void where they were, at date of sale, adversely holden under a decree vesting title or a grant. Lands thus holden are in “adverse possession by deed, devise, or inheritance” within meaning of our champerty laws. (Post, pp. jg4, 195.) Code construed: §2448 (M. & V.); $ 1779 (T. & S.). Case cited and approved: Whiteside v. Martin, 7 Yer., 384. 11. Same. Bona fides that rebuts illegality of sale. The provision of our champerty laws that sales of lands held adversely shall be presumed champertous “until the purchaser shows such sale was bona fide made,” is not satisfied by proof that the sale was in good faith as between the parties, but there must be proof that it was bona fide with reference to the provisions and policy of the champerty laws. (Post, pp. 193, 196.) Code construed: $2449 (M. & V.); g 1780 (T. & S.). Case cited and approved : Gass v. Malony, 1 Hum., 452. 12. Outstanding Title. Defense of, available without special plea. Defense of outstanding title is available in action of ejectment without special plea. (Post, f. 188.) (See Code, ?3963 (M. & V,); #3239 (T. & S.); and Walker v. Fox, 85 Tenn., 155.) 13. Supreme Court Practice. Paper copied into transcript treated as part of record, when. A paper (an entry) copied into transcript will be treated as part of the record, though imperfectly certified, where there is no exception to its admission as evidence below, and no assignment of error upon it in this Court. (Post,#. i8g.) (See Graham v. McReynolds, 88 Tenn., 241.) 14. Land Law. Priority of grant. Senior grant based upon junior entry prevails over junior grant based upon senior entry unless the latter entry is put in evidence and shown to be special. (Post, p. 17s,) 15. SAME. Example of Special entry. Entry: “J. F. Scott enters 200 acres of land in said county [Morgan] on the waters of Rock Creek, beginning on the line of Russell Scott’s land, on the south side of said land, and then running an oblong with the Carpenter road so as to include said road.” This entry may be made special by proof of the existence, location, and notoriety of the objects called for. (Post, ‡. 187.) 16. Same. Same. And it is sufficient for this purpose to show that “Russell Scott’s land” was an old settlement well known in that community, and that the “Carpenter road” was an old and well-known road of that vicinity. This entry would then be located by bounding it on the north by Russell Scott’s land and laying it off in an oblong including the Carpenter road. 17. Same. Another example of a special entry. Entry: “IT. M. Byrd enters 5,000 acres of land in said county, beginning on a stake at or near the east corner of J. F. Scott’s 200-acre entry on the Carpenter road, thence running south 1,200 poles; thence east 1,500 poles; thence for complement to the beginning, so as to include the head-waters of Scutcheon.” This entry is special upon the proof of existence, location, and notoriety of the objects called for. (Post, pp. i86-i8g.) 18. Same. Same. Locative calls. This Byrd entry contains three locative calls: (1) The 200-acre Scott entry, (2) the Carpenter road, (3) to include the head-waters of Scutcheon. The proof shows that the 200-acre Scott entry is special, though unsurveyed, and that to begin the survey of the Byrd entry on its north-east corner would include the head-waters of Scutcheon, but that to begin on the south-east corner would include only part of the head-waters of Scutcheon. (Post, pp. 186-189.) Cases cited and approved: Wallen ». Campbell, 2 Overton, 320; Talbot ». McGavock, I Yer., 271; Berry v. Wagner, 5 Lea, 564. Cited and distinguished: Parrish ». Cummins, II Hum., 299; Fowler ». Nixon, 7 Heis., 719. 19.Same. Example of an indifferent entry. Entry: “Thos. Scott enters 150 acres of land in said county (Morgan) on the waters of Emory river, adjoining the survey made in the name of Jacob Laymence, under the foot of the mountain, and running around under the foot of the mountain, joining the new ground.” This entry was capable of being made special by proof of the existence, location, and notoriety of the natural and artificial objects called for. In the absence of such proof it is not a special entry. (Post, pp. 201, 202.) Cases cited and approved: Wood». Ellege, 11 Heis., 607; Barnes». Sellers, 2 Sneed, 33; Brummett». Scott, 4 Heis., 321. 20. Same. Example of another indifferent entry. Entry: “Samuel Scott, Sr., enters 5,000 acres .of land in said Morgan County, on both sides of Emory River, beginning on the east corner of Thomas Scott’s 150-acre entry, on the east side of Emory, and then running up Emory on both sides for complement, to include the complement after plotting out all prior legal rights.” This entry is not special on its face. There being no proof of the existence and notoriety of the natural and artificial objects called for, other than copy of the 150-acre entry, it is not special at all. (Post, pp. 200 — 203.) Case cited and approved: Scott ». Lewallen (oral opinion at Knoxville in 1888). 21. Same. , Lines should be surveyed by horizontal measure. Calls for distance should be surveyed, in the absence of other controlling calls, by horizontal, not by surface, measurement. (Post, p. 183.) 22.Same. Course and distance control, when. Calls for course and distance, without more, control in the running and establishment of lines and corners which have not been previously run and marked. (Post, pp. 183, 198, 200.) 23.Same. Senior enterer or grantee cannot extend his lines to prejudice of junior claimant, when. Senior enterer or grantee, whose lines call for course and distance without more, cannot, by ex parte survey, made after the junior claimant’s rights have attached, extend his boundaries beyond the legitimate calls of his entry or grant to the prejudice of such junior claimants. It might be different if the State alonfe were interested in the lands included by the extension. [Post, pp. 197-200, 20J.) Cases cited and approved: Chouning v. Simmons, 5 Plum., 299; Wood-folk v. Cornwell, I Head, 273; Nolens. Wilson, 5 Sneed, 333; Fly v. E. T. College, 2 Sneed, 689. Cited and distinguished: Whiteside s'. Singleton, Meigs, 207 ; Overton’s Heirs v. Cannon, 2 Plum., 264; Williamson v. Buchanan, 2 Overton, 278; Caruthers v. Crockett, 7 Lea, 91. • 24.Same. Location of entry 1727. The eastern boundary of entry 1727 is located, upon the proof, as shown by dotted line upon the map. {Post, p. 181. See map.) 25.Same. Location of entry 19S0. Entry 1950 is located upon the evidence as shown by the dotted lines upon the map, making the “two large poplars and two large white oaks ” its south-eastern and controlling corner. {Post, pp. igo-195. See map.) I. Will, Foreign. Passes lands in Tennessee without probate or registration here. Doctrine re-affirmed that a foreign will, executed and attested in conformity to our statutes, passes lands situated in Tennessee without probate or registration in this State where it has been duly proved and recorded at the testator’s domicile in another State under statutes of that State identical with our own. Code construed: #30221’t seq. (M. &V.); {¡2182 et seq. (T. & S.). Case cited and approved: Smith v. Neilson, 13 Lea, 461. 2. Same. Case in judgment. B’s will devised lands situated in Tennessee to his widow for life, and remainder to his children. This will was executed and attested as required by our statutes. It was duly proved and recorded in New York, the testator’s domicile, under statutes of that State identical with our own. It was not recorded or registered in Tennessee. After B’s death a stranger to his title took possession of the devisel lands, and held them adversely for a period of more than seven years under an independent, but inferior, claim and color of title. This adverse possessor had no notice, actual or constructive, of B’s will. He conveyed his supposed title to a purchaser who had none. The remainder-men sued this purchaser for the land within three years after the life tenant’s death. Seven years’ adverse possession was interposed as a defense to this suit. Held: The suit was not barred. B’s will passed a life estate to his widow and the remainder interest to his children.as of its date, and therefore seven years’ adverse possession taken and held pending the life estate could not bar remainder-men’s suit brought in time after the life tenant’s death. 3. Same. Effectual against strangers. The fact that the adverse holder was a stranger to B’s title, and claimed under an independent color of title, does not affect the result declared, 4. Same. Effectual as to purchaser of adverse holder's claim. B’s will affects the purchaser of the adverse holder’s claim to the same extent as the adverse holder himself. Such purchaser is not protected against the unregistered will as a bona fide purchaser without notice. 5. Land Law. Construction of grant including and excluding older claims. A grant including within its calls, but excluding from its operation by general description, lands that are held under “prior and legal claims,” confers title upon the grantee to all the lands embraced within its calls which are not shown to have been held by older titles. The older titles and their location must be affirmatively proved by those who rely upon them, if they do not otherwise appear. Cases cited and approved: Bowman v. Bowman, 3 Head, 47; Fowlprz/. Nixon, 7 Heis., 719. 6. Same. Same. Effect of proof of older titles. But when such “prior and legal claims” thus included and excluded by the grant are established and located by proof, that portion of the lands embraced by these older titles ceases to be part of the land covered by the grant. In surveying the grant its lines should be so run as to exclude them. The grant is not even color of title for that portion of the lands thus covered by the older titles. 7. Same. Same. Same. And therefore adverse possession of part of the lands covered by the “prior and legal claims,” and thus included and excluded by the grant, is not within the legal boundaries of the grant, nor hostile to the title claimed under it. Cases cited and approved : Hare v. Kelly, 1 Hum., 163 ; Smith v. Lee, 1 Cold., 549. (See also Peck v. Houston, 5 Lea, 227.) 8.Same. Case in judgment. ■ Three grants, designated on map as 1925, 1949, and 1727, and having priority in the order named, had a common interlap, and 1949 and 1727 also interlapped outside 1925. There was possession (designated on map as “Scarborough possession No. 2”) held for seven years by those claiming under 1727 upon the co'mmon interlap, but none upon the interlap of 1949 and 1727 outside 1925. 1949 included in its calls 5,590 acres, but purported to convey only 2,500 acres. It included “of prior and legal claims 3,088 acres of land.” Claimants under 1949 sued those in possession upon the common interlap claiming under 1727. In defense 1925 was established as an outstanding title superior to 1949. The possession upon the common interlap was interposed to defeat this suit as to the land embraced in the interlap of 1949 and 1727 outside 1925. Held: The common interlap is excluded from 1949, and possession thereon was not effectual to defeat title under 1949 where it inter-lapped alone with 1727. 9.Same. Pleadings. Estoppel. Complainants are not estopped, by suing for the whole of 1949, to insist that possession, upon the common interlap is not within the legal boundaries of 1949, when defendants have affirmatively shown that 1925 was a “prior and legal” claim, and therefore excepted out of 1949. 10.Same. Assignment of Error. And the question as to the legal effect of this possession upon the title of 1949 is sufficiently raised by an assignment of error by claimants under 1949, averring that the Chancellor erred in holding that “the Pilot Mountain C. & M. Company has the superior title to complainants’ entry 1949, and that it and those under whom it holds and claims title have had adverse possession more than seven years before the death of L. Bleidorn.” ii. Same. Same. And it is not material that among the reasons stated in support of this assignment of error the one now relied upon for rehearing was not embraced. A good assignment of error is not vitiated by the statement of insufficient reasons in its support.
89 Tenn. 216Buxton v. State (1890)
Criminal Practice. Record of oath administered to officer in charge of jury insufficient, when. This Court will reverse a felony case where the entry of record as to the swearing of the officer placed in charge of the jury is in this language: “The officer was sworn according to law to keep them [the jury] together, separate and apart from all other persons, not to talk with them about the cause, nor allow others to do so, until he returned them into Court to-morrow morning.”
89 Tenn. 219Armstrong v. Douglass (1890)
I. Will. Devise that is not void for remoteness. Testator made devises to each of his two sons individually, and another to them jointly as trustees, and then provided as follows : “Fourteenth. — Finally, should either of my sons die, leaving no legal descendants, then, and in that event, all the property that should have been his if living shall go to and become the property of the survivor and his legal descendants, and the property of the survivor of the trustees mentioned, for the uses and trusts of the wards, George and Amelia, subject to all the restrictions and limitations contained in that portion of,this instrument creating such trusts.” Held: This devise is not void for remoteness. The contingency provided for is the death of one son, “leaving no legal descendants,” •while the other son still lives. Cases cited and 'approved: Booker cc Booker, J Hum., 505; Brown v. Brown, 86 Tenn., 277; Bramlett v. Bates, 1 Sneed, 555. 2. Same. Devise that is void for remoteness. ' But the next succeeding clau’se of said will is void for remoteness. It is in these words: "■Fifteenth. — In conclusion, I declare it to be my fixed purpose and intention that the legal or equitable right of no portion of my estate herein bequeathed shall pass out of my legal descendants, or the legal descendants of my children, to strangers in blood; but, for want of legal descendants from any branch of my family, shall return to and remain the property of the survivors of my family.” Held: This devise is void for remoteness. The intention is “expressly and plainly declared ” in this clause to lock up his estate in his descendants to the remotest generations. Cases cited: Lewis v. Claiborne, 5 Yer., 371; Booker v, Booker, 5 Hum., 505; Bramlett s'. Bates, I Sneed, 555. 3. Same. Construction of distinct and independent clauses. The two clauses, being distinct and independent in their provisions, the invalidity of the fifteenth does not affect the fourteenth clause. Case cited and approved: Randolph v. Wendel, 4 Sneed, 670. 4. Same. Code, $2813 {M. V.), construed. In all cases where it is perfectly clear upon the face of the will that devises over are either void or not void for remoteness, there is no room for the application of the statute, which provides: “Every contingent limitation in any deed or will'made to depend upon the dying of any person without heir or heirs of the body, or without issue of the body, or without children or offspring or descendants or other relative, shall be a limitation to take effect when such person dies without heir, issue, child, offspring, or descendants or other relative, as th£ case may be, living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared in the face of the deed or will creating it.” Code construed: 2 2815 (M. & V.) ; §2009 (T. & S.).
89 Tenn. 231Staples v. State (1890)
Criminal Practice. Adverse comment upon defendant's failure to testify error, -when. Adverse comment upon defendant’s failure to testify in a criminal case, made by the State’s attorney in his argument before the jury, constitutes reversible error, where the Court fails, upon proper exception being taken thereto, to require counsel to desist from that course of argument, and to instruct the jury to disregard what had already been said. Constitution construed: Art. I., §g. Acts construed: Act 1887, Ch. 79. Cases cited and approved: 15 Mo. Appeals, 593; 84 Ind., 563; 123 Mass., 239; 31 ICan., 355.
89 Tenn. 235Railway Co. v. Lewis (1890)
1. Interstate Law. Decisions of Courts of another State followed by our Courts, when. In suits brought in Courts of this State to recover for personal injuries inflicted in another State, the law affecting the merits of the controversy, as declared by the Courts of the latter State, controls when in conflict with the decisions of our own Courts. (See Railroad v. Foster, io Lea, 351.) 2. Same. Same. Case in judgment. Suit against railway company by its employe for personal injuries inflicted in Georgia. There wáS'proof tending to show plaintiff guilty of contributory negligence,; The Court charged in conformity to the Tennessee decisions on this point, which differ materially from the Georgia cases. Held: This was error. The Court should have charged the law as declared by the Georgia Courts.
89 Tenn. 237James County v. Hamilton County (1890)
EROM JAMES. Appeal from Chancery Court of James County. W. H. DeWitt, Sp. Ch.
89 Tenn. 245Railway Co. v. Aiken (1890)
i. Practice. Exceptions to evidence. Exception to irrelevant evidence is insufficient to render its admission erroneous, where upon the talcing of the depositions containing the objectionable matter general exception was taken to the qttestions but none to the answers, and no ruling made by the Commissioner, and where it does not appear that any specific exception was made at the trial, but, in a general way, it is stated that the exceptions noted in the depositions were relied upon. 2. Same. Same. Exceptions to evidence made on the taking of depositions are not preserved by a sweeping general statement in the record that they were relied upon at the trial, but the particular exceptions insisted upon must be specifically and definitely pointed out in the record. 3. Negligence. Charging comparative negligence. Charge of Court embodying doctrine of comparative negligence is erroneous in this State. And comparative, not contributory, negligence is defined where the jury are instructed to decide against the party guilty of the “greater” or “grosser” negligence, without the qualification that the negligence must have been the “prime, principal, and proximate cause of the injury.” Case cited and approved: Railroad v. Hull, 88 Tenn., 33. Cited and distinguished: Railroad v. Gurley, 12 Lea, 55, 56; Railroad v. Fain, 12 Lea, 35. 4. Master and Servant. Master's duty with reference to machinery. Railway company, having a machine-shop, as between itself and employes therein, is riot bound to provide machinery that is safe and sound so "far as human foresight and skill can make it,” but is held to the exercise of only “ordinary care and prudence” in that regard. Cases cited and distinguished: Railroad v. Elliott, I Cold., 611; Railroad v. Jones, 9 Heis., 27-41; 100 U. S., 213-226.
89 Tenn. 253Luttrell v. Knox County (1890)
1. Taxation. Bridge erected by lessee upon exempt piers taxable. Knox County, having stone piers and right of way suitable for bridge over Tennessee River, leased them to Saulpaw upon condition that he should erect a bridge thereon, “ as long as he or his heirs or assigns shall keep the same sound, safe, and in good repair,” as re-, quired by the lease. These piers and the right of way were exempt from taxation as public property. This lease contained covenants for quiet enjoyment and against incumbrances. It provided that loss of bridge by fire or wind should fall upon lessee; that he should be entitled to all insurance money; that county should not be partner with lessee; and that toll-money should be applied (l) to expenses; (2)-for payment to lessee .of six per cent, interest on $50,000 — cost of bridge; (3) to payment of $1,500 to county; (4) the surplus — one-third to county and two-thirds to lessee. Held: The superstructure erected pursuant to this lease is not exempt, but subject to taxation during the continuance of the lease as the. property of the lessee or his assignee. Case cited and approved: 82 N. Y. 2. Same. Same. County not liable to refimd taxes to. lessee. And the county is not liable under this lease to indemnify lessee against the taxes he may be required to pay. 3. Same. Same. Navigability of river immaterial. The navigability of the river is wholly immaterial upon the question of the taxability of this superstructure.
89 Tenn. 259Roane County v. Anderson County (1890)
1. County. Reduction of area below constitutional minimum not allowed. Reduction of the area of an old county below the constitutional minimum of five hundred square miles cannot be effected either by act of the Legislature or, a fortiori, of the County Court. Constitution construed: Art. X., $4. Act construed: Acts 1889, Ch. 34. Case cited and approved: Marion County v. Grundy County, 5 Sneed, 490. 2. Same. Same. Legislative power to restore lost territory. But the Legislature has the power to restore to a county territory which it may have lost by its laches and long acquiescence in the claim and possession thereof by another county, and for that purpose to detach that territory from the latter county although the area be thereby reduced below the constitutional minimum. 3. Same. Loss of territory by laches. A county cannot, without express legislative permission, maintain suit, on account of its laches, to recover territory — part of its ancient domain — where, with full knowledge of its rights, it has acquiesced in the assertion and exercise of ownership and jurisdiction over that territory by another county for a long period of time. Eighteen and fifty years’ acquiescence have been respectively held sufficient to defeat the county’s claim. 4. Boundary. Call for line controls call for course. Call for course yields to call to run with a designated line, even if the line is unsurveyed, provided it is susceptible of definite location. 5.Same. Long acquiescence in line has great weight. In the ascertainment of the location of ancient lines, long acquiescence ■ of the parties interested in the location of a line at a particular place should have great if not controlling weight, where there are no existing marks or living witnesses to show original location, and the calls and tradition are themselves vague and indefinite. County lines are subject to this rule.
89 Tenn. 270Hurst v. Wilson (1890)
1. Rule in Shelly’s Case. History and statement of rule in Tennessee. Before its repeal by Acts 1851-52 (Code, §2814 M. & V.) the rule in Shelly’s case was in force in Tennessee, and is thus stated by our Courts : “ Whenever the ancestor by any gift or conveyance takes an estate of freehold in lands or tenements, and in the same gift or conveyance an estate is afterwards limited by way of remainder to his heirs, or to the heirs of his body, the words ‘heirs’ or ‘heirs of the body ’ are words of limitation of the estate carrying the inheritance to the ancestor, and not words of purchase creating a contingent remainder in the heirs.” This rule is “not merely a rule of construction, but one of imperative obligation.” Act construed: Acts 1851-52, Ch. 91 (Code, § 2814 (M. & V.); §2008 (T..&S.).. Cases cited and approved : Williams v. Williams, 11 Lea, 652; Polk v. Faris, 9 Yer., 209; Cooper v. Coursey, 2 Cold., 416; Woodrum v. Kirkpatrick, 2 Swan, 224. 2. Same. Example of will that falls within this rule. The devise falls within the rule' in Shelly’s case, and vests an estate in fee in the first taker, where the testator died in 1844, leaving a will containing this provision: “I will and bequeath to my son, Russell Hurst, my Cate tract of land during his life-time, and at his death I desire the same to go to the heirs of said Russell; and in consideration thereof he is to pay a debt I am owing the bank for said tract of land.”
89 Tenn. 274Raht v. Meek (1890)
1. Administration. Sale of land to fay debts. Statute of limitations. Proceedings to sell decedent’s lands to pay debts are not barred, though instituted more than seven years after his death, if brought within that period after the creditor, acting with due diligence, has obtained judgment against the personal representative. Code construed: §¿3119, 3483 (M. & V.); §§2281, 2786 (T. & S.). Case cited and approved: Henry v. Mills, 1 Lea, 144. (See also 1 Lea, 135; 16 Lea, 349.) 2. Same. Same. Void sale. Parties. Administration sale of decedent’s lands to pay his debts is void, and confers no title upon a purchaser thereat, when made under proceedings against the heir commenced after he had conveyed his interest in the lands descended to a purchaser who was not made a party, and whose deed had been duly registered. 3. Same. Same. Effect of heir's conveyance. The purchaser of descended lands from the heir acquires a good and indefeasible title against all persons except the ancestor’s creditors, and as to them also if the .purchase was bona fide. In suit by ancestor’s creditors against the heir’s vendee to subject such lands to debts, the burden is upon the latter to show bonafides of his purchase. Code construed : §§2435, 3094 (M. & V.); §§ 1765, 2256 (T. & S.). Case cited and approved: Gibson v. Jones, 13 Lea, 692. (See also Smith v. Thomas, 14 Lea, 324.)
89 Tenn. 278State, ex rel. v. Lookout Bank (1890)
i. Banks. Incorporáled banks are not embraced by Act of i8pq-6o, Ch. I2q. Incorporated banks are not embraced by the provisions of the Act of 1859-60, Ch. 129, entitled, “An Act to encourage the use of private capital,” and therefore are not liable for the penalty therein imposed for taking usury in violation of that statute. That Act applies alone to “persons and partnerships, and associations of persons paying taxes for the use of money as money-lenders.” It does not include corporations. Act construed: Act of 1859-60, Ch. 129. Code, g2486-2488 (M. & V.); ^1829/(1'. & S.). 2. Same. Purpose of Act of i8pq-6o, Ch. i2q. Private, unchartered banking was prohibited absolutely by Act of 1827, Ch. 85 (Cor. & Nich., p. 121). This prohibition had been so far relaxed prior to the Act of 1859-60, Ch. 129, as to allow “discounting securities for money and shaving notes” upon payment of a license tax. (Code, §550, subsec. 9 (T. &S.). The purpose of the Act of 1859-60 was to further modify the Act of 1827, and to practically restore the right of private banking as it had existed prior to 1827. Cases cited: Insurance Company 71. Insurance Company, xi Hum., 23; I-Iazen v. Bank, I Sneed, 119.
89 Tenn. 284Boyd v. Johnston (1890)
1. Administrator. Personally liable tipon note executed for debt of the estate. An administrator is personally liable upon his note executed for a debt of his intestate, although he adds his official designation to his signature. Case cited and approved: East Tenn. Iron Co, v. Gaslcell, 2 Lea, 742. 2. Same. Same. Liability limited to assets. But the personal liability of the administrator is limited, as between original parties, to the creditor’s proper pro rata of the assets of the estate, where the administrator, without intending to incur any personal liability, executed the note for his intestate’s debt solely upon consideration of the assets, then supposed to be'sufficient, but which were in fact insufficient, to pay all debts in full. Cases cited and approved: 13 Wend., 557; 7 Gratt., 300. 3. Same. Same. Burden of proof. Presumption of sufficient assets arises from the execution of the note, and the burden is upon the administrator to rebut this presumption by proof. When this presumption is rebutted, then the burden shifts to the payee to show other sufficient consideration for the note. 4. Same. Same. Additional consideration. The surrender by the creditor of a supposed partner’s lien or claim upon the assets of the estate, affords no consideration for .extending the administrator’s personal liability upon his note beyond the creditor’s pro rata of those assets, where the evidence fails to show that any distinguishable partnership assets came to the administrator’s hands. The partner, in such case, is in no better attitude than general creditors.
89 Tenn. 290Kenner v. Loyd (1890)
Redemption of Land. Ineffecttial, when. Redemption of land by a judgment creditor who has no lien or levy thereon, is wholly ineffectual when the judgment debtor had conveyed the land by registered deed after the original levy, and prior to the sale under that levy.
89 Tenn. 293Railway Co. v. Telford's Executors (1890)
i‘. Eminent Domain. Foundation and limit of the power. The power to take private property for public use depends upon, and is limited by, the necessities of the public. Hence the absolute fee in land, or its exclusive possession, will not be condemned for a public purpose where a mere easement in, or conjoint occupation of, the land will suffice to meet the necessities of the public. 2. Same. Construction of railway charter. Railway company constructed road over a tract of land, and operated it continuously for thirty years after completion. It did not condemn or pay for the land taken, and had no contract with the land-owner in reference to right of way. Its charter provided that in absence of any contract with the land-owner “it shall be presumed that the land upon which the said road may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the company by the owner thereof, and the said company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used only for the purpose of said road, and no longer, unless the persons owning the said land at the time that part of the road which may be on said land was finished, or those claiming under him, .her, or them, shall apply for an assessment for value of said land, as hereinbefore directed, within five years next after that part of said road was finished; and, in case the said owners, or those claiming under them, shall not apply for such assessment within five years next after said part was finished, they shall be forever barred from recovering the said land or having any assessment or compensation therefor.” 0 Held: The railway company did not take the absolute fee or exclusive right to possession of the “space of one hundred feet on each side of the center” of its road, but only an easement therein, commensurate with its legitimate necessities. , Act construed: Acts of 1847-48, Ch. —, Sec. 23. Case cited and approved: 68 N. Y., 594. 3.Same. Same. Owner's possession not adverse. Subject to this easement of the railway company in the lands taken, the fee and right of possession remain with the owner; and therefore his possession of the land for agricultural purposes is not adverse to the company’s rights, so long as the land is not required for railroad purposes, and there is no open assertion of any right hostile to or incompatible with the company’s easement therein. 4.Same. Same. Right to pul in side-track. Under the easement acquired by the railway company, it had the right to put in a necessary side-track upon the land taken within thirty yards of the main track thirty years after completion of its road; and the company’s right to put in such side-track is not extinguished by the owner’s possession of the land upon which it was located for thirty years for agricultural purposes. Cases cited and approved: 22 Kan., 285 (S. C., 31 Am. Rep., 190); 104 Mass., I (S. C., 6 Am. Rep., 181). 5.Same. Same. Provision for compensation of land-owner constitutional and exchisive. The provisions for compensation of the land-owner contained in this charter are constitutional and exclusive. Case cited: Sims v. Railroad, 12 Heis., 621.
89 Tenn. 301Railway Co. v. Hicks (1890)
• i. Railway Companies. Erroneous charge as to observance of precautions for prevention of accidents. Charge of Court to the effect that it is the duty of the engineer and other operatives on a railway train to use all means in their power to stop the train and prevent an accident “whenever” or “as soon as” the plaintiff appeared on the track, without reference to the distance in advance or the danger of collision, is erroneous, when applied to a person in the employ of the company, who, in due course of his business, was traveling at the time of the accident along the track upon a velocipede in front of and in same direction as the train, and whose duty it was to surrender the track to approaching trains. 2. Same. Correct charge upon the case stated. The Court should have instructed the jury, as applicable to the facts stated above, “ that when plaintiff appeared on the track, if he was then in such proximity to the train that danger to his person was probable, or if afterward the train came so near to him as to render it likely, under all the circumstances, that he might be injured if the train were not stopped, then it was the duty of the engineer and other operatives to use all the means in their power to stop the train and prevent a collision.”
89 Tenn. 304Simpson v. Railway Co. (1890)
EROM WASHINGTON. Appeal in error from Circuit Court of "Washing-' ton County. A. J. Brown, J.
89 Tenn. 311Railway Co. v. Mahoney (1890)
1. Res Adjudicata. Language of judgment limited'to the matter decided. A judgment is res adjudicata only as to matters in issue, though its language undertakes to embrace and. decide more. Case cited and approved: Sanders v. Logue, 88 Tenn., 359. 2. Same. Case in judgment. Judgment of this Court determining that it is erroneous to dismiss an administrator’s suit upon demurrer for want of averment in the declaration that the County Court had jurisdiction to appoint him, does not preclude subsequent attack upon his representative character by proper plea, although the entry of record undertakes to determine that “the validity of plaintiff’s letters of administration is not open to attack in this suit-.” Cases cited and approved: Cheek v. Wheatly, ii-Hum., 555; 11 Ired., 296; 4 Denio, 85. 3. Administration. Collateral attack upon appointment of personal representative. An administration, granted by a County Court of this State upon the estate of an intestate whose domicile at the date of his death was in Ténnessee, cannot be collaterally attacked by plea which admits these facts, and denies the plaintiff’s representative character upon the sole averment that the intestate resided at the date of his death in a county other than that in which the administration was had.. The County Court having general jurisdiction in such case, its determination that the jurisdictional facts exist is conclusive upon collateral attack, and its judgment need not recite these facts. Case cited and approved: Brien v. Hart, 6 Hum., 131. Cited and distinguished: D’Arusment v. Jones, 4 Lea, 251. ■ 4.. Same. Same. But the plaintiff’s representative character may, in a proper case, be put in issue by a proper plea of ne tinques administrator; and this plea is in bar, and may be presented with tlie general issue. Cases cited and approved: Cheek v. Wheatly, 11 Hum., 555; II Ired., 296; 4 Denio, 85. 5. Supreme Court Practice. No reversal if judgment is correct though reasons are erroneous. A correct judgment will not be reversed, although the lower Court assigned insufficient reasons for its rendition. 6. Same. Rule as to setting aside verdict upon the facts. Verdict of jury will not be disturbed by this Court where there is any legitimate evidence to support it, there being no other error. Cases cited: Jones v. Jennings, 10 Hum., 428; Dodge v. Brittain, Meigs, 85; Pettitt v. Pettitt, 4 Hum., 191; Walkers'. Galbreath, 3 Head, 315; Nances'. Haney, 1 Heis., 177; Morass'. Swaney, 7 Heis., • 602; Tate v. Gray, 4 Sneed, 591; England v. Burt, 4 Hum., 399; Nailing v. Nailing, 2 Sneed, 630; Vaulx v. Herman, 8 Lea, 683; Turner v. Turner, 85 Tenn., 387. 7. Pleadings and Practice. Amendment of declaration not error, when. Amendment of declaration, upon leave of Court, so as to change the defendant’s name from “railroad company” to “railway company” constitutes no error, especially where there has been no plea of misnomer but an appearance by defendant and trial upon the merits. 8. Same. Amendment of declaration relates to commencement of stiiti when. Amendment of declaration which does not introduce a new and different cause of action, but merely supplies facts omitted in statement of the original cause of action, relates to commencement of the suit,' and is not barred if the suit was brought in time, though the statute of limitations had run when the amendment was made. Case cited and approved: Railroad v. Foster, 10 Lea, 351. 9. Practice. As to setting aside a third verdict tipon the facts. The statute providing that “not more than two new trials shall be granted to the same party in an action at law, or upon trial by jury of an issue of fact in equity,” deprives the trial Judge of any power to set aside the third verdict of a jury upon the .sole ground that the evidence is insufficient to support it, where two former verdicts in the same case have been set aside upon motion of the same party for that cause alone. Code construed: §3835 (M. & V.); §3122 (T. & S.). Cases cited and approved; Malone’s Lessee v. Deboe, 4 Hay., 259; Trott v. West, 10 Yer., 499 (S. C., Meigs, 163)-; Turners'. Ross, 1 Hum., 16; Wilsons. Greer, 7 Hum., 513; Ferrells'. Alder, 2 Swan, 77; Railroads'. Hackney, 1 Head, 169; Whitemore v. Haroldson, 2 Lea, 313; Carulhers v. Crockett, 7 Lea, 91; Burton v. Gray, 10 Lea, 581; Knoxville Iron Company v. Dobson, 15 Lea, 417; Railroad v. McKemy (oral opinion at Knoxville, September Term, 1887). 10. Same. Same. But this statute has no application to a case in which there is no evidence to support the-verdict, and in such case the trial Judge may set aside even a third or any subsequent verdict of a jury in the same case and upon motion of the same party. Case cited and approved; 134 U. S., 614. 11. Same. Same. The allegation that there is no evideftce to sustain the Verdict of the jury cannot be successfully maintained £< if the conclusion does not follow, as a matter of law, that no recovery can be.had upon any view which can be properly taken of the facts the evidence tends to establish.” 12. Constitutional Law. Statute forbidding Courts to set aside third ver~ diet of jury constitutional, The statute forbidding Courts to set aside third verdict of jury when thus construed, is constitutional. Constitution construed: Art. II., Sec. 2; Art. I., Secs. 6, 8.
89 Tenn. 335Adams v. Sharon (1890)
Supreme Court Practice. Rehearing. Petition for rehearing will not be entertained by this Court where it was not presented to the Court within ten days after the opinion upon the original hearing was rendered. Merely filing the petition in the Clerk’s office without motion, and without notice to the Court or adversary counsel, is ineffectual. Rule construed: Rule 17, 85 Tenn., 755. ■
89 Tenn. 337J. I. Case Co. v. Joyce (1890)
FROM GRAINGER. Appeal from Chancery Court of Grainger County. John P. Smith, Ch.
89 Tenn. 361Byous v. Mount (1890)
FROM SEVIER. Appeal in error from Circuit Court of Sevier County. W. R. Hicks, J.
89 Tenn. 367Maupin v. State (1890)
Carrying Arms. Facts that sustain conviction for. Conviction for unlawfully carrying arms is fully sustained by proof that defendant, while regularly engaged in tending a mill at which he ate and slept, carried a pocket-pistol upon his person with intent to go armed while at his ordinary work in the mill-house.
89 Tenn. 370Patton v. Railway Co. (1890)
1. Negligence. Not proximate cause, when. Negligence of railway company that causes separation of the cars of a moving train is not the proximate cause of an injury sustained by a person who subsequently came upon the track in front of, and was struck by, the detached cars, which were moving by impetus and gravitation. 2. Railway COMPANY. Statutory precautions not applicable to detached cars. The statute requiring “the engineer, fireman, or some other person upon the locomotive ” of a moving train to be constantly on the lookout “ahead” has no application to the movement by impetus or gravitation of cars detached from the locomotive. Code construed: §1298, Subsection 5 (M. &V.); §1166, Subsections (T. & S.). 3. Same. Common law liability. Contributory negligence. But upon common law principles at railway company may be held for injury done by detached cars moving upon its track by impetus or gravitation, where it fails in its duty to keep a proper lookout for persons upon the track in front of the cars, or to use all possible means to prevent accident upon discovery of the person. The statute is but a declaration of common law principles. The distinction between cases under the statute and at common law is that contributory negligence may defeat recovery altogether in the latter, but can only mitigate damages in the former. Cases cited and approved: Railroad ». Fain, 12 Lea, 41; Railroad». Pratt, 85 Term., 13; Railroad». Foster, 88 Tenn., 672. 4. Same. Same. . Essential averments in pleadings. Where separation of railway train was accidental, a plaintiff seeking to hold the company for injury done by the detached cars, upon the ground that proper lookout for persons upon the track was not kept, must aver that servants of the company were left upon the detached cars, and had had time before the accident to assume proper position for observation. The averments in this case are sufficient upon this point. 5. Same. Party injured on track treated as trespasser, when. Demurrer. Upon demurrer to declaration in suit against railway company for injuries sustained, by the plaintiff by collision with a train or cars upon the company’s track, he will, in the absence of averment to the contrary, be treated as a trespasser. 6. Same. Trespasser’s rights. The mere fact that a person was a trespasser upon the track of a railway company at the time he was injured by its negligence, does not necessarily constitute a bar to his recovery for the injury. The fact, however, constitutes contributory negligence to be considered by the jury. Case cited and approved: Railroad v. Fain, 12 Lea, 41. 7. Same. Trespasser’s duty to look and listen. It is the duty of a person aboitt to go upon a railway track to look and listen for trains, and to continue to do so while he remains' upon the track. The neglect to perform this duty constitutes contributory negligence that may defeat an action by such person for injuries received while upon the track from other negligence than failure of the company to observe the required statutory precautions. Case cited and approved: 95 U. -S., 697. 8. Same. Same. Excuse for'failure to perform duty. The failure of a trespasser upon a railway track to look and listen for trains may be so far excused as to prevent an absolute bar of his suit— but not to exonerate him from contributory negligence, to be considered in mitigation of damages — when he was unexpectedly struck and injured by detached cars moving by impetus and gravitation just in rear of the regular train to which he had surrendered the track and then resumed his journey, and when it appears that he was crossing a bridge, and probably could not have heard the approach of the cars on account of the noise of an adjacent water-fall.
89 Tenn. 381Petroleum Co. v. Coal, Coke, & Manufacturing Co. (1890)
I.Ejectment, Defenses by answer to ejectment bill. The Court, without deciding the question, intimates that legal defenses may be made by answer to a pure ejectment bill. 2.Same. Does not lie to recover mining interest in land, when. Where mines have not been opened, and the lessee has never been in possession, there can be no recovery by ejectment of the interest that he acquired in lands under a lease which provides as follows: “Witnesseth, that the said-has this day leased unto the said C. and others, or their assigns, for the term of 99 years, all of his mineral and petroleum interests, for the purpose of exploring for coal, petroleum, lead, iron, copper, and other' ores, metals, and minerals, and use of timber, etc., for mining, working, smelting, and rending the same, and, for such purpose, erect all necessary buildings and other apparatus and fixtures for carrying on their operations in and upon the following described parcel of land. * * * The said C. and others, for and in consideration of the above lease, obligate and bind themselves to pay to the said-the one-tenth part of the net profits of rvhatever may be discovered and worked in and upon said lands deemed advisable to be tested and worked by the said C. and others or assigns. They, the said C. and others, further agree to commence testing said property within three years’ time.” Case cited and approved: 72 Mo., 535. 3.Mining Lease. Construction of lease. Consideration. This lease becomes nudum pactum if construed to impose no legal obligation upon the lessee to explore and discover mines or to work them when discovered. That construction would convert it into a mere voluntary option that the lessors could withdraw at any time before acceptance. 4. Same. Same. True meaning. But this lease, by proper construction, obligated-the lessee to “test” the leased lands within three years, and, if minerals were discovered, to work them effectively within a reasonable time thereafter; and the “testing” within that period, and the working of the minerals within reasonable time after their discovery, were not mere covenants, but conditions upon which the life of the lease depended. For want of compliance with these conditions, this lease was forfeited. Cases cited and approved: Carnes v. Apperson, 2 Sneed, 561; 89 N. C., 31. 5. Same. Same. Character of test required. And the “test” required by this lease is such as would discover not only the presence of minerals if they exist, but their commercial value, considering their abundance and accessibility. It should afford such information as a prudent and experienced investor would desire before expending money in digging shafts or erecting machinery proper for the profitable working of such mines. The test in this case was not of this character.
89 Tenn. 393Longmire v. Fain (1890)
FROM SULLIVAN. Appeal from Chancery Court of Sullivan County. John P. Smith, Ch.
89 Tenn. 411Woods v. Bonner (1890)
FROM SEQUATCHIE. Appeal from Chancery Court of Sequatchie County. W. H. DeWitt, Sp. Ch.
89 Tenn. 423Electric Railway Co. v. Shelton (1890)
FROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. A. Gr. Merritt, Sp. J. Action for damages by C. E. Shelton against the United Electric Bailway Company and the Cumberland Telephone and Telegraph Company. Judgment below for plaintiff. Appeal by defendants.
89 Tenn. 427Eury v. Insurance Co. (1890)
Insurance. Faihvre to pay premium before loss excused. Upon the special facts of this case, which are fully set out in the opinion, it is decided that the holder of an accident policy is excused for nonpayment of the premium prior to the occurrence of his loss or injury, and that he may nevertheless recover against the company upon the policy.
89 Tenn. 431Dickle v. Abstract Co. (1890)
Abstract Companies, Liability for negligence. An abstract company that furnishes to the owner of land an abstract of title with guaranty of its correctness, for the purpose of enabling him to effect a sale, is liable to a purchaser who buys upon the faith of that abstract, for damages resulting from a failure of title by reason of prior registered conveyances of the vendor, which would have been disclosed by an abstract prepared with proper skill and care.
89 Tenn. 434Standard Oil Co. v. Swan (1890)
FROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. W. K. McAlisteR, J.
89 Tenn. 438Insurance Co. v. House (1890)
I. Insurance, Fire. Requirement of foreign company as to cash capital. The statutory requirement that a foreign fire insurance company, before engaging in business in this State, shall be “possessed of at least two hundred thousand dollars of paid-up, actual cash capital, of .which at least one hundred thousand dollars shall be invested in United States bonds,” etc., is not sufficiently met by showing that such company, being a mutual, had the required amount in cash assets, with $100,000 invested in United States bonds. Cash assets are not the , equivalent of cash capital. Acts construed: Acts 1875, Ch. 109; Acts 1887, Ch. 187. (See now Acts 1890-91.) 2. Same. Same. Insurance Commissioner's duty. Mandamus. And the Insurance Commissioner performs his plain duty in refusing admission and license to such non-complying company, and will not therefore be interfered with by mandamus. Question reserved: Will the Court compel the Commissioner, by mandamus, to reverse his judgment and grant admission and license where they have been wrongfully refused to a foreign company ?
89 Tenn. 443Turner Bros. v. Argo & Co. (1890)
l. Chancery Sale. Decree for, barring redemption, erroneous, when. Decree for sale of debtor’s land barring his right of redemption is erro- ' neous unless there is in the bill a prayer for sale in bar of that right. 2.. Homestead. None in wife's land. Husband and wife cannot assert, either jointly or singly, a right of homestead in the wife’s land against a decree for their joint debt.
89 Tenn. 446Helms v. Elliott (1890)
i. Descent and Distribution. Next of kin. Adopted child. An adopted child, though- declared next of kin to the adopting parent by special statutory provision, is not thereby placed in such situation with reference to his brothers and sisters — children of the blood of such parent — as to become, in any event, their next of kin within the meaning of the common canons of descent and distribution as prescribed by our statutes. Next of kin signifies nearest in blood. The tie of blood is wanting between the adopted child and his brothers and sisters of the blood of the adopting parent. Code construed: $3278, 4388, 4389, 4390 (M.- & V.); §§2429, 3643, 3644, 3645 (T. & S.). Case cited and distinguished: McKamie v. Baskerville, 86 Tenn., 459. 2. Same. Case in judgment. C. died intestate, leaving an adopted child and two children of his own blood. His estate was inherited equally by the three children. Afterward one of the children of C.’s blood died intestate, and without issue or parents. The adopted child claimed one-half of this decedent’s estate, consisting of personalty. Held: The adopted child is not next of kin, and takes no part of the estate.
89 Tenn. 453Steger v. Arctic Refrigerating Co. (1891)
I. Mechanics’ Lien. Statutes creating liberally construed. Doctrine re-affirmed and declared a “fixed policy” that statutes creating liens upon real estate in favor of those who, under contract with the owner, have furnished labor or materials for erection of buildings, machinery, etc., thereon, are construed liberally in favor of lien-holders as regards the subject-matter to which the lien should attach. Code construed: §2739 (M. & V.); $1981 (T. & S.). Cases cited and approved: Alleys'. Lanier, I Cold., 541; Burr*'. Graves, 4 Lea, 557; Barnes v. Thompson, 2 Swan, 314; Halleys'. Alioway, 10 Lea, 524; Kays'. Smith, 10 Heis., 43. Cited and distinguished: Luter v. Cobb, 1 Cold., 528. 2. Same. Case in judgment. Illustration of doctrine. The Arctic Refrigerating Company erected a factory upon a lot in Nashville for the manufacture of vapor for “cold storage.” By permission of the city this company laid subterranean pipes in the streets, connecting with its factory, to convey the vapor to its customers. P. supplied labor and materials in erection of the factory, and also furnished and laid down the pipes in the streets. Held: The plant, including lot, factory, pipes, etc., is an entirety, and P.’s lien for materials furnished or labor done upon any part of it attached to the whole. Cases cited and approved: 101 U. S., 443; 141 Mass., 523. Cited and distinguished: 6 Wall., 561, 3. Same. Takes precedence of attorney’s fees, when. The mechanics’ lien is paramount to attorney’s lien or claim for fees upon this state of facts: After the mechanics’ lien had attached to realty, the owner made a general assignment of all his property for the benefit of his creditors. Under .bill filed by the assignee, for the purpose of selling property and adjusting liens and claims of creditors, the encumbered land was sold for less than the lien-holder’s claim. The assignee resisted the mechanics’ lien, and the holder of this lien employed counsel and asserted it over the assignee’s resistance. The assignee’s attorney claimed fees out of fund realized from sale of the land. Cases cited and approved: Hays v. Dalton, 5 1 ea, 560; Pierce v. Lawrence, 16 Lea, 572; Blackburn v. Clarke, 85 Tenn., 507.
89 Tenn. 462Bank v. Bond (1891)
Estoppel. Of policy-holder to claim insurance money due upon a fire policy. ■ Father and son owned house and lot jointly — the former two-thirds and the latter one-third. After the father’s death the son insured the house, taking policy to himself and mother. The son paid all premiums. .The father’s estate was insolvent, and in proceedings brought by the administrator to wind it up the son presented and was allowed two-thirds of the premiums he had paid as a debt against the estate. After decree for sale of house and lot, but before sale thereof, the house was burned. The son received full airibunt of the policy, and refused to account to his father’s estate for any part of it. Held: That the son is estopped to claim two-thirds of the insurance money as against the administrator and creditors of his father’s estate.
89 Tenn. 466Nelson v. Fuld & Co. (1891)
Attachment. Affidavit. Information and belief. Attachment should he quashed on motion for want of sufficient cause for its issuance, where the affidavit states no more than that the creditor “is informed and believes” that his debtor “has fraudulently disposed of, or is about fraudulently to dispose of his property,”' without averring as matter of -fact that the debtor had m'ade, or was about to make, such fraudulent disposition. Case cited and overruled : Lester v. Cummings, 8 Hum., 384.
89 Tenn. 470Harvey v. Harrison (1891)
1. Life Insurance. Upon husband1 s life for wife1s benefit exempt from his debts. Although the widow alone is named as beneficiary in a policy of insurance taken by the husband upon his own life, yet the insurance is exempt to her from all claims of his creditors by virtue of the statutes declaring exemption of insurance upon husband’s, life in favor of his “widow and children,” or of his “widow and next of kin.” Code construed: {$3135, 3335, 3336 (M. & V.); §§2294, 2478, 2479, (T. & S.). 2. SAME. Same. Exemption valid without regard to amount. And the exemption created by these statutes is valid without regard to the amount of the insurance. The statutes have placed no limit upon the amount, and the Courts can fix none. 3.SAME. Same. Exemption valid notwithstanding assured's insolvency. And the exemption is valid against creditors existing at inception of the insurance, although the assured was then and continued to be insolvent, devoting his entire estate in payment of premiums. The • exemption is unconditional, and its express object was to withdraw a fund from creditors for the benefit of the debtor’s family. Case cited and approved: Rison v. Willcerson, 3 Sneed, 568.
89 Tenn. 478Glass v. Bennett (1891)
I. EVIDENCE. Corroborating witness by proof of his previous consistent statements. Where witness is assailed by proof tending to show his statement on oath a recent fabrication or inconsistent with his previous representations, it is competent to support his credit by proving that he gave the .same account of the transaction at a time when he had no-motive to misrepresent the facts. Examples of the proper application of this rule occur in this case. Case cited and approved: Hayes v. Cheatham, 6 Lea, io. 2. Same. Res gestee. What admissible under. In husband’s suit to recover damages of wife’s father and brother for wrongfully causing separation and estrangement of his wife, it is. competent, under issue made by plea of not guilty, to prove as part, of the res gestee all declarations of the wife explanatory of her mental trouble, and of her conduct in leaving and remaining away from her husband, whether made at the time of the separation or subsequently while it continued, and whether made to her husband, her physician, members of her father’s family, or to strangers. 3. Domestic Relations. Parent and child. Husband and wife. Brother and sister. “The father and brother are natural protectors of the daughter and sister.” The father may lawfully give honest advice to his married daughter who comes to him in distress growing out of unhappy-marital relations, and he may shelter her in his own home so long as. she freely remains. Case cited and approved: Payne v. Williams, 4 Bax., 585. 4. Supreme Court Practice. Transcripts. Clerk's fees. Hereafter clerk’s fees for making transcripts of record for this Court will be stricken, out if the work is not done in a proper manner. Cited: Rules, 85 Tenn., 751. 5. Same. Suggestion as to making bills of exceptions. Bill of exceptions in a law case should not contain full report of the evidence in all its details, but only such facts as are material with reference to the questions to be made in this Court.
89 Tenn. 487Williams v. Nashville (1891)
i.Constitutional Law. Special laws affecting municipal corporations are valid. The territorial limits of an existing municipal corporation may be extended by a special law enacted for that sole purpose. Such Act is not within the constitutional prohibition that “no corporation shall be created, or its powers increased or diminished by special laws.” This clause of the Constitution applies, not to municipal, but alone to private corporations. Constitution construed: Art. XI., §8. Act construed: Acts 1890 (extra session), Ch. 33. Cases cited and approved: State v. Wilson, 12 Lea, 246; Ballentine v. Pulaski, 15 Lea, 633. 2.Same. Same. Co-existent general and special laws. Although the general laws, and also the charter of the particular municipal corporation, have provided ample methods by which its boundaries might be extended without resort to further legislative action, yet the Legislature has the power to accomplish that end by special statute. .Special laws of this character are not within the constitutional prohibition that “ the Legislature shall have no power to suspend any general law for' the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land.” Constitution construed: Art.'XI., §8. Cases cited and approved: Luehrman v. Taxing District, 2 Lea, 433; States. Wilson, 12 Lea,.257. 3.Same. Same. Not deprivation of liberty or property. A special law extending territorial limits of a municipal corporation does not operate to deprive the owners of the included property either of liberty or property, and does not therefore violate the constitutional provision “that no man’s particular services shall be demanded, or properly taken or applied to public use, without the consent of his representatives, or without just compensation being made therefor;” or that other constitutional provision “that no man shall be * ® * deprived of his life, liberty, or ¡property but by the judgment of his peers or the law of the land.” Constitution construed: Art. I., 22 8, 21. Case cited: 67 U. S., 510. 4. Same. Same. Same. Nor does such statute violate that clause of the Federal Constitution which provides that “ np person shall be' * * * deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” Constitution construed: Fifth amendment Federal Constitution. 5. Same. Passage of laws at extra session previously rejected at regular session. The rejection of a bill .at its regular session does not debar the Legislature from passing one, substantially the same, at a subsequent extra session of the same body, authorized by the Governor’s call to legislate upon that particular subject. In the constitutional provision that “after a bill has been rejected, no bill containing the same substance shall be passed into a law during the same session,” the word “session” means “the space of time between the first meeting and the final adjournment of each particular sitting or term.” Constitution construed: Art. II., 219. 6.- Statutes. Passage of. Fraud. Motives. A statute regularly enacted by the Legislature cannot be declared void by the Courts upon the ground that its passage was procured by fraud. Cases cited and approved: Lyfin v. Polk, 8 Lea, 229; Ballentine v. Pulaski, 15 Lea, 634.
89 Tenn. 497Stratton v. Morris (1891)
1. 'Constitutional Law. Measure and limits of legislative power in this State. In Tennessee it is a settled doctrine of constitutional-law that “the legislative power of the General Assembly of this' State extends to every subject except in so far as it is prohibited either by the delegated powers of the Federal Government or by the restrictions of our own Constitution. He who would show the unconstitutionality of an Act of the Legislature, must be able to put his finger upon the provision of the constitution violated.” {Post, pp. gn, 512.) Cases cited and approved: Demoville & Co. v. Davidson County, 87 Tenn., 220; Davis v. State, 3 Lea, 377 ; Luehrmair o. Taxing District, 2 Lea; 438; Hope v. Deaderick, 8 Hum., 8; Bell v. Bank, .Peck, 269, 270. 2. Same. Same. And therefore the Courts cannot annul a statute which is free from other exception, upon any assumption that it is opposed to the. “eternal principles of justice,” or to “natural equity,” or to “the inherent rights of freemen,” or to some vague and general spirit that .is supposed to pervade the Constitution, but not expressed therein. {Post, pp. gii-jij.) Cases cited and approvedDavis v. State, 3 Lea, 37S; Luehrman v. Taxing District, 2 Lea, 438. Cited: Bank re Cooper, 2 Yer., 603. 3. Same. Same. An important consideration. But, “in considering State Constitutions, we must not commit the mistake of supposing that because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed. A Constitution is not the beginning of a community nor the origin of private rights; it is not the foundation of law nor the incipient state of government; it is not the cause, but the consequence, of .personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience, designed for their protection in the enjoyment of the rights and powers which they possessed before the Constitution was made; it is but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought.” {Post, PP- 5™, 513.) Cited: Cooley’s Con. Lim., p. 358. 4. Same. Conditions existing at date of formation of our Constitution, When the Constitution of this State was formed, “the right to acquire, to hold, to enjoy, to alien, to devise, and to transmit property by inheritance to our descendants in regular order and succession ” was “enjoyed to the fullness and perfection of absolute right,” and one of the objects of the Constitution was to protect and preserve this right. (Post, pp. 313-313.) Case cited and approved: Hughlelt v. Hughlett, 5 Hum., 464. 5. Descent and Distribution. Act of 1883 changing laws of descent and distribution with reference to lunatics. Unconstitutional. Act of 1885, Ch. 88, changing our laws of descent and distribution with reference to estates of lunatics is unconstitutional -and void. That Act provides that the personal estate of which a “lunatic or non compos mentis” dies intestate, if derived from an intestate husband or wife, shall go, not to the next of kin of such “lunatic or non compos mentis,” as in case of other intestates, but to the next of kin of the person from whom the estate was derived. (Post, pp. 306, 307.) Act construed: Acts 1885, Ch. 88. 6. Same. Same. Terms “lunatic or non compos mentis" defined. The terms “lunatic or non compos mentis” are used in this Act to denote a person who has. not sufficient mental capacity to make a will. (Post, p. 507.) 7. Same. Same. Same. Sufficiency of the evidence. The evidence set out, in the Court’s opinion, is held sufficient to establish that the intestate whose estate is involved was a “lunatic or non compos mentis ” within the meaning of this Act. (Post, pp. 307-311.) 8. Constitutional Law. * Act of 1885 does not deprive intestate lunatic's next of kin of property. This Act of 1885 does not deprive an intestate lunatic’s next of kin of property within the meaning of the constitutional prohibition that no man shall be deprived of “his property but by the judgme'nt of his peers or the law of the land,” even when the Act is applied to a lunatic who, before its passage, had acquired personal estate of an intestate husband or wife, and continued to be a lunatic and died intestate after the Act had'been passed. The expectancy of next of kin is not properly. (Post, pp. 515-518.) Constitution construed: Art. I., Sec. 8. 9. Same. But this Act deprives the intestate hmatic of properly. But this Act of 1885, if valid, would deprive the “lunatic or non compos mentis” himself of that which is recognized as property within the constitutional prohibition aforesaid, to wit: The right to transmit his property by inheritance to his own descendents or next of kin. (Post, pp. 518-52.1.) Constitution construed: Art. I., Sec. 8.. 10. Same. Act of 1885 not valid, because it is not the “ law of the land." A statute which deprives any oné of property is not valid unless it is the “law of the land.” This Act of 1885 is not the “law of the land,” because (1) the classification upon which it is based is “unnatural, arbitrary, arid capricious;” and (2) it operates to take private property for private use, contrary to an implied prohibition of the Constitution. (Post, pp. 541, 542.) 11. Same. “Law of the land." Definition of. “ Law of the land ” correctly defined means a law “which embraces all persons who are or may come into like situation and circumstances.” It may be made to extend to all citizens, or be confined, under proper limitations, to particular classes. If the class be a proper one, it matters not how few the persons are who may be included in it. (Post, pp. 521-523.) Constitution construed: Art. I., Sec. 8. Cases cited and approved: Vanzanlz/. Waddell, 2 Yer., 270, 271; Wally v. Kennedy, 2 Yer., 555; Banks'. Cooper, 2 Yer., 605; Jones v. Perry, 10 Yer., 71, 72; Sheppard v. Johnson, 2 Hum., 296; Budd v. State, 3 Hum., 491; State v. Burnett, 6 Heis., 189; McKinney v. Hotel Company, 12 Heis., 107; Mayor v. Dearmon, 2 Sneed, 122; State v. Rauscher, I Lea, 97; Davis ». State, 3 £ea, 379; Maney ». State, 6 Lea, 22i; Hatcher & Lea ». State, 12 Lea, 370; Woodard ». Brien, 14 Lea, 523. 12. Same. Same. Essentials to validity of statutes based upon classificatio7is. “Whether a statute be public or private, general or special, in form, if it attempts to create distinctions and classifications between the citizens of this State, the basis of such classification must be natural, and not arbitrary. If the classification is made under Article XI., Section 8, of the Constitution for the purpose of conferring upon a class the benefit of some special right, privilege, immunity, or exemption, there must be some good and valid reason why that particular class should alone be the recipient of the benefit. If the classification is made under Article I., Section 8, of the Constitution for the purpose of subjecting a class to the burden of some special disability, duly, or obligation, there must be some good and valid reason why that particular class should alone be subject to the burden.” [Post, pp. 522-535.) Constitution construed: Art. I., Sec. 8; Art. XI., Sec. 8. Cases cited and approved: Sustaining statutes: Demoville ». Davidson County, 87 Tenn., 218-223; State». Schlier, 3 Heis., 286; Fulghum v. Mayor, 8 Lea, 635; Robbins v. Taxing District, 13 Lea, 303; State v. Rauscher, 1 Lea, 96; Theilan v. Porter, 14 Lea, 627; Parks». Parks, 12 Heis., 634; Davis ». State, 3 Lea, 380; Jones ». Perry, 10 Yer., 75. Declaring statutes ■unconstitutional: Hatcher & Lea ». State, 12 Lea, 370-371; Morgan ». Reed, 2 Head, 275 ; Memphis ». Fisher, 9 Bax., 239; Brown ». Haygood, 4 Heis.,360; Wally ». Kennedy, 2 Yer., 554; Bank ». Coojrer, 2 Yer., 599; Budd ». State, 3 Hum., 492; McKinney ». Hotel Company, 12 Heis., 104; Daly ». State, 13 Lea, 232; Burkholtz v. State, .16 Lea, 72, 73; Woodard ». Brien, 14 Lea, 522; Neely ». State, 4 Lea, 316; Green & Currey ». State, 15 Lea, 708-710; Ragio v. State, 86 Tenn., 272. 13. Same. Same. M:tsl not violate any provision of the Constitution. “A law which violates any provision of the Constitution, whether the provision be express or implied, cannot be the ‘law of the land,’ because an unconstitutional law is, in fact, no law at all.” (Post, ‡. S3¿>.) 14.Same. Same. Taking private property for private use prohibited by Con siitution. “Though the Constitution does not expressly prohibit the taking oí private property for private use, yet it has been held to do so by implication,” and therefore a statute cannot be the “law of the land” which takes the private property of one person to give it to another for the latter’s private use. (Post, p. 535.) Constitution construed: Art. I., Sec. 8. Cases cited and approved: Harding v. Goodlett, 3 Yer., 52; Clack v. White, 2 Swan, 549; Memphis Freight Co. v. Mayor, etc., 4 Cold., 425-
89 Tenn. 543McCarthy v. State (1891)
I. CONTEMPT OF Court. Preventing attendance of witness '. To prevent, or to attempt to prevent, the attendance upon a Court of this State of a legally summoned (witness, by intimidation or other improper means, is such “unlawful interference with the process or proceedings of the Court ” as constitutes a contempt, even when done by a person not a party to the cause in which the witness was required to attend. Code construed: §4881 (M. & V.) ; §4106 (T. & S.). 2. Same. Same. Punishment here, though acts were done outside State. And Courts of this State have jurisdiction to punish such unlawful interference with their process, although the acts constituting the contempt were done outside the State for the purpose of inducing a non-resident witness to disobey a lawful summons to attend upon a Court in this State. 3. Same. Power of Criminal Courts to punish. Criminal Courts possess the same power as Circuit Courts to punish for contempt, and may therefore impose fine not exceeding ten dollars and imprisonment not exceeding six months, for such offense. Cdde construed: §4882 (M. & V.); $4107 (T. &.S.).
89 Tenn. 547Turner v. State (1891)
1. Murder. Second degree. Evidence stifficient. The facts set out in Court’s opinion are held sufficient to support verdict for murder in second degree with sentence of fifteen gears’ imprisonment. {Post, pp. 5J0-SSS.) 2. Criminal Practice. Appointment of Attorney-general pro iem. Appointment of Attorney-general pro'tem^ by an order reciting that it was made “on account of the sickness” of the regular Attorney-general, is valid, and within the authority conferred by the constitutional provision empowering the Courts to make such appointment “in all cases where the Attorney for any district fails or refuses to attend and prosecute according to law.” To state, in the order, a sufficient cause for the failure of the regular Attorney-general to attend, or for his failure to prosecute if present, is the same thing, in legal effect, as to state that he failed “to attend and prosecute.” {Post, pp. SSS-SSS.) Constitution construed: Art. VI., Sec. 5. Code cited: §§4733» 6083 (M. & V.) ; §§3962, 5242 (T. & S.). Cases cited and approved: Douglass v. State, 6 Yer., 529; Isham v. State, I Sneed, 114. Cited and distinguished or disapproved: Hite v. State, 9 Yer., 202; Staggs v. State, 3 Hum., 374; Pippin v. State, 2 Sneed, 45. 3.Same. Grand jtcry. Mode of selection. A Judge, who is directed and authorized by statute to appoint the grand jury of his Court, has performed that duty in a valid manner, where, instead of designating thirteen jurors in the first instance, he appointed and designated thirty-seven good and lawful men, from whom he selected a grand jury by lot in the usual way — the Judge afterward accepting and approving the thirteen jurors whose names were drawn. {Post, pp. jjS, 559.) Code construed: §4253 (T. & S.). 4. Same. Same. Same. Objection frivolous and comes too late after appeal. Moreover, objection to the method pursued by the Judge in impaneling the grand jury “savors too much of refinement, even for criminal proceedings,” and comes too late, being made for the first time in this Court. (Post, p. ggg.) Cases cited and approved: State v. Cole, 9 Hum., 628; McTigue v.. State, 4 Bax., 314; Wallace v. State, 2 Lea, 31; State v: Dines, 10 Hum., 512. 5. SAME. Argument of counsel. It affords no cause for reversal that counsel for the Slate, in his argument in a murder case, referred in a general way to the Cincinnati riot as a historical fact. (Post, p. ¿6p.) 6. Same. Remarks of by-stander in hearing of jury does not vitiate verdict. Court will not set aside verdict in a criminal case solely upon the ground that a by-stander made an improper remark in -the presence of the jury during their consideration of the case. (Post, p. 564.) 7. Evidence. Defendant's statement made after the killing not admissible, when. Where it is entirely clear upon the proof that the deceased made no demonstration indicating that he had a weapon, or that he intended to draw one at tile time he was fatally shot, it is not error to reject defendant’s statement, made a few minutes after the difficulty had ■ ended, to the officer arresting him, in which he said: “Hold on, those men [meaning deceased and his friend] are armed.” This statement, if admitted, only proves defendant’s belief that deceased was armed, which, in the absence of any demonstration, was wholly immaterial. (Post, p. SS9-) S. Same. Dying declaration. Mode of proving. Where dying declaration was committed to writing, and signed by the declarant at the time it was made, the writing, if in existence, is the primary evidence of such declaration, and must be produced. Parol evidence of such declaration is not admissible. (Post, pp. JS9, j6o.) Case cited and approved: Epperson v. State, 5 Lea, 297. Cited and distinguished : Beets v. State, Meigs, 109. 9. Same. Same. Verified by oath. Dying declarations, verified by the declarant’s oath, are admissible in evidence. “The dying declaration has the sanction of an oath, and therefore the added oath can give it no additional verity. Two men swearing to a statement may strengthen it, but one man swearing to it a second time cannot.” (Post, pp. 560, 561.) 10.Evidence. Admission of irrelevant not error, when. Admission, over defendant’s objection, of irrelevant evidence is not reversible error, even in a criminal case, where the defendant’s guilt satisfactorily appears from the other evidence, and the Court can clearly see that the evidence improperly admitted did not affect the result nor damage or prejudice the defendant. The rules of evidence are the same in criminal as in civil cases. (Post, pp. 561, 562.) Code construed: §6221 (M. & V.) ; § — (T. & S.). Cases cited and approved: Draper v. State, 4 Bax., 254; Wilson v. Smith, 5 Yer., 381, 409; Clark v. Rhodes, 2 Heis., 206; McAdams v. State, 8 Lea, 463. II.Same. Exhibition before jury of injured parts of deceased's body. On trials for homicide it is not error for the Court to permit portions of the body of the deceased to be exhibited before the jury for the purpose of explaining the nature, cause, extent, etc., of the wounds causing the death. (Post, pp.^^64, 563.) 12.CHARGE OF Court. As to impeachment of defendant's veracity. The Court’s omission to charge that evidence impeaching defendant’s testimony in a criminal case should not weaken the presumption of his innocence, is not error where the Court had given, as an independent proposition, the usual charge as to the presumption of innocence indulged in favor of one accused of crime. (Post, p. 562.) Case cited and distinguished: Peck v. State, 86 Tenn., 260. 13.Same. As to self-defense. In a case of homicide where the deceased, though insulted by defendant’s language, neither inflicted nor offered to inflict violence upon him, there is no error in the Court’s charge that “if the difficulty in which it is insisted that the deceased was killed, was brought about by the fault, design, or contrivance of the- defendant, then the defendant cannot excuse himself as for a killing in self-defense, unless he, in good faith, used all means in his power to escape'and abandon the difficulty before resorting to the fatal shot; ” this language being qualified by the further statement that “no mere words, how opprobrious soever they may be, will justify an assault.” (Post, pp. 562-¿64.) Cases cited and distinguished: Smith v. State, 8 Lea, 402 ; Daniel v. State, 10 Lea, 263; Fisher v. State, 10 Lea, 152.
89 Tenn. 566Tuck v. Chaffin (1891)
I. Circuit COURT. Jurisdiction to condemn land levied upon by Magistrate's execution. Original and unlimited in amount. The jurisdiction of Circuit Courts to condemn lands to sale which have been levied upon by virtue of an execution properly issued upon a judgment of a Justice of the Peace, is not appellate, but original, and therefore not subject to the limitation as to amount placed upon the jurisdiction of Justices of the Peace. Code construed: g?3793-3796 (M- &v->; 2?3o8o73o83 (T- &S.): Cases cited and approved: Dixon v. Caruthers, 9 Yer., 30; Gray v. Jones, 1 Head, 544; Houser v. McKennon, 1 Bax., 288; Jacobs». Parker, 7 Bax., 434; Harris v. Hadden, 7 Lea, 216. 2. Same. Same. Several executions in favor of same person levied at same time and upon same land. And under the statute providing that “where several executions in favor of the same plaintiff are returned at the same term of the Court, levied on the same tract of land, they shall all be included in one judgment of condemnation, and only one order of sale [shall] issue,” it is not material that the aggregate amount of all the judgments exceeds $1,000 — the maximum amount of the jurisdiction of Justices of the Peace. Code construed: §3796 (M. & V.); §3083 (T. & S.).
89 Tenn. 570White v. Bates (1891)
i. Redemption of Land. Sale for alimony. Lands are not sold for debt, and therefore the sale is not subject to any right of the owner to redeem, when made in a divorce case for the purpose of providing alimony for the wife, under a decree which awards no specific sum to the wife, but directs certain of the husband’s lands to be sold, and one-half their proceeds to be paid to the wife as alimony, and the other half, less costs, to the husband. Code construed: $2947 (M. & V.); §2124 (T. & S.). 2. Same. Same. And it is not necessary, in order to cut off the husband’s supposed right of redemption in such case, that the bill should pray for, and the decree direct, a sale in bar of that right. 3. Chancery Sale. For alimony. Validity of, on collateral attack. And such sale is valid on collateral attack, although the entire interest in the lands 'was decreed to be sold, when only half the proceeds were given to wife as alimony. 4. Alimony. How decreed. When a debt. In decreeing alimony to the wife, the Court may, in its discretion, give her specific property, real or personal, belonging to the husband, or may assign to her a fixed proportion of his estate in kind or value, or may adjudge to her a specific sum to be paid by the husband; and it is only in the latter instance that alimony becomes a debt within the meaning of our redemption laws. Code construed: ¡$3325-3327 (M. & V.); ¡$2468-2470 (T. & S.). Cases cited and approved: McGhee v. McGhee, 2 Sneed, 221; Boggers v. Boggers, 6 Bax., 299.
89 Tenn. 575Eller v. Richardson (1891)
i. Abatement, Plea in._ Waiver of. Plea in abatement averring want of jurisdiction of defendant’s person is waived when, being properly filed before the Magistrate, it is not called to the attention of the Circuit Court after appeal before the trial on the merits had been commenced in that Court. 2. Depositions. Amendment of defective caption and certificate. After exceptions to depositions on account of defective caption and certificate had been sustained by the Clerk, and appeal taken from his action, the Court, on motion of one party and over the objection of the other, permitted the Commissioner who had taken the depositions to come into Court and amend the caption and certificate so as to conform to the facts, by the insertion of material statements that had been omitted. Held: This was “sound and correct practice.” Cases cited and approved: Bewley v. Ottinger, i Heis., 355 ; Carter v. Ewing, 1 Tenn. Ch., 214. 3. Same. Same. By Justice of the Peace outside his county. And such amendment may be made by a Justice of the Peace in a county other than that of his residence. It 'involves the exercise of no judicial function, but the performance, of a ministerial act — the correction of a mere clerical omission. • 4. Administrator. Proof of his appointment.. Where in a suit prosecuted by an administrator his appointment is denied by plea, the production of his letters makes a prima facie case in his favor, and is sufficient proof on his part in the absence of any countervailing evidence. 5. Same. Appointment of cannot be collaterally attacked, when. Appointment of administrator cannot be attacked collaterally upon the ground that it was made by the County Court of a county other than that in which the deceased resided at the time of his death. With respect to the grant of letters of administration County Courts are Courts of superior and general jurisdiction, and their judgments are conclusively presumed to import absolute verity when called in question collaterally. Cases cited and approved: Railway Co. v. Mahoney, ante, 311; Brien v. Hart, 6 Hum., 132; Johnson v. Gaines, 1 Cold., 289; Townsend v. Townsend, 4 Cold., 79; Williams ex'parte, I Lea, 53° \ Carr v. Lowe, 7 Heis., 93; Varnell v. Loague, 9 Lea, 158; Poseys'. Eaton, 9 Lea, 504. Cited and criticised: Wilson v. Frazier, 2 Hum., 31, 32. Cited and distinguished: D’Arusment v. Jones, 4 Lea, 251. 6. Same. Same. Example of collateral attack. The attack upon an administrator’s appointment is collateral, when it is made by plea, in a suit prosecuted by him, averring that his letters were issued by the County Court of 4 county other than that in which the deceased had his residence. Such plea is bad on demurrer. 7. Supreme Court Practice. Weight of finding of lower Court. In this Court the finding of the trial Judge upon the facts, where jury is waived, has the same weight as the verdict of a jury, and will not be reversed if there is any material evidence to support it. Cases cited and approved: Folwell v. Laird, 12 Heis., 464; Mabry Memphis, 12 Heis., 539; Ins. Co. v. Hughes, 10 Lea, 462; Stanley v. Donoho, 16 Lea, 492; Smith v. Hubbard, 85 Tenn., 306.
89 Tenn. 581Bryant v. State (1891)
Selling Liquors. Sale by licensed .dealer outside county in ¶which he is licensed. Place of sale. B. was convicted of unlawfully selling liquor in Cannon County upon these facts: B. resided in Cannon County, there conducting a store. He had a licensed liquor saloon in Rutherford County in charge of a clerk. When parties in Cannon County, wanted liquor, B., upon being paid the price and cost of transportation at his store in that county, ordered it from the clerk in charge of his saloon in Rutherford County. The liquor, thus ordered, was put in jugs by the clerk at the saloon in Rutherford County, and there labeled with the names of the respective purchasers, and sent by public conveyance to B.’s store in Cannon County, where it was delivered to the purchasers. B. had no license to sell liquor in Cannon County. Held: The conviction was proper. The sale was made in Cannon County. The order of B. upon his clerk was, in legal effect, an order upon himself, and a mere subterfuge.
89 Tenn. 584Maxwell v. Hill (1891)
FROM RUTHERFORD. Appeal in error from Circuit Court of Rutherford County. Robert Cantrell, J\
89 Tenn. 597Railway Co. v. Wilson County (1891)
I.COUNTY Court. Jurisdiction and powers of, purely statutory. County Courts possess no jurisdiction or powers but those conferred by statute. Constitution cited: Art. VI., Sec. I. Code construed : §207 (M. & V.); 127 (T. & S.). Case cited: Pope v. Phifer, 3 Heis., 682. 2.Same. No statute authorizes release of county taxes on railway property. No statute has, in terms or by implication, authorized County Courts to exempt or release, upon any pretext or consideration whatever, the property of a railway company — consisting of its road-bed, rolling-stock,-etc. — ,from its just proportion of taxation for county purposes. Code construed: §§459, 462, ¿(66-472, 562, 565-567, 569, 1322 etseq., 1357 etseq., 1423-1433, 1439, 1465-1512, 1513-1534, 4985-4990 (M.; & V) ; §§402, 404, 408-414, 483, 489, 490, 49m, 1182 et seq., 1241-1251, 1257, 1277 etseq., 1299 et seq., 4206-4217 (T. & S.). Cases cited and approved: Hunter v. Campbell County, 7 Cold., 55; Grant v. Lindsay, 11 Iieis., 667; Wood v. Tipton County, 7 Bax., 112; Cannon County v. Hoodenpyle, 7 Plum., 146 ; Obion County v. Marr, 8 Plum., 634; Caiey v. Campbell County, 5 Sneed, 516; Turnpike Co. z1. Davidson County, 14 Lea, 74; Williams v. Taxing District, 16 Lea, 535. 3.Same. Same. Exemption void though declared to induce non-resident to btiild road. And such release or exemption of railway property from county taxation is none the less ultra vires and void because it was offered as an inducement for the location and building of a railroad, which was accordingly constructed by non-residents, resulting in great benefits, in a general way, to the county. 4. Same. Legislature has not unlimited power to authorise release of railway property from county taxation. The Legislature has not unlimited power, under our Constitution, to authorize the County Courts to exempt or release railway property from taxation for county purposes. Constitution construed: Art. II., Sec. 28; Art. XI., Secs. 9, 10. Cases ciled'and approved: Railroad v. Gaines, 3 Tenn. Ch., 611; Ellis v. Railroad, 8 Bax., 530; Chattanooga v. Railroad, 7 Lea, 576, 577; Railroad v. State, 8 Heis., 789, 796; Franklin County v. Railroad, 12 Lea, 547.
89 Tenn. 609Bank v. Cummings (1891)
1. Banks and Banking. Case in judgment stated. Cummings & Bledsoe shipped from Petersburg, Tenn., to Atlanta, Ga., ■ five car-loads of wheal which had been contracted to the “Tollison Commission Company,” of the latter city. They took from the carrier five separate bills of lading — one for each car-load — to themselves or assigns, with indorsement on each: “ Notify Tollison Commission Company.” C. & B. drew upon said company five drafts— one for each car-load — payable to their own order three days after sight. These drafts, with said bills of lading attached, were delivered by C. & B. to their bankers at Columbia, Tenn., for collection and deposit, without instruction except by direction on margin of each draft to “draw through Gate City National Bank, Atlanta, Ga.” The bills of lading were indorsed to “order” of the cashier of the Columbia bank. The drafts, with bills of lading attached, were transmitted at once by the Columbia bank to the Atlanta bank for collection, each draft being indorsed: “Account of Second'National Bank, Columbia, Tenn.” The bills of lading were sent without in-dorsement of the cashier of the Columbia bank, and without any instructions as to their surrender. However, they were surrendered to the carrier by the Atlanta bank as soon as the drafts had been presented to and accepted by said company. The drawee company became insolvent, and the drafts were not paid. C. & B. seek to hold the Columbia bank for their loss. Held: The Columbia bank is not liable to C. & B. upon these facts. 2. Same. Surrender of bill of lading. Sight-draft. Time-draft. Bank receiving a sight-draft for collection should not surrender an accompanying bill of lading until the draft has been paid; but in the case of a time-draft the bank may deliver up the accompanying bill of lading to the drawee upon his acceptance of the draft, in the absence of instructions or circumstances indicating that the bill was to be held to secure both acceptance and payment of draft. Case cited and approved: National Bank v. Merchants’ Bank, 91 U. S., 92. 3. Same. Same. When bill of lading accompanying time-draft must be held to secure payment. Bill of lading accompanying a time-draft must be retained by a collecting bank after acceptance of the draft, to secure its payment, when the bill of lading is made deliverable to consignor or his order. Case cited and approved: 91 U. S., 631. 4. Same. Bank effecting collections through another bank. General rule. By the great weight of authority a bank receiving a draft for collection, payable at a distant point, has implied authority to send it for collection to a suitable agent at the place of payment, and such agent, when so selected, becomes the agent of the owner,of the draft, and is not the agent of the transmitting bank. Case cited and approved: Bank v. Bank, 8 Bax., 101. 5. Same. Same. Negligence of agent. And for negligence of such agent, resulting in loss to the owner of the draft, the transmitting bank is not responsible. 6. SAME. Liability of collecting bank accepting drawee's check in payment. Where a bank, receiving paper for collection, accepts in payment the check of the party bound to pay it, and surrenders the paper, whereby injury results to the owners of the paper, the bank is responsible for the loss. But this principle has no application to the facts of this case which are set out in opinion.
89 Tenn. 622Simmons v. Leonard (1891)
I.CHANCERY Court. Has no jurisdiction of issue of devisavit vel non. Chancery Courts have no jurisdiction to try the issue of devisavit vel non. Code construed: §§2173, 2180, 420I', 4227 (T. &S.); $§3013, 3020, 4980, 4999 (M. & V.). Cases cited and approved : Harrison v. Guión, 4 Lea, 531; Townsend ' v. Townsend, 4 Cold., 70; Burrow v. Ragland, 6 Hum., 486. Cited and distinguished: John v. Tate, 7 Hum., 392. 2.Same. Act i8yy enlarging jurisdiction of Chancery Courts. Construction of. Act of 1877, Ch. 97, enlarging the jurisdiction of Chancery Courts has “ been liberally.construed in favor of the extension of the jurisdiction. Act construed: Acts 1877, Ch. 97. Cases cited and approved: Hawkins v. Iiercheval, 10 Lea, 542; Frazier v. Browning, 11 Lea, 253; McGrew v. City Produce Exchange, 85, Tenn., 572; Williams v. Burg, 9 Lea, 455; Glenn v. Moore, 11 Lea, 256; State v. Iieller, 11 Lea, 399; Coal Co. v. Moses, 15 Lea, 300. 3.Same. Same. Does not embrace issues of devisavit vel non. But that Act cannot, even by á liberal construction, be held to embrace issues of devisavit vel non, and to confer upon .the Qhancery Courts jurisdiction to try such issues. 4.Same. Devisavit vel non not drawn into equity by joining it with matters of equitable cognizance. Chancery Court will not entertain and try an issue of devisavit vel non? although it is presented in connection with matters proper for equitable cognizance.
89 Tenn. 630Wallace v. Lincoln Savings Bank (1891)
1. CORPORATIONS. Action against directors for loss to corporation caused by their negligence. Recovery for benefit of all share-holders. In suit against officers or directors of a corporation for losses caused by their neglect and mismanagement of the corporate affairs, whether it i,s prosecuted by the corporation itself, or, in a proper case, by a creditor or share-holder thereof, the recovery therein inures to the benefit of the corporation — all its creditors and share-holders, innocent and guilty, sharing therein according to their respective rights. (Post, pp. 634, 63s.) 2. Same. Same. By whom and in what Court maintainable. Primarily such suit is maintainable at law and by the corporation alone. But share-holders and cieditors can maintain it, in a Court of Equity, when the corporation is disabled to sue, or wrongfully refuses, upon proper demand, to do so, but not otherwise. (Post, pp. 634, 633.) 3.SAME. Same. Demand to sue, of whom made. Before a creditor or share-holder can maintain such suit he must, in the case of a going corporation that is not disabled to sue, prefer his demand for the bringing of su'it to the board of directors, not to the president alone, of the corporation; and, in case of an insolvent corporation that has made a general assignment, the demand must be made of the assignee. (Post, pp. 634-636.) Cases cited and approved: Humee:. Bank, 9 Lea, 744; 37 N. J., 273; 86 ICy., 530; 87 ICy., 306; 88 N. Y., 52. 4.Same. Same. Discretion as to refusal to sue. The board of directors possess large discretion, and their refusal, in ■ good faith, to bring such suit, will rarely be overruled by the Courts at the instance of a creditor or share-holder of the corporation. The assignee of an insolvent corporation has a more limited discretion in this matter. (Post, pp. 636-638.) 5.Same, Same. No recovery of dividends improperly paid. There can be no recovery, by op on behalf of share-holders in such suit, for dividends improperly declared and paid out to the share-holders . themselves. (Post, p. 641.) Case cited: L. R. Ch. Cases, Vol. IV., p. 582. 6. Same. Same. Statute of limitations applicable. And such suit, whether brought at law by the corporation itself, or in equity by a creditor or share-holder for its benefit, is alike subject to the bar of the statute of limitations. (Post, pp. 648-650.) Cases cited and approved: Hughes-w. Brown, 88 Tenn., 578; 71 Penn. St., 11; 11 Ala., 191; 38 N. J. Eq.,’383; 99 N. Y., 193. Cited and distinguished: Shea v. Mabry, 1 Lea, 319. 7. Same. Same. What statute of limitation applicable. The statute of limitations of six, not of three, years is applicable to suits of this particular description. The suit is not for injury to or conversion of property, but upon the directors’ implied contract that they will exercise ordinary diligence in the discharge of the duties of their office. (Post, pp. 650, 651, 655.) Code construed: §§3470, 3472 (M. & V.); §§2773, 2775 (T. &S.). Cases cited and approved: Bruce v. Baxter, 7 Lea, 477; Ramsay v. Temple, 3 Lea, 253. 8.Banks and Banking. Duties and responsibilities of bank directors. Bank directors are held to the exercise of only ordinary care and diligence in the discharge of their duties. They are not required to give • their whole time and attention to the performance of these duties, but only so much as, under the special circumstances of each particular case, may be demanded for the reasonable protection of the interests committed to their care. They are not insurers of the fidelity or capacity of the cashier or other agents to whom the business and assets of the bank may be intrusted, but are required to exercise due care in their selection and proper supervision over their action, (Post, pp: 652-654.) 9.Same. Same. Responsible for cashier's acts, token. It is gross negligence in bank directors to commit the entire business of the bank to the cashier, without supervisión or control on their part, although he may be an entirely competent man; and they are responsible, in such case, for all losses resulting to the corporation from, the negligent or criminal acts of the cashier, provided such losses could have been prevented by the exercise'of proper diligence on their part. {Post, pp. 633, 634.) IO.Same. Same. Burden of proof. In suit against bank directors to charge them with losses which It is averred the corporation sustained in consequence of their negligence, the burden is upon the complainant to prove not only the losses sustained, but that they resulted from the directors’ negligence. “One who seeks to recover for negligence must allege and prove it.” {Post, p. 634.) 11. Same. Same. Measure of cashier's duty. A bank cashier is required to exercise reasonable skill, care, and diligence in the discharge of his duties. He does not guarantee the solvency of customers. He is not responsible for mere mistake of judgment. Neither he nor the bank directors, however negligent they may have been in their control and supervision of the affairs of the bank, are responsible for losses that resulted notwithstanding the exercise of due skill and diligence on the part of the cashier, and would have resulted notwithstanding proper supervision and control of the corporate affairs by the directors. {Post, p. 643.) Cas{e cited: 48 N. V., 305. 12. Same. Same. Negligence without damage. Bank directors, though negligent, incur no liability, if no loss resulted to the corporation from their negligence. {Post, pp. 644-648.) 13. Same. Same. • For usury. Bank directors, though negligent in their supervision and control of the corporate affairs, are not responsible for the failure to collect a well-secured debt for the reason that usury was included therein. {Post, p. 648.) .14. Same. Same. For overdrafts. Bank directors, though negligent in their supervision and control of the corporate affairs, are not responsible for overchecks permitted by the cashier to a reasonable extent in favor of responsible customers. “ It is not negligence per se, in the absence of a by-law or order of a superior officer, for a cashier to pay the overcheck of a responsible customer.” {Post, p. 633.) 15. Same. Same. Same. Bank directors are not responsible in any case for overchecks permitted to customers by the cashier without their authority or knowledge. Question reserved: Is it negligence in a cashier to pay overchecks to a reasonable amount of regular customers, who had but little property, but who had credit and were accustomed to pay their debts ? 16. Same. Same. Same. Notice. The fact that such overchecks appeared upon the bank books does not affect the directors with notice thereof, in a suit between the directors and the bank. (Post, ft. 659.) Cases cited and approved: 87 Ky., 323; 36 Fed. Rep., 617; 25 Ch. Div., 725; 110U. S., 8. Cited and distinguished: Lane v. Bank, 9 Heis., 437. 17. Same. Same. Same. By cashier in his own favor. A resolution by a board of bank directors intrusting the lending of money and discounting of paper to the discretion of the cashier does not authorize him to lend to himself. (Post, ft. 6‡6.)
89 Tenn. 661Massadillo v. Railway Co. (1891)
1. New Trial. Excessive verdict. Remittitur. Where verdict for plaintiff in an action of tort has been declared by the trial Judge so excessive in amount as to indicate passion or prejudice on the part of the jury, and this Court concurs in that opinion, a new trial will be granted by this. Court notwithstanding the trial Judge refused it upon remittitur of the excess, where the plaintiff entered the remittitur at the Court’s suggestion, but did so under protest, reserving exception. 2. Same. Remittitur under protest invalid. Remittitur “under protest” should not be received by the Court, and will be rejected, if entered, in the consideration of the motion for new trial.
89 Tenn. 664Smith v. Railway Co. (1891)
FROM MAURY. Appeal in error from Circuit Court of Maury County. E. D. PatteRSON, J.
89 Tenn. 668Cheatham v. Pearce & Ryan (1891)
1. Abatement, Plea ifr. Verification of by solicitor sufficient. Plea in abatement is sufficiently verified by the affidavit of a solicitor in the cause stating that he is “agent and attorney” for the defendant, “and that he is acquainted with the facts set out in said plea, and that they are true in substance and in fact.” (Post, pp. 676-678.) Cases cited and approved: Bank?/. Jones, 1 Swan, 391; Carters'. Vaulx, 2 Swan, 641; Bank v. Anderson, 3 Sneed, 672; Carlisle v. Cowan, 85 Tenn., 170; Klepper v. Powell, 6 Heis., 508; Wrompelmeir v. Moses, 3 Bax., 470; Trabue v. Higden, 4 Cold., 622, 623; Seifred v. Bank, 2 Tenn. Ch., 18. 2. Same. Amendment of verification allowable. Verification of plea in abatement may, by leave of Court, be amended by filing an additional affidavit. (Post, p. 681.) Cases cited and approved : Wrompelmeir z>. Moses, 3 Bax., 471; Trabue v. Higden, 4 Cold., 624; Seifred v. Bank, 2 Tenn. Ch., 19. 3. Same. Verification of before Notary in another State sufficient. Verification of plea in abatement may be made by affidavit before a Notary Public in and for another State. (Post, f. 681.) Case cited and approved: Carlisle v. Cowan, 85 Tenn., 170. 4. Same. Verification of by one member of firm sufficient. Plea in abatement by a firm is sufficiently verified by an affidavit on behalf of the firm which is subscribed and sworn to by one member of the firm, (Post, pp. 677, 678.) Case cited and approved: Moody v. Alter, 12 Heis., 142. 5. Chancery Pleading and Practice. Plea in abatement construed as a negative plea. Plea in abatement in an attachment case denying the truth of the causes for the attachment averred in the bill is nothing more than a negative plea, although it contains an affirmative statement of the facts relied upon to support the denial. (Post, pp. 674, 67s.) 6. Same. Answer accompanying plea in abatement. Plea in abatement to an original attachment bill should not be accompanied by at} answer in support of it, where the bill charges, as ground for the attachment, a single fraudulent disposition of property, without averring any matters of evidence in support of the charge of fraud, and the plea simply denies the fraud, thereby covering the entire bill “so far as the same makes any charges or seeks any relief” against the particular defendant filing the plea. The answer, in such case, would overrule the plea. (Post,pp. 678-680, 686.) Cases cited and approved: Seifred v. Bank, 1 Bax., 203, 204; Graham v. Nelson, 5 Hum., 610; Pigue v. Young, 85 Tenn., 266. 7. Same. Same. Where complainant waives defendant’s oath to answer, it is not incumbent upon the defendant to support his plea by an answer, even in a case where it would otherwise be required. [Post, p. 679.) 8. Same. Extension of time to take proof. Chancellor may impose terms. Where, after the time allowed by law for taking testimony has expired, and the cause has been regularly reached for trial upon call of the docket, the Chancellor grants an extension of time for the taking of further evidence, it is an act of grace and favor to the party obtaining the extension, and he cannot complain of any terms that may be imposed. The Chancellor may require him to take depositions of witnesses resident in county on two days’ notice, and of non-resident witnesses, by interrogatories, upon one day’s notice. (Post, pp. 684, 68s.) 9.Same. No decree for debt not due, where original attachment fails. In suit, by original attachment, for,debt not due, no decree will be given for the debt, when the attachment is defeated by plea in abatement, and the prematurity of the suit for the debt is interposed as a defense by answer. (Post, p. 687.) Case cited and approved: Pigue s'. Young, 85 Tenn., 268. 10.Same. Replication to pleas. Replication to plea in abatement is proper, under the practice of the Chancery Courts of this State, even where the plea is purely negative. Replications are abolished only as to answers. (Post, pp. 692-696.) Code construed: §§ 5065, 5136, 5177 (M'. & V.) ; §§4322, 4393, 4432 (T. &S.). Cases cited and approved: Kleppers'. Powell, 6 Piéis.', 506, 507; Trabue v, Higden, 4 Cold., 622; Lea». Vanbiber, 6 Hum., 19. 11. Sajie. Trial by jury. Demand for, when made. The demand for a jury to try issues of fact in a Chancery Court may be made, in the absence of any rule of Court regulating that matter, at any time before the cause is heard by the Chancellor. (Tost, p. 688.) Cases cited and approved: Allen v. Saulpaw, 6 Lea, 481; Duncans'. King, 1 Tenn., 79; Londonv. London, 1 Hum., 4; Lowes'. Traynor, 6 Cold., 635; Morris v. Swaney, 7 Heis., 592; Mills -j. Farris, 12 Heis., 451; Johnsons'. Warden, 1 Leg. R., 26; Pearce v. Suggs & Pettit, 85 Tenn., 728; Cooper & Stockell’w. Stockard, 16 Lea, 145. 12. Same. Same. Same. The recent statutes regulating time and manner of demanding jury trial have no application to the Chancery Courts. (Post, pp. 6SS-6qi.) Acts construed: Acts 1875, Ch. 4 (§§3602-3605 (M. & V.) Code); Acts 1889, Ch. 220. Cases cited and approved: Allen v. Saulpaw, 6 Lea, 481; Cooper & Stockell s'. Stockard, 16 Lea, 145. 13. Same. Same. Chancellor may prescribe reasonable rules regulating demand, etc. Chancellors possess inherent power to make reasonable rules with reference to demanding of jury trials and presenting issues therefor in the Chancery Courts. (Post, p. 691.) Cases cited and approved: Stadler v. Hertz, 13 Lea, 318, 319; Denton s'. Woods, 86 Tenn., 37; Wood v. Frazier, 86 Tenn., 509. 14. Same. Same. Same. And a rule is reasonable which requires “that applications for a jury must be made within the first three days of the trial term.” (Post, pp. 691, 692.) Case cited and approved: Stadler v. Hertz, 13 Lea, 318, 319. 15. Same. Same. Same. The demand for jury under this rule must be made in open Court, and within the first three days of the term. Demand in a replication on file during the first three days of the term is insufficient. (Post, p. ót,6.) (See Code, 25216 (M. & Y.) 16. Same. Same. Same. A rule of Court that requires “the issues of fact in all cases triable by jury” at a particular term to be presented and filed on or before a specified day, and that “each issue submitted shall embrace only one question of fact,” is held proper and reasonable. (Post, p. 682.) 17. Assignments of Error. Must shcnv error in action of lotoer Court. Assignments of error must show upon their face that, prima facie, the action of the lower Courfwas erroneous, or state some reason why it is claimed that its action was erroneous. (Post, pp. 686-688.) Cases cited and approved: Wood v. Frazier, 86 Tenn., 501-503 ; Denton v. Woods, 86 Tenn., 37. (See Bleidorn v. Pilot Mountain Coal & Mining Co., ante, pp. 206, 207.) 18. Same. Variance. There was motion in Chancery Court to strike out plea in abatement “filed for Pearce & Ryan because not signed by Defendant Ryan.'" This motion was disallowed. There was assignment of error in this Court’that “the Chancellor erred in not striking out the plea in abatement of the firm because it was not signed by the firm, Pearce & Ryan, and sworn to by Ryan, a member of the firm, but only by Pearce.” Held: The assignment is bad. The Chancellor will not be put in error for not granting a motion that was never made. (Post,pp. 677, 678.)
89 Tenn. 698Owen v. State (1891)
1. Criminal Law. Wife not competent witness for husband on trial for crime. The wife is not a competent witness for or against her husband in a criminal case. e 2. Same. Erroneous charge as to reasonable doubt. Charge of Court in a criminal case is erroneous, which, in effect, instructs the jury to convict the defendant, if they are satisfied of his guilt, without instructing them that the degree of satisfaction required is “certainly beyond reasonable doubt.” 3.Same. How the doctrine of reasonable doubt should be charged. The familiar and well-understood language in which the doctrine of reasonable doubt has been repeatedly expressed by this Court should not be departed from by Judges in charging juries. Cases cited: Lawless v. State, 4 Lea, 180-182; Railroad». Gower, 85 Tenn., 473, 474. (See McDonald v. State, ante, p. i6r.)
89 Tenn. 704Owen v. State (1891)
Criminal Law. Mrroneous charge as io reasonable doubt. Requests. In a criminal case where the Court had instructed the jury rather meagerly and inaccurately upon the subject of reasonable doubt, it was error to refuse to give an additional instruction, at defendant’s request, to the effect that “in order to convict the defendant you. must find that all the facts necessary to convict are proven to your satisfaction and beyond a reasonable doubt; and if after weighing, . considering, and comparing all the testimony, both for the State and defendant, the jury cannot say that they feel an abiding confidence to a moral certainty of the gúilt of the defendant, then they have a reasonable doubt, and they should acquit the defendant.”
89 Tenn. 707Iron Companies v. Pace (1891)
FROM HICKMAN. Appeal from Chancery Court of Hickman County. A. J. Abernathy, Chancellor.
89 Tenn. 723Durham v. State (1891)
FROM SUMNER. Appeal in error from the Circuit Court of Sumner County. A. II. Munford, J.