90 Tenn.

Volume 90 — Tennessee Reports

78 opinions

90 Tenn. 1Hicks v. Porter (1891)
3. Appeal. Does not bring up a former decree for review, when. Casein judgment. Executors obtained, by bill against the devisees and legatees, a discharge as such, and, by direction of the Court, delivered the entire trust estate, consisting of notes, stocks, etc., into the Clerk and Master’s hands. Afterward the Court ordered the guardian ad litem and solicitor for the infant defendants to institute suit for the collection of one of these notes belonging to the estate. The note was accordingly collected by suit. At a subsequent term the guardian ad litem, upon his petition filed in the original cause, was allowed a fee for this service, in addition to that which had been allowed for services rendered in the original cause. Appeal was taken from the latter decree alone. Held: That this appeal did not bring up for review the order or decree which had been previously made directing the guardian ad litem t o collect the note. {Post, pp. io-ij.) Cases cited and approved: Gilchrist v. Cannon, I Cold., ¡go; Patterson z>. Arnold, 4 Cold., 368, 369; Caldwell v. Hodsden, 1 Lea, 46, 47; Wooten v. Daniel, 16 Lea, 156. 2. Chancery Practice. Conctirrent finding of Master and Chancellor. Case in pidgment. Doctrine re-affirmed that this Court, in the consideration of matters of account, will give to the concurrent findings of Master and Chancellor upon controverted questions of fact, no less weight than attaches to the verdict of a jury and judgment thereon at law; and this doctrine is applied in this cause to proceedings to ascertain and fix the amount of a guardian ad litem’s fee. {Post, pp. ig-14.) Cases cited’and approved: Brown ¶. Dailey, 85 Tenn., 218; Turley v. Turley, 85 Tenn., 251. 3. 'Same. Costs of proceedings to fix amount of guardian ad litem’s fee. By whom paid. The entire costs of proceedings to ascertain and fix amount of guardian ad litem’s fee should not be taxed against the estate or funds of the infant wards. In this cause one-half the costs was taxed to the guardian ad litem, and the other half to the parties, infant and adult, interested in the estate involved.
90 Tenn. 17Railway Co. v. Sowell (1891)
PROM MAURY. Appeal in error from Circuit Court of Maury County. E. D. Patterson, J.
90 Tenn. 25Younger v. Younger (1891)
FROM MAURY. Appeal from Chancery Court of Maury County. A. J. Abeenatiiy, Ch.
90 Tenn. 31Butler v. Kinzie (1891)
1. Chancery Practice. Effect of pro confesso as to one partner, where the other defends successfully. In suit upon a firm note, one partner suffered decree pro confesso, while the other successfully defended by answer upon grounds that were good as to both. Held: The defense inured to the benefit of both partners and defeated recovery as to both, notwithstanding the decree pro confesso. Cases cited and approved: Petty v. Hannum, 2 Hum., 102; Hennessee v. Ford, 8 Hum., 500; Cherry o. Clements, 10 Hum., 552; McDaniel v. Goodall, 2 Cold., 395; Caldwell v. McFarland, 11 Lea, 467; Phillips v. Hollister, 2 Cold., 271; Smith v. Cunningham, 2 Tenn. Ch., 573. 2. Appeal. What is brought up for review. In suit upon firm note the complainant obtained decree against one partner, but failed as to the other. The complainant took a broad appeal from this decree. Held: The entire case was brought up, and the unsuccessful defendant is entitled to hearing and relief in this Court upon complainant’s appeal.
90 Tenn. 36Bates v. Railway Co. (1891)
i. Negligence. Cha7-ge of Court. Suit against railway company for injuries to a boy of the age of nine years, which, it is averred, were the result of defendant’s negligence in maintaining a turn-table “exposed and uninclosed and without any secure lock or fastening.” The proof showed that defendant maintained a turn-table near a town, and in a place, away from the public road, frequented by boys and others for sport and recreation; that it was securely fastened by a wooden bolt which prevented its turning, but that this boll could be removed by a boy of plaintiff’s age; that, on a Sunday when the turn-table was not guarded, the plaintiff, with some companions, removed said bolt, and the plaintiff, • endeavoring to leap upon the turn-table while his companions revolved it, had his leg crushed, necessitating amputation. Held: That, upon this state of pleadings and proof, the Court should have charged: (i) “That the defendant was not required to so fasten or secure the turn-table that the boys, like the injured boy, could not displace such fastening and put the table in motion.” (2) “ That the defendant was not required to fasten the turn-table any more securely than necessary to keep it securely in place.” 2. Same. Same. And it is error for the Court to qualify said propositions by the statement that the jury might consider “ the amount of force or strength required to unfasten the turn-table.” 3. Same. Same. And it is error for the Court to qualify said propositions by the statement that even if the turn-table were securely fastened, the company would be guilty of negligence if, by the exercise of ordinary care, it could have provided against injury to boys interfering with its turntable. This qualification renders the charge contradictory and confusing.
90 Tenn. 44Franklin v. Franklin (1891)
FROM SUMNER. Appeal in error from Circuit Court of Sumner County. A. H. Muneord, J.
90 Tenn. 53Railway Co. v. Wallace (1891)
i. Negligence. Erroneous charge as to proximate cause and contributory negligence. Case stated. Til suit against railway company by a brakeman for injuries sustained while on duty ill an effort to board a moving train, there was evidence tending to show that the brakeman was inexperienced; that he, in making the effort to board the train, acted under order of the engineer and conductor, or, at least, believed that he had such order, having, in consequence of the attendant noise and the confusion produced by the acts of his superiors, misunderstood the order given. There was evidence on the other hand tending to show that the train was running at a rate of speed that made the effort to board it dangerous; that the conductor ordered the brakeman not to board the train, and believed the order was understood. The conductor saw the brakeman approach the moving train, running as if to board it. Prompt action taken at this time to stop the train would have averted the injury; but there was not time to prevent the injury after the brakeman had put himself in a place of danger by actually attempting to get on train. • Held: The Court erred in charging upon these facts that the railway company was guilty of reckless conduct, and could not rely upon plaintiff’s contributory negligence in defense, if the train could, by the exercise of ordinary care, have been stopped by efforts begun immediately upon the conductor’s discovering the brakeman approaching tiain as if to board it; and that the jury might look to the acts of the conductor to ascertain whether he knew that the brakeman intended to board train. This charge invades the province of the jury, .and determines for them the proximate cause of the injury. It excludes from consideration the plaintiff’s contributory negligence. 2. Same. Same. The doctrine that an injured party can recover for his injuries, however negligent he may have been in putting himself in a place of danger, if the party inflicting the injuries could have avoided doing so by the exercise of ordinary care, cannot apply to the facts of this case, because there is no evidence that the injury could have been averted after the bralceman had put himself in a place of danger by actually attempting to gel on the train. 3. Same. Same. The doctrine prevails in Tennessee that the plaintiff’s negligence or wrongful conduct may be considered in mitigation of damages, however wanton, willful, and reckless the act of the defendant which produced the injury may have been. The charge in this case to the contrary is erroneous. Case cited and approved: Railroad v. Fleming, 14 Lea, 137. 4. Same. Same. The Court’s charge is both erroneous and contradictory, in that, after stating correctly that plaintiff had no right, even if ordered by the conductor, to board the train if going at a dangerous speed, the Court adds: “If you find that the proximate cause of the accident to the plaintiff was his attempt to board the train while in motion) you will proceed to inquire whether the plaintiff exercised ordinary care in making the attempt, or if he could have avoided the accident by the exercise of ordinary care and prudence.”
90 Tenn. 65Rodemer v. Mitchell (1891)
EROM SÜMNER. Appeal from the Chancery Court of Sumner County. George E. Seay, Ch.
90 Tenn. 69Rice v. Henly (1891)
ER05I SUMNER. Appeal in ' error from the Circuit Court of Sumner County. A. H. Muneord, J.
90 Tenn. 77Cheatham v. Yarbrough (1891)
i. Real Estate Brokers. Entitled io commissions, when. A real estate broker is entitled, in the absence of special contract or circumstances, to the stipulated commissions for effecting a sale of lands, when he has procured and presented to his principal a purchaser who is ready, able, and willing to purchase the land and comply with the required terms of sale. 'Cases cited and approved: Gilchrist v. Clarke, 86 Tenn., 585; Parker v. Walker, 86 Tenn., 569, 573 ; 20 How. (U. S.), 221 ; 22 Id.,-69; 63 N. Y., 448; 12 Gray, 493; 88 Ind., 104; 57 Cal., 224; 31 Md., 270. 2. Same. Same. And the broker may recover commissions of his principal in such case, although the sale is not consummated, if it fails of consummation solely on account of defect in the vendor’s title, of which the broker was not notified and had no personal knowledge. 3. Same. Same. And the broker may recover commissions of his principal in such case, although it was stipulated they should be paid out of the purchase-price.
90 Tenn. 81Scruggs v. State (1891)
1. Abduction. Facts that sustain verdict of guilty. The facts set. out in the Court’s opinion are held sufficient to support conviction for abducting female, without her parents’ consent, for purposes of prostitution or concubinage. 2. Same. Proof of female’s subsequent acts of illicit intercourse inadmissible. Upon trial of a defendant for abduction of a female, without her parents’ consent, for purposes of prostitution and concubinage, it is not competent to show, on defendant’s behalf, where he admits sexual intercourse with the female, that she indulged in like acts with other men at a date subsequent to the abduction. 3. Same. Same. Court's language excluding such evidence not improper. And the Court’s language is' not erroneous, as being calculated to impress the jury that he believed the defendant guilty, when, in excluding Such evidence, he said “ that if the girl turned out tobe a prostitute after she came back, the defendant could not avail himself of that fact if he had taken her off and debauched her prior thereto.” 4. Same. Proof of misconduct of female's mother and. sister inadmissible. It is not competent to prove on defendant’s behalf, upon his trial for abduction, that the mother and sister of the abducted female had illegitimate children. 5. Same. Same. Court's language excluding this evidence held proper. The Court’s language excluding this evidence is “entirely proper,” viz.: “That is not competent, and would prove nothing; her mother and sister might have been base, lewd women, and yet this girl be entirely virtuous.” 6. Same. Correct charge of Court. In a case of abduction, where there is evidence tending to show that the abducted female had been guilty of previous acts of unchastity, but -was nevertheless living a chaste and virtuous life under the care and control of her parents at the date of her abduction, it is held proper for the Court to charge the jury as follows: “That if the defendant enticed and carried K. C. [the female] away from her father without his consent and for purposes of prostitution or concubinage, and she was at the time under the legal custody of her father, and was living a virtuous and chaste life, then the defendant would be guilty, although she went off willingly or with her own consent; and it would be no defense if she had, on one or more occasions before that date, been guilty of improper and familiar conduct with some other man or men; provided, at the lime she was living a chaste and virtuous life at home with her father and mother, and under their care and control, and in their custody. In order to convict the defendant, the State must prove all the facts necessary to make out the case to your satisfaction beyond a reasonable doubt.” Code construed: §5370 (M. & V.) ; £4618 (T. & S.). Cases cited and approved: Tucker v. State, 8 Lea, 633 ; Jenkins v. State, 7. Same. Same. Refusal of request not erroneous. And it is not error for the Court, after having given the charge above quoted, to refuse to give the following instruction upon defendant’s request, viz.: “Tf you have a reasonable doubt as to the virtue of Etta Carter [the female] at the time of the alleged abduction, you must give defendant the benefit of the doubt and acquit.” 8. Witness. Juror not competent, when. As to facts learned by jurors by mere observation while sitting on the trial of the case, they should not be permitted to testify — e. g., the defendant in an abduction case may not prove by the jurors that he and the child of the abducted female are unlike as they appeared upon exhibition in court. 9. New Tiuai,. ATot granted upon jurors' affidavits that they, misunderstood the Court's charge. Verdicts are never set aside upon affidavits of jurors averring that they misunderstood the Court’s charge. “No rule of practice is better settled than that jurors will not be allowed to stultify themselves and vitiate their verdict by swearing they misunderstood the charge of the Court.” Cases cited and approved: Norris». State, 3 Hum., 338; Saunders v. Fuller, 4 Hum., 518; Wade v. Ordway, I Bax., 229; Roller v. Bach-man, 5 Lea, 160; Richardson v. McLemore, 5 Bax., 586; Cartwright v. State, 12 Lea, 621.
90 Tenn. 90Rosson v. Carroll (1891)
i. Negotiable Instruments. Indorsement of overdue note. Demand and notice requisite. Indorser of overdue negotiable paper is not liable upon his indorsement, unless demand for payment is made upon the maker by the indorsee within a reasonable time, and immediate notice of non-payment given to the indorser if the paper is dishonored. [Post, pp. g6, 97.) Cases cited and approved: Bank v. Ezell, 10 Hum., 386; Duffy v. O’Conner, 7 Bax., 500; Kirkpatrick v. McCullough, 3 Hum., 171; Stothart & Co. v. Lewis, 1 Overton, 256; Stothart & Bell v. Parker, I Overton, 260; 6 Am. Dec., 267; 10 Id., 663 ; 12 Id., 609; 16 Id., 672; 29 Id., 584; 54 dd., 212; $7 Id., 62.2; 36Am.R.,25o; 18 Conn., 361 ; 8 S. & R., 353. Cited and disapproved: 3 Wendell, 75,' 1 Richardson’s Law, 397; 2 Id., 67 ,' 12 Penn. St., 269. 2. Same. Same. Demand for payment, when made. Demand for payment of note indorsed after maturity must be made with same diligence that is required in demanding payment of indorsed note due on demand. Demand made, as was done in this case, within four days after the indorsement is sufficient to fix the indorser’s liability if it had been followed by protest and due notice of non-payment. [Post, p. 97.) 3. Same. Same. Notice of non-payment, when given. Notice of non-payment must be given to the indorser with equal diligence, whether the note was indorsed before due or after maturity. The notice must in either case be immediate. Not longer than the next regular business day after the dishonor of the note, and certain hours during that day, is ordinarily allowed for giving dr mailing notice of non-payment to the indorser. The notice proved in this case is not shown to have been given within the required time. [Post, pp. gS-ng.) 4. Same. Same. Burden of proof . Burden of proving due notice of non-payment is upon holder of note. {Post, p. ipo.) Case cited: I Stark, 314. 5. Same. Same. Proof of due notice, horn made. Proof of due notice of non-payment may be afforded by recital in Notary’s certificate of protest, that being a fact which he is authorized by law to certify. {Post, p. 120.) Code construed: §¿2471, 2472 (M. & V.); $ 1800, 1801 (T. & S.). ■Cases cited and approved : Golladay v. Bank, 2 Head, 58 ; Sulzbacher •v. Bank, 86 Tenn., 201; Gardner». Bank, I Swan, 419; Carulhers». Herbert, 5 Cold., 362; Colins v. Bank, 4 Bax., 422; Spence v. Crockett, 5 Bax., 576. 6. Same. Same. Same. Proof of due notice of non-payment may be made by the Notary, though he may have no independent recollection of the fact, if he can testify to that fact upon belief, and is corroborated by entries on his notarial book, or statements in his certificate of protest, and by his settled habits of business. {Post, pp. 121-123.) Cases cited and approved : Bank v. Cowan, 7 Hum., 70; Bell v. Perkins, Peck, 262; McNeil». Slam, Peck, 268; Worley». Waldron, 3 Sneed, 549- 7. Same. Same. Same. But due notice of non-payment is not sufficiently proved by the testimony of the Notary as to his impressions and inferences about the fact, where he has no independent recollection of it, and had not acquired any habits of business, and is not corroborated by entries in his notarial book, nor by statements in his certificate, but rather contradicted by the latter. {Post, pp. 121-125.) Case cited: 44 Am. Dec., 627. 8. Same. Same. Notice must be given upon first demand. Notice of non-payment comes too late, though given in due time after a demand for payment and protest, where there had been another demand several days before, upon which there was no protest had and no notice given. Notice must follow upon first demand, and was not in time. {Post, pp. 130, 131.) 9.Same. Same. Agent's negligence in giving notice imputable to principal. If due notice of non-payment is not given by reason of the negligence of an agent to whom the note was intrusted for collection, that neg- . ligence is imputable to the principal, and will nevertheless discharge the indorser. (Post} pp. fjf, 132.) 10. Same. Same. Collecting agent treated as indorser in giving notice. An agent to whom a negotiable note is intrusted for collection, whether by indorsement or mere delivery, is treated, in the matter of giving notice of non-payment, as an indorsee of the note. He is entitled to the usual time to notify his principal of non-payment, and the principal to the usual time thereafter to notify antecedent indorsers. But if the agent has failed to give notice to his principal in due time, the la’tter is cut off, though he may thereafter use due diligence in communicating notice to antecedent parties. (Post, pp. 125, 126.) Cases' cited and approved: Butter v. Duval, 4 Yer., 265; McNeil v. Wyatt, 3 Hum., 126; Hill v. Bank, Id., 670; Simpson v. Turney, 5' Hum., 419; 5 Mason, 366; 21 N. Y., 485; 8 B. & C., 387. 11. Same. Same. Discharged indorser may revive his liability. An indorser who is discharged from liability by reason of the failure to give him due notice of non-payment, may revive his liability to his indorsee by a promise to pay the note or acknowledgment of his-liability therefor, made after and with full knowledge of his discharge-There is no proof of such promise or acknowledgment in this case. {Post,pp. 133, 134.) Cases cited and approved: Bogart v. McClung, 11 Heis., 105 ; Spurlock v. Bank, 4 Hum., 336; Golladay v. Bank, 2 Head, 58; Martin v~ Ewing, 2 Hum., 359; Williams v. Bank, 9 Heis., 441; Bank v. Rawlings, 1 Leg. R., 226; Gregory v. Allen, M. & Y., 76; Seay v-Ferguson, 1 Tenn. Ch., 293.
90 Tenn. 137Sneed v. Jenkins (1891)
FROM IIENRY. Appeal from Chancery Court of Henry County. A. G-. Hawkins, Ch.
90 Tenn. 144Railway Co. v. Howard (1891)
EROM HENRY. Appeal in error from Circuit Court of Henry County. W. IT. Swiggart, J.
90 Tenn. 152Rutherford v. Swink (1891)
1. Evidence. Proof of municipal ordinances. The ordinances of municipal corporations, when offered in evidence in the Courts, must he proved. “When not specially regulated by charter or statute, the proof of ordinances must be by the production of the originals, or the books in which they are registered, as these are the primary evidence.” 2. Same. Same. Case in judgment. There being no regulation of the matter by charter or statute, it is error, in a suit by a municipal corporation to punish an offender against its ordinance, for the Court to exclude, when offered as evidence of the ordinance, the book of the corporation in which its ordinances, including the one in question, were registered by authority of the governing body of the municipality, the book being produced from the custody of the proper officer, and thoroughly identified as one kept by the corporation for that purpose. Cases cited and distinguihed: Tedford v. Woodbury, 7 Hum., 190.
90 Tenn. 157Railway Co. v. Mossman (1891)
PROM HENRY. Appeal in error from Circuit Court of Henry County. V. H. Swiggart, ,T.
90 Tenn. 161Railway Co. v. Brooks (1891)
FROM OBION. Appeal in error from Circuit Court of Obion County. "W. H. SwiggaRT, J.-
90 Tenn. 167Powers v. McKenzie (1891)
1. Supreme Court. Assignments of error must be specific. Assignments of error must state not only the action of the Court complained of, but why it .is erroneous. (See Rule 20, 89 Tenn., 774, ■ 775-) 2. Same. Exceptions to evidence must be specific. General exception to the admission of evidence, made on the trial below, will not be noticed in this Court. 3. Same. Immaterial error. If entirely satisfied with the verdict, this Court will not reverse for erroneous admission of incompetent evidence, if it clearly appears that such evidence did not affect the result reached. 4. Constitutional Law. Title and subject of statutes. A statute, having but one subject, and that subject expressed in the title, is not unconstitutional because the title is broader and more comprehensive than the provisions of the Act. Constitution construed: Art. II., Sec. 17. Act construed: Acts 1889, Ch. 22. 5. Evidence. Proof of handwriting. Genuineness of a deed being the matter in controversy, other writings or signatures of the maker and witnesses deemed genuine by the Court may be admitted under Act of 1889, Ch. 22, though otherwise irrelevant, for comparison with the disputed instrument by the expert witnesses, and to be considered with the opinions of such witnesses as evidence in the cause. Act construed: Acts 1889, Ch. 22. Case cited and approved: Franklin v. Franklin, ante, p. 44. 6. Same. Same. But the writings or signatures of a person other than the makers 'and witnesses named in the disputed instrument are not admissible solely for comparison by experts under said statute. Acts construed: Acts 1889, Ch. 22. 7. Same. Admissibility of, a question for the Court. Example. Admissibility of evidence is always a question for the Court. Therefore the legitimate province of the jury is not trenched upon by the provision in said Act authorizing the Court to decide as to genuineness of writings or signatures offered in evidence. 8. Same. Expert witnesses. The determination of the trial Judge that a witness is qualified to testify as an expert is entitled to great weight, and will not be reversed unless it is clearly erroneous and attended with injury to the party. 9. Same. Same. The trial Judge has large discretion in regulating conduct of the trial. There is no abuse of that discretion demanding reversal in the action of the Court limiting each party to five expert witnesses, upon the facts of this case. 10.-Non EST Factum. Plea of not essential, when. Suit in equity to enforce a trust in land evidenced by written contract. There was no specific denial of the genuineness of the written contract by formal plea of non est factum, but the defense made by answer was that the contract was a forgery. Held: That the written contract was not the foundation of the suit in such sense as to require plea of non est factum to present the issue as to its forgery. Question reserved: Is denial by plea of non estfacUim essential in equity, even as to instrument that is fotmdalion of suit?
90 Tenn. 185Railway Co. v. Kennedy (1891)
I.Year’s Support. Widow may recorder assigned property by suit in her oran name. Widow is invested with absolute title to property and claims assigned her out of her deceased husband’s estate as year’s support, and may recover same, without the aid or intervention of the personal representative, by suit brought in her own name. Case cited: Bayless v. Bayless, 4 Cold., 359 (construes Code, §§3125, 3126 (M. & V.) ; ^2285, 2286 {T. &S.). 2.Same. Widow takes only the title her husband had in the assigned property. The widow takes the title or interest owned by her husband at his death in the assigned property or claims, and no more ; and she can recover by suit precisely what he could have recovered — e. g., she can recover nothing upon an account assigned her, purporting to be due her husband’s estate, if the debtor held and interposed a legal set-off, accrued in the husband’s life-time, covering the entire amount sued for. 3.Set-off. Of expenses for medical attention paid by employer against wages due employe. A railway company maintained an infirmary for treatment of employes injured in its service. Employes were entitled to the benefit of this institution regardless of whether the company owed them wages at the date of the injury. They were free to accept or reject the benefits of this institution, but if they accepted, then it was agreed that the reasonable charges of treatment should be retained out of wages then due or thereafter earned by the employe. Held: The charges for treatment in the infirmary is a proper set-off against wages due an employe.
90 Tenn. 191Waite v. Franciola (1891)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
90 Tenn. 195Maclin v. Haywood (1891)
FROM HAYWOOD. Appeal from Chancery Court of Haywood County. H. J. Livingston, Ch.
90 Tenn. 207Garvin v. Glisson (1891)
FROM SHELBY. Appeal in error from the Circuit Court of Shelby County. L. H. Estes, J.
90 Tenn. 212Boyd v. Insurance Co. (1891)
FROM SI-IBLBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
90 Tenn. 221Sahlien v. Bank (1891)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
90 Tenn. 235Katzenberger v. Lawo (1891)
PROM SIIBLBY. Appeal in error from Circuit Court of Shelby County. L. II. Estes, J.
90 Tenn. 242Robeson, Black & Co. v. Hunter (1891)
FROM SHELBY. Appeal ill error from Circuit Court of Shelby County. L. II. Estes, J.
90 Tenn. 256Insurance Co. v. Bennett (1891)
1. Life Insurance. Presumption in case of violent death against stiicide and murder. Charge of Court. In suit upon a life-policy there was positive proof of insured’s violent death by pistol-shot through the heart, but no direct proof as to the manner of his death, that being left as a matter of inference from a variety of circumstances. Held: That, upon this state of facts, the Court did not err in charging as follows: “The presumption of law is that Bennett [the insured] did not commit suicide, and was not murdered,” the Court adding: “Either of these presumptions may be overcome by facts and circumstances which establish the contrary; ” and saying further to the jury: “In determining what facts are proven in the case, you should carefully consider all the evidence given, with all the circumstances of the subject-matter of the inquiry as detailed by the witnesses.” (Post, pp. 2gQ-2bl.) Cases cited and approved: 47 N. Y., 52; 127 U. S., 661. (See Persons v. State, post, p. 2<)i.) 2. Same. Constrticlion of chmse in policy requiring direct and positive proof of cause of death. In construction of clause in life-policy providing that “ the insurance shall not be held to extend to any case of death, the nature, cause, or manner of which is unknown or incapable of direct and positive proof,” it is not error for the Court to charge, in a case where there is no direct, but much circumstantial, evidence of the manner of the insured’s death, that “the jury may find any fact ¡proven which may rightfully and reasonably be inferred from the evidence.” (Post, p. 262.) ' Case cited and approved: 127 U. S., 661. 3. Same. Construction of clause in policy limiting liability to injziries effected by external, violent, and accidental means. In suit upon a life-policy which restricts the insurer’s liability to injuries effected by external, violent, and accidental means, but is silent as to intentional injuries, it is not error for the Court to refuse to instruct the jury, at defendant’s request, that the plaintiff could not recover if the insured **died from a pistol-shot wound received at the hands of a person who intended to kill him,” and it is immaterial in such case whether there was or was not evidence tending to show an intentional killing. If there was no such evidence, this request, though correct, was properly refused. But the request is not the law. {Post, pp. 263, 264.) 4.Same. Same. What injuries are effected by “ accidental means.” Injuries are effected by accidental means within the meaning of this clause of the policy, though intentionally inflicted, if they are such as the insured could not have reasonably expected or anticipated. (Post, pp. 263, 264.) Cases cited and approved: 104 Ind., 133; 87 Ky., 300. 5.Same. Construction of clause in policy exempting insurer from liability if insured was killed in quarrel. In construction of clause in life-policy providing that “if death occurs from assault provoked by quarreling no recovery can be had,” it is not error for the Court to charge that “if the jury finds from the evidence that Bennett [the insured] died from a pistol-shot wound received from a pistol in the hands of a person who intended to wound or kill him, brought about by a quarrel which he provoked, and from which he might reasonably expect bodily injury, then the plaintiff cannot recover; and, on the other hand, if he could not reasonably have expected anger to be provoked and injury therefrom, then he can recover.” (Post, pp. 264-266.) 6.Same. Same. When death is not within this clause. The death of the insured does not fall within the exception contained in this clause of the policy unless it occurred as the result of a quarrel provoked by himself, and of such serious nature that he might reasonably have expected that anger would be aroused and violence inflicted. It is not every trivial dispute that is a quarrel within the meaning of this clause. (Post, pp. 264-266.) 7.Same. Construction of clause in policy exempting from liability for inpiry resulting from unlawful act. In suit upon life-policy that exempts insurer from liability for injuries to the insured while “engaged in, or in consequence of, some unlawful act,” it is not error for the Court to refuse to charge, upon defendant’s request, that the plaintiff could not recover, if, at the lime insured was killed by a pistol-shot through the heart, he was living with a woman in a state of fornication, there being no proof that such fornication was of such notoriety as to constitute a violation of the criminal laws, and there being no suggestion of any causative connection between the fornication and insured’s injuries. [Post, pp. 2bb-2fo.) 8. Same. Same. What unlawful act exempts from liability. The “unlawful act” contemplated by this clause is one that constitutes a violation of the criminal laws, not a mere breach of some obligation of morality or some rule of policy. Fornication, unless attended with such circumstances as give it publicity and notoriety, is not a misdemeanor, though immoral, and is not, therefore, an “unlawful act” within the meaning of this clause. (Post, pp. 2bb-2Jo.) Cases cited and approved: 95 Mo., 506; 13 Allen, 308; 45 N. Y., 432; 2 Yer,, 4S2; 1 Swan, 136; 8 Lea, 47. 9. Same. Same. Same. And the unlawful act contemplated by this clause is one from which the insured’s injury results as a natural and necessary consequence. (Post, pp. 2bb-27o.) Cases cited and approved: 97 Ind., 478; 13 Allen, 308; 120 Mass., 550; 19 Wallace, 531.
90 Tenn. 271Railway Co. v. Wilson (1891)
I.Railroads. Observance of statutory precatitions required in cities. Doctrine re-affirmed that railway companies, though operating their trains over tracks laid in the streets of a populous city, are required to comply strictly with all the precautions prescribed by statute for the prevention of accidents on railroads. Code construed : 1298-1300 (M. & V.) ; §§ 1166 — 1168 (T. & S.J. Case cited and approved : Katzenberger v. Lawo. (Ante, p. 235.) 2.Same. Statutory precautions apply to all moving trains. The statutory precautions for prevention of accidents on railroads apply indifferently to all trains impelled by steam-power, whether they are moving backward or forward, or by means of an engine placed in front or rear, or at an intermediate point in the train. But as these precautions can be complied with only when train is moving forward by means of an engine in its front, the railway company’s liability for injuries inflicted when train is moving backward, or by means of engine placed elsewhere than in front, is absolute. Code construed: ¡¡ 1298 (M. & V.) ; # 1166 (T. & S.). 3.Supreme Court. Affirms correct judgment, though trial Judge gave insufficient reasons. This Court will affirm a correct judgment, rendered by the trial Judge in a non-jury case, although he may have assigned insufficient grounds for his decision, if sufficient reasons for his conclusion appear in the record. Tor example: If the trial Judge pronounces judgment against a railway company for personal injuries inflicted by its common law negligence, this Court will not reverse, though deeming the judgment erroneous upon the reason stated, if the company was liable for non-observance of the statutory precautions.
90 Tenn. 280Lewis v. Bayliss (1891)
FROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.
90 Tenn. 287King v. Pillow (1891)
1. Chancery Court. Jurisdiction to supply deed for lands outside the State. Chancery Court, having acquired jurisdiction over the defendant by due service of process, may, by proper decree, supply lost deed for lands lying outside the State, upon suit of the vendee against his vendor, averring that the latter had obtained possession of the deed after its delivery and fraudulently destroyed it. Case cited and approved: 6 Cranch, 14S. 2. Same. Will not supply lost deed based' upon immoral consideration. But Chancery Court will not supply lost deed to lands upon suit of vendee against his vendor in any case where the deed was based upon an illegal consideration — e. g., that the vendor, a married man, should obtain divorce and marry the vendee, a widow.
90 Tenn. 291Persons v. State (1891)
I.Murder. Presumption as to suicide. Erroneous charge. In murder case where death by violence is not questioned, but two theories — the homicidal and the suicidal — advanced as to the manner of the killing, neither supported by any positive evidence, and both, to some extent, by circumstances, it is error for the Court to charge that there is any presumption against death by suicide. This charge deprives the defendant of the benefit of reasonable doubt, leaving the jury to infer his guilt if the evidence merely preponderated against suicide or was in equipoise. Case cited and distingitished: Insurance Co. v. Bennett, ante, p. 256. 2.Same. Same. Correct charge. The Court should have charged, in such case, that defendant must be acquitted, if, upon the entire evidence, it was not clear beyond reasonable doubt that deceased’s death was homicidal and not suicidal. 3.SAME. Expert testimony. Erroneous charge. It is proper for the Court, by general instructions, to caution the jury and instruct them as to the weight to be given experl testimony, but, in a murder case, where experts have been examined by each party in support of his own theory — those testifying on behalf of defendant admitting their employment by him to make post-mortem examination of deceased and to investigate other facts, and their expectation of compensation beyond mere witness fees — it is error for the Court to charge, in effect, that while experts like those introduced by defendant were competent witnesses, they were entitled to little, if any, credit. The Court may not determine as to credibility of particular witnesses. 4.Same. Same. Same. And it is error, in such case — one of the experts examined by the State having made post-mortem examination under order of the Court — for the Court to charge, by way of contrasting the experts of the respective parties, that “on the other hand, when experts are appointed by the State, * * * then the testimony is entitled to great weight.” 5. Same, Argumentative statement in charge erroneous. Courts should, as far as practicable, keep their views of the evidence and desire as to result of cases on trial from the jury. A statement in-the charge which presents, in an argumentative way, the theory of one party to the prejudice of the other party, constitutes reversible error.
90 Tenn. 300Collier v. Murphy (1891)
PROM MADISON. Appeal ill error from Circuit Court of Madison County. Levi S. Woods, J.
90 Tenn. 303Davis v. Young (1891)
Seduction. Suit for, not barred, when. Father’s suit for seduction of daughter is not barred, though her first act of sexual intercourse with the defendant occurred more than one year anterior to the commencement of the suit, if that act was induced by a promise of marriage, and was followed by other like acts, occurring within one year next before the institution of the suit, induced by continuation and renewal of said promise. Case cited and overruled: Franklin v. McCorkle, 16 Lea, 609.
90 Tenn. 306Deming & Co. v. Merchants' Cotton-press, etc., Co. (1891)
FROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.
90 Tenn. 359Allen v. Shanks (1891)
1. Administration. Jurisdiction of Chancery Court to sell testate decedent's lands to pay debts. Marshaling assets. Testator disposed, by will, of his entire estate, real and personal. He authorized his executors to apply the personal assets indifferently to payment of debts, support of his family, and running his farm. He empowered them to lease and sell his lands, and to apply the rents and proceeds to the same purposes. The personal assets and rents of land were entirely exhausted, in part for the purposes aforesaid, and in part by the ravages of war, leaving unpaid debts. The executors filed general creditor’s bill against the devisees and legatees, averring exhaustion of personal assets in the manner aforesaid, leaving unpaid debts, and necessity for construction of will, and praying such construction, settlement of their accounts, ascertainment of debts, and sale of land to pay them. Held: This bill was properly filed. Chancery Court has inherent jurisdiction, not conferred nor regulated by statute, to decree sale of a testate decedent’s lands to pay his debts, upon the facts stated, although the personalty was not wholly exhausted in payment of debts. It is an exercise of the power to marshal assets. [Post, pp. 363-37*-) Case cited and approved: Cavuthers v. Carulhers, 2 Lea, 268. 2. Same. Same. Form of decree. And decree authorizing executors to sell lands in such case, is valid and sufficient, even upon direct attack by appeal, when the decree itself, and the Master’s report upon which it is based, declare in general terms the exhaustion of personal assets, and in like general terms, the existence of an aggregate unpaid indebtedness, and directs in like general terms the sale of lands to pay debts, without designating parcels or prescribing terms of sale. (Post, pp. 371, 372.) Case cited and approved: Doherty v. Choate, 16 Lea, 192. 3. Same. Same. Effect of decree. But such decree does not authorize sale of lands situate outside this State. (Post, p. 372.) 4. Same. Same. Same. And such decree is not an adjudication of their claims in favor of creditors, even when they are specifically set out in bill. {Post, p. 373.) 5. Same. Same. Stiitprevents running of statute of limitations, when. As to claims specifically set out in the bill in such cas'e, the commencement of the suit suspends the running of the statute of limitations. And such claims, not barred at institution of the suit, must be paid, if filed and proved before final distribution of fund. {Post, pp. 39°, 391.) Cases cited and approved: Caruthers v. Caruthers, 2 Lea, 268; Vance v.- Sanders, 8 Bax., 294. Cited and distinguished : Greenlaw v. Greenlaw, MS. 6. Same. Same. Same. And it is not essential that debts thus specifically set out in the bill should be presented by formal pleadings or ascertained by reference to the Master. The Court may adjudicate them, if filed and reported by the Master without a reference. {Post, p. 391.) Cases cited and approved : Caruthers v. Caruthers, 2 Lea, 268; Ewing v. Maury, 3 Lea, 389. 7. Same. Same. Same. As to claims not specifically set out in the bill in such case the running of the statutes of limitations is not suspended by the institution of the suit. Such claims are,barred if any statute of limitation has run against them at the date of their presentation in the cause. {Post, ff- 39i, 392') 8. Same. Payment of barred claim by personal representative. Burden of proof. The burden is upon the personal representative who has paid a claim that was prmia facie barred, to show such delay at his request as suspended the running of the statute. The mere fact of payment affords no presumption in his favor. {Post, pp. 392, 393.) Case cited and distinguished: Alvis v. Oglesby, 87 Tenn., 184. 9. Same. Joint liability of executors. Joint executors of will are jointly liable for the entire administration, although they may, by agreement between themselves, have divided the work, and each performed his part alone. {Post, pp. 393,394.) 10. Same. Liability of executors conducting farming operations at a loss. Executors are not liable for loss incurred by running a farm as directed by the will, if they acted in good faith, and with due diligence and skill under the circumstances. {Post, pp. 384 — 388.) 11. Same. Executor's liability for rents of the trust estate. Executors authorized by will to lease and control lands for a specified period, are liable for the reasonable rental value of the lands if they retain possession and control after the termination of the trust estate, although they may have realized nothing from the use of the lands, {Post, pp. 384-388.) 12. Same. Same. Executors are liable for the rents of the trust estate, though they may have actually collected nothing, if the crops, subject to lien for rents,' were received and applied, by a firm in which they were interested, to payment of accounts held against the tenants for supplies furnished. {Post, pp. 384-388.) 13. Same. Same. And it is not material that the lands from which the rents were or should have been realized, are situated in another State. The liability is a personal one, and, in this case, the executors have sought the account. (Post, pp. 384-388.) 14. Same. Executors borrowing ?noney. Interest and ttsury. Executors who have borrowed money for the estate and applied it to that purposé, are entitled to its return with legal interest. But they are not entitled to usury they may have paid upon the loan. (Post, íí- 388-39°-) 15. Same. Executors allowed compensation and attorney's fees, when. In this case the executors, though not entirely free from fault and negligence, are allowed compensation for services, and such attorney’s fees as were incurred exclusively and necessarily for the benefit of the estate. {Post, p. 394.) 16. Chancery Practice. Interlocutory decree not open for revision at subsequent term. An interlocutory decree is not open for revision in the same Court at a term subsequent to its rendition, when the decree settles a principle, adjudges a right, or determines an issue. {Post, pp. 378,379.) Cases cited and approved: Meek v. Mathis, i Heis., 537; Johnson v. Hanner, 2 Lea, 10; Boyd v. Sims, 87 Tenn., 771.. 17.Same. Decree confirming Master's report without exception, conclusive. Decree confirming, without exception, the Master’s report upon matters submitted by a valid order of reference is conclusive, after the term is passed, upon all parties, including minors properly represented, not only in the Chancery Court, but upon appeal to this Court, although the report may be erroneous upon the evidence. [Post, pp. 376-379-) Cases cited and approved: Grimstead v. Huggins, 13 Lea, 728; Kelly v. Kelly, 15 Lea, 194; Vaccaro v. Cicalla, 89 Tenn., 63. 18,Same. Decree ivilhmU revivor not reversed, when. Decree in administration suit, confirming Master’s report and adjudicating debts, as basis for sale of lands, will not be reversed, though rendered after the death of a defendant interested in the lands and without revivor against his heirs, if the latter were already before the Court as original defendants to the cause. Revivor is, however, the proper practice in such case. {Post, pp. 379, 380.) Cases cited and approved: Gilchrists'. Cannon, 1 Cold., 582; Whalley v. Davis, 1 Swan, 336. 19.Same. Decree, wiihotit revivor, void. But such decree is erroneous, and reversible upon appeal, where, after the death of a defendant interested in the lands, the reference to the Master and his report were made and decree rendered thereon, without revivor against the heir of such defendant — such heir not being an original party to the cause. {Post, pp. 379-382.) 20. Same. Same. It is not sufficient in such case, where the heir is a minor, that scire facias had been sued out and returned served upon him at the time the proceedings were had. There must have been actual revivor and representation by guardian ad litem. {Post, pp. 379-382.) 21. Same. Same. Revivor of the cause against the minor after the erroneous decree has been rendered does not remedy the error. {Post, p. 381.) Cases cited: Lewis v. Outlaw, I Tenn., 140; Berrigan v. Fleming, 2 Lea, 271. 22. Same. Defense by one party inures to benefit of others, when. In administration suit for sale of lands to pay debts, exception to the Master’s preliminary report of liabilities by one defendant interested in the lands inures to the benefit of all the defendants. But failure of one defendant to except cannot affect the other defendants. (Post, Pí- 3S3>3$3-) 23. Supreme Court. Will not remand cause, when. Where the correct result has been reached in the final decree of the Chancery Court, this Court will not reverse that decree and remand the cause, although the Chancellor, in order to reach that result, erroneously vacated his own erroneous decrees rendered at former terms. The error is immaterial in such case. {Post, pp. p8p, P84.) Case cited and approved: Boyd v. Sims, 87 Tenn., 771.
90 Tenn. 396Jackson v. State (1891)
PROM SHELBY. Appeal in error from Criminal Court of Shelby County. J. J. Dubose, J.
90 Tenn. 407Cook v. State (1891)
FROM SlIELBY. Appeal in error from Criminal Court of Shelby County. J. J. Dubose, J.
90 Tenn. 416Fitzsimmons v. Johnson (1891)
FROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.
90 Tenn. 445Hurt v. Long (1891)
i. Bill of Review. Not maintainable in Chancery Court to review decree of Súfreme Court. The Chancery Court from which cause was appealed, has not jiuisdiction, after the entry of final decree in the Supreme Court, to review that decree upon a pure and simple bill of review, either for “ error apparent” or, it seems, for 1* new matter.” {Post, pf. 44^-44^.) Cases ciled and approved: Wallen v. Huff, Thompson’s Cases, 21 • Cox Breedlove, 2 Yer., 499; Wilson v. Wilson, 10 Yer., 200; Anderson 7-. Bank, 5 Sneed, 661. j2. Same. Same. Defense by plea proper. Demurrer. And effectual defense maybe made^ to such bill/of review, either by demurrer, or by plea setting up the original decree accompanied by copy of original record. (Post, fp. 447, 448.) 3. Res AdjudicATA. Effect of decrees as to infants. Infants are concluded to the same extent as adult parties by the .adjudications of the decrees of a Chancery Court, and are entitled to same proceedings for correction of errors therein, and to none other. Infants are entitled, however, to longer time than adults, under the savings of statutes in their favor, to institute proceedings for correction of errors. (Post, pf. 44g~454.) Cases cited and approved : Winchester v. Winchester, 1 Head, 460; Kindell v. Titus, 9 Iieis., 727; Ridgely v. Bennett, 13 Lea, 206; Grimstead Huggins, 13 Lea, 728; Kelley ?•. Kelley, 15 Lea, 194; Vaccaro v. Cicalla, 89 Tenn., 63 ; Allen v. Shanks, ante, p. 359. Cited and distinguished or disapproved : Talbot v. Provine, 7 Bax., 509 ; Livingstou v. Noe, 1 Lea, 55; McCown 7'. Moores, 12 Lea, 635; McGavock v. Bell, 3 Cold., 512. Cited and overruled: Davidson v. Bowden, 5 Sneed, 129. 4. Chancery Court. Jurisdiction to sell infants' lands for their benefit. Chancery Court has, independent of statute, inherent jurisdiction, inclusive of and more comprehensive than that provided and regulated by statute, to make, ratify, or consent to sale of infants’ lands for their benefit. Such sales are not necessarily invalid by reason of failure to comply with the statutory requirements on that subject. {Post, PP- 459-4-bi-) Code construed: ?§4°54. 4°7i (M- & v-)i §§3323> 334° (T. & S.). Cases cited and approved: Thompson v. Mebane, 4 Heis., 370; Talbot v. Provine, 7 Bax., 509; Porters'. Porter, I Bax., 301; Lancaster v. Lancaster, 13 Lea, 132; Hunt v. Glenn, 11 Lea, 16; Kirlcman, ex parte, 3 I-Iead, 517. 5. SAME. Same. Application for sale by testamentary guardian. Although under the statute the regular guaidian of the infant must make the application for sale of infant’s lands, still a sale contracted by a testamentary guardian without authority, and afterward confirmed as an advantageous one by decree rendered in suit brought by such testamentary guardian against his ward for that purpose, is valid even upon direct attack. {Post, pp. 4.61 — 463.) Code construed: §4055 (M. & V.); §3324 (T. & S.). Case cited and approved: Elliotts'. Blair, 5 Cold., 194. 6. Same. Same. Appointment of guardian ad litem. And such sale is not invalid, even upon direct attack, by reason of the fact that guardian ad litem for the infant defendant was appointed by the deputy of the complainant guardian, who was Clerk and Master of the Court. {Post, pp. 436, 437.) 7. Same. Same. Purchaser's petition to have purchase-price retained to meet incumb’ anee. Guardian ad litem. And such sale is not invalid, even upon direct attack, by reason of the fact that the purchaser obtained relief upon his petition to have the purchase-price retained in court to meet an alleged incumbrance upon the lands without appointment of guardian ad litem to answer that petition for the infant, the lestamentaiy guardian having made defense, and the infant being represented by a competent guardian ad litem in the principal cause. Such relief may be properly granted after confirmation of sale upon mere petition and without institution of an original suit. {Post, pp. 463, 464.) Cases cited and approved: Pearson v. Johnson, 2 Sneed, 580; McMinn v. Phipps, 3 Sneed, 196; Spence v. Armour, 9 Heis., 169; Brittain ». Cowen, 5 Hum., 316; Cowan v. Anderson, 7 Cold., 291; Masson v. Swan, 6 Heis., 450; Brown». Severson, 12 liéis., 390; Scott». Porter, 2 Lea, 225. 8. Same. Same. Purchase by administrator of ancestor's estate. And such sale is not invalid by reason of the fact that purchaser was administrator of the estate of the infant’s ancestor, and that fact was not disclosed in the proceedings. {Post, pp. 464, 463.) 9. Same. Same. Guardian not required to make deed with covenants. Guardian effecting sale of his ward’s lands without authority, subject to approval of the Chancery Court, will not be required, upon the Court’s approval and confirmation of such sale, to execute deed with covenants to the purchaser. Decree divesting and vesting title is sufficient in such case. {Post, pp. 457, 458.)
90 Tenn. 466Cole Manufacturing Co. v. Falls (1891)
1. Constitutional Law. General rules. Courts indulge every reasonable intendment favorable to the constitutionality of a statute passed with the required formalities. If susceptible of two constructions, one that renders the statute constitutional will be preferred to another, though more natural, that renders it unconstitutional. Statutes upon trial for unconstitutionality, are entitled to benefit of every reasonable doubt. Cases cited and approved: Morrell v. Fickle, 3 Lea, 81; Garvin v* State, 13 Lea, 162. 2. Mechanics’ Lien. Acts i88g, Ch. ioj, Sec. constitutional. There is no valid objection, upon constitutional grounds, to Sec. 1, Ch. 103, Acts 1889, which provides for lien upon realty in favor of “every journeyman or other person” who furnishes labor or material to an original contiactor, to be used in putting improvements upon such realty under contract between him and the owner. The owner contracts with reference to the law which gives the lien for work and labor furnished to his contractor by journeymen and others. Act construed: Acts 1889, Ch. 103, Sec. 1. 3. Same. Same. Same. The provision of Section 1 of said Act allowing the “ laborer, mechanic* or workman” thirty days “after the building is completed, or the contract of such laborer, mechanic, or workman shall expire, or he be discharged,” in which to give the owner written notice that a lien is claimed for such labor and material as have been furnished the contractor, does not render the Act unconstitutional. The owner may, by contract or indemnity bond, protect himself against double payment for such labor and material. 4. Same. Same. Construction of Section 1. This section (1) of said Act is not fairly susceptible of the construction that the owner may be held by laborers and material-men furnishing labor and material to the contractor for a greater sum than he agreed to pay the contractor. There is no express piovision in the Act upon that subject. The former law had imposed the proper limitation upon the owner’s liability. Code cited : § 2748 (M. & V.) ; ? 19S8 (T. & S.). 5. Same. Acts 1889, Ch. 103, Sec. 2, constitutional. There is no valid objection, upon constitutional grounds, to Sec. 2, Ch. 103, Acts 1889, which, properly construed, authorizes every mechanic, laborer, and furnisher to talce and remove, under the direction of a Court, after giving ten days notice to the owner of his-purpose to do so, all “such property or the parts of the same on which his labor was performed, or materials, machinery, or other property was used,” at the request of a contractor for the owner’s benefit, when such improvements have been made upon the lands of a married woman, or other persons under disability, or upon trust estates, or upon lands held by other superior title or subject to prior liens, and the mechanic, laborer, or furnisher was ignorant of the state of the title and the true owner refuses to recognize the lien or claim for the materials furnished or labor performed. Act construed: Acts 1889, Ch. 103, Sec. 2. 6. Same. Acts 1889, Ch. 103, Sec. 3, constitutional. Sec. 3, Ch. 103, Acts 1889, permitting the owner who has been compelled to pay his contractor’s employes in discharge of their lien on the property, to take judgment over against the contractor upon his indemnity bond upon mere motion, is valid and constitutional. Although notice to the contractor of this motion is not expressly provided for in the Act, it is required by necessary implication. Acts construed: Acts 1889, Ch. 103, Sec. 3. Case cited: Williams v. Nashville, 89 Term., 487. 7. Same. Same. Same. This provision of Section 3 of said Act does not constitute vicious class legislation. Constitution construed: Art. XI., Sec. 8. Cases cited and approved :• Parks v. Parks, 12 Pleis., 633; Woodard v. Brien, 14 Lea, 520; Burkholtz v. State, 16 Lea, 71; Ragio v. Stale, 86 Tenn., 272; Uavis v. State, 3 Lea, 380; Demoville v. Davidson County, 87 Tenn., 214. 8. Same. Title and subject of Act sufficient. The title of said Act is sufficient, under the constitutional requirement, to cover all the foregoing provisions. That title is as follows: “An Act to amend the mechanics’ lien law, and ,to afford mechanics and material-men greater security for their work and material.” Constitution construed : Art. IL, Sec. 17. Case cited and approved: Cannon v. Mathes, 8 Heis., 504. 9. Same. Same. General rule. “Where the title of a legislative Act expressed a general subject or purpose which is single, all matters which are naturally and reasonably connected with it, and all measures which will or may facilitate . the accomplishment of the purpose so stated, are properly included in the Act, and are germane to its title.” Constitution construed: Art. XX., Sec. 17.
90 Tenn. 485Tarvers v. State (1891)
I.Murder. Verdict supported by the evidence. This Court affirms judgment condemning defendants to death for murder in fii*st degree upon the facts slated fully in the opinion. 2.Same. Unintentional killing constitutes ttmrder in second degree, when. An unintentional killing constitutes murder in second degree, where the death results from a consciously unlawful act, done intentionally and with knowledge on the part of the perpetrator that the act was directly perilous to human life. There exists, in such case, that high degree of conscious and willful recklessness which evinces the malignity of heart that constitutes malice. Case cited and approved: Lee ?>. State, I Cold., 66. 3. Same. Error in charge immaterialwhen. In a murder case, where there are two controverted questions — one of fact, as to whether the killing was intentional or unintentional; and another of law, as to the grade of offense committed if the killing was unintentional — if the jury find that the killing was intentional, upon a charge correct in every respect as regards that theory of the case, this Court would not reverse, if satisfied with the verdict upon the facts, although there should be error in the charge as regards the grade of offense committed upon the theory of unintentional killing. Cases cited and approved: Williams v. State, 3 Ueis., 377; Honeycutt v. State, 8 Bax., 379; Good v. State, r Lea, 293; Parham v. State, 10 Lea, 498; State v. Hargrove, 13 Lea, 178. 4. Criminal Law. Arrests by private persons. Our statutes, authorizing arrests, in certain cases, to be made by private persons, without warrant, apply alone to public offenses committed within this State and against her laws. These statutes do not authorize the kidnapping of a citizen of this State by citizens of another State for an offense that he may have committed in that State. Code construed: §5868 (M, & V.); ? 5042 (T. &S.).
90 Tenn. 501Exum v. State (1891)
JURISDICTION. Of State Court over offense committed in Federal custom-house. Perjury falls within the criminal jurisdiction of the State Courts, though committed in a custom-house situated upon land over which exclusive jurisdiction has been ceded by the State to the General Government, where it has occurred upon the trial of a cause in a State Court holding its session in such custom-house, situate within the limits of the county town, by express permission of the Federal authorities, the presiding Judge having removed his Court from the county courthouse, under the authority conferred upon him by statute, while it was undergoing repairs. Code construed: §487° (M. & V.) ; jí 4095 (T. & S.). Act construed: Acts 1883, Ch. 180.
90 Tenn. 512Thomas v. Irvin (1891)
FROM MADISON. Appeal from Chancery Court of Madison Comity. A. G. Hawkins, Ch.
90 Tenn. 515Chester v. Foster (1891)
i. Writ of Error. Service of notice. If notice of application for writ of error has not been served at the end of two years from date of decree sought to be reviewed, the defendant in error may thereafter enter his appearance when record has been filed, and have the cause dismissed for such failure to have notice served within the required time. Code construed: §§3896, 3898, 3900, 3901 (M. & V.); $3177, 31780, 3180, 3181 (T. & S.). Cases cited: Spurgin v. Spurgin, 3 Head, 25; Cain v. Cocke, 1 Lea, 288. 2. Same. Case in judgment. Decree December 6, 1888. Record filed for writ of error and bond given June 10, 1890. Notice of application'for writ of error had not been served at end of two years from date of decree. Thereafter defendant in error entered his appearance and moved to dismiss cause for want of notice. The motion was sustained.
90 Tenn. 521Reeves v. Henderson & Co. (1891)
1. Amendment. Of Justices’ warrant in Circuit Court. Justices’ warrant may be amended, in a material matter, in Circuit Court after appeal thereto. Code construed: $4952 (M. & V.); §4177 (T. & S.). 2. Mechanics’ Lien. Of subcontractor and material-man. Registration. The mechanics’ lien of subcontractors and material-men is perfect and enforceable without registration of statement of their accounts against the owner of the property'for the improvement of which the labor and materials were furnished. Registration is essential to preserve the lien against the intervening rights of innocent third persons. Act construed: Acts 1889, Ch. 103, Sec. 1. 3. Same. Notice to owner. The required notice to owner of property by the subcontractor or material-man is sufficient, though meager, in the following form: “Mr. Wm. Reeves — You are hereby notified that we will proceed to take a mechanics’ lien on your house and lot in Johnson City, Tennessee, for work and materials furnished in erecting your house, unless said claim is paid. This November 21, 1890. “A. P. Henderson & Co.” But greater particularity in the notice is recommended. 4. Same. Contract with owner not essential. The mechanics’ lien in favor of subcontractors and material-men for labor and materials furnished to a contractor exists against the improved property independently of any direct contract between them and the owner. Case cited and approved: Cole Manufacturing Company v. Falls, ante, p. 466. 5. Same. Payment to contractor before notice. The mechanics’ lien in favor of subcontractors and material-men is not defeated by payment of the contractor in full by the owner before notice of their claims or lien, provided the notice is given within the time prescribed by statute.
90 Tenn. 528Morelock v. State (1891)
Evidence. Impeachment of dying declarations by contradictory statements oy declarant. Dying declarations may be impeached, without laying grounds for that purpose, by proof of contradictory statements of the declarant which were not made in extremis, as well as by those made in extremis. Cases cited and approved: McPherson v. State, 9 Yer., 280; 21 Cal., 368; 23 Texas Ap., 477 (S. C., 59 Am. Rep., 777). •Cited and disapproved: 20 Ohio St., 460. ,
90 Tenn. 532Kirkeys & Son v. Crandall (1891)
1. Chancery Court. Jurisdiction tmder Acts 1877, Ch. 97. Chancery Court has jurisdiction, under Acts 1877? Ch. 97> °f suit brought by principal to recover of his agent loss or damages resulting from the latter's neglect of duty, viz.: The agent’s negligent failure to procure valid acceptance of drafL by the drawee, whereby the principal suffered loss. Cases cited and approved: Glenn v. Moore, 11 Lea, 256; Williams v. Burg, 9 Lea, 456; State v. ICeller, II Lea, 401. Cited without approval: Ramsey?/. Temple, 3 Lea, 258. 2. Principal and Agent. Negligence of agent in procuring acceptance of draft. An agent to procure acceptance of draft upon a corporation is liable to his principal for the amount of the draft, if it is lost in consequence of the agent’s taking acceptance thereof by the secretary and treasurer of the corporation'alone, he knowing that that officer had no authority to give the acceptance. Cases cited and approved: Walker?/. Walker, 5 Heis., 425; Railroad v. Greer, 87 Tenn., 698; 9 N. Y., 582,
90 Tenn. 539State v. Shelton (1891)
FROM GRAINGER. Appeal in error from Circuit Court of Grainger 'County. W. R. IIicks, J.
90 Tenn. 541Union County v. Knox County (1891)
PROM UNION. Appeal from Chancery Court of Union County. II. R. Gibson, Ch.
90 Tenn. 546Knox v. Pioneer Coal Co. (1891)
FROM CAMPBELL. Appeal in error from Circuit Court of Campbell County. W. R. Hicks, J.
90 Tenn. 548Railway Co. v. Beeler (1891)
I.Evidence. Construction of written instrument. Reversal. It is the Court’s duty to construe written instruments offered in evidence, but neglect of this duty by the Court does not constitute reversible error, if it clearly appears that the written instrument has neverthe less been correctly construed by the jury. Cases cited and approved: Bedford v. Flowers, n Hum., 245; Railroad v. McKenna, 13 Lea, 288; Roberts v. Alexander, 5 Lea, 412; Gregory v. Underhill, 6 Lea, 212. 2.Same. Same. Admissibility of parol evidence. Parol evidence is not admissible to alter, vary, or qualify the terms of a written instrument; but is admissible to show the circumstances surrounding the parties at the time of the execution of the instrument, in order that the Court may put itself in the place of the contracting parties, and thus see how the terms of the instrument affect the property or subject-matter of the contract. Case cited and approved : Railroad v. Mumford, 2 Lea, 398. 3.Same. General exceptions ineffectual. The Court admitted both competent and incompetent parol evidence affecting the construction of a deed offered in evidence. There was a general exception covering all this evidence. There was likewise a motion to “strike out all oral evidence in regard to the deed.” Held: The exception and motion to strike out were too general, and did not, therefore, raise any question, even as to the incompetent evidence, that will be noticed by this Court. 4.Deeds. Construction of conveying right of way. Land-owner conveyed to railway company, upon consideration of the benefits expected from construction of road through his farm, a right of way over his premises upon condition that “the road runs at back of garden.” There was competent parol evidence showing that the farm contained over three hundred acres; that the garden was immediately in rear of dwelling-house, and was about one hundred feet square; that the land-owner was anxious to have road located over his premises, and to induce the abandonment of a rival line some distance away; that a preliminary survey had been made through the garden and near his residence ; and that he had refused to sign deed for right of way without the locative words “provided the road runs, at back of garden.” Meld: The company had not the right to locate its road, under this deed, anywhere inside the garden, but only on the outside thereof. Case cited : 3 Crunch, 604.
90 Tenn. 556Rightsell v. Hale (1891)
FROM HAMBLEN. Appeal from Chancery Court of Hamblen County. John P. Smith, Oh.
90 Tenn. 563Railway Co. v. Lilly (1891)
Actions. For personal injuries survives death of injured person, when. At common law the right to recover damages for personal injuries was extinguished by the death of the injured person. In Tennessee this rule of the common law has been modified by statute so far only as to preserve this cause of action, upon the death of the injured party, for the benefit of his surviving widow or children, or other next of kin. In all other cases the common law rule prevails. Code construed : ?§ 3130, 3134 (M. & V.); ¡Í 2291 (T. & S.). Cases cited : Trafford v. Express Co., 8 Lea, 97; Railroad v. Connor, 9 Heis., 19; Bream v. Brown, 5 Cold., 168; 23 Ind., 133; 103 Id., 44; 26 Ill., 400; 48 Id., 410; 106 Id., 131; 28 Minn., 371; 21 Barbour, 245; 3 Duel'., 627; 13 S. W. R., 428; 12 Id., 128; 5 Id., 875; 15 Id., 80; 91 Mo., 86; 10 S. E. R., 932; 61 Vt, 438; 19 St. R., 987 (Vt.); 23 Wis., 400; 45 Fed. R., 407.
90 Tenn. 570Railway Co. v. Lee (1891)
FROM HAMBLEN. Appeal iu error from Circuit Court of Hamblen-Comity. W. R. Hicics, J.
90 Tenn. 575Smith v. State (1891)
1. Criminal Law. Statute for -protection of miners against false weights and measures construed. Conviction for violation of the statute making it unlawful for “'any weighman, agent, or check-measurer, whether employed by operators or miners, knowingly or willfully [to] adopt or take more or less pounds for a bushel or ton than is now provided for by law ” is supported by the evidence, where it appears that the defendant was a weighman employed by the operators of a coal-mine to weigh the coal dug by each miner as a basis for his compensation; and that, pursuant to a custom assented to by express contract by most of the miners employed, and known to and acquiesced in by all, the defendant allowed only 2,500 pounds per car-load, when its weight, in fact, exceeded that limit. Parties may not by contract dispense with the criminal law. Act construed: Acts 1887, Ch. 206, Sec, 3. 2. Criminal Practice. Argument of counsel. It is not reversible error for counsel for the State to say in the closing argument in a criminal case “that the defendant did not open his mouth ” when there was no exception taken to the language at the time, and it does not appear that it referred to defendant’s failure to testify.
90 Tenn. 580State v. Jenkins (1891)
FROM ANDERSON. Appeal iii error from Circuit Court of Anderson County. W. K. Hicks, J.
90 Tenn. 585Ballard v. Scruggs (1891)
EROM SEVIER. Appeal from Chancery Court of Sevier County. II. R. Gibson, Ch.
90 Tenn. 590Lookout Bank v. Susong (1891)
I.Amendment. After demurrer sustained is waiver of error. Any error in Chancellor’s decree sustaining demurrer to bill is waived by such amendment of the bill as removes the objection raised by the demurrer and makes the bill conform to the decree. 2.Same. Of bill at term subsequent to its partial dismissal on demurrer. Amended bill supplying defects on account of which the original bill was dismissed upon demurrer as to some of the defendants and as to a portion of the relief sought, may be filed, by leave of the Court, at a term subsequent to that at which the demurrer was sustained. Cases cited: Grotenkemper v. Carver, 4 Lea, 383; Morris?/. Richardson, 11 Hum., 389; Harrison?/. Farnsworth, I Heis., 751; Hume v. Bank, 1 Lea, 220; Terrell?/. Ingersoll, 10 Lea, 82; Gibson?/. Widener, 85 Tenn., 16. 3.Same. Same. Attachment lien preserved. And the amended bill relates, in such case, to the date of the original bill, and has the effect to restore and preserve an attachment lien fixed by the original bill, although such lien had been discharged by the Court’s decree upon the demurrer. Cases cited and approved: Wilson v. Beadle, 2 Head, 511; Morrow v. Fossick, 3 Lea, 131. 4. Same. Same. Same. And the. attachment lien fixed by the original bill is, in such case, restored and preserved by the amended bill, as against other general or attaching creditors, although the debtor died and the insolvency of his estate was duly suggested, after the decree sustaining the demurrer and before the filing of the amended bill. Code construed: §23x69, 3170, 3x73, 3234 (M. & V.); §§2325, 2326, 2328, 2389 (T. & S.). Cases cited and approved : Ewing v. Maury, 3 Lea, 381; Watson v. Watson, 1 Bax., 387; Eields v. Wheatley, I Sneed, 350; Kinsey v. McDearmon, 5 Cold., 399; McGuffey v. Johnson, 9 Lea, 559.
90 Tenn. 599Davis v. Knoxville (1891)
PROM KNOX. Appeal in error from Circuit Court of Knox County. A. G-. Howe, Sp. J.
90 Tenn. 604Jones v. Insurance Co. (1891)
FROM KNOX. Appeal from Chancery Court of Knox County. H. R. G-ibson, Ch.
90 Tenn. 606Lobenstein v. Hymson (1891)
1. Attachment. Liability for damages resulting frovi wrongful attachment. Upon dismissal of attachment because affidavit stated insufficient cause for its issuance, the defendant is entitled to recover of the plaintiff the actual damages sustained from such wrongful attachment, although good cause for issuance of attachment existed and the suit was prosecuted in good faith. 2. Charge of Court. As to sufficiency of evidence. It is not error for the Court to instruct the jury that the plaintiff must make out his case “ by a preponderance of proof, such as is satisfactory to your minds.”
90 Tenn. 609Thouron v. Railway Co. (1891)
i. Contract. Example of implied contract. A made injunction bond for B on condition that he should be indemnified against loss by deposit of money in bank in his name until his liability should terminate. A was a regular depositor with the bank, and was allowed interest on his deposits. Upon termination of his liability A promptly paid over the principal fund, but withheld the interest allowed him by the bank on this deposit. There was no express contract between A and B with respect to interest. They were strangers, and A assumed liability on bond upon no consideration, unless it was the expected benefits to be derived from the deposit. Held: B cannot recover of A the interest allowed by the bank upon said deposit. 2. Clerk and Master. Not liaile for interest, -when. In such case there can be no recovery of the interest, although A was Clerk and Master of the Court in which B’s suit was prosecuted, it appearing that A acted in good faith and at B’s request, and that he did not hold said fund and receive interest thereon under order of the Court.
90 Tenn. 614State v. Jack (1891)
PROM KNOX. Appeal in error from Criminal Court of Knox County. J. W. Sneed, J. Warren, the relator, having been sentenced to the penitentiary for the term of two years upon a conviction for voluntary manslaughter, was placed in the bj’anch prison at Briceville, Tenn., and there required to work in a coal-mine. Briceville bad been declared a legal branch prison by the Board of Prison Inspectors, and was in charge of a Deputy Warden.
90 Tenn. 619Pearne v. Coal Creek M. & M. Co. (1891)
PROM ANDERSON. Appeal from Chancery Corn’t of Anderson County. LI. R. GtbsoN, Ch.
90 Tenn. 633Shields v. Riverside Improvement Co. (1891)
1. Married Woman. Barred by twenty year? continuous adverse possession of her lands, Taken. The law now is, and has been since the Act of 1851-52, that twenty-years’ continuous adverse possession of a married woman’s land, held under a conveyance from herself and husband, executed upon valuable consideration and without fraud upon her, and registered, with or without her privy acknowledgment, more than twenty years before any suit is commenced, constitutes an absolute bar to any recovery of the land by herself and lnisband, or by either of them, or by those claiming under them, even where she was both a married woman and a minor at date of execution of the deed, and remained under disability of coverture continuously thereafter until the suit was brought. Code construed: üü 2757, 2758, 2767 (T. & S.); ??345I> 3452. 34^3 (M. & V.). 2. Same. Same. Case in judgment. Husband and wife conveyed wife’s lands upon valuable consideration and without fraud upon her. 'She was a minor. The deed was registered. The purchaser and those claiming under him held the land under this registered deed in continuous adverse possession for more than twenty years. During this period she remained under the disability of coverture. Being still a feme covert, she thereafter sued by next friend to recover the land and to have her said deed annulled. Held: Suit is barred.
90 Tenn. 638Cantrell v. Railway Co. (1891)
i. Navigable Streams. Obstruction of in building railroad bridge. . The obstruction of navigation is lawful when caused, in construction of bridge across a navigable stream by a railway company under authority of its charter, by the placing in the stream of such temporary structures as are absolutely essential, and without which the work could not be accomplished, the railway company taking care that such obstruction shall extend no further and be maintained no longer than is absolutely necessary for the erection and completion of the bridge by the exercise of due diligence and the employment of an adequate force of men and machinery. Case cited: Railroad». Hicks, 5 Sneed, 427. 2. Same. Same. And such temporary and necessary obstruction of navigation is not within the prohibition of the statute which provides : “ No mill-dam, fish-trap, bridge, or other improvement shall be allowed so as to interrupt or in any way injure or impair the navigation of any navigable water-course of the State.” Code construed: # 1527 (M. & V.) ; g 1312 (T. & S.). 3. Burden of Proof. Upon party obstructing navigation to show it lawful. The burden of proving an obstruction of a navigable stream lawful is upon the party causing the obstruction. Case cited and approved : Railroad v. Wynn, 88 Term., 331. 4. Court and Jury. Court may not direct jury to return a particular verdict. For the Court to direct the jury to return a verdict in favor of either party, where there is any conflict in the evidence, is an invasion of the province of the jury by the Court, for which the case will be reversed. Constitution construed : Art. VI., ?¿ 9. Cases cited and approved: Robinsons'. Railroad, 2 Lea, 594> Uhl 7'. Taxing District, 6 Lea, 611; Jones v. Iron Co., 14 Lea, 157; Deihl v. Ottenville, 14 Lea, 191.
90 Tenn. 645Gay v. State (1891)
Nuisance. Erroneous charge. The stench from several hog-pens located in the same neighborhood constituted a nuisance. Gay owned only one of the pens. The evidence was conflicting as to whether the stench from his pen alone was a nuisance. Held: The Court erred in charging, as applicable to these facts, that “if the jury find that the smell created by the defendant’s pen was not sufficient within itself to constitute a nuisance, yet it contributed with other pens in the neighborhood to forming a nuisance, the defendant would be guilty.”
90 Tenn. 647Hannum v. State (1891)
FROM KNOX. Appeal in error from Criminal Court of Knox County. J. W. Sneed, J.
90 Tenn. 655Bynum v. Ewart (1891)
PROM MORGAN. Appeal from Chancery Court of Morgan County. H. R. Gibson, Ch.
90 Tenn. 661Frater v. Hamilton County (1891)
EROM HAMILTON. Appeal iu error from Circuit Court of Hamilton County. John A. Moon, J. The plaintiffs, J. J. Prater and L. M. Elder, sued Hamilton County for $2,000 damages, averring that said county had, in building a public bridge, destroyed their easement of ingress and egress to and from their lots over certain streets and aver núes, and thereby greatly depreciated the value of their property. The suit was dismissed upon demurrer, and plaintiffs appealed.
90 Tenn. 663Key v. Snow (1891)
FROM MORGAN. Appeal from Chancery Court of Morgan County. H. Li. Gibson, Oh.
90 Tenn. 673Graham v. McReynolds (1891)
FROM MARION. Appeal in error from Circuit Court of Marion County. John A. Moon, J.
90 Tenn. 705Robinson v. Coulter (1891)
FROM HAMILTON. Appeal from Chancery Court of Hamilton County. P. B. Mayfield, Sp. Ch.
90 Tenn. 711Coal Creek Mining Co. v. Davis (1891)
EROM ANDERSON. Appeal in error from Circuit Court of Anderson County. W. R. IIicks, J.
90 Tenn. 722State v. Nine Justices (1891)
EROM HAMILTON. Appeal from Chancery Court of Hamilton County. S. A. Key, Ch.
90 Tenn. 729Augur v. Smith (1891)
1. Fraud. What constitutes fraud in exchange or sale of lands. A. sold S. lands valued at $7,000, and agreed to accept in payment therefor 1,335 acres Mississippi lands at $3 per acre, and cash and notes for remainder of purchase-price. S. falsely represented to A., who-had never seen the Mississippi lands, that they were fine timber lands, covered with virgin forests, and worth $3 per acre. In fact, the tim- . her had been cut otf, and the lands were of inferior quality, and worth only twenty-five to fifty cents per acre. The price fixed by A. on his lands was reasonable. Held: S. was guilty of fraud. This is not a case of mere puffing on his part. 2. Measure of Damages. For fraud in sale of lands. And A. is entitled to recover of S. the difference between the estimated and real value of the Mississippi lands. But S. may elect, if he prefers, to take the Mississippi lands and pay their full estimated value.
90 Tenn. 735Bank v. Foster (1891)
1. Abatement, Plea in. Replication to. A negative plea in abatement makes an issue without replication. Case cited: Cheatham v. Pearce & Ryan, 89 Tenn., 695, 696. 2. Same. Objection to, comes too late on the hearing. Objection that issue has not been made by filing replication to negative plea in abatement comes loo late on the hearing of the cause. Case cited and approved: Seifried v. Bank, I Bax., 203. 3. Attachment. Plea in abatement of, not overruled by answer. In suit by attachment against a non-resident, a plea in abatement to the attachment denying the fact of non-residence, is not waived or overruled by defendant’s entering his appearance and making defense to the merits by answer. Act construed: Acts 1877, Ch. 97, Cases cited: Walker v. Cottrell, 6 Bax., 257; Bivins v. Matthews, 7 Bax., 256; Robb v. Parker, 4 Heis., 58; Pricey. Bescher, 12 Heis., 372; Seifried v. Bank, 1 Bax., 204; Pigue v. Young, 85 Tenn., 263 ; Cheatham v. Pearce & Ryan, 89 Tenn., 679.
90 Tenn. 741Monroe County v. Hudson (1891)
1. Statutes. Repeal of by implication not favored. Repeal of statutes by implication is not favored. 2. Same. Same. Case in judgment. Trustee's commission on school-moneys. By Chapter 129, Acts 1879, the County Trustee wag allowed five per cent, commissions for collecting and disbursing school-moneys levied upon the tax-payers of his county. By Chapter 106, Acts 1881, this commission was reduced to one and one-half per cent. Both these Acts were amendatory of that system of laws enacted “ to establish and maintain a uniform system of public schools.” By Chapter 171, Acts 1881, the general assessment Act, passed one day later than the last named Act, the Trustee was allowed a larger per cent, “as compensation for his services in receiving and paying over to the rightful authorities all moneys received by him.” School-moneys are not, in terms, included in this Act. This Act repeals all laws in conflict with its provisions. Held: Acts 1881, Chapter 171, does not repeal by implication the Acts 1879, Chapter 129, and Acts 1881, Chapter 106, and that the Trustee is entitled, under this legislation, to only one and one-half per cent.* commissions on school-moneys. Acts construed: Acts 1879, Ch. 129; Acts 1881, Chs. 106, 171.