Volume 91 — Tennessee Reports

<p>ER0M HAMILTON.</p> <p>• Appeal in error from Circuit Court of Hamilton County. John A. Moon, J.</p>

<p>1. Corporations. Not insolvent, when.</p> <p>A corporation is not insolvent in such sense that its assets become a fixed trust fund in the hands of its officers for pro rata distribution among its creditors, so long as it continues to be a going concern, conducting its business in the ordinary way, although its debts may greatly exceed its assets.</p> <p>Cases cited and approved: Moseby v. Williamson, 5 Heis., 278; Comfort v. McTeer, 7 Lea, 660.</p> <p>2. Attachment. Of assets of insolvent corporation.</p> <p>And attachment for sufficient cause of the assets of such indebted corporation by some of its creditors secures them priority over other creditors, although the corporation subsequently commits a decisive act of insolvency, as, e. g., by general assignment and cessation of business.</p>

<p>PHYSICIANS. Practicing without license not entitled to recover compensation for services rendered._</p> <p>Physician cannot recover compensation for professional services rendered since Act 1889, Ch. 178, went into effect — viz., on June 3, 1889 — unless he had, prior to rendering such services, qualified himself to practice, medicine in this State by obtaining the certificate of authority required by that Act, and having it duly recorded as therein prescribed.</p> <p>Act construed: Acts 1889, Ch. 178.</p>

<p>r. Municipal Bonds. Void in hands of bona fide holder for value, when.</p> <p>If the charter of a municipal corporation is absolutely void, its bonds, though regular and proper in every other respect, are void, even in the hands of a bona fide holder for value. There is in such case no corporate existence, and therefore no corporate power, and of such defect the purchaser of municipal bonds must, at his peril, take notice.</p> <p>Case cited and approved: 118 U. S., 425. '</p> <p>2. Municipal Corporations. Charier of void, when.</p> <p>A municipal corporation, acting under charier purporting to have been issued pursuant to Acts 1875, Ch. 92,' entitled “An Act to regulate and organize municipal corporations,” etc., and Acts 1877, Ch. 121, amendatory thereof, has not, in contemplation of law, any existence or powers unless there has been indorsed upon the application- for charter and registered with it, the certificate of the officer holding the election as to “corporation” or “no incorporation” showing “ the number of voters on the list, and that at least two-thirds thereof have voted in favor of the incorporation of the town.”</p> <p>Acts construed: Acts 1875, Ch. 92; Acts 1877, Ch. 121, Sec. 8.</p> <p>Case cited and approved: Hooper v. Rhea, MS., Knoxville, 1885.</p> <p>3. Same. Ilepeal of charter.</p> <p>Athens was incorporated in i860, by the County Court, pursuant to the general law contained in ¾ 1349 etseq. of Code of 1858. On February 25, 1870, an Act was passed granting Athens a special legislative charter. The corporation accepted this charter, organized and existed under it until 1879, when an Act was passed repealing the charter of 1870.</p> <p>Held: Athens rvas without corporate existence after the repealing Act of 1879. The County Court charter was abandoned by acceptance of legislative charter of 1870, and was not revived upon repeal of that charter.</p> <p>Code construed: ⅜ 1349 et seq. (T. & S.).</p> <p>Acts construed: Acts 1869-70, Ch. 69; Acts 1879, Ch. 255.</p> <p>Case cited and approved: Burk v. State, 5 Lea, 349.</p> <p>4. Constitutional Law. Validity of repealing statutes.</p> <p>By ⅜ 39-49, inclusive, of an Act passed February 25, 1870 (prior to Constitution of 1870), Athens was granted a legislative charter. This Act embraced several distinct subjects, and its title contained no reference to this part of its subject-matter. By an Act passed in 1879 this charter was repealed. The- repealing Act gave no intimation, either in its caption or body, of the nature of the legislation to be repealed, but recited in its caption the title of the Act of 1870, and in express terms repealed “Sections 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, and 49 of Chapter 69 of an Act passed February 25, 1870.”</p> <p>Held: This repealing Act of 1879 does sufficiently recite in its “caption or otherwise the title or substance of the law repealed.”</p> <p>Constitution construed: Art. XI., Sec. 17.</p> <p>Acts construed: Acts 1869-70, Ch. 69; Acts 1879, Ch. 255.</p> <p>5. Supreme Court. Its opinions, how construed.</p> <p>In determining what has been decided by an opinion of this Court, the statement of facts contained in the opinion must be taken as conclusive, and may not be changed or corrected by reference to the record or otherwise.</p>

<p>FROM SUMNER.</p> <p>.Appeal in error from Circuit Court of Sumner County. A. II. MüNEORD, J.</p>

<p>I. Interest. Not allotvable as part of verdict for personal injuries.</p> <p>In suit to recover damages for personal injuries not causing death, it is error for the Court to instruct the jury that they may in their discretion allow interest upon the amount of damages awarded, and include it in their verdict. Interest cannot be allowed at all in such case.</p> <p>Cases cited and approved: 79 Ga., 574; 81 Ga., 397; 104 Pa., 306.</p> <p>2. Remittitur. Of excessive verdict ettres error, when.</p> <p>But where, in such case, the jury’s verdict shows the amount of damages awarded and the amount of interest allowed thereon in separate items, this Court will n'ot reverse the case, there being no other error, if the plaintiff will enter remittitur of the interest.</p>

<p>PROM SUMNER.</p> <p>Appeal from Chancery Court of Sumner County. W. C. Dismukes, Sp. Ch.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal in error from Circuit Court of Montgomery County. A. II. Muneord, J.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal in error from Circuit Court of Montgomery County. A. H. MüNeord, J.</p>

<p>PROM MONTGOMERY.</p> <p>Appeal from Chancery Court of Montgomery County. Jordan Stores, Sp. Cb.</p>

<p>i. Assignment. Assignor’s liability apon conditional guaranty or 'warranty.</p> <p>The assignor’s liability under contract of assignment of a noil-negotiable chose, in action will be enforced by the Courts with such conditions and limitations as the parties themselves have agreed upon; and if that liability is made dependent by the contract, express or implied, of the parties,’ upon the exercise of due diligence on the part of' the assignee in enforcing collection of the chose in action, there can be no recovery by the assignee against the assignor for any loss sustained unless such diligence is shown, or sufficient excuse for the neglect.</p> <p>Cases cited and approved: Tully v. Hodge, 3 Hum., 74; Cates v. ICittrell, 7 Iieis., 609; Williams v. Miller, 2 Lea, 409; Jones v. Greenlaw, 6 Cold., 342.</p> <p>2. Same. Same. Case in judgment.</p> <p>McD., an attorney, having a declared lien upon his client’s land for a $1,000 fee, agreed, after the client’s death, with his executor and infant heirs to accept, in full satisfaction of his fee, a portion of the land and release his lien upon the remainder. It was further stipulated that proper legal steps should be taken to carry out this contract and perfect McD.’s title to this portion of the land. There was pending at date of this agreement a suit involving the title of McD.’s client or his heirs to an undivided seven-eighths of the entire tract. Complainant became owner of McD.’s interest under this contract by an assignment which transferred “all his.right, title, claim, and interest in and to said land and fee,” with the further stipulation that in the event the assignee failed to get the land, and should also lose all or any part of the $1,000 fee assigned, then McD. should make up the loss to the extent of $700 only. McD.’s client and his heirs lost an undivided seven-eighths of the entire land by said suit, and surrendered possession thereof. No steps were ever taken to perfect McD.’s title to the portion taken in satisfaction of his fee. Complainant, without taking any steps whatever to collect said fee, or to enforce the lien upon said land, brought suit against McD. to recover the $700 under his said warranty. It is not shown that the client’s estate is insolvent, or that the remaining one-eighth of the land is insufficient to satisfy this fee.</p> <p>Held: The suit cannot be maintained. McD.’s'guaranty was not absp-lute, but conditional upon the assignee’s first talcing all proper steps and exercising due diligence to collect the fee and save himself from loss. This fact is not proved.</p> <p>3. Conditional Release. Effect of non-compliance with condition.</p> <p>McD. having released his lien upon the remainder of the land, upon consideration and condition that he should be invested with perfect title to a specified portion of the tract, the effect of a failure of this condition was to restore his lien upon his client’s interest in the entire tract.</p> <p>4. Statute of Limitations. Administrator's statute does not bar enforcement of liens.</p> <p>Although recovery of a debt against an estate is barred by the administrator’s statute, the enforcement of a lien upon lands by which the debt is secured is not thereby barred.</p> <p>Case cited and approved: Martin v. Neblett, 86 Tenn., 383.</p>

<p>i. Negligence. Erroneous charge.</p> <p>In suit against railroad company for the death of an employe, a track-man, killed in the act, averred to have been done under the order of a superior, of alighting from a slowly-moving train, it is error for the Court to refuse, upon defendant’s request, to give to the jury the following instruction, there being material evidence of the state of facts therein assumed, viz. : “If you shall find from the proof that the supervisor said to the hands, ‘If the train is going slow enough, get elf where Hussey is at work; if not, go on over to Faxon and come back on the gravel-train,’ and the hands so spoken to were accustomed to getting off and on moving trains, and a discretion was left the hands whether they would jump off or not, then the plaintiff cannot recover on account of the supervisor’s order or direction.”</p> <p>2. Same. Same.</p> <p>And the error of this improper refusal to give this correct instruction as requested, is not cured by the following proposition, itself erroneous, in the general charge, viz.: “If the instructions [of the supervisor] left it to the discretion of the deceased and other hands whether they should get off or not, and the deceased negligently exercised this discretion in attempting to get off at time he did, or in act of getting off, and the negligence of the deceased was the direct cause of his injury, then he cannot recover, and you should so find.”</p> <p>3. Declaration. In administrator'.t suit for wrongful killing of his intestate, must aver there is widow, children, or next of kin.</p> <p>In administrator’s suit to recover damages of the party who has unlawfully caused the death of his intestate, there must be an averment in the declaration that the deceased left a widow, or children, or next of kin, for whose benefit the suit is prosecuted.</p> <p>Code construed: §23130-3132 (M. & V.); §§2291, 2292 (T. & S.)</p> <p>Cases cited and approved: Webb v. Railway Co., 88 Tenn., 119; Greenlees'. Railroad, 5 Lea, 418; Trafford v. Adams Express Co., 8 Lea, ibo; Railroad v. Lilly, 9oTenn., 563; Evans v. Thompson, 12 Heis., 536.</p> <p>4. Amendment. Of declaration after judgment.</p> <p>And the omission of this material averment cannot be cured by amendment after judgment, under the statute providing that defects “in matters of form may be rectified and amended” after judgment.</p> <p>Code construed: $3583 (M. & V.); $2872 (T. &S.).</p> <p>Case cited and approved: Cannon v. Phillips, 2 Sneed, 186.</p>

<p>PROM MAURY.</p> <p>Appeal in error from Chancery Court of Maury County. A. J. AberNAThy, Ch.</p>

<p>FROM MAURY.</p> <p>Appeal from Chancery Court of Maury County. A. J. Abernathy, Ch.</p>

<p>i. Written Instruments. Construction of, when by Court and when left to jury.</p> <p>It is a general rule that the Court must construe written instruments offered in evidence and declare their meaning to the jury. “But when the writing is not plain and unambiguous, and is such as requires the aid of parol evidence, either to identify the subject-matter or in order to ascertain the situation and surrounding circumstances, or the nature and quality of the subject-matter, and the parol evidence is conflicting, or such as admits of more than one conclusion, it is not error to submit the interpretation of the doubtful parts of the instrument, under proper instructions, to the jury.” This case falls within the exception to the general rule.</p> <p>Cases cited and approved: Mills v. Farris, 12 Heis., 462; Mumford v. Railroad, 2 Lea, 393.</p> <p>2. Sales of Personalty. When title passes to buyer.</p> <p>It is a general rule that “ when by the agreement the vendor is to do any thing to the goods for the purpose of putting them in that slate m which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property.” This case affords sufficient “circumstances indicating a contrary intention” to support the jury’s finding under a proper charge that title passed to the buyer before final delivery of the goods.</p> <p>3. Same. Risk of injury to property.</p> <p>The general rule is that personal property, the subject-matter of sale, remains at the risk of the seller until the sale has been completed by delivery. But this is a mere presumption that may be rebutted by stipulation, or by “circumstances indicating a'contrary intention,” There are, in this case, circumstances that justify the jury’s finding, under a proper charge, that the goods should be at the buyer’s risk before final delivery.</p>

<p>I. COUNTY Court. Is Court of general jurisdiction as regards administration.</p> <p>Doctrine re-affirmed that the County Court is a Court of general jurisdiction as regards administration upon the estates of decedents; and that its proceedings had in administration cases are entitled to.the protection of those rules and presumptions that obtain in favor of the judgments of Courts of general jurisdiction. (Post, p. 128.)</p> <p>Case cited and approved: Railway Co. v. Mahoney, 89 Tenn., 311.</p> <p>2. Administrator. Appointment of voidable, not void, when.</p> <p>Appointment of administrator by County Court, upon the estate of a decedent as an intestate, is not void on collateral attack, but only voidable upon direct attack, where the decedent was not in fact an intestate, and his will was subsequently discovered and probated. (Post, pp. 126-132.)</p> <p>Cases cited and approved: Pinkerton v. Walker, 3 Hay., 220; Baldwin v. Buford, 4 Yer., 20; Fay v. Reager, 2 Sneed, 200; Killebrew v. Murphy, 3 Heis., 551; Johnsons;. Gaines, 1 Cold., 288; Railway Co. V. Mahoney, 89 Tenn., 311; 8 Cranch, 9; 14 Peters, 33.</p> <p>Cited and distinguished: Wilson v. Frazier, 2 Hum., 30; D’Arusment v. Jones, 4 Lea, 251.</p> <p>3. Statute of Limitations. Runs against decedents’ estates, token.</p> <p>And statutes of limitations run against such administrator upon all causes of action that had accrued to the decedent; and where such administrator is barred, the executor, subsequently appointed upon discovery and probate of the will, is also precluded by that bar. (Post, pp. 123-132.)</p> <p>4. Same. Ten years bars suit for legacy.</p> <p>Suit brought against an executor Tor recovery of a legacy more than ten years after final settlement of his accounts in the County Court is barred by the statute of limitations of ten years. {Post, p. 132.)</p> <p>Code: §3473 (M. & V.); §2776 (T. & S.).</p> <p>5. Same. Same. When settlement is final.</p> <p>I11 1877 the executor made full and final settlement of his accounts in the County Court, showing amounts due the legatees or distributees. In 1885 he collected a claim from the Federal Government due the estate, which had not been taken into account in the former settlement. In regard to this latter sum he had made no settlement when he was sued as executor by the legatees in 1891.</p> <p>Held: The settlement of 1877 was final in such sense that the statute of ten years began to run against legatees from its date, as to matters therein embraced, but not as to amount received by the executor in * 1885. [Post, pp. 122 — 123, 132.)</p> <p>Quiere: Did suit, quia timet, brought by claimants under will to impound and preserve the estate pending contest over probate of will, operate to arrest the running of statutes of limitations against them ?</p> <p>Case cited: Brown v. Brown, 14 Lea, 259.</p> <p>6.Same. Six years bars suit for legacy, when.</p> <p>If an executor, after final settlement, appropriates the fund left in his hands to his own use, by some unequivocal act, upon the claim, made in good faith and under color, that he is the lawful legatee or distrib-utee, then suit against him by the rightful legatee or distributee will be barred unless it is brought within six years after such appropriation' of the fund by the executor. The statutes of three and ten years do not apply in such case. But this rule does not obtain in favor of an executor who has not made settlement or unequivocally appropriated the fund as distributee, [Post, pp. 122-123.)</p> <p>7.Will. Example of class doctrine.</p> <p>Testator bequeathed to his brother, whom he nominated as his executor, his entire estate, including a legacy due testator from his uncle’s estate. Testator then added: “He [the brother] is to have the interest arising from a proper investment of the money from my uncle’s estate to do with as he pleases, but the principal is to go to his children in case he has any. In case he dies without heirs I want my sister * * to have it on same conditions.”</p> <p>Held: The brother takes a life-time interest in the fund, and that upon his death his surviving children take the corpus as a class. (Post, fip. 123-133, 134.)</p> <p>Cases cited and approved: Frierson v. Van Burén, 7 Yer., 606; Satter-field v. Mayes, II Hum., 58; Womack v. Smith, II Hum., 478; Bridgewater v. Gordon, 2 Sneed, 9.</p>

<p>1. Charge or Court. Requirement of written charge upon request in civil case mandatory.</p> <p>The statutory requirement is mandatory that the trial Judge shall, upon the request of either party to a civil case, “ reduce every word in his charge to writing before it is delivered to the jury,” etc.; and the Court’s failure to comply strictly with such request constitutes reversible error, although it does not appear that exception was taken on that account in the lower Court, or that any injury thereby resulted.</p> <p>Code construed: #3672 (M. & V.).</p> <p>2. S VME. Same. Example of violation of statute.</p> <p>And it constitutes a violation of this statutory requirement, for which the case will be reversed, where the Court, before reading his charge to the jury, said to them orally: “Gentlemen of the jury: You are to try this case upon the sworn testimony of the witnesses who have been introduced; if you know any thing about the matter in controversy between the parties, or any thing in relation to any matters about which any witness has testified, you will not communicate any such matter to any of your fellow-jurors; nor will you allow any thing which you may know about the matter of your own knowledge to influence your verdict in the case. You must try the case alone upon the sworn testimony of the witnesses and other proof introduced before you, and the charge of the Court which I will give you in writing; and you are not to suffer any one to talk to you about the cause.” Such language is appropriate for the charge, and must be written.</p>

<p>1. Bill of Exceptions. Essential in Chancery cause tried by jury.</p> <p>If a cause has been determined in Chancery Court by jury trial, the charge of the Court, and the evidence and affidavits introduced in the lower Court, cannot be considered upon appeal to this Court, though copied into the transcript by the Clerk, unless they have been made part of the record by proper bill of exceptions.</p> <p>Code construed: ^3872, 3873 (M. & V.); §⅞3155? 3156 (T. &S.).</p> <p>Cases cited and approved: James v. Brooks, 6 Heis., i$o; Bank v. Oldham, 6 Lea, 729; Railroad v. Foster, 88 Tenn., 671.</p> <p>2. Same. Papers that are not hart of .</p> <p>Papers copied into transcript that do not purport to be part of bill of exceptions constitute no part of the record.</p> <p>3. Same. Want of Judge's signattire fatal.</p> <p>Unless bill of exceptions has been duly authenticated by the trial Judge’s signature, it cannot be treated as part of the record, although there be a recital in the record that the bill of exceptions had been signed by the Judge and made part of the record.</p> <p>Cases cited and approved: Garrett v. Rogers, 1 I-Ieis., 320; Wynne v. Edwards, 7 I-Ium., 419.</p>

<p>I. Gift. Of slave dp deed valid without delivery.</p> <p>The gift of a slave or other chattel made by deed duly executed and delivered is valid and effectual between the parties without delivery of the thing given — e. g., a father’s deed of gift of a slave to his infant daughter passes title to the daughter without actual delivery of the slave, the daughter and slave being members of the donor’s household and remaining in his family until the latter was emanci" pated.</p> <p>Cases cited and approved: Caines v. Marjey, 2 Yer., 582; McEwen v. Troost, 1 Sneed, 186.</p> <p>2. Deed. Proof of delivery.</p> <p>Proof of delivery of deed is prima facie sufficient, where it is shown that the grantor procured registration of the deed and left it in the register’s office during the remainder of his life — the instrument being a deed of gift from a father to his daughter, an infant of tender years residing in his family.</p> <p>Cases cited and approved: Martin v. Ramsey, 5 Hum., 350; Corley v. Corley, 2 Cold., 524; Thompson v. Jones, 1 Head, 576; Tompkins v. Bamberger, 3 Lea, 576.</p> <p>Cited and distinguished: Mason v. Holman, 10 Lea, 315.</p> <p>3. Same. Same.</p> <p>And from the unexplained fact of registration it will be presumed that it was done by the grantor’s procurement and authority.</p> <p>4. Infant. Acceptance of deed.</p> <p>Infant’s acceptance of deed will be presumed, if, viewing the transaction as of the date of the deed, it clearly appears to have then been for his benefit that it should be accepted.</p> <p>J. Same. Same.</p> <p>After the infant’s acceptance of a deed has once attached in contemplation of law, the subsequent loss of the property conveyed cannot annul that acceptance.</p>

<p>i. Contract of Hiring. Of infants services by joint contract of parent and child. Emancipation.</p> <p>A father and his infant daughter joined in contract, hiring the latter’s services to a third person for a stipulated compensation to be paid to the daughter, “subject to all the' conditions of this contract.” The contract of hiring contained a condition that the employe should give two weeks’ notice of her intention to quit, and that for her failure to give such notice, or to continue work .during the two weeks, she should forfeit a stipulated amount as liquidated damages, to be deducted out of her wages then due. The daughter quit service without excuse and in violation of this condition, and sued to recover for value of her services independently of this contract. The employer interposed this contract as defense to the extent of the stipulated damages.</p> <p>Held — That the daughter’s emancipation was only partial and conditional, and that the stipulation for liquidated damages, if otherwise fair and reasonable, was valid and binding as the father’s contract under his reserved right in the contract to his daughter’s wages.</p> <p>Cases cited: Clouds. Hamilton, n Hum., 105; 35 Am. Rep., 117.</p> <p>2. Same. Example of valid stipulation for liquidated damages.</p> <p>The stipulation in a contract of hiring that the employe quitting service without excuse and without giving a specified, reasonable notice of his intention to quit shall forfeit to his employer a specified amount, reasonable in itself and duly proportioned to the wages received by the particular employe, will not be held void as a contract for a penalty, but treated as a valid and reasonable stipulation for liquidated damages where the employe had service in a large manufacturing establishment that employed many hands, who were divided into several classes dependent upon each other, and where, in the particular case, no data existed from which the actual damages inflicted could be ascertained.</p> <p>Case cited and distinguished: Schrimpf v. Tennessee Manufacturing Co., 86 Tenn., 219.</p>

<p>1. Fraudulent Conveyance. Farming contract between father and son held valid,</p> <p>A father, being very old and infirm, and having a large dependent family, but no property except a small farm and some live-stock, made a verbal contract with his son, a young man living in his family, that the latter should cultivate the farm for a year and out of the crop support the entire family and feed the live-stock and take the residue for his compensation. The father and a younger son gave' some assistance in the cultivation of the crop, which yielded about one hundred barrels of corn, worth $200. There was no intentional fraud. ,The father’s creditors sought to subject the corn crop to payment of their debts.</p> <p>Held — The corn crop belonged to the son, charged with the support of the father’s family, and that the father’s creditors could not assert any claim to it.</p> <p>Case cited and approved: Leslie v. Joyner, 2 Head, 515.</p> <p>2. Supreme Court. Renders final judgment upon reversal of law cause, •when.</p> <p>Upon reversal of a law cause tried by the Circuit Judge without intervention of a jury, on the sole ground that there is no evidence to support the Judge’s finding upon the facts, this Court will render final judgment in favor of the plaintiff in error.</p> <p>Cases cited and approved: Smith v. Hubbard; 85 Tenn., 306; Singleton v. Wilson, 85 Tenn., 347; Settle v. Marlow, 12 Lea, 474.</p>

<p>FROM WAYNE.</p> <p>Appeal in error from Circuit Court of "Wayne County. E. D. Pattekson, J.</p>

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

<p>FROM MARSHALL.</p> <p>Appeal in. error froni Circuit Cpurt of Marshall County. Robert Cantrell, J.</p>

<p>Real Estate Brokers. Entitled to commissions, when.</p> <p>F., the owner of certain city lots, placed them in the hands of W., a real estate agent, to be sold on commission. W.’s right to make sale was not exclusive. F. sold the lots himself on the day he placed them in W.’s hands, but gave no notice of this fact to the agent. W., by reason of F.’s urgent needs, was induced to put forth “a vigorous and special effort” to effect a speedy sale, and accordingly found a satisfactory purchaser upon F.’s terms within three or four days after undertaking the sale, and without notice that F. had effected a prior sale.</p> <p>Held: W. is entitled to the full commissions agreed upon for effecting a sale.</p> <p>Cases cited: Cheatham v. Yarbrough, 90 Tenn., 77; Eller v. Richardson, 89 Tenn., 576.</p>

<p>Mechanics’ Lien. Furnisher of materials to subcontractor not entitled to.</p> <p>The furnisher of building materials to a subcontractor has not, under our statutes, a mechanics’ or furnisher’s lien upon the property constructed, built, or repaired therewith.</p> <p>Code construed: §§2739, 2746 (M. & V.); $§1981, 1986 (T. &S.).</p> <p>Cases cited : Stevens v. Wells, 4 Sneed, 389; Greenwood v. Tennessee Manufacturing Company, 2 Swan, 130; Iron Company v. Bynum, 3 Sneed, 269; 17 Wend., 550; 23 Id.,r 395; 29 Ohio St., 227; 27 Penn., 511.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County. ANDRew Allisoh, Cb.</p>

<p>1. Life Insurance. Constitution and by-laws of muüial benefit associations constitute part of contract.</p> <p>The constitution and by-laws of a mutual benefit association are, by implication, imported into and become part of the contract of insurance made by it upon the life of a member.</p> <p>Case cited and approved: Tennessee Lodge v. Ladd, 5 Lea, 720.</p> <p>2. Same. Construction of mutual benefit certificates.</p> <p>In 1882 H., being a member of a mutual benefit association, procured the issuance of a benefit certificate upon his life for $2,000. This certificate was made payable to his brother. In 1887 H. voluntarily, but without his brother’s consent, surrendered this certificate and obtained another for a like sum payable to himself. This latter certificate he bequeathed to K. At date of issuance of the first certificate the “laws of the order” prescribed that a certificate could be surrendered and changed only “with the consent of the beneficiary indorsed.” Another provision of these laws was that any law of the order might “be amended at any regular meeting of the supreme council.” After issuance of the first certificate to H., and before the issuance of the second, the laws were amended so as to authorize change and substitution of certificates without consent of the beneficiary.</p> <p>Held-. That K., the legatee under II.’s will, was entitled to the $2,000 fund. The brother’s interest was defeasible, and was defeated by substitution of the new certificate after the change in the laws of the o rder.</p> <p>Cases cited and approved: 8 S. W. R., 38; 28 Minn., 449; 63 N. H., '535; 3 S. W. R„ 427-</p> <p>3.Same. Bequest of benefit certificate valid.</p> <p>And the assured may dispose, by will, of such benefit certificate where it is, upon its face, made payable to himself.</p> <p>Cases cited and approved: Rison v. Wilkerson, 3 Sneed, 565; Tennessee Lodge v. Ladd, 5 Lea, 721; Williams v. Carson, 2 Tenn. Ch., 269; Weil v. Trafford, 3 Tenn. Ch., 108.</p> <p>4. Same. Same.</p> <p>And no question can be made in such case as to the legatee’s insurable interest in the deceased.</p>

<p>I. Corporation Bonds. Innocent purchase from tinstee.</p> <p>The purchase of negotiable corporation bonds from the ostensible owner, though he be in fact only a trustee and his sale in breach of trust, confers pefect title upon the buyer even against the cestui que trust, if the purchase was in good faith, for full value, and without knowledge or notice, actual or constructive, of the existence of the trust. (Post, pp. 224-238.')</p> <p>2. Same. Same. Imiocent agents protected.</p> <p>And persons innocently aiding in such purchase incur no liability to the cestui que trust. (Post, pp. 224-228.)</p> <p>3. CORPORATIONS. Re-issue of stock certificates to assignee. Negligence.</p> <p>Stock certificate assigned to “heirs and distributees” of original stockholder by his “administrator” was presented by a distributee, to whom a new certificate was issued individually and for his own benefit. The corporation was ignorant that the original stockholder had died testate, limiting by his will the interest of this distributee, who was also a legatee, to a life estate in personalty, and creating a trust • in remainder.</p> <p>Held: Corporation not guilty of negligence in making this re-is'sue. It was not put upon inquiry as to will and its trusts. (Post, pp. 22c), 230.)</p> <p>Cases cited and distinguished: Covington v. Anderson, 16 Lea, 310; Caulkins v. Gas Company, 85 Tenn., 683.</p> <p>4. Same. Same. Same.</p> <p>Bequest of “one-fifth in value” of testator’s personal estate to a legatee for his own life, and to be preserved in remainder and held m trust for another. The administrator cum testamento annexe delivered stock certificates to this legatee in payment of this legacy, assigning them absolutely to the “heirs and distributees” of the testator, and the corporation, without notice of the will, issued new certificate in like terms to this assignee and legatee.</p> <p>Held: The administrator cum testamento annexo was not guilty of breach of trust in making absolute assignment of the stock certificates in payment of such legacy, and, a fortiori, the corporation was not guilty, of negligence in issuing new certificates according to terms of assignment. (Post, pp. 224, 229, 230.)</p> <p>5. Same. Same. Same.</p> <p>But, assuming negligence of the corporation in such case, by reason of its failure to ear-mark the new stock certificates with the trusts imposed by the will, still that negligence is not proximate cause of loss where the stock certificates did, nevertheless, go into the hands of the proper trustee and were subsequently lost by reason of his independent acts of negligence. (Post, p. 231.)</p> <p>6. Same. Same. Same.</p> <p>Upon transfer of the original stock certificate by the person to whom it was issued, and in whose name it stood upon the company’s books, the corporation issued a new certificate to the assignee. The original stockholder held the certificate as a trustee, and made the assignment in breach of his trust, and misapplied the proceeds real;zed from the sale of this stock. The corporation had no knowledge of the trust.</p> <p>Held: Corporation not liable to cestui que trust for their loss. It was guilty of no negligence. (Post, pp. 232-234.)</p> <p>Cases cited: 97 U. S., 369; 127 U. S., 614; 96 U. S., 193; 7 N. Y., 274; 125 Mass., 138; 42 Md., 384; 44 Md., 551.</p> <p>7. Same. Same. Same.</p> <p>Although the corporation had full knowledge of the breach of trust on the part of the original stockholder in making the transfer of the certificate, still the corporation cannot incur any liability to the cestui que trust for issuing the new certificate, if the assignee was entitled to be protected as an innocent holder of the original certificate. He could compel the corporation to recognize him as a stockholder in such case. (Post, pp. 235-239.}</p> <p>8. Same. Assignment of stock confers title'without registration upon company’s books.</p> <p>And assignee’s title to shares of stock is complete, and, being otlieiwise an innocent purchaser, he is entitled to protection, and to enforce his rights as such without and before registration of his transfer upon the books of the company. (Post, p. 238.)</p> <p>Cases cited and approved: Cherry v. Frost, 7 Lea, I ; Caulkins v. Gas Company, 85 Tenn., 684; Hadley v. Kendrick, 10 Lea, 525; Bank v. Farrington, 13 Lea, 333; Bank v. Planing Mill Co., 86 Tenn., 252; 11 Wall., 377.</p> <p>Cited as disapproved: Cornicle v. Richards, 3 Lea, I.</p> <p>9. Same. Assignment of stock by infant voidable but not void.</p> <p>Infant’s assignment of shares of stock is only voidable and not void. Therefore, the corporation is not only protected in acting upon such assignment until it is avoided by the infant, but may be compelled to recognize it. (Post, pp. 2jg, 240.)</p> <p>Cases cited and approved: Wheaton v. East, 5 Yer., 61; McGan v. Marshall, 7 Hum., 125; Barker v. Wilson, 4 Heis., 269.</p>

<p>1. Written Instruments. Knowledge of contents by maker. Prestemption. Estoppel.</p> <p>The presumption obtains that the maker of a written instrument, who had capacity and opportunity to examine and understand it before signing, was acquainted with its contents. This presumption becomes conclusive, and estops the maker to show the contrary, where he stated at time of signing that he had read the instrument, and this admission was acted upon by others in matters affecting their rights. (Post, pp. 247, 248.)</p> <p>Cases cited and approved: Millerv. Denmon, 8 Yer., 237; Rice». Bank, 7 Hum., 41; Gardner v. Stanfield, 12 Heis., 150; Frazier v. Bassett, 1 Overton, 299.</p> <p>2. Witness. Corroboration of by his confirmatory statements not allowed, when.</p> <p>A witness, the maker of a written instrument, testified that he did not read the paper, and was not acquainted with its contents before sign ing it. He admitted that he stated to the other party and the subscribing witnesses at date of signing that he had read the paper, and this admission was proved by other witnesses. In corroboration of witness’ testimony that he had not read the instrument before signing, his confirmatory statements, made recently after the signing, but not part of the res gestee, were offered in evidence.</p> <p>Held: These confirmatory statements are incompetent. (Post, pp. 248— 25-r-)</p> <p>Cases cited and distinguished: Hayes v. Cheatham, 6 Lea, 10; Glass v. Bennett, 89 Tenn., 479.</p> <p>3. Antenuptial Marriage-contract. Marriage alone sufficient consideration for.</p> <p>An antenuptial marriage-contract, obtained and entered into fairly and understandingly, whereby the wife, upon consideration of the marriage alone, agrees to relinquish all claim to the husband’s property, constitutes an absolute and effectual bar to her suit seeking to assert her rights as widow in her husband’s estate. Marriage alone is a sufficient consideration for such relinquishment. In such case it is immaterial that the husband had a large estate, and that no disclosure of this fact was made to the wife, and that no adequate provision was made for her. (Post, -pp. 254-258.)</p> <p>Cases cited and approved: 25 Md., 538; 86 ICy., 114; 116 Ind., 545; 53 Vt., 54; 33 Kan., 460; 69 Me., 247; 95 N. C., 476.</p> <p>4. Same. Construction of.</p> <p>But such contract is based upon a pecuniary consideration, and not upon that of marriage alone, where, having been made after the parties became engaged, the husband, “ in consideration of the consummation of said marriage,” conveyed certain property to the wife, and the wife, “in consideration of the said conveyance,” relinquished all interest in the husband’s estate. And, in such case, the relations of the parties are confidential, and the wife will be relieved of her contract if she has acted in ignorance of her pecuniary rights superin-duced by the husband, although there may have been no intentional fraud. {Post, p>f. 258, 2J>g.)</p> <p>5. SAME. Case in judgment.</p> <p>S. and M., having engaged to marry each other, entered into an ante-nuptial marriage-contract, whereby S. gave M. a life-estate in a house and lot worth about $6,000, and M., in consideration thereof, relinquished all interest in S.’s estate. M. was forty years and S. sixty-three years of age. This contract was prepared by S.’s attorney, who undertook to explain it to M., who had no other adviser. S. had then and at his death an estate of about $100,000. M. had about $3,700 personal estate, which passed to S. by virtue of the marriage. No issue was expected and none came of this marriage. There was no actual fraud on the part of S. or his attorney, but M. was not informed that her $3,700 became the property of S. by virtue of the marriage, and was induced to believe by S.’s despondent views of liis affairs that he had but a small estate.</p> <p>Held: M. is not bound by this contract. It is without adequate con. sideration, and entered into under mistake of both law and fact. {Post, fj>. 24.3-246, 258-260.)</p> <p>Cases cited and approved: Drew v.,Clark, Cooke, 374; Warren w. Williamson, 8 Bax., 431; Trigg v. Read, 5 Hum., 533; Dalton v. Wolfe, 11 Heis., 502; Sparks v. White, 7 Hum., 87; 9 Hum., 82; 98 U. S., 91. .</p> <p>6. Same. Same.</p> <p>And this contract is not cured of its infirmity by the fact that S. subsequently gave M. his note for the $3,700 he obtained of her by the marriage. (Post, p. 263.)</p>

<p>FROM GILES.</p> <p>Appeal in error from the Circuit Court of Gilps County.. E. H. PattersoN, J.</p>

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

<p>FROM WHITE.</p> <p>Appeal in erlor from Circuit Court of "White County. W. M. Hammock, J.</p>

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

<p>i. Assignment, General. Hoto assignee takes.</p> <p>Under a general assignment for the benefit of creditors, the assignee takes the choses in action of his assignor, not as purchaser for value, but as a volunteer, and therefore subject to all the defenses and equities existing against them in the hands of the assignor. The assignee is the mere representative of the assignor and his estate, and stands in his shoes. (Post, pp. 343, 346.)</p> <p>Cases cited and approved: 23 N. J. Law, 283; 2 Vern., 428; 9 Yes., 100; 1 Atk., 162; 10 Johns., 540; 2 Johns. Ch., 443.</p> <p>2. Equitable Set-off. Insolvency a sufficient ground for. Example.</p> <p>Insolvency alone of debtor affords sufficient ground for the application of the doctrine of equitable set-off.</p> <p>Example: An'insolvent mercantile corporation made a general assignment of its assets for the benefit of its creditors. Among these assets was a bank deposit of $5,222.66. The assignor owed this bank $28,000, for which it had given its notes. These notes were not due at the date of the assignment. After the assignment had been perfected, the bank, with knowledge of its existence, applied the deposit in its hands on the assignor’s notes, claiming payment in full to that extent, and pro rata on remainder of its debt.</p> <p>Held: A proper case for equitable set-off. The application of the deposit by the bank to its notes on the assignor is approved. The fact that the notes were not due is deemed immaterial. (Post, pp. 347-334.)</p> <p>Cases cited and approved: Brazelton v. Brooks, 2 Head, 193; Hough». Chaffin, 4 Sneed, 238; Gregory v. Hasbrook, I Tenn. Ch., 220; Edminson v. Baxter, 4 Hay., 112; Richardson ». Parker, 2 Swan, 529; Moseby ¶. Williamson, 5 Heis., 287; Comfort v. Patterson, 2 Lea, 670; Machine Co. v. Zackary, 2 Tenn. Ch., 478; Catron v. Cross, 3 Heis., 584; Smith». Mosby, 9 Heis., 501; Fields». Carney, 4 Bax., 137; 26 Barb., 310; 15 N. Y. Supp., 892; 120 U. S., 506. 129 U. S., 252.</p> <p>3. Same. Sa?ne. What assets must be ratably distributed.</p> <p>And the allowance of the equitable set-off in such case is not in conflict with the principle of equal and ratable distribution of the assignor’s assets. The balance due constitutes the assets for distribution. {Post, PP- 354-357i)</p> <p>Cases cited and approved: Richardson v. Parker, 2 Swan, 529; Moseby v. Williamson, 5 Heis., 287; Comfort v. Patterson, 2 Lea, 670; 4 N. B. R., 689; Smith v. Mosby, 9 Heis., 501; McKenzie v. Schoffner, 8 Bax., 408; 6 Id., 717 Id., 332; 2 Vern., 428; 23 N. J. Law, 283; I Paige, 444, 112; 17 Wall., 6x0.</p> <p>4. Set-off. Right of exists, when.</p> <p>Although the creditor’s claim against the assignor is not due at the date of the making of a general assignment, still the legal right of set-off can be enforced, even where assignor’s assets are insufficient to pay all his debts, if, after such claim has fallen due, the assignee sues such creditor for a debt due the assignor’s estate. (Post, pp. 33?, 338.)</p> <p>Code construed: g 3628 (M. & V.); § 2918 (T. & S.).</p> <p>Case cited and approved: Keith v. Smith, 1 Swan, 92.</p>

FROM FRANKLIN. Appeal in error from Circuit Court of Eranklin County. M. D. Smallman, J. Action of unlawful detainer by J. B. Hawkins against Alexander and Brazelton. Erom judgment before the Justice of the Peace in favor of the plaintiff, the defendants appealed, and remained in possession. In the Circuit Court the defendants were required to give bond to cover rents that should accrue pending the appeal.

<p>1. Forcible Entry and Detainer. Recovery of rents upon certiorari and supersedeas bond, where had.</p> <p>Upon removal of a forcible entry and detainer case, by an unsuccessful defendant, from the Justice’s Court to the Circuit Court by certiorari and supersedeas, he is required to give bond with sureties “of sufficient amount to cover, besides costs and damages, the value of the rents of the premises during the litigation.” And if upon the trial in the Circuit Court the plaintiff recovers the land, the statute provides that the jury shall “ascertain and find the value of the rents during the time the plaintiff has been kept out of possession, and the Court shall give judgment against the defendant and his sureties accordingly.”</p> <p>Held: The statute is mandatory, and that the remedy upon the bond for rents therein provided is exclusive. The sureties on the bond cannot be held for rents in a separate suit, but only in the forcible entry and detainer case.</p> <p>Code construed: ⅝ 4093, 4094 (M. & V.); ⅜ 3373a, 33^3 (T. & S.).</p> <p>Case cited and approved: Weigand v. Malatesta, 6 Cold., 366.</p> <p>Case cited and distinguished: White v. Bowman, 10 Lea, 55.</p> <p>2. Res Adjudicata.</p> <p>And therefore the judgment in the forcible entry and detainer case is res adjudicata as to the liability of the sureties on the bond for rents, and a complete bar to a subsequent suit upon that bond, although the matter of rents was not in fact considered on the trial of the forcible entry and detainer case, and the judgment in that case is silent as to rents.</p>

<p>1. Supreme Court. Will not set aside verdict, when.</p> <p>Doctrine re-affirmed and explained that Supreme Court will not set aside the verdict of a jury in a civil case upon consideration of the facts alone, if there is any evidence to sustain the verdict.</p> <p>Cases cited: Railroad v. Maloney, 89 Tenn., 332; England z\ Burt, 4 Hum., 399; Dodger. Brittain, Meigs, 84:- Tatez/. Gray, 4Sneed, 592.</p> <p>2. Same. Same. What is a civil case within this rule.</p> <p>And a suit brought by a municipal corporation before its Recorder to recover of an offender the penalty imposed by its ordinances for assault and battery, is a civil case within the meaning of said rule.</p> <p>3. Reasonable Doubt. Not applicable, when.</p> <p>And upon the trial of such action the plaintiff is not required to make out his case beyond reasonable doubt, but only by a preponderance of evidence.</p> <p>Cases cited and approved: Hill v. Goodyear, 4 Lea,' 233; McBee v. Bowman, 89 Tenn., 132.</p>

<p>1. SUPREME Court. Passes upon errors of ¿aw, but not upon facts, without motion for new trial.</p> <p>Supreme Court will, upon appeal of a law case, pass upon alleged errors of law, but not upon the sufficiency of the evidence to support the verdict, although no motion for new trial was entered in the lower Court, or was there waived by uniting it with motion in arrest of judgment.</p> <p>Cases cited and approved: Snapp v. Moore, 2 Overton, 236; Wells v. Mosely, 4 Cold., 405 ; Mumford v. Railroad, 2 Lea, 397; Morgan v. Bank, 13 Lea, 239.</p> <p>2. Fire Insurance. Averments in declaration in suit for loss.</p> <p>In suit for loss upon fire policy containing the provision that “if the building or any part thereof fall except as the result of fire, all insurance by this .policy on such building shall immediately cease,” it is not essential that plaintiff aver in his declaration the negative of said provision.</p> <p>3. Same. Constmction of exemption clauses in policy. General rules</p> <p>Doctrine re-affirmed and illustrated that ambiguous clauses in a fire policy will be construed most strongly- against the insurer and in favor of the indemnity of the insured.</p> <p>4. SAME. Constmction of exemption clause as to falling of building.</p> <p>Under the clause in a fire policy providing that the insurance shall immediately cease “if the building or any part thereof fall except as the result of fire,” the insurer is not exempt from liability, where part of the insured building is blown down just before the remainder is destroyed by fire, unless the part blown down constitutes such material and integral part of the whole, that without it the insured property has lost its original and distinctive character.</p> <p>5. Same. Same. Charge of Court.</p> <p>And in a case where parts of an insured building had fallen before the remainder was destroyed by fire, it is not error for the Court, after stating correctly the general proposition construing said clause, to illustrate his meaning by saying to the jury that the case made by certain phases of the evidence was not within the exempting clause. That is no invasion of the jury’s province.</p>

<p>Bankruptcy. Effect of discharge.</p> <p>During the interval between the bankrupt’s application and discharge, his creditor obtained judgment against him for a debt existing at date of his application, and provable, though never proved, in the bankruptcy proceedings. To the creditor’s suit upon this judgment, brought after his discharge, the bankrupt interposed his discharge as a bar.</p> <p>Held: The discharge is an effectual bar to the suit.</p> <p>Cases cited and approved: Dick v. Powell, 2 Swan, 632; Stratton w. Perry, 2 Tenn. Ch., 633; 121 U. S., 457.</p>

<p>PROM CHESTER.</p> <p>Appeal from Chancery Court of Chester County. A. G-. Hawkins, Ch.,</p>

<p>PROM M’NAIRY.</p> <p>Appeal in error from the Circuit Court of McNairy County. Levi S. Woods, J.</p>

<p>I. Homestead. Does not attach to a reversionary interest.</p> <p>Homestead does not attach to a reversionary interest in land. The claimant of homestead must have the right of present occupancy, though it is not essential, since Act 1879, that he have actual occupancy of the land to entitle him to homestead.</p> <p>Cases cited and approved: Jackson v. Shelton, 89 Tenn., 88, 89 ; Arnold v. Jones, 9 Lea, 548; Fauveric Fleenor, 13 Lea, 622; Flatty. Stadler, 16 Lea, 371; Roach v. Hacker, 2 Lea, 633; Henry v. Wilson, 9 Lea, 176; Rhea v. Rhea, 15 Lea, 527; Applet. Apple, 1 Head, 348.</p> <p>2. Same. Widow’s right dependent upon husband.</p> <p>Unless the husband had the right of homestead in lands at his death, his widow can have none.</p>

<p>FROM WEAKLEY.</p> <p>Appeal in error from Circuit Court of Weakley County. W. H. Swiggárt, J.</p>

<p>FROM MADISON.</p> <p>Appeal from Chancery Court of Madison County. A. G-. Hawkins, Ck.</p>

<p>FROM SIBSON.</p> <p>Appeal in error from County. John K. Bond, Circuit Court of Gibson J.</p>

<p>PROM CARROLL.</p> <p>Appeal from Chancery Court of Carroll County. A. Q-. Hawkins, Ch.</p>

<p>ER.0M WEAKLEY.</p> <p>Appeal in error from. Circuit Court of 'Weakley County. W. H. Swiggart, J.</p>

<p>EROM GIBSON.</p> <p>Appeal from the Chancery Court of G-ibson County. II. J. Livingston, Ch.</p>

<p>i. Criminal Law. Punishment for felonious assault.</p> <p>M. was convicted of an assault with intent to commit voluntary.manslaughter, and sentenced to one year’s imprisonment in the penitentiary. No fine was imposed. The statute provides that persons convicted of this class of offenses shall “be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not more than one year and by fine not exceeding five hundred dollars, at the discretion of the jury.”</p> <p>Held: The judgment is valid. If imprisonment in the penitentiary-is inflicted, no fine should be imposed; but in case of imprisonment in county jail, fine should be imposed in addition'.</p> <p>Code construed: ⅜5379 (M. & V.); §4630 (T. &S.).</p> <p>Cases cited and approved: McDougal v. State, 5 Bax., 661; Hayes v. State, 15 Lea, 65; Delacy v. State, 8 Bax., 401; Clark v. State, 86 Tenn., 512; Rafferty v. State, post, f. —.</p> <p>Cited and distinguished: Ragsdale v. State, 10 Lea, 671.</p> <p>2. Criminal Practice. Omission in Court's charge erroneous, Inti not re versihle, when.</p> <p>Upon trial of a defendant under an indictment for felonious assault, the Court charged the jury correctly that they might convict him of simple assault, and that if they did so, and thought the offense merited a fine of more than fifty dollars, ihey should assess it. The Court omitted to instruct the jury as to their duty if they should find the defendant guilty of simple assault and think his offense merited a fine of less than fifty dollars.</p> <p>Held: This omission constitutes error, but not reversible error, in a case where the defendant is convicted of the felonious assault and sentenced to the penitentiary.</p> <p>Code construed: ⅜ 6062, 6078 (M. & V.); ^5223, 5237 (T. & S.).</p> <p>Case cited and approved: Tarvers v. State, 90 Tenn., 499.</p> <p>3. Evidence. Res gestee. Declarations of third persons.</p> <p>Upon a trial for felonious assault, where the defendant insists that he fought in defense of himself and his wife’s mother and sister against the assaults of the prosecutor and his wife, it is error to reject evidence offered on behalf of defendant that some one in the crowd exclaimed during the encounter: “Kill him! Don’t let that nigger get back to the bottom. Kill him!” although the witness is unable to name the person who made the exclamation. This evidence is admissible as part of the res gestic, and as tending to explain defendant’s danger and situation.</p>

<p>FROM GIBSON.</p> <p>Appeal in error from Circuit Court of Gibson County. J. R. Bond, J.</p>

<p>I.Jury. Resident and tax-payer of city competent in suit against city.</p> <p>Residents'and tax-payers of a municipal corporation are not disqualified, by reason of their relations to the corporation, to sit upon a jury in a case to which the corporation is an interested party.</p> <p>Cases cited and approved: Mayor, etc., v. McKee, 2 Yer., 168; Ezell v. Giles County, 3 Head, 586.</p> <p>2.Same. Abuse of Judge's potver to order special jury.</p> <p>It is an abuse of the Judge’s power to order a special jury, for which reversal will be had, where he directs the jury to be selected by the Sheriff and summoned from the county outside the limits of a particular city, the persons residing in and outside such city being equally competent.</p> <p>Code construed: $4805 (M. & V.); §4029 (T. & $.).</p> <p>Cases cited: Clingan v. Railroad, 2 Lea, 726; Mayor, etc., v. Sheperd, 3 Bax., 373.</p> <p>3.Evidence. Of city's wealth incompetent in suit against it for personal injttries.</p> <p>In suit against a municipal corporation for personal injuries sustained by reason of defect in sidewalk, it being clearly a case in which punitive damages could not be awarded, evidence is not admissible on behalf of the plaintiff to show the value of the property owned by the corporation, or the assessed value of property situate in the city, or the amount of salary paid to the Mayor of the city.</p> <p>4.-Same. Same. No reversal without specific exception.</p> <p>But reversal will not be had for the erroneous admission of such incompetent evidence, unless the record shows that specific exception was taken to its competency.</p> <p>5. Same. Introduction of '¿kings as proof.</p> <p>ft is competent for tire parties to exhibit to Court and jury, as matter of proof ancillary to other testimony, persons, models, and things not cumbrous, whenever the inspection of them may tend to the discovery of the truth of the matter in controversy. Whether the articles offered are loo cumbrous, is a question addressed to the trial Judge’s discretion. This Court declines to revise the action of the trial Judge in this case in excluding the portion of the sidewalk, consisting of two planks and cross-bars, on account of defects in which the plaintiff was injured.</p> <p>6. Argument of Counsel. When not cause for reversal.</p> <p>Unless this Court can see that improper argument of counsel probably influenced the action of the jury, there will be no reversal ’on that account, even when proper exception was taken thereto.</p> <p>7. Same. Same. Example.</p> <p>In suit against city for personal injuries, the plaintiff’s attorney, in his closing argument, said: “If one of you should come to town and violate one of. the ordinances of the city government by any disorderly conduct, you would see how quick you would be arrested and carried before Mayor Gates and fined.” This was objected to. It was said in reply to this language of defendant’s attorney: “If you give a verdict against the defendant in such trivial cases as this one, you will place a burden upon our young city that it will not be able to bear * * It would bankrupt and ruin the city to require it to keep ¿11 its streets and sidewalks in perfect repair.”</p> <p>Held: Argument of plaintiff’s attorney does not constitute reversible error.</p> <p>8. Same. Judge's action upon exception erroneous.</p> <p>But the Court’s ruling upon the exception, f‘ that the matter of fines was one source of revenue for the city,” is error.</p> <p>9. Same. Reading opinions of Courts in cases giving large damages.</p> <p>It constitutes reversible error for the Court to permit the plaintiff’s attorney in a personal injury.case to read, over objection of defendant’s attorney, opinions from the reports in cases where large damages were awarded, for the sole purpose of influencing the jury in fixing amount of damages. In this case the Court declines to express an opinion as to whether the reading of such cases from the reports, over objection, is error, the counsel having stated the cases were read for another purpose, and the Court having properly instructed the jury •that they should not be influenced by them in fixing amount of damages.</p> <p>io. Charge of Court. Erroneous as to city’s liatility for latent defects in sidewalks.</p> <p>In suit against a city for personal injuries sustained by the plaintiff while passing over a common plank sidewalk laid upon the ground, by réason of an alleged defect therein, there being proof tending to show the defect was latent, it is error for the Court to charge that the city was liable, though the defect was latent, if it could have been discovered-by “inspection, observation, or otherwise.” This strong doctrine is not applied to latent defects in common sidewalks, but only to defects in structures over dangerous places.</p>

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

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

<p>i. Mechanics Lien. Furnisher has none, when.</p> <p>The seller of materials to a contractor is not entitled to a furnisher’s lien upon the property repaired or constructed therewith, where there is no special contract between the seller and the owner of the property or the contractor that such materials should be used in construction or repair of the particular property against which the furnisher’s lien is asserted.</p> <p>Code construed: ⅝ 2739, 2740 (M. & V.); §⅞ 1981, 1981^ (T. & S.).</p> <p>Acts construed: Acts 1889, Ch. 103.</p> <p>2. Same. Case in judgment.</p> <p>M. & Co., merchants dealing in building supplies, sold to T., a contractor, a lot of window-blinds. Most of these blinds were used by T. in the construction of a house for F. M. & Co. had no contract with T., the contractor, or F., the owner, that said window-blinds were to be furnished for F.’s house, or for any particular building.</p> <p>Held: M. & Co. have no furnisher’s lien upon F.’s house for the blinds used by T. in its construction.</p>

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

<p>PROM DECATUR.</p> <p>Appeal from Chancery Court of Decatur County. A. J. Abernathy, Ch.</p>

<p>1. Appeal. Does not lie, token.</p> <p>In suit for personal injuries the defendant pleaded (i) not guilty; (2) gross contributory negligence of the, plaintiff; (3) accord and satisfaction. The plaintiff joined issue upon the first two pleas, and filed replication to the third plea. Defendant’s demurrer to this replication was sustained. From this action of the Court, without any judgment disposing of the suit, the plaintiff appealed.</p> <p>Held,: The appeal is premature. The judgment was not final. It did not dispose of the, entire case. It was not such judgment as the Court may grant appeal from before final judgment in the exercise of its discretion.</p> <p>Code construed:' §23872-3874, 3893 (M. & V.); §23155~3157> 3i74 (T. &S.).</p> <p>Case cited and approved: Younger v. Younger, 90 Tenn., 25.</p> <p>2. J URISDICTION. Not conferred by consent.</p> <p>And jurisdiction cannot be conferred upon this Court in such case by consent of parties.</p> <p>Case cited and approved: Gibson v. Widener, 85 Tenn., 16.</p>

<p>i. Railroads. Statute making ttnfenced absolutely liable for injuries to livestock by moving trains constitutional.</p> <p>Acts 1891", Ch. 101, fixing upon unfenced railroads absolute liability for injuries done to live-stock by their moving trains, is constitutional and valid, both as a whole and in its details, when its scope and purpose are ascertained by a correct construction. This Act should not be treated as a mere scheme for the speedy collection of damages for injuries to live-stock, although that is incidentally provided for. Its chief purpose is to prevent accidents on railroads, and, viewed from this higher ground, it is a proper and legitimate exercise of the police power of the Slate. [Post, p. ¿¡.q2 et seq.)</p> <p>Act construed: Acts 1891, Ch. 101.</p> <p>Cases cited and approved: 26 Mo., 441; 65 Me., 333; 27 Vt., 140; 115 U. S., 522; 20 Wis., 267; 109 HI., 402; 66 Pa. St., 164; 71 Mo., 434; 50 Iowa, 338.</p> <p>2. Same. Same. Title of Act valid.</p> <p>And the title of said Act, though containing unnecessary details and particulars, is single, and embraces but one subject. That title is as follows: “An Act to require the section-masters of railroads to give notice of the killing or injury of live-stock by the trains or locomo-' tives of railroads in Tennessee; to provide for the appointment of appraisers to ascertain and fix the value of such stock, or the amount of injury thereto, and to provide for ’the collection of such appraise-ments; to make railroad companies liable for all damages by reason of the killing or injury of live-stock -upon or near their tmfenced tracks by their moving trains, cars, or engines.” The subject of this Act is fully expressed in the last clause in italics. The preceding clauses of the title were unnecessary, but embracing only particulars germane to, and included in, the general subject expressed in tire last clause, they do not vitiate the title or the Act. (Post, pp. 493, 494.}</p> <p>Constitution construed: Art. II., Sec. 17.</p> <p>Act construed: Acts 1891, Ch. 101.</p> <p>Cases cited and approved: Luehrman v. Taxing District, 2 Lea, 425 ; Griffin, ex parte, 88 Term., 547.</p> <p>3. Same. Same. Not vicious class legislation.</p> <p>And said Act is not unconstitutional as vicious “class legislation,” although its provisions confer benefits upon a limited class, to wit, owners of live-stock, and impose burdens upon a limited class, to wit, unfenced railroads. These classes are natural and not arbitrary. {Post,pp. 4Q4-4Q7.)</p> <p>(See The Morris Claimants v. The Stratton Claimants, 89 Tenn., 500.)</p> <p>4. Same. Same. 'Provision for appraisement of damages by freeholders valid'</p> <p>And that provision of said Act is valid which authorizes the appraisement of the damages done to live-stock by three freeholders appointed by a Justice of the Peace at the instance of the owner, and makes their report prima facie evidence of the value of the stock injured or killed. This is a mere regulation as to evidence, which it was competent for the Legislature to make. (Post, pp. 497-499.)</p> <p>Constitution construed: Art. I., Sec. 8; Art. XI., Sec. 8.</p> <p>5. Same. Same. Provision making railroad liable for plaintiff's attorney fee, valid.</p> <p>And that provision of said Act is valid which makes railroads wrongfully refusing to pay such appraisement liable for plaintiff’s attorney fee, in addition to other damages, in any suit brought to recover the damages withheld. This is not obnoxious class legislation. It is an exercise of the police power of the State. But no fee is recoverable unless the appraisement is sustained. (Post, pp. 499-303.)</p> <p>Cases cited and approved: 115 U. S., 523; 109 Ill., 537; 16 Kansas, 573; 20 Kansas, 660; 13 Am. and Eng. R. R. Cas., 650.</p> <p>Cases cited and distinguished: 31 Am. and Eng. R. R. Cas., 555; 35 Id., 162.</p> <p>6. Same. Same. Same. Fee must be fixed by jury.</p> <p>But the amount of such attorney fee must, like other damages, be fixed by the jury or the Court sitting as a jury. The provision of said Act requiring the fee to “be fixed by the Court trying the case” is construed as providing for jury trial of this question, thereby saving the Act from unconstitutionality. [Post,pp. jroj, 506.)</p> <p>7. Constitutional Law. Doubtful construction of siaitcte to be resolved in favor of its constitutionality.</p> <p>Doctrine re-affirmed and illustrated that where a statute is of doubtful meaning, it should receive that construction which is in harmony with the Constitution. (Post, p. 506.)</p> <p>Cases cited and approved: Hume ¾'. Railroad, 1 Cold., 74; Cole Manufacturing Company v. Falls, 90 Tenn., 466.</p> <p>8. Same. Repeal of statute by implication.</p> <p>Doctrine re-affirmed and illustrated that the constitutional provision requiring laws repealing or amending former laws to recite in the caption or otherwise the law repealed or amended, does not apply to repeals or amendments which result from necessary implication. {.Post, p£. sob, 507.) . ■</p> <p>Constitution construed: Art. II., Sec. 17.</p> <p>Cases cited and approved: Insurance Company v. Taxing District, 4 Lea, 644; Ballentine v. Mayor, etc., 15 Lea, 633.</p>

<p>Railroads. Construction of Acts i8qi, Ch. ioi.</p> <p>Live-stock killed or injured by running upon and falling from a trestle in consequence of fright caused by "a moving train are not “killed or crippled by any train of cars or 'locomotive ” within the meaning of the Acts 1891, Ch. ioi, making unfenced railroads absolutely liable for live-stock killed or injured upon or near their tracks by actual collision with their moving trains. Only cases of killing or injury of live-stock by actual collision with moving trains, etc., are within said Act.</p> <p>Act construed: Acts 1891, Ch. IOI.</p> <p>Cases cited and approved: Holder v. Railroad, II Lea, 176; 22 Am. and Eng. R. R. Cas., 565; 13 Id., 570; 19 Id., 610; 23 Id., 188; 31 Id., 512, 569.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from Circuit Court of Sbelby County. L.’ H. Estes, J.</p>

<p>1. COMMON Carrier. Contract fixing value of live-stock shipped, valid.</p> <p>Doctrine re-affirmed that a stipulation in a bill of lading for the shipment of live-stock, fixing values of the animals delivered for transportation, is valid, if fair and reasonable in itself, • based upon a sufficient consideration, and freely and understandingly assented to by the shipper, although the values thus fixed are materially less than those shown by the proof.</p> <p>Cases cited and approved: Railroad v. Sowell, 90 Tenn., 17; Railroad v. Wynn, 88 Tenn., 330; 112 U. S., 331.</p> <p>2. Same. Construction of clatise limiting value of live animals.</p> <p>Bill of lading for shipment of live-stock provided that in the event damage should occur for which the carrier would be liable, “the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed, for a stallion or jack, $200; for a horse or mule, $100; * * * which amounts, it is agreed, are as much as such stock as are herein agreed to be transported are reasonably worth.” The proof showed that the thirteen horses shipped were worth, at date and place of shipment, from $130 to $235 each; and that nine of these were injured in course of transportation. Of the injured horses one died, and the value of the other eight were impaired from $25 to $100 each. All the injured horses brought over $100, except one that brought $90. The Court instructed the jury that the shipper' could recover only $100 for the dead horse, and $10 for the injured horse that brought only $90.</p> <p>Held: Court’s instructions are erroneous. Under said contract, the carrier was liable for damage done each horse to the extent of $100, without regard to his value after receiving the injury.</p>

<p>PROM CARROLL.</p> <p>Appeal in error from Circuit Court of Carroll County. John R. Bond, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. "W. D. Beard, Ch.</p>

<p>1. Partition. Of land by parol, valid. Statute of frauds. Registration.</p> <p>Parol partition of lands is valid. A partition is not a sale, and therefore not within the statute of frauds. A parol partition is not susceptible of registration, and therefore not within the registration laws.</p> <p>Code construed : ⅝ 2423, 2890 (M. & V.); ⅜ 1758, 2075 (T. & S.).</p> <p>2. Homestead. In lands partitioned by parol.</p> <p>And hence the right of homestead exists in lands set apart in severalty to the head of a family under a parol partition.</p> <p>Case cited: J. I. Case Co. v. Joyce, 89 Tenn., 337.</p>

<p>1. Removal OF Causes. No separable controversy exists, when.</p> <p>In a suit by an insurance company against a carrier company to recover amount of insurance paid to a shipper on account of a loss by fire, for which the carrier was liable, and against which the carrier had protected itself by insurance in other companies (non-residents of the State where the suit is brought, and residents of different States or of a foreign government) made defendants in order to recover of them when the liability of the carrier was established, there is, as to the carrier’s insurers sued, no separable controversy within the statute of the United States authorizing the removal of litigation from the State to the Federal Court. The right of complainant to sue and recover of the carrier’s insurers is but incidental to its litigation with the carrier, and such a litigation against the insurers is in the nature of a garnishment proceeding against them, and stands on the same grounds, so far as the question of removal is concerned, as though these defendants were in fact garnishees.</p> <p>Code construed: §4200 (M. & V.); § 3461a: (T. & S.).</p> <p>Cases cited: 106 U. S., 99-108; 114 U. S., 60-62; 115 U. S., 56-61; 117 U. S., 280-282.</p> <p>2. Illegal Contracts. Of carrier as io rebates of freight charges.</p> <p>The Federal statute which forbids and declares unlawful all special rates, rebates, drawbacks, and preferences, is intended to make so much of a contract of affreightment void as related to the forbidden matter mentioned, but is not to be construed as making void an entire transaction of affreightment in which they were included, and excusing the carrier from any liability for freight received under such contract.</p>

<p>i. Taxation. Exemption clause in charier construed.</p> <p>Under charter granted prior to Constitution of 1870 to .a bank or insurance company containing a provision “that said company shall pay to the Slate an annual tax of one-half of one per cent, on each share of stock subscribed, which shall be in lieu of all other taxes,” both ' the capital slock of the corporation and the shares of stock in the hands of the stockholders are exempt from all other taxes, whether ad valorem or privilege, imposed by State, county, or municipality. This decision rests alone upon the authority of Farrington ». Tennessee, 95 U. S., 679, so far as it is held that both capital stock and shares of stock are exempt under said provision. Except for the controlling authority of said case, this Court would determine otherwise.</p> <p>Acts construed: Acts 1857-58, Ch. 166; Acts 1869-70, Ch. 93.</p> <p>Cases cited and followed: Farrington». Tennessee, 95 U. S., 679; Bank v. Tennessee, 104 U. S., 493.</p> <p>Cited and approved or distinguished: Memphis v. Farrington, 8 Bax., 539; Bank». McGowan, 6 Lea, 705; State ». Butler, 13 Lea, 406; State ». Butler, 86Tenn., 633; Memphis». Hernando Insurance Co., 6 Bax., 527; Bank ». Memphis, 6 Bax., 415; Bank ». State, 9 Yer., 490; Nashville». Thomas, 5 Cold., 600; 143 U. S., 195; 117 U. S., 136; 22 Fed. R., 80.</p> <p>2. Same. Charter exemption from taxation, valid.</p> <p>Doctrine re-affirmed that a charter exemption from taxation, granted and accepted prior to Constitution of 1870, constitutes an inviolable contract binding upon the State, which cannot be impaired by sub- \ sequent legislation.</p> <p>Constitution construed: Art. I., Sec. 20.</p> <p>Cases cited and approved: Memphis ». Farrington, 8 Bax., 541; State ». Butler, 13 Lea, 408; Bank». State, 9 Yer-> 49°'> 4 Wheat., 519; 95 U. S., 684.</p> <p>3. Same. Of capital stock and shares of stock not double taxation.</p> <p>Doctrine re-affirmed that the capital stock of the corporation and its shares of stock in the hands of its stockholders are separate and distinct property interests, and separate and distinct subjects of taxation; and that the taxation of both is not double taxation, nor the exemption of one necessarily an exemption of the other.</p> <p>Cases cited and approved: Street Railroad Co. v. Morrow, 87 Tenn., 406; Banks/. Slate, 9 Yer., 490; Memphis v. Ensley, 6 Bax., 553; Gas-light Co. v. Nashville, 8 Lea, 406; 119U. S., 277; 117 U. S., 135; 95 u. S., 687.</p> <p>4. Same. Rule as to construction of exemption clauses.</p> <p>Doctrine re-affirmed that exemptions from taxation are never allowed by the Courts except upon “the clearest grant of organic or statute law,” or unless “manifested by words too plain to be mistaken,” or declared in “clear and unmistakable” language, or “be shown indubitably to exist.” The existence of such exemption must be free from any reasonable doubt.</p> <p>Cases cited and approved: Wilson v. Gaines, 9 Bax., 551; Railroad v. Gaines, 3 Tenn. Ch., 604; 16 How., 435; 18 Wall., 226; 21 Wall., 498; 95 U. S., 686; 117 U. S., 136;’ 109 U. S., 398; 143 U. Si, 195.</p>

<p>PROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. J. S. Q-alloway, Probate Judge, sitting by interchange.</p>

<p>I.Taxation. Charier exemption exists, when.</p> <p>A corporation that is clothed by the terms of its charter “with all the powers, privileges, and IMMUNITIES” of an older existing corporation, is invested with a valid exemption from taxation contained in the charter of the older corporation.</p> <p>Act construed: Acts 1858, Ch. 166, Seel 12.•</p> <p>2.Same. Charter exemption does not exist, when.</p> <p>But a corporation clothed by the terms of its charter “with all the rights and privileges" of an older existing corporation, without more, is not invested with an exemption from taxation contained in the charter of the older corporation.</p> <p>Act construed: Acts 1866-67, Ch. 71, Sec. 1.</p> <p>Cases cited and approved: Wilsons. Gaines, 9 Bax., 546; Railroad w. Hamblen County, MS., Knoxville, September term, 1877; Railroad V. Gaines, MS., March, 1878; 97 U. S., 697; 102 U. S., 273; 103 U. S., 417; 93 U. S., 217; 130 U. S., 642.</p> <p>Cited and distinguished: Railroad v. Hicks, 9 Bax., 442; State v. Railroad, 12 Lea, 538; 117 U. S., 146.</p> <p>3.Same. Method of collection-of taxes assessed upon shares of stock of corporation.</p> <p>Collection of taxes assessed against the shares of stock of a corporation, where the share-holders are unknown, may be enforced by direct suit against the corporation for the tax, if if be a dividend-paying concern, or by bill against the corporation and its officers for discovery of the names of the share-holders, in order that they may be brought before the Court by supplemental bill for recovery of lax of them.</p> <p>Case cited and approved: Memphis v. Home Ins. Co., ante, p. 558.</p>

<p>I. Taxation. Legislative power to exempt from taxation wanting tender Constitution of 1870.</p> <p>The Legislature has not power, under the Constitution of 1870, to pass any law, general or special, original or amendatory, to confer upon corporations or individuals, or classes thereof, any exemptions from taxation, other than such as are expressly peimitted by said Constitution, either by creating a new and original exemption for their benefit, or by extending and preserving the life of an existing lawful exemption under conditions and for purposes not contemplated in its creation. This result is reached by construction of the clauses of the Constitution of 1870 relating to taxation and to the creation of corporations. The rule was otherwise under the Constitution of 1834, its corresponding clauses being materially different. {Post, pp. 383-</p> <p>Constitution construed: Art. II., Sec. 28, Art. XI., S'ec. 7 (1834); Art. II., Sec. 28, Art. XI., Sec. 8 (1870).</p> <p>Cases cited and approved: Railroad ». Wilson County, 89 Tenn., 608; Ellis». Railroad, 8 Bax., 530; Chattanooga v. Railroad, 7 Lea, 576; Railroad v. State, 8 Heis., 789; Franklin County». Railroad, 12 Lea, 547; Railroad ». Gaines, 3 Tenn. Ch., 611; 141 La. Ann., 188.</p> <p>Cases cited and distinguished: State v. Butler, 13 Lea, 406; State». Butler, 86 Tenn., 620; 97 U. S.,°I47.</p> <p>2.. Same. Same.</p> <p>The conceded authority of the Legislature, under the Constitution of 1870, to increase the “powers” of existing corporations by general laws, does not include authority to confer upon such corporations an immunity from taxation. “Powers” does not include immunity from taxation. {Post, pp. 389, 390.)</p> <p>Constitution construed: Art. XI., Sec. 8.</p> <p>Cases cited and approved: Memphis ». Insurance Co., ante, p. 566; Wilson ». Gaines, 9 Bax., 546; Railroad ». Hamblen County, MS., Knoxville, 1877; Railroad v. Gaines, MS., Nashville, 1878; 102 U. S., 273; 103 U. S., 417; 97 U. S., 697; 93 U. S., 217; 130 U. S., 642.</p> <p>3. Same. Construction of charter provision exempting from taxation.</p> <p>The shares of stock m a corporation are not liable for the tax imposed, nor protected by the immunity from taxation granted, by a clause in its charter providing “ that there shall be levied a State tax of one-half of one per cent, upon the amount of capital stock actually paid in, to be collected in the same way and at the same time as other taxes are by law collected, which shall be in lieu of all other taxes.” {Post, pp. J77S79-)</p> <p>4. Same. Same.</p> <p>But the capital stock of the corporation alone is subject to the tax imposed and protected by the exemption granted by said provision. And the effect of said provision, if valid, is to protect the capital stock from all taxes, except that imposed by the charter, whether State, county, or municipal. {Post, pp. 577-579.)</p> <p>Cases cited and approved: Union Bank v. State, 9 Yer., 490; Memphis v. Insurance Co., ante, p. 558.</p> <p>5.' Same. Exemption from taxhiion not transmissible.</p> <p>-An insurance company was chartered prior to 1870. It possessed exemption from taxation. After the Constitution of 1870 went into effect, this insurance company was converted into a banking corporation by.legislative permission. The legislation effecting this change not only changed the name of the old corporation, and invested it with new powers, but provided that the new corporation should enjoy “any franchise, right, power, privilege, or immunity” possessed by the former corporatidn.</p> <p>Held: The immunity from taxation did not pass. The power to transfer this immunity is equivalent to the power to create it, and both are prohibited under Constitution of 1870. {Post, pp. 380-592.)</p> <p>Act construed: Acts 1887, Ch. 190.</p> <p>Cases cited and approved: Bank v. Memphis, 6 Bax., 415; Bank v. McGowan, 6 Lea, 705; 104 U. S., 493.</p> <p>6. Corporations. Construction of charter of insurance company.</p> <p>An insurance company, chartered, organized, and operated as such, has not banking powers authorizing it to conduct the business of a bank, although its charter provides “that said corporation shall be capable in law * - * of receiving in trust, from any person, money, jewels, plate, or other valuable thing.” {Post, pp. 503, 594.)</p> <p>7. Same: Capital stock and shares of stock are separate properties.</p> <p>The capital stock of a corporation and its shares of stock are distinct taxable properties. The taxation or exemption of one is not taxation or exemption of the other. (Post, p. ¿78.)</p> <p>Cases cited and approved: Memphis v. Bank, ante, p. 546; Memphis'?'. Insurance Co., ante, p. 558; Wilson v. Gaines, 9 Bax., 551; Gas-light Co. v. Nashville, 8 Lea, 406; Union Bank v. State, 9 Yer., 490; Street Railroad Co. v. Morrow, 87 Tenn., 406; 95 U. S., 687; 117 U. S., 135; 119 U. S., 277.</p> <p>8. Constitutional Law. Rule of construction.</p> <p>In construction of the Constitution every clause should be given effect. The language of one clause should not be pressed so far as to annul another clause. (Post, p. p86.)</p> <p>Cases cited and approved: McKinney v. Hotel Co., 12 Heis., 116; Memphis v. Water Co., 5 Heis., 495.</p> <p>9. Same. Charter exemptions are inviolable contracts.</p> <p>Charter exemptions from taxation granted prior to 1870 constitute contracts that the State cannot impair by legislation or otherwise. (Post, P- 578.)</p> <p>Cases cited and approved: Memphis v. Bank, ante, p. 546; Memphis v. Insurance Co., ante, p. 558; Memphis v. Insurance Co., 6 Bax., 527; Nashville v. Thomas, 5 Cold., 600.</p> <p>IO. Same. Same. Construction of charter exemptions. 0</p> <p>Charter exemptions from taxation are never allowed unless expressed in language so plain and unmistakable as to leave no reasonable doubt of the legislative intent to create them. (Post, pp. 579,</p> <p>Cases cited and approved: Memphis v. Bank, ante, p. 546; Memphis v. Insurance Co., ante, p. 558; Wilson v. Gaines, 9 Bax., 551; States. Butler, 13 Lea, 406; 16 How., 435; 18 Wall., 498; 95 U. S., 686; 117 U. S., 136, 148; 109 U. S„ 398; 143 U. S., 195.</p>

<p>I.Constitutional Law. Passage of statutes. Presumption of regularity.</p> <p>The Courts indulge every fair and reasonable presumption in favor of the regular and valid passage of statutes. This rule finds application in the construction of journal entries, and in aiding their defects or supplying their omission. This rule is subject to the limitation that no presumption will be indulged which necessarily contradicts the affirmative showing of the journals. [Post, pp. 6oj, 604.)</p> <p>Cases cited and approved: Brewery. Huntingdon, 86Tenn., 732; State v. Algood, 87 Tenn., 163; Williams v. State, 6 Lea, 549; State v. McConnell, 3 Lea, 332.</p> <p>2.Same. Same. Description of Act in journal entries.</p> <p>It is not essential to the validity of a statute that it should be described in the journal entries recording its passage by setting out its title in ipsissimis verbis. Discrepancies between such journal entries and the title of Act are treated as mere abbreviations or omissions, which are supplied by presumption or disregarded as immaterial. (Post, pp. 604-606.)</p> <p>Constitution construed: Art. II., Secs. 17, 18, 21 (1834).</p> <p>Case cited and approved: 143 U. S., 649.</p> <p>3. SAME. Same. Same.</p> <p>A discrepancy between the Act as passed and the journal entries recording its passage, as to the number of sections contained in the Act, does not affect its validity. This is not a material matter, but, if it were, the Act and not the recital of the journal entries would be conclusively presumed to speak the truth. [Post, pp. 606, 607.)</p> <p>Constitution-construed: Art. II., Secs. 17, 18, 21 (1834).</p> <p>4. Same. Same. Construction of report of conference committee.</p> <p>A bill having been passed regularly by both houses was referred, upon a difference between the two houses as to certain proposed amend-menls, to a joint committee of conference. This committee reported as follows: “Your committee of conference, to whom was referred Senate Bill No. io, with House amendments, beg leave to report the accompanying bill in lieu of said bill and amendments, in which is embraced substantially all the provisions of both houses. Your committee deem it prudent to propose a bill in lieu, as the original bill has been much disfigured by amendments, interlineations, and erasures. Your committee ask that the bill offered be accepted and passed.” This redrafted bill of the committee of conference contained fewer sections and omitted some of the proposed amendments — the committee substituting compromise provisions therefor. The committee’s report was concurred in by the houses, and the bill signed. The bill was not passed after its redrafting by the committee.</p> <p>Held: The Act was constitutionally passed, and is a valid law. The committee did not report a new bill. They had authority to make such changes as would reconcile differences between the two houses. It was not necessary that the bill should be passed upon three readings after the committee’s report. (Post, pp. 602, 6qy, boy-boy, and bi 1-612.)</p> <p>5. Same. Same. When statute takes effect.</p> <p>When a bill is signed by the Speakers of the two houses, it then lakes effect by relation as of date of its passage. It is not required that a bill shall be enrolled before its signing, and therefore the recital of the date of its enrollment on the journals affords no evidence that the bill had not been signed at that date. (Post, ffi. bog-bu.)</p> <p>Constitution construed: Art. II., Secs. 17, 18, 21 (1834).</p> <p>Case cited and approved: Dyer v. State, Meigs, 237.</p>

<p>1. Change of Venue. Refusal of, not reviewable, when.</p> <p>Discretion of trial Judge refusing change of venue in a criminal case will not be reviewed on appeal except in a clear case of abuse. This is not a case for review of that discretion. {Post, p. 622.)</p> <p>Cases cited and approved: Porter v. Stale, 3 Lea, 496; Holcomb v. State, 8 Lea, 417; Poe v. State, 10 Lea, 673.</p> <p>2. CONTINUANCE. Refusal of, for undue excitement not erroneous, when.</p> <p>Continuance of criminal case for “too great excitement', to the prejudice of defendant,” rests in the sound discretion of the Court. Refusal of second continuance upon that ground and others, is not erroneous in this case. {Post, pp. 622, 623.)</p> <p>Code construed: ¾ 6038 (M. & V.).</p> <p>3. Jury. Disqualifying opinion as ground for new trial.</p> <p>After verdict a strong presumption obtains, even in a criminal case, in favor of the competency of a juror who was selected and sat upon the trial; and a clear case must be proved against such juror to justify the granting of a new trial upon the ground that he had formed or expressed an opinion about the case before he was selected. {Post, pp. 623, 624.)</p> <p>Case cited and approved: Mann v. State, 3 Head, 377-</p> <p>4. Same. Same.</p> <p>And the accused juror is a competent witness upon the trial of such issue. His denial, supported by proof of his good character or by corroborating circumstances, may be sufficient to rebut the evidence of one or more attacking witnesses. {Post, pp. 623, 624.)</p> <p>Cases cited and approved: Raders'. State, 5 Lea, 610; Johnson w. State, 11 Lea, 47; Mann v. State, 3 Head, 373.</p> <p>5. Same. Separation of. General rules.</p> <p>Separation of jury prima facie vitiates their verdict. The separation may, however, be explained. The burden is upon the State to explain it. An explanation is sufficient that covers all that occurred during the separation, and shows clearly either that there was no communication with the jury during the separation or that such communication as was had was not of a prejudicial character. [Post, pp. 624-627.)</p> <p>Cases cited and approved: Stone v. State, 4 Hum., 27; Hines v. State, 8 Hum., 601; Riley v. State, 9 Hum., 646; Rowe v. State, 11 Hum., 492.</p> <p>6. Same. Same. Passing across State line.</p> <p>The passing of the jury across the State line is not, of itself, a separation, but, treating it as such, if the jury remained in strict charge of their officers, and had no communication with any one, their verdict is not thereby vitiated. (Post, pp. 626-628.')</p> <p>7. Same. Same. Same.</p> <p>Although the jury and its officers may have passed outside the State and beyond the local jurisdiction, the Court has the power to punish them for misbehavior on their part occurring outside the State. (Post, pp. 627, 628.)</p> <p>Case cited and approved: McCarthy v. State, 89 Term., 543.</p> <p>- 8. Same. Exposure of jury to contact with and remarks by bystanders.</p> <p>The verdict of the jury is not vitiated — there being no misconduct on their part or on the part of their officers — by such unavoidable or necessary contact with by-slanders as occurs ordinarily during trials, nor by any remarks made in their presence by by-slanders. (Post, pp. 628, 629.)</p> <p>Cases cited and approved : Brake v. State, 4 Bax., 361; Turners». State, 89 Tenn., 548.</p> <p>9. Same. Use of intoxicating liquors.</p> <p>Jury’s use of intoxicating liquors does not vitiate their verdict when it appears there was no excessive indulgence. (Post, pp. 629, 630.)</p> <p>Cases cited and approved: Stone v. State, 4 Hum., 26; Rowe v. Slate, 11 Hum., 491.</p> <p>to. Same. Communication between jurors and outsiders.</p> <p>All communications, whether by letter or oral, between jurors and outsiders, without leave and supervision of the presiding Judge, are improper. The practice of allowing such communications upon permission of the officer alone is disapproved. The burden is upon the State to explain such communications. This explanation may be by direct evidence or by the circumstances attending the communication, or by both. All communications shown in this case are sufficiently explained. (Post, pp. 637-638.)</p> <p>Cases cited and approved: Brake v. State, 4 Bax., 361; Luster v. State, 11 Hum., 169.</p> <p>11. 1ÍVIDENCE. Cross-examination 0/ defendant in murder case.</p> <p>In a murder case, the defendant having testified in his own behalf to his own peaceable character, may be required to answer, on cross-examination, as to his former violent conduct and breaches of the peace toward persons other than the deceased. (Post, p. 638.)</p> <p>12. Same. Same.</p> <p>So, likewise, the defendant, having volunteered to prove for himself an honorable military career and record, may be interrogated, on cross-examination, as to particular incidents in that career. (Post, p. 638.)</p> <p>13. Same. Proof of motive and malice.</p> <p>King killed Poston. State’s theory, assassination ; King’s theory, self-defense. King claimed that in a certain litigation between himself and Mrs. Pillow, Poston, as the latter’s attorney, had in a certain pleading used language derogatory to the character of Mrs. King; that he, as a loyal and loving husband, sought Poston, and demanded retraction, and that an altercation ensued, in which he killed Poston in self-defense. King put portions of the record in the King-Pillow litigation in evidence. The State undertook to show that the reference in the pleadings to Mrs. King was not derogatory to her but to defendant; that King had abandoned his wife, and had long sought to divorce her, in order to marry Mrs. Pillow; that he had conveyed all his property to the latter, his suit being an effort to recover it; and that revenge and the desire to rid himself of a formidable adversary in the litigation, prompted him to kill Poston. The Court admitted in evidence the portions of the record not offered by defendant, the deeds made by King to Mrs. Pillow, and proof of the relations, social and otherwise, of King and Mrs. Pillow.</p> <p>Plcld: This evidence was admissible for the purpose of showing motive, and to contradict defendant, and as part of a record the other portion of which defendant had introduced. (Post, pp. 638-643.)</p> <p>14. Argument of Counsel. Allusions by Attorney-general to other cases. Exception.</p> <p>Mere allusions by the Attorney-general, in his closing argument, to other cases tried in the same Court and affirmed upon appeal, by way of illustration, afford no ground for a new trial where no exception to the argument was taken at the time it was made. (Post, pp. 642-644.) ■ . •</p> <p>Cases cited and approved: Norlhington v. State, 14 Lea, 424; Staples v. State, 89 Term., 231; Swayne v. State (oral opinion), Jackson, 1890.</p> <p>15- Same. Requests to charge concerning.</p> <p>It is not error for the Court to refuse to give requests touching alleged improper argument by the attorney-general, where they are so framed as to be a sweeping criticism of the argument, pointing out no specific objections to it, or where they are not justified by the record, or where good and liad propositions are indiscriminately intermingled. (Post, pp. 644, 64s.) ></p> <p>16. New Trial. Not granted for newly-discovered evidence, token.</p> <p>New trial will not be granted in a capital case on account of newly-discovered evidence in support of the plea of insanity, the evidence being merely cumulative, and no diligence to obtain it on the first trial being shown, and its character such that the result would not be thereby changed. (Post, p. 64s.)</p> <p>17. Charge ok Court. As to premeditation.</p> <p>The Court’s charge as to premeditation is quoted and approved. (Post, fp. 64s, 646.)</p> <p>18. Same. As to insanity.</p> <p>The Court’s general charge as to insanity is approved, though not quoted, as being in accord with the leading case of Stewart v. State, 1 Bax., 178. (Post, pp. 646, 647.)</p> <p>19. Insanity. Biorden of proof'.</p> <p>Upon plea of insanity in criminal case, the defendant being presumed sane, the burden is upon him, in the first instance, to prove insairty. The proof of insanity may, however, occur in the State’s evidence. That proof of insanity is sufficient which raises a reasonable doubt upon that point. (Post, pp. 647, 648.)</p> <p>Cases cited and approved: Stewart v. Stale, 1 Bax., 178; Dove v. State, 3 Heis-, 37°.</p> <p>20. Arrest of Judgment. Must rest upon matter of record.</p> <p>Motion in arrest of judgment must be based upon matter of record, and not upon any matter dehors the record. A fortiori, it cannot be maintained upon affidavits contradictory of the record. (Post, pp. 64S-650.)</p> <p>Cases cited and approved: State v. Allison, 3 Yer., 428; State v. Rogers, 6 Bax., 563.</p> <p>21. Dying Declarations. Written.</p> <p>When dying declaration, otherwise admissible, is reduced to writing, and signed by the declarant, that being the only declaration made, the writing is admissible in evidence. (Post, pp. 649, 650.)</p> <p>22. Verdict. Approved tipon the facts.</p> <p>The Court approves the jury’s verdict based upon the'State’s theory of assassination. (Post, pp. 631-63,3.)</p>

<p>FROM SHELBY.</p> <p>Appeal in error from Criminal Court of Slielby County. J. J. Dubose, J.</p>

<p>FROM BRADLEY.</p> <p>Appeal iu erroi’ from Circuit Court of Bradley County. Arthur TrayNor, J.</p>

<p>PROM M’MINN.</p> <p>Appeal from Chancery Court of McMinn Comity. T. M. McCoNNEll, Ch.</p>

<p>1. Appeal Bond. For costs only, sufficient, when.</p> <p>Under bill to enforce vendor’s lien, the lands were sold, and their proceeds applied, leaving a balance due on the purchase-price notes. Decree was entered for this balance. The defendant appealed from this final decree, and all former decrees, giving appeal bond for costs only.</p> <p>Held: Appeal was properly granted upon bond for costs only.</p> <p>Code construed: §53881, 3882 (M. & V.); §3164 (T. & S.). (Acts i87o-’7i, Ch. 106.)</p> <p>Cases cited: Staub ®. Williams, 1 Lea, 36, 124; Rogers®. Newman, 5 Lea, 255; Kinsey®. Staunton, 6 Bax., 92; Gibson ®. Widener, 85 Tenn., 16; Younger®. Younger, 90 Tenn., 25.</p> <p>2. Vendor’s Lien. Defenses not available to defeat its enforcement.</p> <p>In suit to enforce vendor’s lien, the defense of fraud in the making of the sale is not available where it is not set up in the pleadings, and it appears that defendant is prosecuting an independent suit for rescission on that ground.</p> <p>3.Same. What decree for sale should recite.</p> <p>Decree for sale of land, in suit for enforcement of vendor’s lien, is sufficient without any formal decree for amount due, where it recites and adjudges the amount due on the notes given for the purchase-price, and orders the land to be sold if this ascertained sum is not paid in within a specified time.</p> <p>4.Same. As to notes not due. Decree.</p> <p>Where land is decreed to be sold for payment of purchase-money notes, some of which are due and others not due, it is not essential that any of the deferred payments should fall due precisely at maturity of the notes not due at date of decree. The defendant cannot complain that a more liberal credit is given for his benefit than that provided by the statute.</p> <p>Code construed: §§4306-4309 (M. & V.); §§3563-3566 (T. & S.).</p> <p>5. Same. Same. Same.</p> <p>In suit to enforce vendor’s lien for notes not due, the Court has not authority, after exhausting proceeds arising from sale of lands, leaving a balance of purchase-price unpaid, to enter decree upon a note not then due, although the defendant had not interposed any defense that suit had been prematurely brought as to such note.</p> <p>(Sode construed: §§4306-4309 (M. & V.); §§3563-3566 (T. &S.).</p> <p>6. Supreme Court. Will not reverse for error, when.</p> <p>But this Court will not reverse the Chancellor’s decree, erroneously giving decree upon such note, where it had fallen due, and complainant had become entitled to decree thereon before the date of the hearing in this Court.</p>

<p>ER'OM POLK.</p> <p>Appeal in error from tlie Circuit Court of Polk County. Arthur Traynor, J.</p>

<p>i. Common Carrier. Liability for goods destroyed by fire at depot of destination.</p> <p>Common carrier had shipped goods to destination and deposited them in its depot at that point. The goods remained in the depot for four days, and were destroyed by fire on the fifth day. On each of the four or five days the consignee’s drayman inquired of the earner’s agent for the goods, for the purpose of removing them, and was informed they had not arrived. The fire was not shown to have resulted from the earner’s negligence.</p> <p>'Held: The carrier is liable to the consignee for the value of the goods. His liability is, however, that of a warehouseman, not that of a carrier. His negligence consists, not in causing the fire, but in unnecessarily exposing the goods to its ravages.</p> <p>Cases cited and approved: Butler®. Railroad, 8 Lea, 32; Express Co. v. Kaufman, 12 liéis., 165; Lancaster Mills v. Merchants’ Cotton-press Co., 89 Tenn., 35, 36; Railway Co. v. Manchester Mills, 88 Tenn., 653.</p> <p>2. Same. Same.</p> <p>Under the rule adopted in Tennessee, a common carrier ceases to be liable as carrier eo instanti with the deposit of the goods in the depot of destination. Thereafter his liability is that of warehouseman.</p> <p>Cases cited and approved: Butler v. Railroad, 8 Lea, 32; Express Co. v. Kaufman, 12 Heis., 165.</p> <p>3. Same. Same. Proximate cause.</p> <p>The common carrier’s negligence is the proximate cause of the loss, and he is liable as warehouseman for the value of the goods, where they were destroyed by fire not imputable to his negligence, after their deposit in the depot of destination, and after the consignee had demanded them pjid had been erroneously informed by the carrier’s agent that the-- had not arrived. The negligence that caused the • loss consisted in withholding the goods and exposing them to the fire. I</p> <p>Cases cited and approved: Deming & Co. v. Merchants’ Cotton-press-Co., 90 Tenn., 353; Railroad v. Manchester Mills, 88 Tenn., 653; Lancaster Mills^. Merchants’ Cotton-press Co., 89 Tenn., 35, 36 ; Railroad v. Campbell, 7 Heis., 258; 16 Am. and Eng. R. Cases, 272; 23 Id., 481; 82 N. Y., 413.</p> <p>Cited and distinguished: Lamont & Co. v. Railroad, 9 Heis., 58.</p> <p>4. Measure oe Damages. For total loss of goods in carrier's possession.</p> <p>Measure of damages for total loss of goods, caused by the carrier’s negligence while they lemained in the depot of destination, is the market value of the goods at that place at date of their destruction.</p> <p>Cases cited and approved: Dean v. Vaccaro, 2 Head, 489; Erie Dispatch v. Johnson; 87 Tenn., 490; 117 U. S., 322; ill U< S., 585.</p>

<p>Common Carrier. Liability of carrier for goods destroyed at depot of destination.</p> <p>The matters decided in the case of Railroad v. Kelly, ante, p. 699, are re-affirmed in this case.</p>

<p>I.Mandamus. Does not lie to compel Jtidge of County Court to issue warranty when.</p> <p>Mandamus does not lie to compel Judge or Chairman of County Court to issue warrant upon County ‘Treasury for claim*, due by account, the correctness of which he disputes. His duties as financial agent of the County require him to protect the County against payment of unjust demands, and the Court'will not compel him, by mandamus, to pay an unadjudicated debt that he has decided to be unjust. The creditor’s remedy is by suit for his debt.</p> <p>Code construed: ^485, 582 (M. & V.); {$423, 525 (T. & S.).</p> <p>Cases cited and approved: Morley v. Power, 5 Lea, 691; Turnpike Co. v. Marshall, 2 Bax., 123.</p> <p>2.Same. " Must be prosecuted in name of State.</p> <p>Mandamus proceedings must be prosecuted in name of the State, and not in the name of an individual citizen, but may be prosecuted on his relation.</p> <p>3.Same. Returnable before Court, not before Judge.</p> <p>Alternative writ of mandamus must be returned to Court and heard in term, and cannot be returned before the Judge and heard at chambers.</p> <p>Code construed: §U3*L 43*, 43*5 & V.); ¾ 3568, 35^9,3572 (T. &S.).</p> <p>4.Same. Bondfor costs required.</p> <p>The relator in mandamus case must give bond for costs.</p> <p>5. Same. Petition sworn to before whom.</p> <p>Petition for mandamus is not properly sworn to, where affidavit is made before County Court Clerk.</p> <p>Code construed: $4310 (M. & V ); $3567 (T. & S.).</p>

<p>FROM HAMILTON.</p> <p>Appeal iii error from Circuit Court of Hamilton County. John A. Moon, J.</p>

<p>1. Criminal Practice. Putting defendant under rule while a co-defendant testifies, erroneous.</p> <p>One of several defendants jointly upon trial for crime cannot be put under rule while a co-defendant gives evidence on his own behalf. Such constrained absence of a defendant during his trial upon a criminal charge is in violation of his constitutional “ right to be heard by himself and his counsel.”</p> <p>Constitution construed: Art. I., Sec. 9.</p> <p>Cases cited and approved: Andrews v. State, 2 Sneed, 550; Witt v. State, 5 Cold., II.</p> <p>2. Criminal "Evidence. Defendants evidence competent for and against a co-defendant jointly tried.</p> <p>Evidence given by a defendant on his own behalf, upon his trial for a criminal charge is competent, and proper for the consideration of the jury, both for and against a co-defendant jointly upon trial.</p> <p>Act construed: Acts 1887, Ch. 79.</p>

<p>EROM KNOX.</p> <p>Appeal in error from Criminal Court of Knox County. ' J. W. Sneed, J.</p>