94 Tenn.

Volume 94 — Tennessee Reports

67 opinions

94 Tenn. 1Kelley Bros. v. Fletcher (1894)
1. Stjpbemk Court. Bill of exceptions essential, when. Unless made part of record by bill of exceptions, evidence excluded by the Chancellor on the hearing cannot be looked to by this Court. {Post, p. 5.) Cases cited and approved: Pferry v. Pearson, 1 Hum., 431; Spur-locks. Pulks. 1 Swan, 391; Aymettu Butler, 8 Lea. 453; Steele v. Frierson, 85 Tenn., 438; Anderson v. Railroad, 91 Tenn., 54. 3. Corporations. Stockholders' liability for subscriptions. Where a corporation, pursuant to legal authority, issues paid-up non-assessable shares in payment for property or services, it is presumed that the transaction was made in g-ood faith, and-the property or services placed at a fair valuation; and creditors of the corporation seeking', after its insolvency, to compel the holders of such shares to contribute to payment of debts of the corporation must aver and prove that the transaction was fraudulent, and should not therefore operate as payment in full for such shares., (Post, pp. 7-16.) • . Cases cited: Merriman v. Lacefield, 4 Heis., 217; Austin v. Ramsey, 3 Tenn. Ch., 121; 5 Dillon, 50; 119 U. S., 345; 110 Ind., 417; 31 N. E. JRep., 362; 59 Md., 1; 78 Wis., 427 (S. C., 23 Am. St. R., 419, 421); 92 Ala., 407 (S. C., 25 Am. St. R., 82, 83); 146 U. S., . 642. 4. Same.- Payment of stock subscriptions in property. Doctrine reaffirmed that stock subscriptions may be paid in such property as the coi’poration may be authorized to buy or use, and that such payment, made in good faith and at a fair valuation, is as valid and effectual as if made in cash. (Post, pp. 6, 7.) Cases cited: Searight v. Bayne, 6'Lea, 284; Albitztigui u Guadalupe, etc., Mining Co., 92 Tenn., 605; 119 ü. S., 343; 110 Ind., 417; 35 N. J. Ecp, 501.
94 Tenn. 17Bank v. Mann (1894)
1. Indorsement of UsuEiotíS Note. Its effect. The indorsement of a negotiable note, void npon its face for usury, does not, without more, pass to the indorsee any right to recover of the maker upon the orig-inal consideration for which the note was given. (Post, pp. 21, 22.) Case cited and approved: Ottenheimer v. Cook, 10 Heis., 309. 2. Usury. Defense of amailable without pleading, when. •If usury appears upon the face of the note sued on, it is not essential that the defense shall be made by plea. (Post, p. 22.) Cases cited: Isler u Brunson, 6 Hum., 377; Hutchins v. Turner, 8 Hum., 417; Causey v. Yeates, 8 Hum., 608; Thompsons. Col- . lins, 3 Head, 444; Caruthers v. Andrews, 3 Cold., 385; Gill v. Creed, 3 Cold., 398; Thornburg u Harris, 3 Cold., 173; Cate v. Blair, 6 Cold., 640; Richardson v. Brown, 1 Leg. R., 353. 3. Same. Does not exist, tohen. A note bearing- eight per cent, interest, and inadvertently dated and made payable in this State, can be collected in our Courts upon averment and proof that it was actually made in another State where that rate of interest was lawful, and that it was intended to operate under the laws of that State. (Post, pp. 22-25.) 4. Same. Same. A note bearing eight per cent, interest is not usurious, and may be collected, upon proper averment and proof of the facts,where it was given for the price of g-oods purchased on a credit, and this rate of interest was adopted solely as a method of expressing- the difference between the cash and credit price of the goods. (Post, pp. 23, 24.) Cases cited and approved: Garrity v. Cripp, 4 Bax., 86; Brown v. Gardner, 4 Lea, 157; 73 U. S., 509; 6 L. R. A., 437; 1 Metcalf, 603; 33 N. Y., 437. 5. Collaterai. Sbcubity. Suit by holder not abated by payment of principal debt. The holder of a note as collateral security may prosecute his suit thereon to judg-ment, notwithstanding the payment pending his suit of the principal debt, hut his recovery will inure to the benefit of his debtor, and be subject to all equities existing between the latter and the maker of the note. (Post, pp. 24, 25.) Cases cited and approved: 33 Am. Kep., 453: 34 Am. Dec., 533.
94 Tenn. 27Bradley v. Carnes (1894)
Will. Unlimited power of disposition given first taker. The first taker acquires an unlimited power oí disposition, and consequently the absolute estate, cutting of£ remaindermen, under a husband’s will bequeathing all his property to his widow “for her special comfort, benefit, and support,” authorizing her to sell and convey the lands ‘ ‘ if she thinks it advisable,” and making provision for remaindermen only in the event “ anything remains at her death.” Cases cited and approved: Smith v. Bell, M. & Y., 302; David v. Bridgeman, 2 Yer., 557; Davis v. Richardson, 10 Yer., 290; Bean v. Meyers, 1 Cold., 227; Davis v. Williams, 85 Tenn., 651; Troup v. Hart, 7 Bax., 188; Turner'». Durham, Vi Lea, 316; Booker1». Booker, 5 Hum., 507; Brown v. Hunt, 12 lleis., 409; Read v. Watkins, 11 Lea, 161; Sevier v. Brown, 2 Swan, 112; Ballentine v. Spear, 2 Bax., 273; 109 U. S., 725; 23 Am. Rep., 1. Cited and distinguished: Deaderick v. Armour, 10 Hum., 588; Billow v. Rye, 1 Swan, 185; Downing v. Johnson, 5 Cold., 229; McGavock v. Bugsley, 12 Heis., 689; Bool v. Bool, 10 Lea, 486; Jourolmon u Massengale, 86 Tenn.,-81.
94 Tenn. 34Klein v. Kern (1894)
1. G-uabanty. MaUtres, when. A g-uaranty by a third person that a mortgageor will, in consideration of a- st pulated indulg-ence upon tlie mortgage, pay to the mortg-agee, upon the debt secured, a stated sum, “tog-ether with the interest due on the whole indebtedness, as well as all expenses incurred omor before November 1, 1892,” matures and becomes payable on November 1, 1892, in the absence of other controlling- provision on that subject. (Post, pp. 33, 36.) 2. Same. Absolute, when. And such g-uaranty is absolute. Suit lies thereon without previous demand of the mortg-ag-e debt, or notice of default, or exhaustion of the mortgageor’s property. It is immaterial whether the mortgag-ee is solvent or insolvent. (Post, p. 37.) Cases cited: Iiunter v. Dickinson, 10 Hum., 36; Taylor v. Ross, 3 Yer., 330; Irvine v. Brasfield, 10 Ileis., 428; Yancey v. Brown, • 3 Sneed, 89. / 3. Same. Parol evidence not admissible to change. A written guaranty, whose languag-e is plain and unambiguous, cannot be changed by parol evidence. (Post, p. 37.)
94 Tenn. 38Bank v. O'Brien (1894)
Deed. Wife not competent subscribing witness to husband's deed. The wife is not a competent s^^bscribing witness to her husband's deed. Code construed: U 2038, S858, 3813e, 3813/ (T. & S.); 2850, 2873, 4563 (M. & V.). Acts construed: Acts 1869-70, Ch. 19; Acts 1879, Ch. 200. Case cited and approved: Beadles v. Alexander, 9 Bax., 607.
94 Tenn. 43Colburn v. Railroad (1894)
1. County Cotjkt. Jurisdiction over pvlüic bridges. County Court has exclusive and final jurisdiction to determine the necessity, -utility, and propriety of building- a public bridge, and to fix time and place of its erection. The action of the County Court, in this regard, cannot be revised or enjoined by the Chancery Court. (Post, p. 4S.) 2. Sajiis. Authority to issue negotiable bonds. County Court has not authority, in the absence of statute expressly conferring it, to issue negotiable bonds of the county for any purpose whatever. (Post, pp.' 49-53.) Cases cited and approved: 111 U. S., 400; 15 Wall., 506. Cited and disapproved: State v. Anderson County, 8 Bax., 249. 3. Same. Contract for public bridge tmauthorizcd, when. A contract between a county and a railroad company, entered into without the assent required by the Constitution of a three fourths majority of the people expressed at an election held, pursuant to law, for that purpose, is unauthorized and void, which provides that, in consideration of a stipulated sum to be paid by the county, the railroad company shall build a combined railway, wagon, and foot bridge over a stream for its own and the public use, and that the railroad company shall forever keep the bridge in repair, and shall construct certain lines of railway, and shall concede to the county the fee in certain portions of the right of way. an d also for the public benefit, the use of its track by other companies, and special freight rates for particular products. By such a contract, the county becomes, in violation of the Constitution, a stockholder with the railroad company, and loans its credit to the railroad enterprise. (Post, pp. 52-58.) Constitution construed: Art. II., § 39. Act construed: Acts 188;T, Clr. 149.
94 Tenn. 57Ruohs v. Bank (1894)
1. Municipal Bonds. Guaranty of validity and solvency. The seller of negotiable municipal bonds does not. in the absence of express contract to that effect, incur the liability of a guarantor of their validity and solvency to the purchaser. The proof does not show any express contract of guaranty in this ease. (Post, pp. (11-70.) Cases cited and approved: Banku Oldham. 6 Lea, 718-728; Gowen u Shute, 4 Bax., 57; Crockett u Alexander, 5 liéis., 106; Cross v. Sells, 1 liéis., 83; Mathews v. Thompson, 3 liéis., 588; Scruggs u Gass, 8 Yer., 175; Ware v. Street, 3 Head, 000; Walker v. C ark, 2 Leg. R., 43; 93 U. S., 147; 115 U. S., 384; 134 U. S., 545. 2. Same. Seller's liability for misrepresentation. The seller does not incur liability to the purehaser-for misrepresentation in the sale of negotiable municipal bonds, that were, unknown to both parties, void for want of corporate existence of the municipality issuing them, where the seller expressed an honest, though mistaken, opinion in favor of their validity, but falsely represented their desirability as an investment, and the purchaser delayed unduly to rescind the contract of sale after acquiring- notice of the facts adversely affecting the validity and value of the bonds. (Post, pp. 69-74.) Cases cited and approved: Knuckolls u Lea, 10 Hum., 577; 03 U. S., 55, 631; 40 Red. Rep., 727; 149 Mass. (S. G, 2 L. R. A., 743). 3. Same. Seller not liable for mutual mistake us ter validity. The seller incurs no liability to the purchaser of negotiable municipal bonds, where the bonds, supposed by both parties to be valid at date of sale, are declared void in a subsequent suit for their enforcement, by reason of the invalidity of the charter of the municipality. {Post, pp. 74-76.) 4. Banks and Banking-. Liability for frwud of officers. An incorporated bank is not liable for fraudulent acts of its officers performed in a transaction conducted for their private benefit, although they may have illegally used the funds and credit of the bank in effecting- their purpose. (Post, pp. 71.72.)
94 Tenn. 79State v. O'Brien (1894)
1. Embezzlement. Statute includes employe of foreign corporation. The statute declaring' ‘ ‘ any officer, agent, or clerk of any incorporated company ” guilty of a felony “who embezzles or fraudulently converts to his own use any money or property ” of his employer received by virtue of his employment, embraces the employe of a foreig-n corporation. (Post, pp. 81-85.) Code construed: § 5475 (M. & V.); §4708 (T. & S.). Cases cited and distinguished: 22 N. Y., 245 ; 55 Ga., 236. 2. Same. Defense. An employe of a foreign corporation cannot defend a charge of embezzlement on the ground that the corporation had not complied with the conditions of the statutes so as to have the right to acquire, hold, collect, or pay out money in the State. (Post, pp. 81-85.) Act construed: Acts 1891, Ch. 122. 3. Estoppel. Applied in criminal cases. The rule of estoppel may be applied in criminal as well as in civil cases. (Post, pp. 82-85.) Case cited: 24 Kan., 1.
94 Tenn. 86Crane v. State (1894)
1. Supreme Coukt. General objection to evidence. A g-eneral objection to evidence will not be noticed by the Supreme Court. (Post, pp. 89, 90.) Cases cited and approved: Railroad v. Fleming. 14 Lea, 129; Baxter v. State, 15 Lea, 657; Iron Co. v. Dobson, 15 Lea, 409; Drug-g-ist Cases, 85 Tenn., 449; Rowers v. McKenzie, 90 Tenn., 167; Railway Co. v. Beeler, 90 Tenn., 548; Graham v. McReynolds, 90 Tenn., 674; Miller u State, 12 Lea, 223. 2. Same. Refusal of first application for continvucmce. It is not reversible error for the Court to refuse the defendant in a felony case a continuance at the first term, over his general affidavit averring absence of several witnesses whose testimony he desired, when he does not deny his g-uilt or indicate any defense to the charge, either in his affidavit or upon the trial. (Post, pp. 90, 91.) 3. Bigamy. Proof of first marriage. In prosecutions for bigamy proof of the fact of the first marriage in another State, and of the validity and regularity of such marriage under the laws of that State, is sufficiently made, in the absence of explanatory or countervailing evidence on the part of defendant, by the oral testimony of bystanders proving the performance of a marriage ceremony between defendant and the woman named as his first wife, and by proof of subsequent cohabitation of the parties, and of defendant’s admission of the fact of such marriage. (Post, pp. 90, 93.) Code cited: l 5651 (M. & V.); <¡4841 (T. & S.). Case cited and approved: 52 Mo., 84. Cited and distinguished: Bashaw v. State, 1 Yer., 177. 4. Same. Aclmoioledgment of marriage. Any admission by defendant of the fact of marriage, by words or conduct, in the presence of one or more persons, is sufficient, under that provision oí the statute making “the testimony oí any bystander who witnessed the ceremony and the public ac-knowledgement of the par-ty charg-ed ” competent evidence of both marriag-es in prosecutions ior bigamy. {Post, pp. 93, 94.) Code construed: § 5651 (M. & V.); § 4841 (T. & S.). Case cited and approved: Finney v. State, 3 Head, 546. 5. Same. Defendant’s Imvywledge that first wife %uas alrne. Charge. It is not error for the Court to charge, in a bigamy case, that defendant is guilty if he either knew, or had good reason to believe, that his first wife was alive at the date of his second marriage. {Post, pp. 95-97.).
94 Tenn. 98Crane v. State (1894)
FROM KNOX. Appeal from Criminal Court of Knox County. T. A. R. Nelson, J.
94 Tenn. 106Wilcox v. State (1894)
1. Eyideitce. Of 'nonexperts as to insanity, how weighed. The opinions oí nonexpert witnesses as to the insanity of a person is to be received, and weig-hed in the lig-ht oí the facts and circumstances related by them and upon which their opinions are predicated. (Post, pp. Ill, 112.) 2. Same. Of experts received with caution. The opinions of expert witnesses should be received with caution and investigated with care. (Post, pp. 112, 113.) Cases cited and approved: Persons v. State, 90 Tenn., 391; 33 Eed. Rep., 198. 3. Charge of Court. Bequests properly refused, when. Requests for additional instructions to the jury are properly refused where the matters have been fully covered by the original charge. ' (Post, pp. 113-115.) 4. Insanity. When insane delusion excuses crime. A person otherwise rational who commits a homicide throug-h delusion on a subject connected with the homicide, is criminally responsible, providing- he is conscious of right and wrong as applied to the act, and has the ability, because of such consciousness, to choose, by an effort of the will, whether he will commit the act or not. (Post, pp. 114-120.) 5. Same. (Greater indulgence extended to those insane by aet of God. The law regards the defense of insanity with greater favor and indulgence when interposed by those insane by the act of God than when interposed by those insane by their own willful misconduct. (Post, p. 122.)
94 Tenn. 123Shields v. Clifton Hill Land Co. (1894)
1. CORPORATIONS. Pleadings and proof insufficient to raise syndicate liability. Alleg-ations that a corporate charter was invalid because defectively acknowledged, and that the promoters are therefore personally liable, are not sufficient to charge them with personal liability on any other ground, such as that of a partnership liability antecedent to the attempted incorporation. The Court likewise decides, upon elaborate consideration, that the evidence fails to show any antecedent partnership liability of the promoters. (Post, pp. 125-144.) Cases cited and distinguished: Broyles v. McCoy, 5 Sneed, 603; Brandon v. Mason, 1 Lea, 615. 2. Same. Purchase of lu/nds by corporation, not by syndicate, lohen. A purchase of lands in the name of a corporation the charter of which, prepared for that purpose by the vendor’s attorney, had been signed and filed, but defectively aclmowledg-ed, and for which money notes were given, signed by a person described as its president, although no organization by election of officers had then been made, does not make him or other promoters personally liable on the purchase, especially when the corporation, at its first formal meeting-, approved the purchase, and the vendors have recog-nized it as the purchaser on a foreclosure. (Post, pp. 137-144.) 3. Same. Charter acknoioledged before Notary void. A charter acknowledg-ed before a Notary Public was void under the g-eneral incorporation statute of 1875. (Post, pp. 143, 147.) Act construed: Acts 1875, Ch. 143. Cases cited and approved: Brewer v. State, 7 Lea, 682; Teasley v. State (oral). 4. Same. Statute curing void charter constitutional. A statute curing a defective acknowledgment that rendered a corporate charter void, and thereby defeating an existing-liability of the corporators under the contract of the company, does not impair any contract oblig-ation of the other parties to the contract. (Post, pp. 146-153.) Constitution construed: Art. I., g 20. Act construed: Acts 1890, Ch. 17 (Ex. Ses.). Cases cited and approved: Townsend v. Townsend, Peck, 15; Wynne v. Wynne, 2 Swan, 405; Collins v. Railroad, 9 Iieis., 847; Marr v. Bank, 4 Lea, 585; Knoxville n. Bird, 12 Lea, 121; Demoville v. Davidson County, 87 Tenn., 223; 94 U. S., 113; 97 O'. S., 25; 101 U. S., 814; 108 O. S., 150-1, 488; 2 Peters, 412. 5. Same. Same. A law which facilitates the intention of the }Darties to a contract by removing its invalidity does not impair any vested right. (Post, p. 152.) Case cited: 2 Peters, 412. 6. Same. Estoppel to deny-vaUd/ity of cha/rter. Persons who have sold land to a defectively organized corporation, and taken back purchase money notes, will be estopped from denying- the corporate liability and seeking a recovery from the corporators of the amount due, if for more than five years, and until after the company’s charter and contracts have been expressly validated by the Legislature, they have recog-nized the notes as corporate obligations, and attempted to enforce them by legal process against the corporation. (Post, pp. 153, 154.) Case cited and distinguished: Broyles v. McCoy, 5 Sneed, 603. 7. Same. All creditors can enforce payment of stock subscriptions. A creditor whose debt was created before the capitalization of the company or any subscriptions to its stock, as well as subsequent creditors, can, under the Tennessee statute, enforce the liability of the stockholders for unpaid subscriptions. (Podt, pp. 154-159.) Code construed: g 1708 (M. & V.). Act construed: Acts 1875, Ch. 142. Case cited and approved: 120 Ill., 350. 8. Samis. Contraat to receive property vn payment of stock subscriptions. An authorized contract, whereby a'corporation receives needed property in payment of stock subscriptions, is presumed valid until it is impeached by appropriate pleadings and proof. (Post, pp. 159-162.) Cases cited and approved: Kelley Bros. v. Fletcher, ante, p. 1; 5 Dillon, 50; 31 N. E. Kep., 362; 119 U. S., 345.
94 Tenn. 176Martin v. Bank (1894)
1. INNOCENT PURCHASER. WIlO fe BOt. The holder of negotiable coupons, who acquires them after maturity as collateral security for a pre-existing debt, takes them subject to all equities available against the party from whom he obtained them. (Post, pp. 180, 181.) Cases cited and approved: King v. Doolittle, 1 Head, 77; Rhea v. Allison, 3 Head, 176; Perris v. Tavel, 87 Tenn., 386. 2. Bonds and Bondholders. Priority of satisfaction. Bondholders of a corporation who have presented their matured coupons for payment, and have received payment thereof, and have been led to believe that the coupons were thereby canceled and extinguished, are entitled to priority of satisfaction for their remaining- bonds and coupons, equally secured by the same mortgage, over a person who advanced the money to take up strch matured coupons, under an agreement with the maker not disclosed or assented to by the bondholders, that the coupons taken up should remain in his hands uncanceled' as security for his advances. (Post, pp. 181-185.) Cases cited and approved: 63 1ST. Y., 311; 84 Am. & Eng. R. R,. Cases, 203; 32 Md., 501; 20 N. Y., 398; 7 N. H., 100; 6 Johns. Ch. R. (N. Y.), 423; 188 U. S., 416; 138 Penn. St., 494. Cited and disting-uished: 96 H. S., 659.
94 Tenn. 186Clapp v. State (1895)
1. Accomplice. Correct definition of. An accomplice is correctly defined to be a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of a crime. (Post, p. 194.) 3. Same. What corroboration essential. It is not essential that the corroboration of the testimony of an accomplice should be equivalent to ‘ ‘ the swearing’ of one credible witness.” The corroboration is sufficient that satisfies the jury of the truth of the accomplice’s statements. It must confirm the accomplice’s statements, not only as to the commission of the offense, but as to the defendant’s connection with the crime. (Post, pp. 194-198.) Cases cited and approved: Robison v. State, 16 Lea, 146; Hall v. State, 3 Lea, 564; 104 N. Y., 591; 34 Am. R., 391; 109 N. Y., 267. 3. Criminal Pbactice. Cross-examination of defendant. The defendant in a criminal case cannot be compelled to answer on cross-examination over his objection whether he had committed an offense other than that for which he is on trial, (Post, pp. 199-201.) 4. Same. Subjecting jury to improper influences. When the jury in a criminal case has been exposed, in its selection and during- the trial, to improper influence, this Court will reverse, in the absence of the fullest and most satisfactory explanation, although it may not affirmatively appear that defendant suffered any prejudice. (Post, pp. 201, 202.)
94 Tenn. 205Ballard v. Railroad (1895)
1. Chaitceey Coubt. Will not grant new trial, when. Chancery Court will not grant a new trial upon an averment that complainant was deprived of his remedy by appeal by reason of the refusal or failure of the trial Judge and opposing counsel to carry out an agreement to complete bill of exceptions and ■perfect appeal after the close of the term at which the case was tried. Such agreements are contrary to public policy. (Post, pp. 207-210.) ' 2. Same. Same. Chancery Court will not g-rant a new trial unless complainant shows affirmatively that his rights were lost in the former proceeding By fraud or accident, unmixed with any fault or negligence of himself or attorney. {Post, pp. 206, 207.) Cases cited and approved: Kearney v. Smith, 3 Yer., 137; 7 Cranch, 332.
94 Tenn. 210Ellis v. Reaves (1895)
Mobtg-ages and Deeds of Tktjst. Cover foal of mort<jage The title of the foal of a mare bred, after the execution of the deed, by the maker of a mortgage or deed of trust conveying the leg’al title of such mare, passes to the mortg-agee or trustee, in the absence of an agreement to the contrary. Cases cited: Bank v. Ewing, IS Lea, 600; Latta v. Fowlkes, post, p. 219; 8 dill & Johnson, 39; 11 Iiow., 396; 9 B. Mon., 126; 67 Md., 573; 85 Ala., 417; 88 Ala., 335; 69 la., 504 (S. C., 58 Am. R., 230); 60 N. JEL, 59 (S. C., 49 Am. R., 306); 64 Wis., 35 (S. C., 54 Am. R., 578); 46 Mich., 131 (S. C., 41 Am. R., 153); 13 Neb., 400.
94 Tenn. 219Opinion in Latta v. Fowlkes (1894)
94 Tenn. 222Lancaster v. Fisher (1895)
Supreme Court Practice. Motion for new trial not required, when. Although. no motion fijr new trial was made in the Court below, this Court will, under proper assignments of error, pass upon the sufficiency of the facts to support the judgment in a law case tried by the Judg-e without the intervention of a jury. AMter in cases tried by jury. Cases cited and distinguished: Wells v. Mosely, 4 Cold., 402; Mumford v. Railroad, 2 Lea, 394; Morgan v. Bank, 13 Lea, 234; Insurance Co. v. Crunk, 91 Tenn., 376.
94 Tenn. 229Ballard v. Dibrell (1895)
Execution. Debtor’s waiver of objection to sufficiency of levy. An execution debtor, who assents to a levy on his property as it is made, gives the officer a description of the property levied upon, and executes a statutory bond for its delivery, waives the objection that the property was not in sight when the levy was made.
94 Tenn. 232Loftis v. Loftis (1895)
1. GUARDIAN ad Litem. Has right of appeal. Tlie guardian ad litem, and next friend, of a minor has a right to appeal “whenever, in his opinion, it is necessary to protect the minor’s interests.” (Post, p. 237.) 2. Attbad. Brings up entire case, when. The administrator’s hroad appeal from a decree settling the rights of the parties and ordering sale of realty in a chancery cause brought by him to administer and settle up an insolvent estate, bring-s up for review that part of the decree denying homestead to the infant defendants, without appeal by them. (Post, p. 237.) 3. Resulting Trust. Not established, when. An oral agreement by the purchaser of land for a lien or charg'e thereon in favor of his wife for a part of the purchase price furnished by her, until repayment of the amount with interest, creates no resulting trust in her favor as against her husband’s creditors. (Post, pp. 237-239.) 4. Insolvent Estate. Tear's support not paid out of proceeds of realty. An amount set apart by the County Court,'to be paid in money as year’s support for the widow, cannot be proved as a debt ag-ainst the husband’s estate, to be paid out of the proceeds of the realty, even where there are no personal assets to pay it and the estate is insolvent. (Post, pp. 239, 240.) Code construed : H 3125, 3126 (M. & V.); fá 2285, 2286 (T. & S.). Cases cited and approved: Rice v. Hunt, 7 Lea, 33 ; Turner v. Eisher, 4 Sneed, 211; Bayless v. Bayless, 4 Cold., 359 ; Rocco v. Cicalla, 12 1-Ieis., 508; Bell v. Hunter, 3 King’s Dig., 5314, 5315. 5. Same. Funeral expenses refunded to administrator out of proceeds of realty. Where the administrator of an insolvent estate has paid on funeral expenses an amount in excess of the personal assets, the same will be refunded to Mm out of the proceeds of the realty in preference to all debts that are not specific liens thereon. {Post, p. 240.) 6. Same. Compensation of administnxvtor and his attorneys. Reasonable compensation will be allowed the administrator and his attorneys for services necessarily rendered in obtaining sale of lands of an insolvent estate for payment of debts, and same will be paid as a preferred claim out of the proceeds of the realty when there is no personalty, or it has been exhausted. Such compensation should be fixed with reference to the entire estate and services. {Post, pp. 240, 241.) Case cited and distinguished: Loague v. Brennan, 86 Tenn., 634. 7. Homestead. Its priority over debt for borrowed money. Homestead of widow and children prevails over a debt of the decedent for money borrowed by him of a third person to pay off the purchase price of the lands in which the homestead is claimed, though secured by the husband’s mortgage thereon, in which the wife did not join. {Post, pp. 241-245.) Constitution construed; Art. XI., |1. Code construed: § 2935 (M. & V.). Cases cited and approved: Gray v. Baird, 4 Lea, 212; Bently v. Jordan, 3 Lea, 353; 99 Am. Dec., 574; 85 N. C., 93; 88 N. C., 234; 6 Braden (Ill.), 517; 100 Ill., 362; 39 Am. St. Rep., 339; 50 Ill., 521. Cited and overruled: Guinn v. Spurgin, 1 Lea, 228. 8. Same. IAberal construction of statutes allowed. 'Doctrine reaffirmed that statutes providing for homestead are liberally construed in favor of that right. {Post, p. 241.) Case cited and approved; Jackson v. Shelton, 89 Tenn., 82.
94 Tenn. 246Zwingle v. Wilkinson (1895)
1. Payment. Recital of in deed. Recital in deed that consideration has heen paid is only prima facie evidence oí payment, and may he rehutted hy proof. (Post, p. 248.) 2. Vendor’s Lien. Exists when. A vendor’s lien is implied hy law, though none is expressly re- ■ tained hy contract, to secure the unpaid purchase price of lands sold and conveyed. (Post, pp. 248, 249.) Cases cited and approved: Campbell v. Baldwin, 2 Hum., 248; Marshall v. Christmas, 3 Hum., 016 ; Fogg v. Rogers, 2 Cold., 290. 3. Same. Not ivaived or lost, ivhen. The vendor’s implied lien for the unpaid purchase price of land is not waived or lost hy reason of a recital in the deed that the consideration has heen paid, if, in fact, payment had not heen made. (Post, p. 249.) Cases cited and approved : Bentley v. Jordan, 3 Lea, 361; Baxter v. Washburn, 8 Lea, 16 ; Hill u McLean, 10 Lea, 113. 4. Same. Same. The vendor’s implied lien for the unpaid purchase price of land is not abandoned or lost where the note for same is, hy agreement, made payable to a third person, instead of the vendor. (Post, pp. 249-251.) Cases cited and approved: Moore v. Stovall, 2 Lea, 543 ; O’Conner v. O’Conner, 88 Tenn., 76; Trent v. Kyle, 1 Ileis., 663; Whitehurst u Yandall, 7 Bax., 228; Thompsons. Thompson, 3 Lea, 126 ; Hamilton v. Gilbert, 2 Heis., 682. Cases cited and distinguished : Green v. Demoss, 10 Hum., 372 ; Thompson v. Pyland, 3 Head, 537. 5. Same. Same. The vendor’s implied lien for the unpaid purchase price of land is not lost or impaired by reason-of judgment having been obtained for the amount due. (Post, p. 251.)
94 Tenn. 252Fry v. Shipley (1895)
1. Wills. Pass money and notes, when. Money on deposit and promissory notes pass to the legatee under the residuary clause of a will bequeathing to him “all the money arising from the sale of my stock of every kind, and all of my loose property of every kind, which I direct to be sild as the law directs.” (Post, pp. 254-262.) Cases cited and approved: Jarnagan v. Conway, 2 Hum., 50; Maddox & Geldart’s Rep., 119. 2. Same. Same. “ Loose property ” is synonymous with “ movables ” or personal property. Its meaning- in this will is not restricted by the preceding clause to property of the nature of “stock ” under tlie rule of ejusdem generis, nor by the subsequent clause directing sale. (Post, pp. 258-260.) Cases cited and approved: 'Jarnagan v. Conway, 2 Hum., 49; Williams v. Williams, 10 Yer., 25; Edmondson v. Edmondson, 1 Tenn. Ch., 568. 3. Same. Rules of construction illustrated. Illustrations of the following rules of construction will be found . in this opinion: (1) That a testator is presumed not to intend to die intestate as to any part of his property, and the Courts will resort to any fair and reasonable interpretation to prevent partial intestacy. (2) The testator’s intention should be ascertained from the will itself, but the Courts will look to the facts and conditions surrounding him% (3) Grammatical construction of the language of a will ordinarily prevails, but the Court may transpose, reject, or supply words to carry out the testator’s clearly ascertained intention. (Post, pp. 255-258.) Cases cited and approved: Williams v. Williams, 10 Yer., 25; Reid v. Hancock, 10 Hum., 308; Simpson v. Smith, 1 Sneed, 394.
94 Tenn. 263Bon Air Coal, etc., Co. v. Parks (1895)
1. Statute of Limitations. Seven years’ adverse possession. Seven years’ adverse possession of previously granted lands held under an entry, or in part under an entry, and remainder under grant thereon, but for less than seven years under the g’rant, invests the possessor, not with the fee, hut with a pos-sessory rig'ht to all the lands desci-ibed in the entry. (Post, pp. 265, 266.) Cases cited and approved: Simsu Eastland, 3 Head, 369; Ramsey v. Monroe, 3 Sneed, 339. 3. Same. Same. A entered, as a naked trespasser, upon a large tract of land belong-ing- to B, and inclosed and held forty or fifty acres of it for the term of seven yeax-s, openly, continuously, and adversely, thereby acquiring a possessory rig'ht to that portion of the land. After acquiring this possessory rig'ht, A obtained an entx-y for a larger portion of B’s lands, but including the portion previously inclosed. A’s possession was continued for seven yeax-s after this entry, but was never extended beyond his orig'inal inclosures. Held: A’s possession extended to the boundai-ies of his entry, and invested him with a possessory right to all the land therein embraced. (Post, pp. 266-212.) Cases cited and approved: Ramsey v. Monroe, 3 Sneed, 330; Rutherford v. Eranklin, 1 Swan, 330; Sims v. Eastland, 3 Head, 367. Cases cited and distinguished: Smith v. Lee, 1 Cold., 553; Coal Creek, etc., Co. v. Ross, 13 Lea, 9; Peck v. Houston,' 5 Lea, 337.
94 Tenn. 273Lieberman v. Puckett (1895)
Sai.es of Peksonalty. Purchaser's rights defined. Failure ol vendor of personalty, who retains title to secure the purchase price, to advertise it for sale within ten days after replevying- same upon the vendee’s default, does not entitle the latter to recover back the purchase money already paid, when he controverts the vendor’s rig-ht of possession, under Acts 1889, Chapter 81, authorizing- such recovery by the vendee unless such advertisement is made by the vendor within ten days after his regaining- possession. Acts construed: Acts 1889, Ch. 81. Case cited and distinguished: Cowan v. Sing-er Mfg-. Co., 92 Tenn., 376.
94 Tenn. 277Roberts v. Mitchell (1895)
Set-off. Judgments. Attorney's fees. The rig-ht to set off independent judgments rendered in different suits, growing- out of different causes of action, is subordinate to the attorney's lien for services rendered in obtaining the judgments. Code construed: $ 3035 (M. & V.); \ 3935 (T. & S.). Cases cited and approved: 4 N. H., 347; 62 Maine, 288; 37 ÍT. H., 223; 44 Ind., 270; 8 Fla., 183; 3 Caines, 105; 3 John., 247; 50 Eng. L. & Ecp, 59; 15 Yesey. 79, 541.
94 Tenn. 282Nunnelly v. Warner Iron Co. (1895)
1. Contracts. Rules of construction. The rules and principles laid down for the exposition of contracts have for their sole object to do justice between the parties by-enforcing’ a performance of their ag-reement according’ to the sense in which they mutually understood it at the time it was made. The intention is the governing principle of construction. In ascertaining- the intention, the situation of the parties, the motives that led to the agreement, and the objects desig-ned to be effected by it may all be looked to by the Court. (Post, pp. 291, 292.) Case cited and approved: McNairy v. Thompson, 1 Sneed, 149. 2. Cask in Judgment. Mining lease consVni.ed. Under a mining- lease providing that the lessee shall pay, as royalty, one tenth of the output of the mines, delivered in shipping- order, accessible to wag-ons, at the mine or shaft, or the cost price of mining- and delivering- same as stated, the lessor must accept riddled ore, according- to the usage at date of lease, or the cost of mining- and delivering- “ riddled ore ” at the mine or shaft, and cannot exact ores, or the cost of mining and delivering- ores, of a higher grade prepared by the use of modern and improved processes and machinery adopted at the lessee’s expense after the date of the lease. (Post, pp. 283-294.)
94 Tenn. 295Grundy County v. Tennessee Coal, etc., Co. (1895)
1. Assignments of Error. Insufficient, when: Assignments of error are insufficient that do not specifically point out the errors complained of. Three examples of insufficient assig-nments will he found in the opinion in this case. {Post, pp. 298, 303, 323-327.) 2. Back Taxes. Statutes authorizinij assessment of, constitutional The constitutionality of our statutes authorizing assessment and collection of hack taxes reaffirmed. (Post, p. 304.) Acts cited: Acts 1879, Ch. 79; Acts 1883, Ch. 181; Acts 1885, Ch. 33. Code cited: $§ 664-668 (M. & V.). Cases cited and approved: Wilson u Benton, 11 Lea, 51, 56; Street Railroad u Morrow, 87 Tenn., 430; Shelby County v. Railroad, 16 Lea, 401; Railroad v. Lauderdale County, 16 Lea, 688; State v. Railroad, 14 Lea, 56; Iron Co. v. Pace, 89 Tenn., 707. 3. Same. Evidence requisite in suit for. In suit for assessed hack taxes, the assessment, under our statutes, is conclusive as to the valuation put upon the property, hut not as to the right of the State or county to assess and collect the tax. Revaluation can he had only by appeal from the assessment to the Judg-e or Chairman of the County Court, and the taxpayer must show such appeal affirmatively. (Post, pp. 304-30'/.) Code construed: $ 664 (M. & V.). Cases cited and approved: Franklin County v. Railroad, 13 Lea, 538; Shelby County v. Railroad, 16 Lea, 413; Railroad v. Lau-derdale County, 16 Lea, 693; Knig-ht, ex parte, 3 Lea, 401; 131 U. S., 535. 4. Same. Suit for, when hroucjht. Suit for hack taxes, where the right to assess and collect the tax is disputed, may he brought before a Justice of the Peace, as the Act provides, or in the Chancery Court. (Post, p. 305.) Case cited and approved: State v. Railroad, 14 Lea, 56. 5. Samis. .Assessment valid, when. An assessment of back taxes, made by the proper officer upon legal notice and hearing, and written out in proper form and signed, is valid, althoug-li the Assesspr may have failed to enter it upon record as prescribed by law. (Post, p. 307.) Code construed: \ 668 (M. & V.). Case cited and approved: Wilson v. Benton, 11 Lea, 55. 6. CORPORATIONS. Domicile. The domicile for purposes of taxation of a domestic corporation is, in the absence of other controlling charter or statutory provision, at the place fixed for the regular meetings oi the stockholders, although its directors may meet, its officers reside, and much of its business be transacted at other places in and out of the State, where it likewise had offices. (Post, pp. 307-301).) 7. Samis. Situs for taxation of intangible personalty. The owner’s domicile is the situs for taxation of the intangible personal property, such as money on deposit, notes, accounts, etc., .belonging to a domestic corporation, wherever same may be situated or created, where the statutes have not fixed a different situs. {Post, pp. 309-318.) Cases cited and approved: Mayor v. Alexander, 10 Lea, 477; Mayor v. Thomas, 5 Cold., 607; Railroad v. Morrow, 87 Tenn., 434; Conner v. Apperson, 14 Lea, 588; 104 U. S., 593; 100 U. S., 491; 56 Am. Dec., 539. 8. Same. Same. Our assessment laws have not fixed a situs, different from the domicile of the owner, for the taxation of the intangible personal property of domestic corporations. {Post, pp. 318-322.) Acts construed: Acts 1889, Ch. 96, Secs. 4, 5, 13, 14; Acts 1890 (Ex. Sess.), Ch. 39, Sec. 36; Acts 1891 (Ex. Sess.), Ch. 36, Sec. 8. 9. Tax Assessments. Not void by reason of Assessor's interest. A tax assessment, or the statute authorizing it, is not void by reason of the fact that the compensation of the Assessor is fixed in proportion to the amount of the taxes assessed, collected, and paid over. The Tax Assessor is not the Judg-e of any Court within the meaning- of that provision of the State Constitution forbidding Judges to preside in causes where they may be interested. The “due process-’ clause of the Pour-teenth. Amendment of the Federal Constitution is not violated by such statute or assessment. (Post, pp. 323-327.) Constitutions construed: Federal Constitution, Fourteenth Amendment; State Constitution, Art. VI., \ 11. Act construed: Acts 1890 (Ex. Sess.), Ch. 30, Sec. 1. 10. Judgment. Rendered by disqualified Judge valid wnless objection toas made. A judgment is valid, though rendered by a Judge who was disqualified by interest, unless objection was taken on account of such disqualification. (Post, pp. 325, 326.) Cases cited and approved: Holmes v. Eason, 8 Lea, 754; Posey v. Eaton, 9 Lea, 500. 11. Assessment. Method applied to corporations approved. The Court says: “The manner adopted by the Acts of Tennessee to arrive at the taxable value of the property of a corporation by taking into account its stock and bonded debt, has been approved as legal by the Supreme Court of the United States in the Kailroad Tax Cases, 93 U. S., 604, and is neither arbitrary nor double taxation.” (Post, p. 327.)
94 Tenn. 328Peery v. Peery (1895)
1. Evidence. Testator's declarations. Testator’s statement, made some weeks before his death, and six months after the execution of his will, that he had to make the will as he did to have peace at home, is admissible to show his mental condition at the time of its execution, but not to show undue influence. (Post, pp. 330, 331.) Cases cited: Beadles v. Alexander, 9 Bax., 604; Linch v. Linch, 1 Lea, 526; Maxwell v. Hill, 89 Tenn., 584; 31 Am. St. Rep., 690; 9 Am. Dec.. 632. 2. Same. Same. Testator’s statement, made six months after the execution of his will, that he had to make the will as he did to have peace at home, is "not competent upon the issue of undue influence, in the absence of some other evidence thereof, and then it is admissible only to show the effect, not the substantive fact, of such influence. (Post, pp. 342, 343.) Case cited: 31 Am. St. Rep., 690. 3. Same. Same. In the contest of a will on the ground of undue influence, evidence that sometime after its execution the testator spoke of its provisions to a subscribing witness, and expressed satisfaction and explained the apparently unequal division of his property, and thereafter permitted the will to stand, with the fullest opportunity to destroy it or make another, is a strong and convincing indication that it was his will and according to his desires. (Post, p. 343.) Cases cited: 49 Am. Dec., 626; 11 Am. Dec., 648. 4. Same. Competent upon one of several issues. Evidence admissible upon one issue in a ease, but incompetent as to others, cannot be excluded upon objection. Nor can the Court be put in error by failing in his charge to limit the effect of such evidence to any particular issue, in the absence of a special request on that point. (Post, pp. 330-332.) 5. Will. Verdict of fury setting aside. The verdict of a jury in cases of contested wills has the same force and effect as in other civil eases. The Court finds no evidence in this case to sustain verdict setting will aside. (Post, pp. 332-338.) 6. Wills. Undue influence defined. Upon contest of w.ll for undue influence, the question is “whether the will is the will of the testator, or that of another.” It is not influence that vitiates, hut undue influence; and it must go to the extent of depriving the testator of his free agency, and amount to moral coercion which he is unable to resist. Each case must rest upon its own circumstances, and be controlled, to some extent, by the mental characteristics, and the mental and physical condition, of the testator, and, in a subordinate degree, by the mental strength and will power of the dominating influence, as well as the opportunities for its exercise. (Post, p. 338.) Cases cited and approved: McClure v. McClure, 86 Tenn., 176; Nailing v. Nailing, 2 Sneed, 630; Wisener v. Maupin, 2 Bax., 364. 7. Same. Exercise of undue influence by wife. The legitimate exercise by the wife of that influence which results from love and affection in shaping the provisions of her husband’s will in favor of herself and children does not vitiate the will. Undue influence by the wife cannot be presumed from the fact that she had opportunities and temptations to exert it, but must be affirmatively shown. She has the right to advise with and counsel her husband to make such will as she deems just and proper, and for this purpose may use legitimate argument, entreaty, and importunity. (Post, pp. 338-340.) Cases cited and approved: Nailing v. Nailing-, 2 Sneed, 630; Smith v. Harrison, 2 I-Ieis., 230; Simerly v. Hurley, 9 Lea, 711; 31 Am. St. Rep., 679.
94 Tenn. 345Byers v. Railroad (1895)
1. COMPROMISE. Bolease of claim for damages. Release of claim for damages against a railroad company for the killing- of her husband and son, her only means of support, .given by an illiterate woman, in ignorance of her rights, and in a state of extreme distress and destitution, in consideration of a railroad ticket worth $3.25 and $70 in money, is not such compromise of her rights as will bar further recovery. (Post, pp. 347-349.) 2. Witness. Use of books on examination of experts. When a witness testifies as an expert, it is competent to test his knowledge and accuracy, upon cross-examination, by reading to him, or having him read, extracts from standard authorities upon the subject-matter involved, and then asking him whether he agreed or disagreed with the authorities, and comparing- his opinion with that of the writer. This principle is here applied to the case of a book treating of air brakes, on the examination of a railroad engineer. (Post, pp. 349-35L.) Cases cited and approved: 7 L. R. A.. 90; 89 Cal., 399; 48 A. & E. R. R. Cases, 111; 56 Conn., 485; 30 Wis., 614. 3. Evidence. Beading from scientific works. It is error to permit the reading in evidence of scientific books to contradict the testimony of expert witnesses, except in connection with, and as part of, the examination of such witnesses. The objection, however, to the reading of such books is insufficient when made to their use on cross-examination of the witnesses, and not kept up to the subsequent independent reading of them in evidence. (Post, p. 351.) 4. Saji®. Of tests or experiments. In suit against railroad for death of person struck by its train, it is competent for defendant to prove, by one of its engineers, an ex parte test, made subsequently to the accident, for the purpose of showing that'the train tha,t caused the death could not have been stopped after the person killed could have been seen upon the track, when it appears that the test was made at the same place, and under conditions that were, so far as practicable, identical with those surrounding the accident. That the test was ex ponte, and such as could be made by only one of the parties, goes not to its competency, but to its weight. (Post, pp. 852-355.) Cases cited and approved: Boyd v. State, 14 Lea, 161; Lipes u. State, 15 Lea, 135; Railroad v. Ayers, 16 Lea, 735; 33 L. R. A., 801.
94 Tenn. 356Nashville v. Sutherland & Co. (1895)
1. Municipal Corporations. Liability for defective construction of public works. A city that contracts with one through whose land it constructs a sewer, to so construct it with a suitable valve as to prevent the water of the river from flowing back through the sewer in case of high tides, is responsible for'damages resulting- from the city engineer’s neg-ligence in selecting valve and constructing sewer. (Post, pp. 357-385.) Cases cited: Nashville v. Sutherland & Co., 93 Tenn., 335; Burton v. Chattanooga, 7 Lea, 739. 3. Samis. Same. A landowner who permits a city to construct a sewer through his premises under a contract that joints of the pipes shall be cemented, and a suitable valve supplied to prevent the water from flowing back from the river in case of high tides, does not waive or lose his right to damag-es caused by an overflow resulting from defective execution of the work, because he did not protest when he saw the joints were not cemented, and a valve different from that contracted for used under the supervision of the city engineer. (Post, pp. 365-368.) 3. Same. Measw-e of damages. In suit by the owner of a lumber yard against a city for damag-es caused by an overflow resulting- from breach of its contract to so construct a sewer that plaintiff’s premises will not be overflowed in case of high water, expenses incurred for labor, machinery, etc., in pumping out the water, by which the damages to the lumber is diminished, may be -properly allowed." (Post, p. 369.)
94 Tenn. 370Porter v. Waters-Allen, etc., Co. (1895)
Masteb and Sekvant. Master’s liability for injury to fellow-servcmt. An employe does not, by voluntarily engaging- in labor with convicts in his master’s employ, release the latter from liability for injuries sustained by him in consequence of the negligent and reckless act of his convict fellow-servant, where the master failed to exercise the requisite care in employing and retaining the convicts. Cases cited and approved: Iron Co. v. Dobson, 7 Lea, 373; 1C7 U. S., 454.
94 Tenn. 374Nashville Lumber Co. v. Fourth National Bank (1895)
Bills and Notes. Liability upon frcmchilent indorsement. The transfer of a negotiable note, by which an accommodation indorser is made liable to a bona fide holder for the ultimate benefit of the transferer, who knew the indorsement was ultra vires and void, makes the transferer liable to such indorser for the damage sustained, for' which suit can be maintained before payment of note. Cases cited and approved: 8 L. R. A., 253; 2 L. B. A., 249; 12 N. Y., 313; 73 N. Y., 305, 269; Í07 N. Y., 159; 3 N. Y. S. B,., 309; 33 Hun, 250; 97 N. Y., 334. Cases cited and distinguished: 120 Mon., 424; 82 N. Y,, 396.
94 Tenn. 383Railroad v. Hailey (1895)
Common Cabeieb. Of passengers. A passenger on a freight train with the conductor’s permission, hut knowing that he is riding in violation of the rules of the road, assumes the risks of accidents. Cases cited and approved: Washburn v. Railroad, 3 Head, 638; Railroad v. Meacham, 91 Tenn., 438; Trotlinger u Railroad, 11 Lea, 533; 81 Ill., 345; 49 Tex., 31; 76 Tex., 174; 47 N. W. Rep., 809.
94 Tenn. 388Railroad v. Bean (1895)
Abatement. Of actions for injuries causing death. A suit for the wrongful killing of a decedent, brought, pursuant to our statutes, by his administrator for the sole benefit of the widow, there being no surviving children, abates upon the death of the widow, occurring- even after judgment below and pending- appeal in this Court. Such suit cannot be revived or prosecuted after the widow’s death for the benefit of the father óf the deceased, or of others standing next in the line of succession. Code construed: l?¿ 3130, 3132 (M. & V.); J 2291 (T. & S.). Cases cited and approved: Webb v. Railway Co., 88 Tenn., 128; Railroad v. Pitt, 91 Tenn., 86; Loague v. Railroad, 91 Tenn., 458; Greenlee u Railroad, 5 Lea, 418; 28 Minn., 371.
94 Tenn. 397Nunnelly v. Southern Iron Co. (1895)
1. Statute of Limitations. Filing plea on trial discretionary. It is matter oí discretion whether the Court will permit filing oí plea of the statute of limitations after the trial has beg-un. (Post, pp. 401, 402.) 2. License. Distinguished from easement — example. The privileg-e to discharge water from ore washers into a stream, given without words of grant by a lower proprietor to an iron company as long as it “may wish to run, or have run,” said washers, with an agreement to accept a certain sum as the full amount of damag-es done by such water, is a license personal to the licensee, not an easement, and does not pass to the grantees of such iron company. (Post, pp. 408-412.) Cases cited: 33 N. J. Ecp, 354; 5 Wall., 599; 30 Am. Lee., 60; 37 Am. Dec., 675; 57 Am. Dec., 387; 3 Am. L. Cases, 506. 3.. Estoppel. License does not create. A mere license cannot operate to estop the licensor in favor of the licensee, because an estoppel must be mutual. (Post, p. 412.) 4. Easement. Contract creating is within statute of frauds. An instrument creating an easement is within the operation of the statute of frauds, and must, therefore, contain a sufficient description of the premises in which the easement is granted. (Post, p. 413.) 5. Corporations. LidbiMty of officers for nuisances. . The president and general manager of a corporation are personally liable, with the corporation, for damages caused to a riparian proprietor by the long continued discharge of muddy water into a stream, from ore washers operated by the company with their sanction and their knowledge of the damages caused thereby. (Post, ¶%). 414-419.) Case cited: 54 Am. Rep., 231.
94 Tenn. 420Walton v. Gaines (1895)
1. Infant. Disaffirmance of infant’s deed. Privies in blood, but not privies intestate, may disaffirm, an infant’s voidable deed. Cases cited: McGan v. Marshall, 7 Hum., 130; Robinson v. Coulter, 90 Tenn., 705; Matlierson u Davis, 3 Cold., 443; Scott v. Buchanan, 11 Hum., 467; Dodd v. Benthal, 4 Iieis., 609. 3. Same. Disaffirmance when two disabilities concuf. Where the disabilities of infancy and coverture concur at the time of the execution of the deed or mortgage, the right to disaffirm continues until after both disabilities are removed. Cases cited: Scott v. Buchanan, 11 Hum., 467; Dodd v. Benthal, 4 Iieis., 609. 3. Same. Void affirmance. A married woman cannot, after attaining her majority, affirm her deed made while she was an infant feme covert by an instrument which is not executed in conformity to the statutes regulating the conveyance of lands by married women.
94 Tenn. 425Stringfield v. Hirsch (1895)
1. Attachment Bond. Attorneys’ fees not recoverable for breach of. Attorneys’ fees, incurred in defending- a wrong-ful attachment or injunction, are not an element of the damages that may he recovered for breach of an attachment or injunction bond. (Post, pp. 430-438.) Cases cited and approved: Littleton v. Prank Bros., 3 Lea, 301; Williams i'. Burg-, !) Lea, 456; Newman v. Washington, M. & Y., 79; Davenport v. llarbert, 1 Leg-. Rep., 172; White v. Clack, 2 Swan, 331; 15 Wall., 211; 3 Dali., 306; 23 How., 3; 13 How., 370. 2. Same. Taxes not recoverable for breach of. Where a fund already in custodia ley is is impounded by a wrongful attachment or injunction, the taxes accruing thereon pending- the litigation, and paid otrt of the fund, are not an element of the damages that may be recovered for breach of the attachment or injunction bond. (Post. p. 438.) 3. Same. Receiver's compensation not recoverable for breach of. Where a fund already in custodia letjis is impounded by a wrongful attachment or injunction, the receiver's compensation for loaning- the fund pending litigation, which was retained out of the accruing inter-est, does not constitute an element of the damages recoverable upon breach of the attachment or injunction bond. (Post, pp. 438-4^9.) 4. Same. Joint judijment upon several bonds erroneous. Where several creditors successively attach, or otherwise impound, the same fund of their debtor, and give separate attachment or injunction bonds, they are not liable, trpon dismissal of their suits, to a joint judgment for the damag-'es resulting from the wrongful prosecution of their attachment or injunction suits. (Post, •py. 439-4-11.)
94 Tenn. 442Manier & Co. v. Western Union Telegraph Co. (1895)
1. Teijogkapii Companies. Negligence in sending message. Example. ■A telegraph company is negligent in sending' and delivering a message addressed "by an attorney to his client inquiring whether the latter desired attachment oí its failing debtor’s property, and requesting a prompt answer, where the message was received by the company about'nine a-.m., and was not delivered until between si? and seven p.m. of the same day, without other excuse for the delay than that the messeng-er boy, finding- the addressee’s business house temporarily closed, left the message for him with a reputable neighbor, who paid the charg-es and undertook to deliver it. (Post, pip. 443-445.) 2. Same. Negligence not ca/use of loss, when. The neg-ligence of a telegraph company in forwarding a message whereby a creditor's attachment of his debtor’s property is postponed to the attachments of other creditors, does not render the company liable for the debt where it appears that the property attached was of sufficient value to satisfy all the debts, and that it was sold at private sale, by agreement of parties, to which the company was not a party, for an insirffi-cient sum and at a great sacrifice. (Post, pp. 445, 443.) 3. Same. Notice of claim for damages. A contract exempting a telegraph company from liability unless the claim for damages resulting from negligence in transmission of message shall be made within sixty days after the message is sent, is a reasonable and valid stipulation. (Post, p. 443.) Cases cited: GO Pa. St., 83; 34 N. Y. (Sup. Ct.), 390; 21 Wall., 264; 4 S. Rep., 4G8; 95 Ind., 93, 94; 17-Mo. App., 259; 39 Fed. Rep., 181; 19 S. W. Rep., 256. 4. Samis. Same. It is not sufficient compliance with this contract to notify the telegraph company of delay of messag-e, and probable loss, without presenting any distinct claim; nor to give the notice more than sixty days after the message is sent, althoug-h the loss could not he accurately ascertained without litigation that could not he terminated within that period. (Post, pp. 448, 449.) 5. Same. .Addressee hound, hy sender's contract. The addressee, for whose benefit a message is sent, is bound by the contract made between the telegraph company and the sender. (Post, pp. 447, 448.) •Case cited and approved: Wadsworth v. Telegraph Co., 86 Tenn., 712.
94 Tenn. 450Railroad v. Hughes (1895)
1. Railkoaus. Fencing track. A statute making- railroad companies that tail to fence their track liable for live stock killed by their trains does hot operate to require the fencing- of their depots and stations, or the grounds immediately surrounding same, or the crossing's of public highways, or portions of 'their tracks that traverse towns or cities and are intersected by public streets. (Post, pp. 451-454.) Cases cited: Railroad v. Lull, 28 Mich., 510; Soward v. Railroad, 30 Iowa, 551. 2. Same. XAahiUl/y for faiVwre to fence track. The statutory liability of railroads for failure to fence track does not, in the absence of other negligence, attach when live stock enter upon the track where it is not required to be fenced and pursues it until struck by a train, although the track may not have been inclosed at the place of the accident. (Post, pp. 451-453.) 3. Same. Somie. But the liability does attach in such case, if it appears that, in violation of the statute, the railroad company failed to provide suitable stock guards, which would have prevented stock from pursuing the track and colliding with train. (Posi, pp. 453, 454.) 4. Same- Smne. The mere fact that the track of a railx-oad is situated within the limits of an incorporated town does not, without more, excuse the company from the statutory duty to fence its track. (Post, pp. 454-458.)
94 Tenn. 459Garrett v. Belmont Land Co. (1895)
1. Adverse Possession. Of town lots. There must he actual inelosure, whenever the property is susceptible of such inclosure, in order to make out adverse possession of unoccupied town lots. Mere payment of taxes thereon will not suffice. (Post, pp. 464-46S.) Cases cited: Pullen v. Ilopkins, 1 Lea, 741; Hicks u Trederiek, 9 Lea, 492; Westu Lanier, 9 Hum., 762; Creechu Jones, 5 Sneed, 631; Copeland v. Murphy, 2 Cold., 64; 4 Ired., 310; 74 Iowa, 294; 39 Ill., 546; 1 Wharton, 303; 12 Fed. Pep., 820; 44 Minn., 135. •2. CORPORATIONS. Deeds of. The deed of a private corporation is ineffectual at common law to pass the legal title to real estate which recites no authority for its execution, and is signed by an individual describing himself as president of the corporation, without affixing the corporate seal, and which purports to have been acknowledged by him personally, and not by the corporation through him. (Post, pp. 46K-479.) ■Cases cited and approved: Binkley v. Bethel, 9 Heis., 786; 33 Am. Dec., 193; 19 Am. St. R., 761; 45 Fed. Rep., 148; 32 Cal., 639; 2 Col., 150; 3 Cush., 337; 8 Conn., 191; 7 Mass., 19; 16 Mass.. 42; 136 111., 289; 40 Mo. App. R., 360; 131 Pa. St., 393; 43 N. II., 343: 97 N. C., 300; 88 Ky., 272; 21 Am. St. R., 339; 23 Am. Dec., 746, note. S. Same. Same., And such deed is not effectual under ?¿ 2819 (M. & V.) Code, providing that conveyances of real estate executed by an ag-ent or attorney may be signed by such agent or attorney for his principal, * * * if the instrument, on its face, shows the character in which it is intended to -be executed.” (Post, pp. 472, 473. J Code construed: $ 2819 (M. & V.); $ 2012 (T. & S.). Cases cited: Cocke v. Dickens, 4 Yer., 34; Fitzpatrick v. Fain, 3 Cold., 17. 4. Same. Same. Abolition of primate seals. Our statute declaring- that ‘1 the use of private seals in written contracts, except the seals of corporations, is abolished,” did not operate to dispense with the common law rule requiring the deeds of corporations to be executed under seal. (Postr pi). 475-479.) Code construed: g 2478 (M. & V.; g 1804 (T. & S.) Cases cited: Roper v. Stone, Cooke, 499; Shelton v. Bruce, 9-Yer., 36; Read v. Wheeler, 3 Yer., 55; Brown v. Parks, 8 Iium.^ 397; Nivens v. Merrick, 1 Tenn., 314; Coleman v. Sanderlin, 5-Ilum., 563; Anderson v. Settle, 5 Sneed, 203; Thompson v. Thompson, 2 Head, 407; Evans v. Pigg, 3 Cold., 397; Simpson v. Moore, 6 Bax., 373; Nunnelly v. Dougherty, 1 Yer., 37; Tur-beville v. Ryan, 1 Hum., 113. Question reserved: Whether corporations organized under the general incorporation Act of 1875 may convey their real estate-without affixing corporate seal to deed. 5. Ejectment. Plctintiff must show legal title. Under an ejectment bill averring a legal title, the complainant cannot recover upon proof of an equitable title. (Post, p. 479.) Cases cited and approved: Langford v. Love, 3 Sneed, 308; Rogers v. Cawood, 1 Swan, 146; Campbellv. Campbell, 3 Head, 325;. Walker v. Fox, 85 Tenn., 160; Evans v. Belmont Land Co., 92-Tenn., 348. 6. Evidence. Contemporaneous transaction. The recitals of a record constituting a contemporaneous transaction, explanatory of the matter in litigation, may be admitted as evidence against litigants who were not parties to the suit in which the recitals were made. (Post, pp. 480, 481.)
94 Tenn. 486Goodwin v. Guild (1895)
Malicious Prosbcutiost. What is nut. The Mayor of a city is not liable for malicious prosecution in attempting- to enforce an unconstitutional ordinance which had not been judicially declared invalid, although opinion as to its validity was divided, if he acted in g-ood faith in the discharge of his official duty as he understood it, and without malice, oppression, or wanton disregard of the rights of the person prosecuted. Case cited: 3 How., 87, 98.
94 Tenn. 495Lea v. State (1895)
1. Ckimixal Evidence. Of defendant’s character. Charge of Cowrt. Where, in a criminal case, the proof shows the defendant’s character g-ood before, but bad after, he was charged with the crime for which he is on trial, the Court should charge the jury as follows: “The character of the defendant before the present charge can be looked to as a witness for or against him as to his guilt or innocence, but his character since then can only be looked to in determining the amount of credit due him as a witness, and cannot be looked to as a witness as to guilt or innocence.” (Post. pp. 496, 497.) 2. CREuistai, Pkacticb. Oath of officer. The recital of record in a felony case that the officer in charge of the jury was 1 ‘ sworn to wait on said jurors, ” without more, is insufficient. If the record undertakes to set out the oath, it must be done fully. The safer practice is to recite merely that the officer was sworn ‘‘according to law,” or “as required by law.” (Post, pp. 497, 498.) Oases cited and approved: Buxton v. State, 89 Tenn., 216; Lancaster v. State, 91 Tenn., 267.
94 Tenn. 499Johnson v. State (1895)
1. Retaxation of Costs. Proof must show services rendered. Retaxation of costs, so as to embrace omitted fees, will not he allowed unless it shall he made to appear that the services for which the fees are claimed were performed. The statements of the petition for retaxation, and of the order made thereon setting ont the items, do not, without more, afford evidence to justify retaxation. (Post, pp. 500, 501.) Code construed: l 5269 (M. & V.); g 4517 (T. & S.). 2. Fees. Not allowed salaried city officers, when. The salaried Recorder and policemen of a city, invested hy law with the jurisdiction and power of justices and constables, respectively, are not entitled to receive, in addition to their salaries, the fees fixed hy law for justices and constables for like services. (Post, pp. 501-504.) Code construed: U 5269, 6433, 6434, 5316, 5321 (M. & V.); 4517, 5561, 5562, 4564, 4571 (T. & S.). Acts construed: Acts 1883, Ch. 114. Case cited and approved: Morgan v. Rickard, 86 Tenn., 208. Cited and distinguished: Porterfield v. State, 92 Tenn., 289.
94 Tenn. 505Boyd v. State (1895)
1. Witness. Infamy. The infamy that excludes the .testimony of a witness must be proved by the record, or authenticated copy thereof, showing his conviction and sentence for an infamous crime. The witness’ admission on the stand, or other oral testimony, is incompetent to prove infamy. (Post, pp. 508-512.) Cases cited: 99 Mass., 420; 7 Ired., 225; 3 McL. C. C., 325; 3 Wash. C. C., 99; 2 Carr. & K., 360; 24 N. Y., 398; 42 N. Y., 280; 95 N. Y., 541; 118 N. Y., 601; 72 N. Y., 393; 79 N. Y., 594. 2. Practice. Exclusion of evidence. It is error to withdraw the testimony of a witness, who admits his infamy on the stand, over the demand of the party to be thereby affected, that record evidence of the witness’ infamy should be first produced. (Po.s'i, pp. 506-509.)
94 Tenn. 513Nashville Trust Co. v. Smythe (1895)
1. Bills ahd Notes. Rights of bona fide holders. Bona fide holders of promissory notes, secured by mortgage or vendor’s lien, may hold the security, as well as the notes, unaffected by equities between prior holders and the mortg-agor or vendor. (Post, pp. 514-522.) Case cited and approved: 16 Wall., 371, 453. 3. Same. Assignment of. The assig-nment of notes secured by vendor’s lien is governed by the same rule as the assignment of notes secured by mortgage. (Post, p. 523.) 3. Same. Assignees share pro rata. Assig-nees of several notes secured by mortgage or vendor’s lien share pro rata, if there is nothing in the contract of assignment, or in the intention of the parties, to vary the rule. (Post, pp. 523-527.) Cases cited and approved: Graham v. MeCampbell, Meigs, 53; Roberts v. Francis, 3 Heis., 133; Andrews v. Hobg-ood, 1 Lea, 693; Ellis v. Roseoe, 4 Bax., 418; Ewing v. Arthur, 1 Hum., 537; Wicks v._ Caruthers, 13 Lea, 353; 38 Am. Dec., 438. 4. Same. Priority among assignees. An agreement, in parol or writing-, for preference in the security given to an assignee of a part of a series of neg-otiable notes secured by mortgage or vendor’s lien, is valid as against subsequent innocent assignees of other notes in the series. (Post, pp. 527, 528.) Case cited and approved: Hicks v. Smith,.4 Lea, 459. 5. Same. Assignment of mortgage or vendor’s lien. The whole or any part of the mortgage or vendor’s lien which secures negotiable notes may be assigned to secure any part of the notes which may he assigned, whether they be the first or last maturing', or the intermediate notes of the series. (Post, p. 528.) 6. Same. Not bona fide purchaser, when. An assig-nee of negotiable notes is not a bona fide purchaser as between himself and a prior assignee of other notes secured by the same mortgage or vendor’s lien, with respect to rights in such security. (Post, pp. 528-533.) Cases cited: 30 Minn., 4; 38 Maine, 496; 6 Cal., 478; 21 Vt., 331; 9 Pa. St., 32.
94 Tenn. 534Sweeney v. Vaughn (1895)
1. Sales. Wcti/oer of terms. The condition that the pirrchaser’s note to be given at a public sale shall bear interest irom date is waived, and title vests in the purchaser, where the seller furnished the form of note to be given, omitting interest, and made no objection on account of the omission, when the note was returned properly executed in other respects in compliance with terms of sale. 2. Same. Requirement of approved security. The condition in the terms of a public sale that the purchaser shall give note “with two approved securities” is complied with, and title vests in the purchaser, when he tenders note duly executed, sig'ned by two good and solvent sureties, which is justly entitled to approval. The seller cannot arbitrarily . reject such note. Cases cited: 2 Campbell, 530; 9 N. E. Rep., 101; 4 S. & E. (Pa.), 1. 3. Burden of Proof. TIpon purchaser to show solvency of sureties. The onus is upon the purchaser, in strch case, to prove that the note tendered was such as the vendor ougiit to have approved and received. Case cited: 20 Wend. (N. Y.), 431.
94 Tenn. 538McFarland v. Bush (1895)
FROM WILLIAMSON. Appeal in error from Circuit Court of Williamson County. W. L¡ Grigsby, J.
94 Tenn. 543Rather v. Williams (1895)
Chancery Practice. Hule 2, Section 4, construed. Chancery lizzie 2, Section 4, providing- that “after a cause is set for hearing, the same shall he open to both parties for pz-oof without leave of the Court, and without remanding- the cause to the rules, bzzt each party must take his proof in chief within four months and the rebutting proof within two months,”'has not the effect to postpone absolutely the hearing of a Chancery cause for the fizll term of six months after the issues are made up. 'The Chancellor’s action is sustained in disposing of this cause, upon regular call of his docket, over defendant’s objection showing no merit, within four months after the cause was first open for proof, it appearing that no proof in chief or re-bzzttqJ. was essential, or could be material, to either party upon the isszzes presented, and that complainant had notified defendant that his proof in chief was closed more than two months before the heaz-ing-.
94 Tenn. 547Wilson v. Morris (1895)
1. Wilt.. Wido w entitled to exempt articles. The widow is entitled to all articles exempt to her "by statute, under the husband's will providing- that aiter his personal estate is “settled up and closed,” the proceeds or residue shall be divided between his widow and only child “as the laws of the State of Tennessee direct.” (Post, pp. 548-560.) Cases cited and approved: Alexander v. Wallace, 8 Lea, 569; 25 Beavan, 163; S3 Beavan, 436; L. R., 20 Eq., 410; 39 Mich., 464 (S. C., 33 Am. Rep., 418); 5 N. J. Eq., 349; 24 Pa. St., 394. 2. Same. Widow entitled to year’s support. And the widow is entitled to year’s support under the provisions of siTch will of the husband. (Post, pp. 548-560.) 3. Samio. Widow entitled to half of resid/ue. And the widow is entitled to one half of the residue of the personal estate, after deducting debts, funeral expenses, and special legacies directed to be paid out of the personalty, under the provisions of such will of the husband. (Post, pp. 548-560.) 4. Same. Widow entitledto half of any residue of special legacy. And the widow is entitled to one half of what may remain at the beneficiary’s death of a specific sum set apart by such will of the husband to be used so far as necessary for the support of his imbecile sister. (Post, pp. 548-560.) 5. Same. Widow entitled to homestead. And the widow is entitled to homestead, as well as dower, out of the husband’s real estate, notwithstanding- such will may further provide that his real estate should be retained by the family, and that his widow should be entitled to dower out of same, without mentioning homestead. (Post, pp. 560, 561.) Case cited and approved: Jarman v. Jarman, 4 Lea, 071. G. Chanoeby Pleading and Pbactice. A personal representative is not entitled to decree, without proof, upon his averment in the bill, which is denied by the answer, that he had returned full inventories of the estate. (Post, p. 561.) Case cited and approved: Bank v. Jefferson, 93 Tenn., 537.
94 Tenn. 562Phillips v. Kimmons (1895)
FROM BEDFORD. Appeal from Chancery Court of Bedford County. WalteR S. Bearden, Ch.
94 Tenn. 569Byrn v. Blackman (1895)
Gaenishment. Sow effected. Garnishment of the effects, other than money dues, of a debtor cannot be effected by taking personal money judgment against the garnishee having possession of the property for the plaintiff’s debt. Such judgment is void as against creditors whó, by subsequent valid proceedings, successfully impound the debtor’s effects in the hands of the garnishee. Code construed: §$ 3803, 3805 (M. & V.); %% 3090, 3093 (T. & S.). Case cited and approved: Barrett v. Thomas, Thompson’s Cases, 67.
94 Tenn. 577Gore v. Howard (1895)
1. Wills. Estoppel to contest. An heir apparent, who, for a valuable consideration, relinquishes to the ancestor his entire expectancy in the latter’s estate, is estopped, while he retains the benefit received and his release remains in full force, to institute a contest over the ancestor’s will. (Post, pp. S78-S86.) Cases cited and approved: Wynn u Spiers, 7 Hum., 394; Bank v. Nelson, 3 Head, 634; Cornwell u. Cornwell, 11 Hum., 485; Head v. Mosby, 87 Tenn., 765; Fitzgerald v. Yestal, 4 Sneed, S57; Steele v. Frierson, 85 Tenn., 430; 63 Pa. St., 443. 2. Evidence. Erroneous exclusion. Where a paper purporting- to be petitioner’s release of his entire expectancy in his ancestor’s estate is pleaded to estop him to contest the ancestor’s will, it is error to exclude evidence tending- to show that petitioner did not sig-n the release. (Post, p. 587.)
94 Tenn. 588Cooper v. Great Falls Cotton Co. (1895)
1. .Adverse Possession. ALs between tenants in common. Possession of land by one tenant in common operates against his eotenants where it is intended or understood by all the parties to be adverse. (Post, pp. 590, 591.) 2. Same.. Possessor making improvements. The possessor of land, who, with notice of an adverse claim, makes expensive improvements thereon, cannot, on that account, defeat the ejectment suit of the adverse claimants. (Post, p. 5$1.) 3. Same. Connecting possessions. Connected adverse possessions of land, held pending suit to foreclose mortgage thereon successively, by the purchaser at the original sale in such suit, and by his vendee under title bond, and by the purchaser at a second sale made for the purchase price, are all held under and inure to the benefit of the mort-g-agor’s title or color of title. (Post, pp. 594-599.) Case cited and distinguished; Ellege v. Cook, 5 Lea, 622. 4. Same. By erection and operation of mill. The owner of a water mill situated on a stream acquires, by occupation and operation of the mill, actual adverse possession not only of the mill buildings and wheel pit, but of the bed of ,the stream to its thread between such points above and below the mill as will afford the free and unobstructed use of the water in the operation of the mill. (Post, pp. 599-601.) Case cited: Waddle v. Stuart, 4 Sneed, 534.
94 Tenn. 602Jones v. Whitworth (1895)
1. Cobpobations. Liability of stockholders; pleadings. Creditors of an insolvent corporation, or an assignee for their benefit, cannot maintain bill against its stock subscribers who have paid their subscriptions in property which the corporation was legally authorized to buy or receive, for the difference between the face value of the subscription and the real value of the property, without distinct averment that the overvaluation of the property was intentionally fraudulent or so gross and palpable as to be constructively fraudulent as to corporate creditors. Averment that property was “ not conveyed at a fair cash value, but very far in excess of it,” is insufficient. (Post, pp. 605-608.) Cases cited and approved: Kelley Bros. v. Fletcher, ante, p: 1; Shields v. Clifton Hill Land Co., ante, p. 160; 5 IJillon, 50; '31 1ST. E. Rep., 362; 119 U. S., 345; 110 Ind., 417; 78 Wis., 427 (S. C., 23 Am. St. R., 419-421); 92 Ala., 407 (S. C., 25 Am. St. R., 82, 83). Question reserved: Whether the proper measure of relief in such case is recovery of difference or rescission of contract. (Post, p. 614.) 2. Same. Stock subscriptions inure to benefit of all creditors. Unpaid stock subscriptions are made by statute in this State to inure to the benefit of all creditors alike, whether their debts were created before or after the subscriptions were made. (Post, pp. 608-610.) Code construed: § 1708 (M. & V.).' Act construed: Acts 1875, Ch. 142, Sec. 5. Case cited and approved: Shields v. Clifton Hill Land Co., ante, p. 158. Cited and distinguished: 3 Mason, 308; 13 Wis., 60; 11 Ala., 437; 35 N. J. Eg.., 501; 17 Wall., 611; 42 Minn., 327 (S. C., 18 Am. St. R., 516); 139 U. S., 436; 48 Minn., 174 (S. C., 31 Am. St. R., 646). 3. Same. Insufficient averments to hold stock subscriber. The creditors oí an insolvent corporation, or an assig-nee for their benefit, cannot recover against its stockholder upon the averment that $59,800 of unsubscribed stock was issued to him as compensation for services rendered in neg-otiating the sale of $85,000 of its bonds, withoxxt any averment that the transaction was fraudulent, or that the compensation was unreasonable. He became purchaser, not sxxbseriber, of the stock. (Post, pp. (¡21-623.) 4. Statute of Limitations. Of six and ten years do not bar suit by corporate creditors against stockholders, when. The statute of limitations of six and ten years do not begin to rxxn against the right of corporate creditors to enforce the liability of stockholders for the difference between the amount of their subscx-iptions and the real value of land conveyed to the corporation at a fraudulent overvaluation in payment therefor, until the legal insolvency of the corporation has oe-cui-red. (Post, pp. 610-613.) Cases'cited and approved: Moses v. Ocoee Bank, 1 Lea, 404; Marr v. Bank, 4 Lea, 593; 105 U. S., 143: 3 Am. St. Rep., 39, 30; lb., 881. 5. Same. Of two years protects estates of deceased stockholders, when. The estate of a deceased stockholder is protected by the statute of limitations of two (and one half) years, where suit for collection of difference between the amount of his subscription and the real value of land conveyed at a fraudulent ovex--valuation in payment thereof, is broug-ht ag-ainst his pei-sonal representative by resident corporate creditors, or their resident assignee, more than two and one half years after the legal insolvency of the corporation had occurred. This statxxte runs from date Of such insolvency, and not from date of the fraudulent transaction or of the administration. (Post, pp. 614-617.) Code construed: §<¡ 3117, 3481 (M. & V.); §j¡ 3379, 3784 (T. & S.). Cases cited and approved: Bradford v. McLeiAore, 3 Yer., 319; Trottu West, 9 Yer., 436; Atkinson v. Brooks, 10 Yer., 485. G. Same. Six months after decedent's death not deducted, when. When a creditor's right to sue does not accrue for more than six months after administration upon his debtor's estate, his suit is bai-red, unless it is institxxted within two years after the accrual of his right to sue. An additional six months is not allowed in such case. {Post, p. 617.) ' Code construed: fá 3112, 3454 (M. & V.); 2274, 2760 (T. & S.) 7. Same. Of seven yea/rs for protection of decedent’s estate. The statute of limitations of seven years for protection of decedents’ estates begins to run from the date of the accrual of the creditor’s right to sue, and not from date of administration, where the cause of action accrued in decedent’s lifetime, but the right to sue thereon accrued after his death. {Post, pp. 617-621.) Code construed: U 3119, 3483-(M. & V.) ; %% 2281, 2786 (T. & S.). Cases cited and approved: Smith v. Goodlett, 92 Tenn., 232; Fitzsimmons v. Johnson, 90 Tenn., 441; Henderson v. Tipton, 88 Tenn., 258 ; Henry v: Mills, 1 Lea, 153; Caplinger v. Vaden, 5 Hum., 629 ; Reeves v. Pulliam, 7 Bax., 119 (S. C., 9 Bax., 153, and 1 Leg. Rep., 236) ; Moses v. Bank, 1 Lea, 404 ; Marr-i). Bank, 4 Lea, 593.
94 Tenn. 624American National Bank v. Junk Bros. (1895)
1. Bills and Notes. Liability of indorser upon note made for Ms accommodation. Where a note is made ior the indorser’s accommodation, it is his duty to provide funds to meet it at maturity, and he is, therefore, bound to the holder without presentment, protest, or notice. (Post, p. 625.) Case cited and approved: Black v. Fizer, 10 Ileis., 48. 2. Same. Notice of protest to insolvent corporation. Notice of protest for nonpayment of negotiable paper is sufficient, though not actually received by the company, where the indorser is an insolvent corporation that had made a general assignment for the benefit of its creditors, and abandoned its business, and the notice, addressed to the corporation, was duly received, opened, and filed by a clerk, the assignee at the former office of the company, where its affairs were being wound up. (Post, pp. 625-631.) Cases cited and approved: Harris v. Memphis Bank, 4 Hum., 518; 4 Howard, 336; 63 Maine, 340; 3 Wend., 408; 51 N. Y.-, 148; 143 Mass., 390; L. R., Ch. Div., 795; 79 Maine, 376. 3. Same. Same. Notice to the indorser’s assignee of protest of negotiable paper for nonpayment is sufficient where the indorser - has made a general assignment for the benefit of his creditors. (Post, pp. 631-634.) Case cited and approved: 79 Maine, 376.
94 Tenn. 635Insurance Co. v. Lauderdale (1895)
I/iEE and Accident Insurance. Misstatement in application. Ii assured falsely states, in his application for a life and accident policy, that his “habits are correct and temperate,” and the truth of that statement is warranted and made the basis of the contract of insurance, and a conditon precedent to the validity of the policy, the policy is void, and it is not essential, in such ease, “that the misstatement must he willful and intentionally made and known at the time to he false. ” Case cited and approved: Boyd v. Insui-an.ee Co., 90 Tenn., 215 j 6 Fed. Rep., 672; 90 Pa. St., 118.
94 Tenn. 644Memphis v. Bing (1895)
1. Statutes. Imposing taxes, how construed. It is a g-eneral rule that, in the interpretation of all statutes levying- taxes or duties upon subjects or citizens, not to extend their provisions, by implication, beyond the clear import of the lang-uag-e used, or to enlarg-e their operation so as to embrace matters not specifically pointed out, although standing upon a close analogy. In every case, therefore, of doubt, such statutes are construed most strongly against the government and in favor of the citizen or subject, because burdens are not to be imposed beyond what the statutes expressly and clearly import. (Post, %>p. 648, 649.) Cases cited and approved: 2 Story, 369; 5 Blateh., 202; 9 Pick., 412. 2. Same. Same. Case in judgment. Hence, a statute that imposes specific taxes for municipal purposes upon certain enumerated privileges, and, upon all other privileges not therein enumerated, a tax equal to that imposed for State purposes, does not embrace or operate to tax for municipal purposes a privilege created and taxed for State purposes subsequently to the passage of such statute. (Post, pp. 645-648, 649.) Acts construed: Acts 1893, Ch. 89, l 4; Acts 1879, Chi 11.
94 Tenn. 651Mills v. Bennett (1895)
1. Exemptions. Waiver of. A person contracting a debt cannot, by a contemporaneous and simple waiver of benefit of the exemption laws, confer upon his creditor the right, upon obtaining judgment for his debt, to levy his execution, over the debtor’s objection, upon exempt property. Such ag-reement is contrary to public policy and void. (Post, pp. 651-657.) Cases cited and approved : 10 Bush, 156 (S. C., 19 Am. Rep., 61); 82 Ill., 147 (S. C., 25 Am. Rep., 301) ; 22 N. Y., 240 (S. C., 78 Am. Dec., 186) ; 20 Iowa, 376; 15 La. An., 245 ; 20 Ela., 558 (S. C., 51 Am. Rep., 618) ; 8 How. Pr., 547. Cited and distinguished: Denny v. White, 2 Cold., 283 ; Cox v. Ballentine, 1 Bax., 362 ; Cronan v. Honor, 10 Heis,, 534 ; 60 Ala., 313. 2. Same. Same. And such waiver is equally ineffectual whether made by the head of a family or by a single person entitled to exemptions (Post, p. 657.)
94 Tenn. 658Shackt v. Railroad (1895)
Common Cabeieb. Released from liability by consignor's act. A common carrier is released from liability for loss of goods, where, without fault or -negligence on his part, the carrier is induced, by the acts and conduct of the consignor, whether intentional or otherwise, to believe that the goods were of a nature and value different from the truth, whereby freight - charges thereon were diminished, and the carrier’s risk increased, while his care and vigilance were relaxed. The facts stated in the opinion afford an illustration of this proposition. Cases cited and approved: 148 U. S., 627; 18 Am. & Eng. R. Cases; 1 Bissell, 35.
94 Tenn. 668Strain v. Hefley (1895)
Justices of the Peace. Jwisdietion of. A Justice of the Peace, elected for one civil district of his county, and having his residence there at the time of his election, and continuously thereafter, with an office in that district, where he holds Court regularly on one day of each week to try such causes as ar.e then brought before him, may lawfully open another office in another civil district of his county, and there issue writs, try causes, and deliver judgments on ' such days of the week as he is not engaged officially in his own district. Constitution construed : Constitution 1834, Art. VI., Sec. 15; Constitution 1870, Art. VI., Sec. 15. Code construed : jig 4888, 4908; 4903 (M. & V.) ; 4113, 4187, 4138 (T. & S.), Cases cited and approved: Morgan u Coleman, 3 Head, 353; Cheatham v. Brien, 3 Head, 553. Question reserved: Whether a Justice of the Peace does not vacate his office when he practically abandons the office he is required to keep in his own district for an office that he opens in another district.
94 Tenn. 674State v. Alston (1895)
1. Taxation. Succession or inheritance taxes constitutional. The Legislature has constitutional power to impose a privilege tax upon the right of succession, whether by will, inheritance, or otherwise, to the estates of deceased persons. This right of succession is not a natural right, hut a mere privilege created by statute, and subject to such conditions and burdens as the Legislature may choose to impose for the public benefit.(Post, pp. 618-682.) Act construed : Acts 1893, Oh. 174 ; Oh. 89, Sec. 7. Cases cited : See numerous citations in opinion. 2. Same. Succession tax not void for want of uniformity. A statute imposing a succession tax upon collateral kindred and strangers, but exempting- direct descendants of the decedent from the tax, is valid. The discrimination is based upon just g-rounds, and the classification is natural and reasonable, not capricious and arbitrary. (Post, pp. 682, 683.) Cases cited and approved: State v. Schlier, 3 Heis., 286; Ful-ghum v. Mayer, 8 Lea, 635 ; Robbins v. Taxing District, 13 Lea, 303 ; Demoville v. Davidson County, 87 Tenn., 218 ; 2 L. R. A., 825 ; 25 L. R. A., 632. 3. Same. Same. A statute imposing- a succession tax which exempts all estates of less value than $250 is valid. This exemption is based upon sound reason and policy. (Post, pp. 683, 684.) Case cited and approved: 26 L. R. A., 264.
94 Tenn. 686Morgan v. Duffy (1895)
1. Continuance. Propei-ly refused. • The Court’s action refusing continuance, and directing joinder of formal issue upon a plea, and immediate trial, is not errone- . ous, when no objection was made to the state of the pleadings until the case was called for trial, and it does not appear, either by affidavit for continuance or for new trial, that any injury resulted from the Court’s action. (Post, pp. 687, 688.) 2. Malicious Pbosecution. Malice. Actual malice, in the sense of ill will or personal hatred, need not be shown to sustain action for malicious prosecution. Any improper motive is sufficient to constitute legal malice, and malice will be inferred when the avowed object of an unsuccessful prosecution was to enforce payment of a debt. (Post, p. 688.) Case cited and approved : 13 Neb., 492. 3. Same. Advice of counsel. Advice of counsel affords no defense to a charge of malicious prosecution where the facts were known to defendant and his counsel and did not justify the belief that plaintiff was probably g’uilty of the crime charged. (Post, pp. 689, 690.) 4. Same. Statute of limitations. Until a prosecution is ended, the statute of limitations does not begin to run against an action for malicious prosecution based thereon. (Post, p. 690.) 5. Same. Damages not excessive. A verdict for $500 damages in an action for malicious prosecution is not excessive where the proof shows that plaintiff was arrested and imprisoned on a charge of felony, without probable cause, and for the avowed purpose of compelling- him to pay a debt. {Post, pp. 690, 691.) 6. ARGUMENT of Counsel. Not ground for reversal, when. Improper remarks of counsel, made during the course of argument, afford no cause for reversal where no objection was made at the time of their utterance, and no action of the lower Court invoked thereon. (Post, p. 691.)
94 Tenn. 692Burke v. Memphis (1895)
1. Statutes. Repeal. Statutes “to provide revenue for the State of Tennessee and the counties thereof,” cannot have the effect to repeal by implication earlier statutes providing revenue for municipal corporations. (Post, pp. 692-694.) Acts construed : Acts 1879, Ch. 11; Acts 1883, Ch. 10 ; Acts 1889, Ch. 130 ; Acts 1891 (Ex. Sess.), Ch. 25, p. 50. Case cited and approved : Knoxville v. Lewis, 12 Lea, 180. 2. Taxation. Architects subject to privilege tax. The occupation or business of an architect may be declared a privilege, and taxed as such. ' (Post, pp. 694, 695.) Cases cited and approved : Kurth v. State, 86 Tenn., 134 ; Mayor v. Guest, 3 Head, 414 ; Ilun v. Cullen, 13 Lea,.202.
94 Tenn. 696Cumberland Telegraph & Telephone Co. v. Poston (1895)
1. Damages. Evidence of wrongdoer’s ‘pecuniary ability admissible, when. When there is any substantial ground or reason for allowing punitive damages, the pecuniary ability of the wrong-doer may be given in evidence. (Post, pp. 698, 699.) Cases cited and approved : Dush v. Eitzhugh, 2 Lea, 307 ; Railroad v. Guinan, 11 Lea, 103. 2. Chakge of Coubx. Meager a/nd incomplete not reversible. An incomplete and meager charge, if not misleading, affords no cause for reversal when no request for additional instructions was made. (Post, pp. 699, 700.) Case cited and approved : Maxwell v. Hill, 89 Tenn., 585. 3. Evidence. General exceptions. A general exception that evidence is incompetent and immaterial, without stating grounds, is bad. (Post, p. 700.) Cases cited and approved: Druggist Cases, 85 Tenn., 449 ; Railroad v. Fleming, 14 Lea, 129 ; Powers v. McKenzie, 90 Tenn., 167; Railroad v. Beeler, 90 Tenn., 548; Grahamv. McReynolds, 90 Tenn., 689. 4. Damages. Wot excessive. Where the proof is conflicting, a verdict for damages based upon it, and reasonably sustained by it, will not be set aside as excessive. (Post, p. 700.) Case cited and approved: Memphis Tél. Co. v. Hunt, 16 Lea, 456.
94 Tenn. 701Brooks v. Paper Co. (1895)
1. Supreme Court. Will not reverse upon the facts, when. If there is sufficient evidence in the record to sustain a g-eneral verdict upon a correct charge, this Court will not reverse a non-jury law cause because the special findings of facts made by the trial Judge, without request of either party, are erroneous and insufficient to support the judgment rendered thereon. [Post, p. 705.) 2. Sales of Personalty, Complete, when. The sale of g-oods is complete and title passes, subject alone to stoppage in transitu and avoidance for fraud, upon their unconditional delivery to a common carrier for shipment to the purchaser. (Post, pp. 705-710.) Cases cited and approved: Boyd u Mosely, 2 Swan, 661; Mississippi Mills v. Bank, 9 Lea, 314; Ochs v. Price, 6 Ileis., 483; Harding- v. Metz, 1 Tenn. Ch., 610. Cited and disting-uished: Belding Bros, u Frankland, 8 Lea, 67. 3. Same. Purchaser’s imsoVvency. The purchaser’s insolvency, occurring after the completion of the contract of sale and delivery of the goods to the carrier for shipment to him, hut before their actual receipt by him, does not, in the absence of fraud, defeat his title. (Post, p. 710.) 4. Same. Unco7iáitimial, when. The title of goods vests in the purchaser upon completion .of the sale without payment of the purchase price, unless payment of the price is made a condition precedent to the vesting of title by express contract or necessary inference. (Post, pp. 710-712.) Gases cited: Harding- u Metz, 1 Tenn. Ch., 610: McClure v. Williams, 5 Kneed, 716.
94 Tenn. 713Quinn v. Railroad (1895)
1. Master and Sebvant. PtaAlroad company and its physioicm are not. A physician or surgeon employed by a railroad company to attend upon its employes injured in its service, does not bear the relation of servant to the company. (Post, pp. 716-718.) Cases cited: 11 Bush, 4(54; 93 Mo., 331; 63 Mich., 639; 17111. App., 313; 60 Fed. Rep., 363. 3. Railroads. Not liable for injuries resulting from unsMllfulmess of their physicians. If a railroad company places an employe, injured in its service, in the care of a competent and reputable physician for treatment, it is not responsible for any injury resulting to the employe from the malpractice of the physician. (Post, pp. 718-720.) Cases cited: 13 So. Rep., 638; 60 Fed. Rep., 365; 13 N. E. Rep., 781 (S. C., 107 N. Y., 338); 38 N. E. Rep., 366; 18 Fed. Rep., 331; 130 Mass., 433; 30 L. R. A.. 338.
94 Tenn. 721Menken v. Brinkley (1895)
1. SlHSNDTlTRIFT TRUSTS. The ease oí Jourolmon v. Massengill, 80 Tenn., 81, determining that, under the Act of 1833 (Code, $ 4383), one person may convey property in trust for the heneñt oí another, and so limit and restrict it as to exempt it from the debts of the beneficiary thereafter created, does not authorize the creation of such a trust by a person for his own benefit. (Post, %>p. 122-181.) .Code construed: \ 0026 (M. & V.); <j 4283 (T. & S.). Cases cited: Jourolmon v. Massengill, 86 Tenn., 81; Henson v. Wright, 88 Tenn., 501; Turley v. Massengill, 7 Lea, 353; IIoo-berry v. Harding-, 10 Lea, 393; Hawkins v. Pearce, 11 Hum., 44; Mills v. Mills, 3 Head, 705; 91 Ü. S., 716; 111 U. S., 543. 2. Same. Such a trust cannot be created by a grantor, he being the only beneficiary, either by a direct exemption of the property from his future debts, or indirectly, by leaving- it discretionary with the trustee to allow him benefits from the property. (Post, W- 725, 129.) 3. JUDGMENTS BEFORE JUSTICES OF THE PEACE IN OTHER STATES, Under Art. IV., Sec. 1, of Constitution of tiie United States. A judgment of a Justice of the Peace in another State falls within the provision of Art. IV., Sec. 1, of the Constitution of the United States, requiring each State to g-ive full faith and credit to the judicial proceeding's of every other State. (Post, VI). 137, 733.)