Volume 92 — Tennessee Reports

<p>FROM KNOX.</p> <p>Appeal in error from Circuit Court of Knox County. - S. T. Logan, J.</p>

<p>1. Negotiable Instruments. Indorsers' liability inter sese.</p> <p>The payee of a negotiable note, whose name stands as first indorser thereon, cannot recover of parties whose names stand as subsequent ■ ’ indorsers thereon, the amount paid by him in satisfaction of the note, without averment and proof of facts showing that the subsequent indorsers are, as to him, in fact joint makers or guarantors of the note. Both averment and proof are wanting in this case.</p> <p>2. Same. Same. Parol evidence,</p> <p>Prima facie a second indorser is not liable to a payee who appears on the paper as first indorser, but, as between the parties themselves, the Courts will inquire into and declare the true order of liability; and upon this question parol evidence is admissible.</p> <p>Cases cited and approved: Rivers v. Thomas, I Lea, 649; Hardings. Waters, 6 Lea, 331.</p> <p>Cited as overruled: Comparree v, Brockway, II Hum., 355; Clous-ton v. Barbiere, 4 Sneed, 335; Brinkleys. Boyd, 9 Ilei^., 150; 95 U. S. 90; 22 Iiow., 341. . ..</p>

<p>1. Attorney. Competent witness to prove client's declarations, when.</p> <p>The vendor’s attorney is a competent witness on behalf of his client to prove the representations made by the latter pending negotiations for the sale of land, in a suit brought by the vendee for rescission of the contract of sale for alleged fraudulent misrepresentations of the vendor.</p> <p>2. Rescission. Not granted for misrepresentation, when. Example.</p> <p>Rescission of contract for sale of land will not be granted upon the vendee’s application for alleged misrepresentations of the vendor as to the character, capacity, or' quality of the property sold, unless it clearly appears that the misrepresentation was concerning a material matter, and operated as a material inducement to the purchase. The vendor’s representation, as to the daily output of the coal-mine involved in this cause, is not material under the facts of this case.</p> <p>3. Same. Not granted for vendor's failure to disclose pending suit, when.</p> <p>Rescission of contract for sale of land will not be granted upon the vendee’s application, because of the vendor’s failure to disclose the existence of a pending suit for the possession of the land, where the vendor’s possession could not have been lawfully disturbed, in any event, by the result of that suit — it being, as .regards the vendor res inter alios acta.</p> <p>4. Same. Same.</p> <p>And the result is the same, as regards rescission, even if the vendee is subsequently evicted by the unlawful execution of the writ of possession in that suit.</p> <p>5. Forcible Entry and Detainer. Effect of recovery against employe .of possessor.</p> <p>The party in peaceable possession of real-estate cannot be lawfully dispossessed by writ issued under judgment in forcible entry and detainer suit brought against' a few of hi^ numerous employes engaged as common laborers, but not residing, on the premises. Neither can his employes of the same or a higher grade, who are not sued, be dispossessed by such writ.</p> <p>Cases cited: Davidson v. Phillips, 9 Yer., 95; Elliott v. Lawless, 6 Heis., 125.</p> <p>6. Res Adjudicata. Does not exist, sullen.</p> <p>And judgment against the employe in such suit is not binding upon the employer, although the latter knew of the existence of the suit, and assisted the employes in its defense by employment of counsel and otherwise.</p> <p>Case cited and approved: Boles v. Smith, 5 Sneed, 105.</p>

<p>1. Actions. By administrator for personal injuries to intestate cannot be compromised by widow.</p> <p>Administrator’s suit for personal injuries resulting in his intestate’s-death, brought on behalf of the “widow and children” of such intestate, cannot be lawfully compromised by the widow alone, without the consent of the administrator or the concurrence of the other beneficiaries.</p> <p>Cases cited: Greenlee v. Railroad, 5 Lea, 418; Stephens v. Railroad, 10 Lea, 448; Webb v. Railroad, 88 Tenn., 119; Lewis v. Brooks, 6 Yer., 180, 181.</p> <p>2. Replication. Sufficient to plea of accord and satisfaction without making tender of money received.</p> <p>In a personal injury suit the defendant pleaded accord and satisfaction. The plaintiff replied that the compromise thus pleaded was obtained by fraud and undue influence, but did not tender the money that had been paid on the compromise. The plea did not aver payment of money to the plaintiff. No objection was made to replication for want of such tender. When, upon the trial, it was first suggested that no lender had been made, the plaintiff produced the money in Court, and asked leave to amend replication and make formal tender. The amount was credited on plaintiff’s recovery.</p> <p>Held: Judgment will not be arrested for want of tender of money with replication.</p> <p>3. AMENDMENT. Of pleadings during trial allowed^ when.</p> <p>And the Court should have permitted plaintiff to amend his replication . and make formal tender during the trial, objection having been then made for the first time.</p> <p>4. Charge of Court. Requests for additional instruction properly refusedr when.</p> <p>The Court does not err in refusing to give additional instructions upon, the request of a party, where the instructions are correct as to one count of the declaration but incorrect when applied to another count, and the request is general in terms.</p> <p>Cases cited and approved: Railroad v. Foster, 88 Tenn., 672; Railroad v. Smith, 9 Lea, 474; Patton v. Railroad, 89 Tenn., 370; Sommers». Railroad, 7 Lea, 201; Railroad v. Fain, 12 Lea, 44; Railroad v. Wynn, 88 Tenn., 332.</p> <p>5. Railroads. Correct charge as to observance of statutory precautions.</p> <p>Applied to the Killing of a deaf and dumb man by a construction train running backwards, the charge is correct in the following language: “ Under this statute (¡5? 1298-1300 (M. &V.) Code), if the proof shows that thé plaintiff’s intestate appeared upon the track of the road in front of the running train, then it was the duty of the defendant’s employes to have a person on the lookout ahead to sound the whistle, put down the brakes, and use every possible means to' stop the train and prevent an accident.”</p> <p>Code construed: §21298-1300 (M. &V.); §§1166-1168 (T. & S.).</p> <p>Cases cited and approved: Patton v. Railroad, 89 Tenn., 370; Railroad v. Foster, 88 Tenn., 672; Railroad v. Wilson, 90 Tenn., 271.</p>

<p>FROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. H. R. Gibson, Ch.</p>

<p>EROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. H. R. Gibson, Ch.</p>

<p>PROM HAMILTON.</p> <p>Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.</p>

<p>PROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. 33. T. Logan, J., sitting by interchange.</p>

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

<p>Constitutional Law. Statute void as aiithorizing imprisonment for debt.</p> <p>A statute is unconstitutional as “ authorizing imprisonment for debt in civil cases” which declares it a misdemeanor punishable by fine for any person to refuse to cash or redeem in lawful currency his check or scrip when presented within thirty days after its issuance.</p> <p>Constitution construed: Art. I., Sec. 18.</p> <p>Acts construed: Acts 1887, Ch. 209.</p>

<p>FROM ROANE.</p> <p>Appeal in error from Circuit Court of Roane County. S. A. Rogers, J.</p>

<p>FROM ROANE.</p> <p>Appeal in error from Circuit Court of Roane County. S. A., Rogers, J.</p>

<p>1. Corporations, Private. Purchase of stock of other corporations invalid.</p> <p>A corporation cannot lawfully become the owner of shares in any other corporation “ unless by power specifically granted by its charter or necessarily implied in it.” The unauthorized purchase by one corporation of the shares of another corporation is ultra vires and void. No suit can be maintained by either party in furtherance or affirmance of such void contract, not even by a party who has fully executed the contract on his own part. Such illegal contract creates no estoppel upon either party.</p> <p>Cases cited and approved: 131 U. S., 389; 139 U. S., 60.</p> <p>Cited and distinguished: Barrow v. Turnpike Co., 9 Hum., 303; Heislcell v. Chickasaw Lodge, 87 Tenn., 668; 63 N. Y., 62; 96 U. S., 267, 312.</p> <p>2. Same. Same. Case in judgment.</p> <p>The complainant company is a corporation organized under the laws of Ohio “for the purpose of cutting, dressing, manufacturing, selling, and disposing of marble, stone, slate, granite, and other substances, with such other incidental and necessary powers essential to carry on said business.” It purchased of defendant, Harvey, twenty-five shares of the stock of the “McMillin Marble Company,” a Tennessee corporation engaged in the marble business. Complainant paid the full consideration for these shares. Harvey transferred the shares to a trustee named by complainant, and for its benefit. As part of this contract, Harvey agreed to pay off one-half of certain liabilities existing against the “McMillin Marble Company.” The complainant ■ having been compelled to pay off' these liabilities in full, brought this suit to recover back one-half the amount from Harvey.</p> <p>Held: Complainant’s contract with' defendant for the purchase of the shares of the “McMillin Marble Company” is ultra vires and absolutely void, complainant’s charter conferring upon it no power to make such purchase; and that this suit is in furtherance and affirmance of. said illegal and void contract, and cannot, therefore, be maintained.</p> <p>Question reserved: Could complainant repudiate the contract and tender back to defendant the shares of stock delivered under it, and then recover of defendant the money paid for the shares?</p>

<p>PROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. H. R. G-ibson, Ch.</p>

<p>PROM FRANKLIN.</p> <p>Appeal from 'Chancery Court of Erankliu County. T. M. McConnell, Ch.</p>

<p>FROM ERANKLIN.</p> <p>Appeal from the Chancery Court of Eranklin County. Thomas M. McConnell, Ch.</p>

<p>1. Banks and Banking. Acceptance of check.' Proof of.</p> <p>Acceptance by drawee bank of check drawn upon it by its customer, payable to the order of a particular person, is sufficiently proved in suit upon the check by the payee against the bank, where it appears that the bank paid the check upon its presentment and indorsement by an unauthorized person, and charged the amount to the account' of the drawer, who had. sufficient funds on deposit to meet it, and who afterwards lifted the check in settlement with bank.</p> <p>Case cited and approved: Pickle v. Muse, 88 Tenn., 380.</p> <p>Cited as disapproved: 94’U. S., 343.</p> <p>2. Same. Duty of bank in reference to payment of checks.</p> <p>The drawee bank, having accepted, or being under obligation to accept, its customer’s check drawn payable to the order of a particular person, is not discharged from liability to the payee, unless it has paid the check to him or upon his genuine indorsement. In this matter the bank acts at its peril. The possession of such check by a third ■ person affords no presumption of authority in him to indorse it for the payee. Authority to indorse is not implied from authority to receive such check for the payee.</p> <p>Cases cited and approved: Pickle v: Muse, 4 Pickle, 380; 46 Mo., 186.</p> <p>3. Same. Drummer has no authority to indorse or collect check received for his employer.</p> <p>A drummer employed to sell and take orders for goods, to collect accounts, and to receive money or checks payable to his principal, is not authorized, without more, to indorse his principal’s name on such checks and collect them. Payment to the drummer of such checks upon his indorsement of his principal’s name does not protect the bank from liability to the payee. (</p>

<p>PROM MOORE.</p> <p>Appeal in error from Circuit Court of Moore •County. M. E. Smallman, J.</p>

<p>1. COSTS. Successful party’s liability. Appeal.</p> <p>An appellant in a law cause who has obtained reversal and judgment for costs of appeal against the appellee is liable, upon motion of the interested parties, for all costs of the appeal that cannot be collected out of the appellee; and return of execution nulla bona that has been issued upon the judgment against the appellee is sufficient evidence that the costs cannot be collected from him.</p> <p>Code construed: §3928 (M. & V.); #3204 (T. & S.).</p> <p>2. Same. Motion may be made though cause is still pending.</p> <p>And appellant is liable, upon motion in this Court, for costs of such appeal after return of execution against the appellee milla bona, although the cause is still pending undetermined in the lower Court.</p> <p>Case cited and distinguished: Stuart®. McCuistion,.1 Heis., 428.</p>

<p>1. Insurance, Accident. What injuries are covered by policy.</p> <p>An accident policy that insures the holder “against external bodily injuries effected through external violent and accidental méans,” covers an injury by gunshot through the wrist, sustained by insured while cleaning a shotgun, handling it in the usual manner for that purpose, and believing it unloaded, but which, being loaded, was discharged unintentionally in handling, by reason of a defect in its lock, which was unknown to assured. [Post, pp. lbq-172.)</p> <p>2. Same. What is not vohmtary exposure to danger.</p> <p>And the injury, in such case, does not fall within that clause of the policy which exempts the insurer from liability where the assured’s injury results “from voluntary exposure to unnecessary danger.” {Post, pp. 186, 187.)</p> <p>3. Same. Charter powers defined.</p> <p>An accident insurance company, limited by the express terms of its charter to insurance of persons against accidents sustained “z« traveling,” is not liable for an injury such as that sustained by the plaintiff in this case, although the language of the policy is sufficiently comprehensive to embrace it. Insurance against such injury by such .company is ultra vires and void. {Post, pp. 172-174.)</p> <p>4. Same. Same.</p> <p>But an accident insurance company authorized by its charter “to make insurance against disabilities to persons by sickness or disease, or other bodily infirmities,” is liable upon its policy for an injury such as the plaintiff in'this case sustained. {Post, pp. 173-173.)</p> <p>5. Corporations, Private. Defense of ultra vires available, when.</p> <p>Contracts of corporations made in excess of their charter powers are ultra vires-and void. Such contracts are in contravention of public policy. And corporations are not estopped, although the contract has been executed in good faith by the other party, to make the defense of -ultra vires to any suit brought to enforce such unauthorized contract. {Post, pp. 774-777.)</p> <p>Cases cited and approved: Marble Co. v. Harvey, ante, p. 115; Elevator Co. v. Railroad, 85 Tenn., 705; Mallory v. Oil Works, 86 Tenn., 598; 22 N. Y., 285; 131 U. S., 389; 139 U. S., 60; 131 Mass., 258; 65 Alai, 448; 54 Ala., 471.</p> <p>6.Same. Amendment of charters. Constitutional powers.</p> <p>Charters issued under the general incorporation Act of 1875 may be-amended by general laws adding to the powers therein originally granted. Such amendments are authorized by the Constitution. It is not material whether the power to make them was reserved in the original Act. {Post, pp. 172, 777.)</p> <p>Constitution construed: Art. XI., Sec. 8.</p> <p>Acts construed: Acts 1875, Ch. 142; Acts 1889, Ch. —.</p> <p>7.Same. Same. Estopped to deny acceptance of.</p> <p>Corporations are required by the general incorporation Act of 1875 to-accept, by a prescribed method,- amendments to their charters proposed by subsequent statutes, or, in default thereof, to wind up their affairs. A corporation remaining in business after the passage of a statute proposing a fundamental amendment to its charter, and exercising the additional powers conferred by the amendment, will be conclusively presumed to have regularly accepted the amendment, and will be estopped to deny acceptance thereof by the prescribed method, as to those who have dealt with the corporation in a matter within the scope of the amendment, believing that such acceptance had taken place in due form. {Post,'pp. 1J7-185.)</p> <p>Acts construed: Acts 1875, Ch. 142, Sec. 5; Acts 1889, Ch. —.</p> <p>Cases cited and approved : Nelson v. Haywood County, 87 Tenn., 781;. Merriman v. Ma^iveriy, 12 Heis., 497; 92 U. S., 484; 19 N. Y., 482;. 26 N. Y., 75; 61 Ala., 465; 83 Ala., 118.</p> <p>8.Same. Same. Nature of amendments proposed.</p> <p>The Court does not decide whether the amendment of charter proposed' in this case is fundamental, requiring, under Acts 1875, unanimous, acceptance by stockholders, or merely auxiliary, and therefore not requiring acceptance in that manner. 'But the Court declares it “to be the sounder rule that only very material amendments, radical and vital in their character, should be regarded as requiring unanimous adoption;” and that an amendment should not be deemed fundamental that does not change the character of the business, and simply authorizes its extension upon the lines of the original project. (Pos/r. PP- iSj, 1S6.)</p> <p>Case cited and approved: 18 N. J. Eq., 185.'</p>

<p>1. Taxation. Exemptions for charitable and religions purposes.</p> <p>The personal property of an incorporated publishing house, used in conducting its business, is exempt from ad valorem taxation under our Constitution and statutes exempting from taxation property held and used for purposes “purely” or “exclusively” religious, charitable, scientific, literary, or educational, where the corporation was placed by its charter under complete control of an unincorporated religious 'society or denomination, whose discipline provided that the entire net income arising from the business of the corporation, consisting mainly of the publication and distribution of religious literature, should be applied exclusively to the benefit of the traveling, supernumerary, superannuated, and worn-out preachers of such religious denomination, their wives, widows, and children.</p> <p>Constitution construed: Art. II., Sec. 28.</p> <p>Act construed: Acts 1889, Ch. 96, Sec. 2, Subsec. 2.</p> <p>2. Same. Same. Secular use of property.</p> <p>But this exemption does not attach to property not separable in its use, e. g., the outfit of a publishing house, if it has .been diverted to secular purposes to any material extent, e. g., the one-fifty-sixth part of its use.</p> <p>3. Same. Same. Same.</p> <p>But this exemption is not defeated by the use of the property, viz.: The outfit of the publishing house, in printing in part secular books, etc., if the entire net proceeds of the business is applied to the religious and charitable purposes provided in the charter and discipline.</p> <p>Cases cited and approved: Nashville v. Smith, 86 Tenn., 213; Smith w. Nashville, 88 Tenn., 467; University of the South v. Skidmore, 87 . Tenn., 156;- State v. Fisk University, 87 Tenn., 241.</p> <p>4. Charities. What are.</p> <p>Property or its proceeds is devoted to a religious or charitable purpose where it is set apart entirely and exclusively for the benefit of traveling, supernumerary, superannuated, and worn-out preachers, their wives, widows, and orphans.</p> <p>Cases cited and approved: Franklin v. Armfield, 2 Sneed, 305; Horn-bergerzc Hornberger, 12 Heis., 635; Dickson v. Montgomery, 1 Swan, 367; Gass v. Ross, 3 Sneed, 211; Young v. Shumate, 3 Sneed, 369.</p>

<p>1. Master and Servant. Servants acts admissible in evidence against master, when.</p> <p>Brakeman sued railroad company for personal injuries sustained in its service by reason of the company’s negligent failure to provide safe “foot-rest” and “hand-hold” for ascending to brakes on top of car. The defense was plaintiff’s contributory negligence, which was supported by proof that he knew of the defects that caused the injury and still continued in service. The plaintiff, iir rebuttal of this defense, was permitted to prove, over defendant’s objection, that he made complaint to the conductor of the train in regard to said defects, and received of him assurance that they should be remedied.</p> <p>Held: There is no error in the admission of this evidence in rebuttal.</p> <p>2. SAME. Same. Contributory negligence rebutted.</p> <p>And it is a complete answer to such charge of contributory negligence that the brakeman complained of the defects in question to the conductor in charge of the train, and received his assurance that necessary repairs should be made, and that he remained in the company’s service in consequence of that assurance. The conductor of a train, though not authorized to make repairs, bears the relation of vice-principal to the bralcemen on his train, and his knowledge of defects in the cars composing his train, and promise to repair them, are binding upon the company.</p> <p>Cases cited and approved: Railroad v. "Wireless, lo Lea, 747 > Railroad v. Collins, 85 Tenn., 227; Railroad v. Bowler, 9 Heis., 870; Guthrie v. Railroad, II Lea, 372; Elliott v. Railroad, I Cold., 618.</p> <p>3. Same. Same. Rule construed.</p> <p>Bralcemen are not required to make complaint of known defects in cars to the master of trains, and not to their conductor, under- a rule of the company in these words: “Conductors, flagmen, bralcemen, and train-porters to report to, and receive their instructions from, the master of trains.” This rule has no application to complaints about defective appliances.</p> <p>4. SAME. Correct charge as to master's liability to servant injured by defective appliances.</p> <p>The Court’s charge upon the leading features of this case is quoted in the opinion, and pronounced a “clear, pointed, and sound exposition of the law.”</p> <p>Cases cited and approved: Railroad v. Duffield, 12 Lea, 63 ; 100 U. S., 213; 128 U. S., 91.</p> <p>5. Same. Omissions in not cattse for reversal, when.</p> <p>If the Court’s charge upon the main features of the case is full and accurate, there will be no reversal for Court’s failure to charge upon minor or collateral matters, where no requests have been made for additional instructions upon the omitted points, unless it appears that the failure to charge upon a particular aspect of the case is equivalent, under the circumstances, to an affirmatively erroneous charge.</p> <p>6. Negligence. Proximate cause. Concurrent acts of different 'persons.</p> <p>In suit by brakeman against railroad company for personal injuries, there was evidence tending to show that he sustained his injuries by reason of the company’s negligence in failing to supply safe “footrest” for ascending to brakes on top of car. There was also evidence tending to show that the injuries resulted from the engineer’s negligence in causing a sudden jam of the cars as the brakeman was in the act of ascending the car by means of the defective “ foot-rest.”</p> <p>Held: The Court charged correctly, upon these facts, that plaintiff could not recover if the engineer’s negligence was the cause of the injury— he being a fellow-servant. But that plaintiff was entitled to recover, notwithstanding the engineer’s negligence, if the defective “footrest” was the proximate cause of the injury.</p> <p>7. Assignment oe Errors. Insufficient, when.</p> <p>Assignment of error in a law cause averring that “ the testimony greatly preponderates against the finding of the jury” is insufficient in law. This Court will not set aside a verdict, in any case, for the reason assigned.</p>

<p>FROM WILLIAMSON.</p> <p>Appeal from Circuit Court of Williamson County. H. H. Cook, Sp. J.</p>

<p>1. Limitations, Statute of. Of seven years does not protect mortgageor’s heir against foreclosure suit.</p> <p>Suit for foreclosure of mortgage or deed of trust on realty brought by the mortgagee or trustee against the heirs of the mortgageor more than seven years after his death, is not barred by the statute of limitations of seven years for the protection of the estates of decedents.</p> <p>Code construed: §§3119, 3483 (M. & V.); §§2281, 2786 (T. &S.).</p> <p>Cases cited: Henderson v. Tipton, 88 Tenn., 255; Love v. Welch, 88 Tenn., 259; Fitzsimmons v. Johnson, 90 Tenn., 441; Siglers'. Vaughn, 16 Lea, 346; Caldwells'. McFarland, II Lea, 463; Boraar v. Hagler, 7 Lea, 89; Williams v. Conrad, II Hum., 412; Stones'. Sanders, 1 Head, 248; State v. Crutcher, 2 Swan, 512; Foster s'. Maxey, 6 Yer., 225; Pea s'. Waggoner, 5 Hay., 1; Pecks'. Wheaton, Mart. & Yer., 353; Wooldridge v. Page, 1 Lea, 135; Henry s'. Mills, 1 Lea, 144; Smith s'. Hickman’s Heirs, Qooke, 330; Lewis v. Hickman, 2 Overton, 316.</p> <p>2. Interest. Allowed from date of note, when.</p> <p>Interest runs from date, not from maturity, of note in the following language, to wit:</p> <p>“Nashville, Sept. 9, 1879.</p> <p>“Twelve months after date we promise to pay to the order of A. W. Butler three thousand dollars, with ¿interest at the rate of six per cent, per annum.”</p>

<p>i. Abandoned “Boom” Transaction. Rights of parties.</p> <p>Several persons united in a scheme to purchase and develop a body of mineral lands. It was developed, after several thousand acres had been purchased, that the original promoters had not the necessary funds to “float” the scheme, and other parlies were, from time to time, admitted “upon the ground floor,” and advanced the required funds. Some of these took specific and defined interests in the transaction ; others did not. Titles were taken in the name of one or more of the original promoters, but after some 12,000 acres had been secured, the entire body of lands was conveyed to a trustee for the benefit of all parties interested. Subsequently other lands — 11,000 acres — were purchased by part of those interested in the original purchase of 12,000 acres, others declining to enter into the last purchase. The 11,000 acres was likewise conveyed to the same trustee. At this point the scheme was abandoned by common consent, and suits brought to have the rights of the parties declared, and the lands sold and their proceeds distributed.</p> <p>Held: None of the lands reverted to the original promoters by way of resulting trust; but the transaction should be settled upon principles applicable to a partnership, by dividing the net proceeds of the two purchases among those interested in each, giving each person the specific interest he contracted for, or, in the absence of such contract, then an interest in proportion to the advancement in money and services made by each.</p> <p>2. Same. Same.</p> <p>And if any of the joint purchasers who contracted to take a specific interest in the land, has failed to pay his proportion of the purchase-price, the deficit should be made good out of his share of the proceeds of sale.</p> <p>Cases cited and approved : Gee v. Gee, 2 Sneed, 395; Rankin v. Black, 1 Head, 658; Williams.©. Love, 2 Head, 84; Furman v. McMillian, 2 Lea, I2i; Pearl v. Pearl, i Tenn. Ch., 207; 19 Am. Rep., 735; 50 Am. Rep., 727.</p>

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

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

<p>1. Gaming Contracts. Example of.</p> <p>The transaction set out in the Court’s opinion, purporting to be a sale of stock by Dunham & Co. to Allen is declared void, as a gaming contract, that may be repudiated by Allen, and the money paid upon it recovered by himself or his wife, or their assignee. (Post,pp. 258 — 264.)</p> <p>Acts construed: Acts 1883, Ch. 251.</p> <p>Cases cited and approved: McGreww. City Produce Exchange, 85'renn., 578; 40 U. S. Rep., 499, 508; 33 Am. Rep., 393; 39 Mich., 337.</p> <p>2. Stock Brokers. Responsible as principals io customers.</p> <p>Stock brokers are responsible as principals,to customers dealing with or through them. [Rost, p. 264.)</p> <p>3. Champerty and Maintenance. Not a defense, when.</p> <p>The champerty and maintenance laws afford no defense to defeat a suit by the assignee of the loser’s claim to recover of the winner moneys lost in a gambling transaction. [Post, p. 268.)</p> <p>4. Compounding Felony. What is not illegal.</p> <p>It is n.ot unlawful for a party having lost money by embezzlement to agree not to prosecute the embezzler upon his refunding the amount embezzled, or otherwise giving full indemnity or satisfaction. Embezzlement, whether of public or private funds, may be lawfully condoned upon repayment of funds embezzled. However, the Court holds that the facts in this case fail to show any agreement not to prosecute. (Post, pp. 268, 269.)</p> <p>Code construed: §5474 (M. &V.); §4707 (T. & S.).</p> <p>•Cases cited and approved: Davis v. State, oral opinion at Jackson in 1890; Cheek v. State, oral opinion at Jackson in 1889.</p>

<p>EROM MONTGOMERY.</p> <p>Appeal from the Criminal Court of Montgomery County. C. W. Tylek, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Criminal Court of Davidson County. G-. S. Ridley, Judge.</p>

<p>1. Witness. Defendant in criminal case must testify as first witness for defense.</p> <p>Unless the defendant in a criminal case testifies on his behalf “before any other testimony for the defense is heard,” his testimony cannot be heard at all. The rule requiring him to testify first for the defense is imperative, and admits of no exception. Oversight of counsel affords no reason for relaxation of the rule.</p> <p>Act construed: Acts 1889, Ch, 79.</p> <p>2. Criminal Practice. Verdict of guilty sufficient, when.</p> <p>A verdict of guilty in a robbery case is sufficient in these words, to wit : “The jury, on their oaths, do say that the said George Clemons is guilty, in manner and form as charged in the bill of indictment, and fix his punishment at five years’ confinement.” The omission to name the place of confinement is not material, that being supplied by the law.</p> <p>3. Same. Same. Judgment.</p> <p>And such verdict authorizes judgment that the defendant “be confined in -the penitentiary of the State of Tennessee, at hard labor, for five years.”</p> <p>4. Indictment. For robbery sufficient, when.</p> <p>An indictment for robbery, sufficient in other respects, is good, although it contains no averment of ownership of the property taken.</p> <p>Code construed: § 5380 (M. & V.) ; ?¿ 4631 (T. & S.).</p> <p>Case cited and approved: State v. Swafford, 3 Lea, 162.</p> <p>5. Term of Imprisonment. Begins from date of affirmance.</p> <p>A convict’s term of imprisonment, where he takes an appeal, begins from the date of affirmance in this Court, and not from date of judgment in lower Court. There is no authority to imprison him in the penitentiary pending the appeal, even with his consent.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Criminal Court of Davidson County. John D. BRIEn, Sp. J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from Chancery Court of Davidson County. J. A. CaRtwei&ht, Sp. Ch.</p>

<p>Mechanics’ Lien. Architect not entitled to.</p> <p>An architect has not, under our statutes, a mechanics’ lien upon a lot and the buildings erected thereon for the value of services rendered by him tinder 'contract with the owner in drawing plans, making estimates, and soliciting bids for the buildings and superintending their erection.</p> <p>Code construed: §§2739, 2740 (M. & V.); 1981, 1981c (T. & S.).</p> <p>Cases cited: Burr v. Graves, 4 Lea, 557; Kay v. Smith, 10 Iieis. 43; Luter v. Cobb, 1 Cold, 528; Alley v. Lanier, 1 Cold., 540; McLeod v. Cahill, 7 Bax., 199; Dunn v. McKee, 5 Sneed, 658.</p>

<p>FROM WILSON.-</p> <p>Appeal from Chancery Court of "Wilson County. 'G-eo. E. Seay, Ch.</p>

<p>1. Constitutional Law. Recitals in amendatory statutes.</p> <p>The Constitution requires that amendatory statutes “ shall recite in their caption or otherwise the title or substance” of the law amended. A statute amendatory of the Code was entitled “An Act to amend §4652, Subsection 16, of the Code of Tennessee,” and contained in its body substantially the same description of the law amended. This statute contained no reference to the substance of the law amended.</p> <p>Held: The amended law is sufficiently recited in both the caption and body of the amendatory Act.</p> <p>Constitution construed: Art. II., § 17.</p> <p>Act construed: Acts 1889, Ch. 161.</p> <p>Cases cited: Ransome v. State, 91 Tenn., 718; Burnett w. Turner, 87 Term., 127.</p> <p>2. Code of Tennessee.</p> <p>The compilation of 1858 is entitled “An Act to revise the statutes of the State of Tennessee.” It is provided therein that this compilation “is to be designated as the ‘Code of Tennessee.’” Hence either title may be used in the recital of an amendatory statute.</p> <p>Code construed: $41 (M. &V.); §40 (T. & S,).</p>

<p>1. Common Carrier. Liability for injury to line-stock.</p> <p>Suit for injuries sustained by live-stock during shipment. Prior to May 31, 1889, the express company contracted with Jackson to make shipment of thorough-bred horses from Belle Meade, Tenn., to Hunt’s Point, N. Y., where they were to be sold on June 17, 1889. This shipment was to be made in safe and suitable cars, by fast train, in charge of company’s agent, and to arrive at destination some days before the sale. The Johnstown flood occurred on May 31, 1889, breaking the company’s ordinary line for eastern transportation. This was known to both parties when, on June 6, 1889, the company received the horses and began their shipment. The company selected one of several available lines as a substitute for the broken line, and the proof tends to show that it did not select the best one. The proof also tends to show that the company did not take the precaution to secure transportation in advance. Upon the substitute line selected the cars containing the horses were hitched to a coaling train that conveyed them only seven ty-lwo miles in twelve hours, during which the horses, abandoned by the company’s agent, were subjected to such treatment as resulted in serious injury.</p> <p>Held: The express company is liable for the injuries sustained by the horses. The act of Go'd — the Johnstown flood — was not the proximate cause of the injury. It occurred before the shipment began, and was then fully known to the company. The subcarrier’s negligence was imputable to the express company, its principal.</p> <p>2. Same. Express company is.</p> <p>Doctrine re-affirmed that an express company is a common carrier, and subject to all the duties and responsibilities attaching to that character.</p> <p>Cases cited and approved: Railroads'. Wynn, 88 Tenn., 320; Transportation Co. v. Bloch Bros., 86 Tenn., 392; Baker s'. Railroad, 10 Lea, 304; Railroad v. Jackson, 6 I-Ieis., 271; Railroads'. Hale, 8$ Tenn., 69; Smitha v. Railroad, 86 Tenn., 198; Railroads'. Mason, 11 Lea, 116; 112 U. S., 331; 71 Wis., 372; 1 Am. St. Rep., 721; 5 Am. St. Rep., 226.</p> <p>3. Same. Act of God.</p> <p>The act of God which will excuse a common carrier from liability, must be the proximate, not merely the remote, cause of the loss or injury. Hence the Johnstown flood, having occurred and being known before the shipment was undertaken, could not excuse the carrier from liability for loss occurring in the course of transportation, voluntarily undertaken with full knowledge of the situation. It, perhaps, might have justified the company in refusing to undertake the shipment.</p> <p>Cases cited and approved: Railroad v. Wynn, 88 Tenn., 320; Transportation Co. v. Bloch Bros., 86 Tenn., 392; 27 Conn., 607; 54 N. Y., 504; 4 Zab. (N. J.), 697; 1 Murphy (N„ C.), 173; 10 Wall., 176.</p> <p>4. Same. Subcarriers are agents of carrier, not of the shipper.</p> <p>Doctrine re-affirmed that subcarriers are agents of the carrier, and not agents of the shipper, in the absence of special contract.</p> <p>Case cited and approved: Transportation Co. v. Bloch Bros., 86 Tenn., 392-</p>

<p>Municipal Corporations. Ultra vires contract.</p> <p>A contract on the part of a city, made by accepting a deed of a right of way for a sewer pipe, to the effect that the city will have the sewer so constructed with a suitable valve as to prevent water from flowing back into the grantor’s premises, is, in the absence of express-charter power to make such a contract, valid only so far as the city would have been bound by law in the absence of any contract — that is, for negligence in the execution of the work — but so far as it assumes to insure or guarantee the grantor against other damage, it is void.</p> <p>Cases cited and approved: Humes v. Knoxville, I Hum., 403; Nashville v. Brown, 9 Heis., 6; Horton v. Nashville, 4 Lea, 49; 4 Am. & Eng. Corp. Cas., 339, 341; 18 Am. St. Rep., 377; 2 Am. & Eng. Corp. Cas., 640; 12 Wall., 349.</p>

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

<p>1. Constitutional Law. Act i8gi, imposing privilege tax on turnpikes, valid.</p> <p>Acts 1891, Ch. 25, p. 67, imposing an annual privilege tax of $25 upon “ each toll-gate on turnpikes that collect toll for both ways,” is constitutional and valid.</p> <p>Act construed: Acts 1891, Ch. 25, p. 67.</p> <p>2. Same. Same.</p> <p>The Legislature has power to declare the business of running a turnpike for tolls a privilege, and tax it as such.</p> <p>Constitution construed : Art. XI., 28.</p> <p>Cases cited and approved : ICurth v. State, 86 Tenn., 736 ; Columbia v.</p> <p>Guest, 3 Head, 414; Jenkins v. Erwin, 8 Heis., 456.</p> <p>3. Same. Same.</p> <p>This statute is not vicious class legislation. The classification adopted is not arbitrary or capricious. Substantial distinctions exist, from the taxation point of view, between turnpikes charging “ toll for both ways,” and those charging toll only one way, or not at all.</p> <p>4. Same. Same.</p> <p>This statute is not invalid upon the ground that it violates the charter contracts of turnpike companies. Corporations take their franchises and privileges, in the absence of explicit contract for exemption, subject to the State’s right to impose license or other taxes thereon.</p> <p>Cases cited and approved: Memphis Gas Co. v. Shelby County, 109 U. S., 398; 143 U. S., 198.</p> <p>5. Taxation. Exemptions from.</p> <p>Exemptions from taxation are never allowed unless they are granted in “clear and unmistakable words.” Every doubt and presumption prevails against them.</p> <p>Cases cited and approved: Memphis v. Bank and Ins. Co., 91 Tenn., 546, 55°; 18 Wall., 226; 1.17 U. S., 136; 143 U. S., 195. 24 — 8 p</p> <p>6. Same. Charter construed as giving no exemption.</p> <p>A turnpike company has no exemption from taxation where it is granted, by legislative charter, “all the rights, powers, and privileges ” of an existing company, whose charter contained an exemption from taxation. Exemption from taxation is not embraced in the terms “rights, powers, and privileges.”</p> <p>Cases cited and approved: Wilson v. Gaines, 9 Bax., 546; Memphis v. Phoenix Ins. Co., 91 Tenn., 567.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from Circuit Court of Rutherford County. RobeRt Cantbell, J.</p>

<p>i. Master and Servant. Master’s liability for superior’s negligence resulting in injury to inferior fellow-servant.</p> <p>The master is not liable for the personal negligence, hut only for the official negligence of his superior servant, causing injury to an inferior fellow-servant. Superiority in rank of the negligent over the injured servant, does not, in such case, fix the master’s liability, but “in order to charge the master with such negligence, the superior servant must so far stand in the place of the master as to be charged, in the particular matter, with the performance of a duty toward the inferior servant, which, under the law, the master owes that servant.”</p> <p>Cases cited and approved: Fox v. Sandford, 4 Sneed, 36; Railroad v. Elliott, x Cold., 611; Railroad v. Wheless, 10 Lea, 741; Railroad v. Rush, 15 Lea, 151 ; Railroad v. Handman, 13 Lea, 423 ; Railroad v. Lahr, 86 Tenn., 340; Coal Creek M. & M. Co. v. Davis, 90 Tenn., 711.</p> <p>2. SAME. Same. Erroneous charge.</p> <p>A proper charge, upon the facts of this case, should have stated the distinction, as regards the master’s liability for injuries resulting to an inferior servant, between personal and official negligence of a superior servant. The charge given ignored this distinction, and was calculated to mislead the jury into the belief that the master was liable to an inferior servant for the results of the personal negligence of his superior fellow-servant. Held: This was error, even in the absence of any requests for a fuller exposition of the law.</p> <p>Cases cited and approved: Fox v. Sandford, 4 Sneed, 36; Railroad v. Rush, 25 Lea, 151.</p> <p>3. Same. Same.</p> <p>The master will not be liable for injury resulting to his servant from negligence of an alleged superior servant, unless the negligent servant was in fact the superior of the injured fellow-servant at the time. It will not suffice that tile injured servant believed the negligent servant to be his superior, if no such relation existed in fact by the master’s appointment.</p>

<p>1. Separate Estate. What constitutes. Example.</p> <p>A husband’s deed conveying to his wife a life estate in a house and lot, vests her with a separate estate therein by this clause, to wit:’ “And during the life of my wife, she is hereby authorized and empowered to collect the rents of said house and lot, and to use the same in any manner she may elect, to her separate use, and free from my debts, contracts, or control.” The conveyance of the entire rents of the land for life, and to her separate use, is the equivalent of a conveyance of the land itself for life and to her separate use.</p> <p>Case cited and approved: Davis v. Williams, 85 Tenn., 651.</p> <p>2. Same. May be conveyed by wife to husband.</p> <p>A married woman is empowered by statute in this State to convey her lands, held as a separate estate, in the same manner as if unmarried. She can lawfully convey her lands; held as separate estate, by deed made direct to her husband, but such deed will be more narrowly scrutinized than one made to a third person.</p> <p>Code construed: $3350 (M. & V.); §2486;: (T. &S.).</p> <p>Cases cited and approved: McLin v. Haywood, 90 Tenn., 195; Powell v. Powell, 9 Hum., 477.</p>

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

<p>FROM WILLIAMSON.</p> <p>Appeal from County Court of Williamson County. ~W. O’iL Perkins, J.</p>

<p>1. Foreign Corporations. State's power to exclude and regulate.</p> <p>The State’s right and power is undoubted to exclude from its borders foreign corporations engaged in the business of insurance, or to admit them upon any terms, however onerous.</p> <p>Cases cited and approved: 8 Wall./168; 10 Wall., 410; 113 U. S., 574; 94 U. S., 535-</p> <p>2. Same. Admission of fire insurance companies.</p> <p>Before a foreign fire insurance corporation can lawfully engage in business in this State, it must file copy of its charter in the office of the Secretary of State, and register abstracts thereof in the counties where it proposes to do business, and must, in addition, comply with the requirements of the laws administered through the Bureau of Insurance by the Commissioner of Insurance.</p> <p>Acts construed: Acts 1877, Ch. 31; Acts 1891, Ch. 122 and Ch. 47.</p> <p>3. Same. Liable for charter tax and fees.</p> <p>And such company is liable for the charter tax imposed for the privilege of filing its charter, and for the fees allowed for such filing, and for registration of abstracts of its charter.</p> <p>Acts construed: Acts 1891, Ch. 25 (Ex. Sess.).</p> <p>4. Statutes. Rule of construction.</p> <p>Except in a very clear case, that which is within the letter of a statute will not be excluded from its operation as not being within its spirit.</p> <p>Cases cited and approved : State v. Turnpike Co., 2 Sneed, 90; 4 Wheat., 202-3.</p>

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

<p>1. National Banks. Suit against for sisuary, barred when.</p> <p>Where a national bank discounts a note and retains usurious interest out of its proceeds, a suit to íecover the usury must, under the Federal statute, be brought within two years after the date of actual receipt of the usury by’the bank. The “usurious transaction occurred,” within the meaning of the Federal statute, at the time the bank retained the usurious interest, and not at the time when the discounted note fell due or judgment was rendered thereon.</p> <p>Statute construed: U. S. Rev. Stat., § 5198.</p> <p>Cases cited and approved: 46 Am. R., 526; 22 Ohio, 525; 40 Ohio, 629; 13 N. W. R., 63. ■</p> <p>2. Same. Liability for taking usury.</p> <p>Double the excess over the legal rate, not double the entire interest collected, is the measure of a national bank’s liability under the Federal statutes for knowingly collecting usurious interest.</p> <p>Statute construed: U. S. Rev. Stat., § 5198.</p> <p>Cases cited and approved: 64 N. Y., 212; 72 Penn. St., 209; 104 U. S., 271.</p>

<p>PROM MAURY.</p> <p>Appeal in County. E. error from Circuit D. PATTERSON, J. Court of Maury</p>

<p>PROM HARDEMAN.</p> <p>Appeal from Chancery Court of Hardeman? County. A. G-. Hawkins, Cb.</p>

<p>1. Replevin. Enforcement of judgment.</p> <p>The successful plaintiff in replevin has the right to enforce by execution his alternative money judgment for the value of the property, unless the defendant can return Lhe whole of the property detained, or has the right, under the judgment of the Court, to return less than the whole and to make an ascertained money compensation for the remainder.</p> <p>Cases cited and approved: Sayres v. Holmes, 2 Cold., 263; Picketts'. Bridges, 10 Hum., 171; 104 Mass., 328; 41 N. Y?, 317; 20 Wall., 486.</p> <p>2. Same. Same.</p> <p>Acts 1885, Chapter 59, has no application to this case. It provides a remedy for a successful defendant in replevin, who has been unable to obtain return of his property or satisfaction of his alternative money judgment.</p> <p>Acts construed: Acts 1885, Ch. 59.</p>

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

<p>FROM LAUDERDALE.</p> <p>Appeal from the Circuit Court of Lauderdale County. T. J. Elippin, J.</p>

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

<p>PROM DYER.</p> <p>Appeal from Chancery Court of Dyer County. H. J. Livingston, Ch.</p>

<p>1. Charge ok Court. Special instructions.</p> <p>If special instructions are correct as given, it is not error for the Court to have refused to give them in the exact language of the requests. Counsel are not permitted to dictate, even by special requests, the terms and expressions to be used by the Court in his charge to the jury.</p> <p>2. Like Insurance. Assured's statement and concealment of facts.</p> <p>The Court’s charge is not subject to exception by the insurer, where it is stated, in substance, to the jury that there can be no recovery upon a life policy, if the assured, in procuring it, misstated, failed to state, or concealed any fact touching his health that was material to the risk, and which was known to him, or could have been ascertained by him upon reasonable inquiry; and stating, further, that it was immaterial whether the assured was questioned about the matter or not, and likewise immaterial whether he acted in good or bad faith, or from.intention or through ignorance and mistake.</p> <p>Case cited: Boyd v. Insurance Co., 90 Tenn., 212.</p> <p>3. Same. Same.</p> <p>And the Court properly refused to charge, upon the insurer’s request, that the assured’s action upon a life policy would be defeated if the assured, though acting in perfect good faith, failed to inform the insurer of latent and undeveloped disease, of the existence of which the assured had no knowledge or suspicion, and which could not have been discovered by any reasonable inquiry or diligence on his part.</p>

<p>i. Revivor. Of administrator's stdL</p> <p>Where an administrator sues in his representative capacity, upon a note taken, payable to himself as administrator for a debt due his intestate’s estate, the suit may be revived upon his death during its pendency, either in the name of his own administrator, or in the name of an administrator de bonis non of the first decedent.</p> <p>Cases cited and approved : Scott v. Alexander, 2 Sneed, 652; Smith v. Pearce, 2 Swan, 128.</p>

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

<p>PROM SHELBY.</p> <p>Appeal in error from Circuit Court of Slielby County. L. II. Estes, I.</p>

<p>1. Bills and Notes. Indorsers are joint makers, when.</p> <p>Indorsers upon a note, made payable to a particular person or order,, and given for a debt of the maker, are liable thereon as joint makers, and without demand, protest, or notice having been made and given, when they indorsed the note before its delivery, and as additional security to the payee.</p> <p>Cases cited and approved: Hardings'. Waters, 6 Lea, 333; Rivers v. Thomas, 1 Lea, 649; Rosson v. Carroll, 90 Tenn., 90-130; 22 IIow., 341-</p> <p>2. Same. Indorser's liability shown by parol evidence.</p> <p>Indorser’s liability may be shown by parol evidence to be different from that indicated by the form and order of the indorsements.</p> <p>3. Chancery Pleading and Practice. Proof of complainant's corporate character required, when.</p> <p>The averment in a bill that the complainant is a foreign corporation, must be supported by proof, if not admitted by the answer, and, a fortiori, if put at issue by a general denial.</p> <p>Cases cited and approved: Marble Co. v. Black, 89 Tenn., 118-121; Hill v. Walker, 6 Cold., 429; Hardeman v. Burge, 10 Yer., 202; Smith v. Insurance Co., 2 Tenn. Ch., 602; 15 Fed. Rep., 502; 79 Am. Dec., 447; 69 Am. Dec., 81 ; 71 Am. Dec., 447.</p> <p>Cited and distinguished: Jones v. State, 5 Sneed, 346, 348; Owen v. State, 5 Sneed, 493, 495 ; Augusta Manufacturing Co. v. Vertrees, 4 Lea, 75.</p> <p>4. Supreme Court. Remands for farther proof when.</p> <p>This Court, having reversed a meritorious decree in complainant’s-favor for the sole reason that there was no proof of complainant’s corporate character, will remand the cause for further proof.</p> <p>Code construed : J 3889 (M. & V.); § 3170 (T. & S.).</p>

<p>1. Mechanic’s Lien. Subcontractors1 furnisher of materials has none.</p> <p>A' mechanic’s lien does not attach, under our statutes, in favor of one •who furnishes materials to a subcontractor, to be used by him in the erection of a building.</p> <p>Code construed : § 2746 (M. & V.); § 1986 (T. & S.).</p> <p>Acts construed: Acts 1873, Ch. 19; Acts 1889, Ch. 103.</p> <p>Cases cited and approved; Cole Manufacturing Co. v. Falls, 90 Tenn., 470; Stone Co. v. Board of Publication, 91 Tenn., 200.</p> <p>Cited and distinguished: McLeod v. Capell, 7 Bax., 196.</p> <p>2. Same. Same.</p> <p>And such furnisher of materials to a subcontractor obtains no lien on the building by virtue of a stipulation in the building contract between the owner and the original contractor that all materials should be paid for by the owner’s individual checks to the parties furnishing same.</p>

<p>1. Mechanics’ Lien. Of furnisher of materials to contractor.</p> <p>The furnisher to a contractor of materials to build a house has a stat-ulory lien upon the property therewith erected, for their value, although the furnisher relied for payment of his claim upon the contractors’ responsibility, and not upon any lien upon the property.</p> <p>Code construed: 2739, 2746 (M. & V.); ¡¡§ 1981, 1986 (T. & S.).</p> <p>Acts construed: Acts 1881, Ch. 67; Acts 1889, Ch. 103.</p> <p>Case cited and approved: Green v. Williams, ante, p. 220.</p> <p>Cited and distinguished: Mills v. Terry Mfg. Co., 91 Tenn,, 469.</p> <p>2. Same. Sufficiency of notice.</p> <p>Furnisher’s notice to-owner, of intention-to claim statutory lien upon property for materials furnished to a contractor and used in its erection, if sufficient in other respects, is not bad for failure to give specific description of the materials so furnished and used.</p> <p>Acts construed: Acts 1889, Ch. 103.</p> <p>Case cited and approved: Reeves v. Henderson, 90 Tenn., 522.</p> <p>3. SAME. Service of notice.</p> <p>And valid service of such notice may be made by a non-official person.</p> <p>4. Same. When notice may be given.</p> <p>Furnisher’s notice to owner of intention to claim the statutory lien upon a building for materials furnished to and used by-a contractor in its erection, is not premature, under our statutes, when given before the completion of the building, but within thirty days after the completion of the furnisher’s contract.</p> <p>Code construed: §2746 (M. &V.); §1986 (T. & S.).</p> <p>Acts construed: Acts 1889, Ch. 103; Acts 1881, Ch. 67.</p> <p>Cases cited and approved: Cole Mfg. Co. v. Falls, 90 Tenn., 471; Stone Co. v. Board of Publication, 91 Tenn., 201; Shelby v. Hicks, 5 Sneed, 197; Reeves v. Henderson, 90 Tenn., 523; Green v. Williams, ante, p. 220.</p> <p>Cited and distinguished 33 Fed. Rep., 569.</p>

<p>1. WILL. Effect of devise of rents or income of property.</p> <p>A bequest of the rents or income of property operates to pass the title of the property itself.</p> <p>Cases cited and approved : Polk v. Paris, 9 Yer., 241; Morgan v. Pope, 7 Cold., 547; Davis v. Williams, 85 Tenn., 648; Spofford v. Martin College, Oral Opinion, 1889.</p> <p>2. Charitable Trust. Designation of trustee.</p> <p>A devise of land in trust for a charitable purpose, to the testator’s wife and daughter, with power to nominate and elect their successors and associates from his descendants, who are also authorized to elect associates and successors, and providing that, in case there shall at any time not be as many as two of his descendants willing to take the trust, it shall revert to a designated board, sufficiently provides for the trustees.</p> <p>Cases cited and approved: Cobb v. Denton, 6 Bax., 236; Gass v. Ross, 3 Sneed, 211; Dickson v. Montgomery, I Swan, 347; Franklin v. Armfield, 2 Sneed, 346; State v. Smith, 16 Lea, 665; Heiskell v. Chickasaw Lodge, 87 Tenn., 668; Frierson v. The Church, 7 Heis., 683; 2 How., 126; 3 Pet., 99; 95 U. S., 303; 107 U. S., 172.</p> <p>3. Same. Designation of purposes of trust.</p> <p>A devise of land in trust for some charitable purpose, with a preference for something of an educational nature, and a hope that a grand female college may at some time be constructed thereon, but giving the trustees absolute power to divert the property to any other charitable purpose, is too indefinite to be enforced.</p> <p>Cases cited and approved: State v. Smith, 16 Lea, 670; Dickson v. Montgomery, 1 Swan, 348; Gassw. Ross, 3 Sneed, 211; State, exrel., v. Martin College, Oral Opinion, January, 1888; Reeves v. Reeves, 5 Lea, 644; Rhodes v. Rhodes, 88 Tenn., 637; 125 N. Y., 569; 130 N. Y., 29 (S. C., 27 Am. St. Rep., 487, and 14 L. R. A., 30).</p>

<p>J?ROM SHELBY.</p> <p>Appeal from Chancery Court, of Shelby County. W. D. Beaud, Ch.</p>

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

<p>PROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. Pierson, Sp. Ch.</p>

<p>1. Mechanics’ Lien. Service of notice of ftirnisher's lien.</p> <p>Furnisher’s notice to owner of property of his intention to claim lien for materials furnished to a contractor for use in its improvement is Void, if served more than thirty days after the expiration of the fur-nisher’s contract, and before the completion of the building or improvements in which the materials were used.</p> <p>Acts construed: Acts 1889, Ch. 103.</p> <p>Cases cited: Reeves v. Henderson, 90 Tenn., 527; Bassett & Clapp v. Bertorelli, ante, p. 548.</p> <p>2. Statutes. Repeal by implication.</p> <p>A statute amends by substitution and repeals by implication a former law, where the later statute covers the entire subject-matter of the earlier one, and declares that it “shall be amended so as to read as follows,” setting out the amendment in full.</p> <p>Acts construed: Acts 1889, Ch. 103 ; Acts 1881, Ch. 67 (Code, M. & V., § 2746) ; Acts 1845-6, Ch. 118 (Code, M. & V., §2746).</p> <p>Cases cited and approved : Terrell v. State, 86 Tenn., 523 ; Poe v. State, 85 Tenn., 495; The Druggist Cases, 85 Tenn., 450.</p>

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

<p>EROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. ~W. D. Beabd, Ch.</p>

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

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

<p>PROM SHELBY.</p> <p>Appeal iii error from Criminal Court of Shelby County. J. J. DuBose, J.</p>

<p>1. Year’s Support. Widow of non-resident noi entitled to.</p> <p>Our statute providing for year’s support for widow out of the estate of her deceased husband does not embrace non-residents.</p> <p>Code construed: $3125 (M. &V.); §2285 (T. & S.).</p> <p>Cases cited: Curd v. Curd, 9 Hum., 171; Sanderlin v. Sanderlin, I Swan, 441; Bayless v. Bayless, 4 Cold., 359; Vincent v. Vincent, 1 Heis., 333 ; Turner v. Fisher, 4 Sneed, 209Pride v. Watson, 7 Heis., 232; Rice v. Hunt, 7 Lea, 33; Rhea v. Greer, 86 Tenn., 59; Railroad v. Kennedy, 90 Tenn., 185; Lisenbee v. Holt, 1 Sneed, 50; Hawkins v. Pearce, 11 Hum., 44; Emmett v. Emmett, 14 Lea, 369; Prater v. Prater, 87 Tenn., 78; Holland v. Railroad, 16 Lea, 418; Carson v. Railroad, 88 Tenn., 646.</p> <p>2. Same. Statutes providing, liberally construed.</p> <p>Doctrine re-affirmed that statutes providing for year’s support are construed liberally in favor of the right.</p> <p>Case cited and approved: Rhea v. Greer, 86 Tenn., 59.</p>

<p>ER0M SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. W. D. BeaRD, Ch.</p>

<p>1. Telegraph Company. Liability for negligent failure to send and deliver telegram.</p> <p>A telegraph company is liable in damages to the “sendee” for negligent failure to send and deliver telegram addressed by a mother to her son, informing him of his father’s dying condition, and summoning the son 'to the father’s bedside, although the mother paid the “toll” for sending the telegram, and the son, without receiving it, visited his father two days later, and reached him thirty-six hours before death.</p> <p>Code construed : § 1542 (M. & V.); § 1323 (T. & S.).</p> <p>Case cited and approved: Wadsworth v. Telegraph Co., 86 Tenn., 695.</p> <p>2. SAME. Same. Measure of damages.</p> <p>And damages should be awarded, in such case, in such sum as will reasonably compensate for the grief, disappointment, or other injury to the feelings of the “ sendee,” caused by the company’s default, taking into consideration, in mitigation of damages, the fact that the son reached the father’s bedside before his death.</p> <p>3. New Trial. Awarded for excessive verdict.</p> <p>The vet diet of $900 is so excessive upon the facts of this case ás to demand a'reversal for that cause alone.</p>

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

<p>1. Homestead. Widow's not assignable out of lands held by entireties.</p> <p>Land deeded to husband and wife during the existence of the marital relation vests absolutely in the widow on his death, and she cannot be compelled to take homestead therein.</p> <p>Cases cited and approved: Jackson v. Shelton, 89Tenn., 82; McRoberts v. Copeland, 85 Tenn., 211; Ames z-. Norman, 4 Sneed, 683; Taul v. Campbell, 7 Yer., 319; Berrigan v. Fleming, 2 Lea, 275.</p> <p>2. Same. Disallowed to widow for want of sufficient title in husband.</p> <p>The husband has no such interest in land as will, upon his death, support his widow’s claim to homestead therein, when his father purchased and paid for the land, and ever afterwards received its rents and profits and paid taxes thereon, but, being financially embarrassed, took title in the name of the son, who executed bond, obligating himself to convey to the father, upon his repayment of a stipulated sum advanced by the son for the purchase of the land.</p> <p>3. Same. Costs of proceedings.</p> <p>When the husband had apparent, but not real, title to lands, and his widow, believing his title perfect, has instituted proceedings for assignment of homestead out of same, but has failed by reason of the husband’s want of title, the costs of such unsuccessful proceedings will be adjudged to be paid by the husband’s administrator, and not by the widow personally.</p> <p>4. Supreme Court Practice. Affirms correct decree.</p> <p>This Court will affirm a decree correct in result, though put, by the lower Court, upon erroneous grounds.</p>

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

<p>Criminal Law. Keeping liquor saloon open on Sunday.</p> <p>A druggist who sells liquors by the drink and in quantities, in the same room where his drugs are kept, having a tippler’s or retail liquor-dealer’s license for that purpose, must close his house on Sunday, under Act of 1889, Chapter 31, prohibiting, among other things, the keeping open on Sunday of any place where intoxicating liquors are sold, with a proviso that it shall not apply to a druggist selling on the prescription of a practicing physician.</p> <p>Act construed: Acts 1889, ch. 31.</p>

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

<p>1. Ejectment. Evidence.</p> <p>The self-disserving admissions of a predecessor in title are, as a rule, admissible against those who follow and claim under him, when such admissions are made at the time such predecessor was in possession. {Post, ft. 750.)</p> <p>2. Same. Same.</p> <p>Declarations of this character are to be received, not only in disparagement and diminution of the property which the declarant enjoyed, but as evidence of any fact which is not foreign to the statement against interest, and which forms substantially a part of it. {Post, P- 75°■)</p> <p>3. Same. Same.</p> <p>The rule admits, as against succeeding holders of a title, maps, recitals in deeds, monuments, and boundaries, of which an owner, during his ownership, was author. {Post, ft. 7SO.)</p> <p>4. Same. Same.</p> <p>Deeds, although not links in deraignment of title from original owner, are admissible in evidence, when connected with possession of present owners, and of those under whom they claim, for the purpos? of showing the boundaries of such possession, as well as the nature, extent, and description of their claim. Such conveyances are also admissible in aid of the presumption of a deed from one of the original grantors, arising from long possession of defendants and of those under whom they claim. {Post, ft. 751.)</p> <p>3. Same. Prestimption of deed.</p> <p>When possession and use of land are long continued, they create a presumption of lawful origin — that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It is sufficient, if the evidence leads to the conclusion that the conveyance might have been executed, and that its existence would be a solution of the difficulties arising from its non-execution. (Post, ftp. 733, 734.)</p> <p>Cases cited and approved: Williams v. Donnell, 2 Head, 695;, 120 U. s., 534-</p>