Volume 95 — Tennessee Reports

<p>1. CHARGE of. Court. Failure to define negligence not error.</p> <p>Charge of Coiu-t upon the subject of neg-ligence, that fails to give a technical, abstract definition of that term, is not erroneous, when the charge upon that point, taken as a whole, is correct, and affords the jury all necessary instruction, and there is no request for further instructions. (Post, p. ¡5.)</p> <p>3. Sauk. Using “ conduct’’ as synonymous with 'negligence” not erroneous.</p> <p>Court's charge is not erroneous for the use of the term ‘ ‘ conduct” as synonymous with “neg-ligence,” when it is manifest from the connection that neglig-ent, careless, or reckless conduct was intended, and will be understood. (Post, p. 5.)</p> <p>Cases cited and approved: Railroad v. Fain, 13 Lea, 40; Railroad v. Fleming-, 14 Lea, 135; Postal Tel. Go. v. Zopfi, 93 Tenn., 369; Railroad v. Spence, 93 Tenn., 173; Dushu Fitzhugh, 3 Lea, 309.</p> <p>3. Same. Ms to damage*.</p> <p>Charge of Court is sufficiently definite and specific, in the absence of any request for further instructions, which enumerates to the jury the several elements of damage to be considered by them, but without elaboration or comment thereon. (Post, p. (>.)</p> <p>Case cited: Railroad v. Roddy, 85 Term., 400.</p> <p>4. Witness. RecalUng of, discretionary.</p> <p>The Court’s action permitting the recall of a witness to correct his testimony is discretionary, and does not constitute error unless there is manifest abuse of discretion apparent. (Post, V■ 6.)</p> <p>5. Assignment of Ebbok. Insufficient, when.</p> <p>Assigmment of error averring that verdict of jury is not warranted by the evidence, is insufficient. It should aver that there is no material evidence upon which the verdict can stand. (Post, p. (>.)</p> <p>6. Common Cajbrikr. Duty to persons who visit its stations onhusiniess.</p> <p>A common carrier is liable for injury resulting- from its negligence to persons who visit its stations or landings on legitimate business, including those who come to meet a friend or see him off. (Post, p. 7.)</p> <p>Cases cited and approved: 88 Ky., 10; 64 Tex., 351; 51 Mich., 601; 47 Am. Rep., 596; 50 Mo., 37; 6 Cray, 64; 59 Pa. St., 143; 98 Am. Dec., 317; 18 S. E. Rep., .378; 23 Am. & Eng. Ry. Cas., 511; 21 Id., 336; 38 Id., 157.</p> <p>7. Vekdict. Excessive.</p> <p>Verdict for $4,250 reversed upon the facts of this case, as being so excessive as to indicate passion, prejudice, or caprice on the part of the jury. (Post, p. 7.)</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. John L. T. Sneeu, Ch.</p>

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

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

<p>1. Bills Asm Notes. Indorsers we co-makers, ■when.</p> <p>The indorser of commercial paper before delivery, on whose credit it is taken, is liable to the payee as a co-maker. (Post, pp. 51-56'.)</p> <p>Case cited and approved: Bank r. Jefferson, 93 Tenn.. 537.</p> <p>3. Same. Not void as compounding felony.</p> <p>A note g-iven in settlement of a deficit of an ag-ent. and for .the purpose of securing- to him further employment, is not invalid because the ag-ent was liable to prosecution for his defalcation, in the absence of any threat to prosecute or ag-reement not to prosecute. (Post, pp. 56', 57.)</p> <p>Case cited and approved: Armstrong- v. So. Express Co., 4 Bax., 370.</p> <p>3. Principal and Agent. Agent's knowledge not imputed to ‘principal, when.</p> <p>An insurance company cannot be affected by knowledg-e of its general manager in respect to matters between him and a subordinate ag-ent, on which the general manager is liable to the company as surety of such agent. (Post, pp. 57. 58.)</p> <p>4. Supreme Court. TFiii not correct, decree, when.</p> <p>A decree of affirmance will not be corrected by this court on motion made at the same term, to provide for payment in gold coin according- to stipulations in the instruments on which the , recovery was had, when the question is first made by' such motion. (Post, pp. 58, 5.9.)</p> <p>Code construed: 3588, 3589 (M. <& V.), H 3877. 3878 (T. & S.).</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby Comity. W. D. Beahd, Ch.</p>

<p>I. Evidence. Of huxhand and'Wife incanijietent. -when.</p> <p>Husband and wile are incompetent, in her suit against the husband's creditors to set up a resulting- trust in Ms land, to prove an agreement between themselves as to the contemplated purchase of the land involved, as to how it was to be paid for, and as to how the title, should be taken. Evidence of this character falls within the. exception of the statute making- pax-ties in a.11 civil actions competent to testify providing- that ‘ • neither husband nor wile shall testify as to any matter that occurred between them by virtue of. or in consequence of, the marital relation.'’ (Paul, pi>. 74-83.)</p> <p>(.'ode constx-ued: i¡ 45(>3 (M. * V.): # 3818 (T. & S.).</p> <p>Cases cited and approved: Patton n. Wilson, 2 Lea. 101, 113; On-■a. Cox. 3 Lea, 621: Ilyden i>. Hyden. (i Bax., 408; Brewer r. Ferguson. 11 Hum., 505: Kimbrough v. 'Mitchell. 1 Head, 540; Bai--ker v. McAuley. 4 liéis.. 4:14.</p> <p>.2. Same. Of huxhand anil wife ii'iU not exlahlixli a rex lilting truxi, when.</p> <p>The uncorroborated testimony of husband and wife, if admitted, is not sufficient to establish a resulting- trust in the husband's lands in her favor as against his creditors. (Poxl. ¡>. 81.)</p> <p>Cases cited and approved: Gates u. Card. 93 Tenn.. 334; Page i>. Gillentine. (i Lea. 340: Grotenkemper v. Carver. 0 Lea, 280; Hardison r. Billington, 14' Lea. 346: McCammon u. Pc.ti.tt. 3 Sneed. 242: Sullivan u Sullivan. 86 Tenn.. 380.</p> <p>3. Same. Iuxujlieienl In extahlixh rexulliag Iruxl.</p> <p>A resulting- trust in the husband's lands is ixot established in favor of the wife, as against his creditors, by evidence that money was paid or sent to her by her brother with which to purchase a home, and that he examined the property, advised the purchase, and was subsequently informed by letter that the property had been purchased, and that she had the deed for it.' where it is shown the husband obtained possession of the money and paid it out and took the title of the land in his own name. (Past. pp. 74-8X)</p> <p>4. Same. Of delibera of deed J rom hunixtnd to wife.</p> <p>Although, neither husband nor wife can testify as to the delivery of a deed by him to her, she is competent to testify that it has been in her possession at all times since the alleged delivery. (Pont. pp. 84. 85.)</p> <p>o. Same. Hume.</p> <p>Proof of delivery of deed from husband to wife may be made by her testimony that it has been in her possession since its date, a period of several years, corroborated by proof of her statement that she had it, and claimed the land, and of the husband's statement that the land was hers. (Pont. pp. 84, 85.)</p> <p>(5. Same. ,stame.</p> <p>And. in such case, the statements of husband and wife to third persons in reference to her possession of the deed and ownership of the land are competent to show how and under what title the property was held. (Pont. p. 85.)</p> <p>7. Deed. Reijintration.</p> <p>A deed conveying lands from husband to wife is valid and effectual against his creditors, although its registration has been long delayed, if it was made originally in good faith, and withholden from registration without fraud, and actually registered before creditors had secured any lien upon the property. (Pont, i>¡). 88 4]5.)</p> <p>Cases cited and approved: Chester v. (freer, 5 Hum., 34; Bird-will r. Cain, J Cold.. 301: Cowan. MeClung & Co. v. Gill, 11 Cea. 674: Bank n. Walker. 14 Lea. 399. •</p> <p>8. Costs. Of unnnece^nful aitaclt on deed hi/ creditorn of nuiher.</p> <p>Creditors attacking a deed from a debtor to his wife as fraudulent. will not be relieved from payment of costs on failure to set it aside, although the deed was not registered until after the credit was extended, if it show's on its face that it was executed long prior thereto, and was registered before suit was instituted to-impeach it. (Post, pp. 85, 86.)</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. Joni-i ,L. T. Sneed, Ch.</p>

<p>Public Administbatobs. Rights of successime •bneumbents.</p> <p>A public administrator will not be compelled, in the absence of some just cause, to surrender the administration of estates undertaken during his term to his successor in office.</p> <p>Code construed: 545, 546, 548 (M. & V.); 468n, h, a (T. & S.).</p>

<p>1. Partnership. Partner's authority over assets of dissolved firm.</p> <p>A member oí a dissolved firm has implied authority to offset a firm claim against a debt due from him to the firm debtor, where such claim has been, in his possession for over twenty years, with xxnlimited power and discretion in him as to its management and mode of collection, and his financial condition has been sxxch during that time that his former partners woxxld not have questioned his right to collect the claim in that manner. (Post. p. 103.)</p> <p>2. Same. Application of assets of firm to partner's individual debt.</p> <p>Payment of an individual debt by a partner out of the partnership assets will be held good as against the other members of the firm, where they expressly or impliedly assent thereto or afterwards ratify it. (Post, pp. 103, 104.)</p> <p>Case cited and approved: lli Pet., 321.</p> <p>Cited and distinguished: Rogers v. Betterton, 93 Tenn., 635.</p> <p>3. Same. Estoppel of partners by their laches.</p> <p>Membei's of a dissolved firm are estopped to question the authority of another member to consent to a decree setting off a judgment upon a firm claim which he had held for collection for over twenty years against a judgment upon his individual debt, by a bill to set it aside filed two and a half years after it was rendered, and after the affirmance of the judgment against him, where he' is insolvent, and has, in the meantime, because of the offset, given no bond for the jxxdg-ment on the appeal. (Post, -pp. 105, 108.)</p> <p>4. Same. Partners’ interests in assets of dissolved firm.</p> <p>An ag-reement by the members of a dissolved film that their interests in the uncollected assets shall be in certain proportions does not make each member the owner of an aliquot part of a particular claim, where collections have been made by each member and there has been no settlement between them. (Post, pp. 105,106.)</p> <p>5. Samis. Assignment of firm assets ineffectual, when.</p> <p>An assignee under a voluntary assigmment, or one upon a past consideration, oí the interest of a member of a dissolved firm in a firm claim, cannot recover thereon where her assignor, who was another member of the firm, acquired such interest after he had, without authority as to his former partners, consented to a decree setting off such claim ag-ainst an individual indebtedness due from him. (Post, p. 107.)</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. John L. T. Sneed, Ch.</p>

<p>EitOM SHELBY.</p> <p>Appeal from Chancery Court of' Shelby County. John L. T. Sneed, Ch.</p>

<p>Malicious Prosecution. Conspiracy.</p> <p>A conspiracy is not necessary to render liable a Sheriff who makes a false return to a summons, and the creditor who willfully and recklessly procures it to be made for the purpose of procuring an attachment, although it is alleged. The mere fact of the false return is sufficient to render the Sheriff liable, while the willfully and recklessly procuring it to be made will render the creditor jointly liable with the Sheriff.</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. JNO. L. T. SNEED, Ch.</p>

<p>1. Incest. Of uncle and niece.</p> <p>A man is g-uilty of incest who has carnal knowledge of the daughter of his half sister, where the statute forbids such intercourse with the daughter of a sister or brother. (Post, pp. 153, 154.)</p> <p>Code construed: gg5646, 5647 (M. & V.); (j? 4836, 4837 (T. & S.).</p> <p>Cases cited and approved: 59 Vt., 527; 3 Mon. Ter., 50.</p> <p>2. Same. Woman's evidence not sufficient to support conviction.</p> <p>If the woman becomes an accomplice in the incestuous act, her uncorroborated testimony will not support a conviction of the man. (Post, pp. 154-156.)</p> <p>Cases cited and a^iproved: 17 Tex. App., 452; 9 lb., 237; 11 lb., 92.</p> <p>3. Same. Woman becomes accomplice, when.</p> <p>The woman becomes an accomplice when she knowingly, voluntarily, and with the same intent as the man, indulges in the incestuous act, and, without any constraint on his part, continues the illicit intercourse for several months. (Post, pp. 154-156.)</p>

<p>1. Benevolent Societies. Laws of, constitute part of contract with member.</p> <p>Doctrine reaffirmed that the laws of a benevolent society, when pertinent, and not in conflict with the statute laws or the recognized rules of public policy, become part of its contracts with its members. (Post, p. WO.)</p> <p>Oases cited and approved: Tennessee Lodg-e v. Ladd, 5 Lea, 720, Catholic Knig-hts v. Kuhn, 91 Tenn.. 216.</p> <p>2. Same. Antisiticide law passed after application for mernbersluip.</p> <p>A valid law passed by a benevolent society after the filing of an application for membership and issuance of a certificate, and before the death of the member, is operative against him and his beneficiaries to defeat their rights, where, in his application, he agreed to conform to the rules now in force or which may “hereafter be enacted,” and such obedience is made a condition of the issuance of the certificate. (Post, pp. WO, 161.)</p> <p>Case cited and approved: 71 Ala., 436.</p> <p>3. Same. New constitution supersedes old one.</p> <p>The constitution of a mutual benefit society is entirely superseded by the adoption of another constitution, except as to the parts which are. reproduced in the new constitution. (Post, p. 167.)</p> <p>4. Same. Powers of hoards of control.</p> <p>The board of control of the endowment rank of a mutual benefit society has no power to pass a law that payment will not be made on the certificates of members who commit suicide, under a provision in the constitution that such board shall have “entire eharg-e and full control of the endowment rank,” subject to such restrictions as the Supreme Lodg-e may provide. This language imports executive, not legislative, functions. (Post. pi). 167, 168.)</p> <p>5. Samk. Delegation of 'powers to hoards of control.</p> <p>The Supreme Lodge of a mutual "benefit society, in which is vested, by the charter, the sole power to legislate with respect to the endowment rank of such society, cannot legally delegate to a board of control the power to pass a general law against suicide effecting the entire endowment rank. (Post, pp. 169, 170.)</p>

<p>1. B.KOKITKR. Appointed by foreign Court.</p> <p>A receiver appointed by the Courts of one State, cannot sue in another State to recover property belonging to the estate which has never been in his possession. (Post, pp. 179, 180.)</p> <p>Cases cited and approved: Cagell v. Wooldridge, 8 Bax., 580; 17 How., 332.</p> <p>3. Attachment. Upon judgment confessed by embarrassed corporation in another State valid.</p> <p>A statute making- a judgment confessed by a corporation after a petition has been filed for its enforced dissolution void as ag'ainst the receiver and creditors, is not effective to defeat an attachment of its property made for the judgment in the Courts of another State. (Post, pp. 186, 187.)</p> <p>Cases cited and approved: Mosby v. Williamson, 5 Ileis., 378; Comfort v. McTeer, 7 Lea, 660; Bank v. Lumber, etc., Company, 91 Tenn., 13; 104 U. S., 54.</p> <p>3. Same. By 'nonresident creditor of nonresident, debtor's property situated in this State.</p> <p>Our statute providing that residents of other States, having exhausted their remedies there ag-ainst their debtors residing- in such States, may subject to the satisfaction of their claims property situated in Tennessee, gives such creditors a remedy to the same extent and in the same manner and with the same priority as a citizen of Tennessee. (Post, pp. 180-185.)</p> <p>Code construed: Section 5040 (M. & V.); $ 4397 (T. & S.).</p> <p>Cases cited and approved: Taylor v. Badoux, 93 Tenn., 349; Les-senbee v. Holt, 1 Sneed, 43.</p> <p>1. Samk. E-.rluvuntion of remedy in <mother Mate.</p> <p>That a nonresident creditor has exhausted his remedy against Iris debtor in the State of his residence, so as to be enabled to take advantage of $ 5040 (M. & V. Code) permitting' him to subject property in this State to the payment of his claim, is shown by the fact that the property of the debtor in the State of his residence has been placed at the suit of creditors in the possession of a receiver under a statute forbidding interference with it. (Post, p¡>. 18/, 188.)</p> <p>Code construed: Section 5040 (M. & V.); ¡¿ 4297 (T. &, S.).</p> <p>Cases cited and approved: Turley v. Taylor, 3 Lea, 173; Montgomery a. McGhee, 7 Hum.. 234: 149 U. S., 479; 101 U. S., 090.</p> <p>5. Same. Priority.</p> <p>A. nonresident who exhausts his remedy ag-ainst his debtor in the State of their residence, and then attaches the debtor’s property situate in this State, acquires priority as to the attached property over any right or claim based upon an enforced bankrupt or insolvent proceeding- ag-ainst the debtor in the State of his residence. (Post pp. 180-18B.)</p> <p>Cases cited: Mai-r n. Bank, 4 Cold., 471; 133 IJ. S., 107, 129; 147 U. S., 476: 130 Cl. S„ 348; 84 N. Y., 307; 99 N. Y.. 448.</p>

<p>PROM CARROLL.</p> <p>' Appeal in error from Circuit Court of Carroll County. JohN R. Bond, Judge.</p>

<p>PROM HENRY.</p> <p>Appeal in error from Circuit Court of Henry-County. W. H. Swiggart, Judge.</p>

<p>1. CORPORATION'. Collateral attach of charrter exemptions.</p> <p>Charter exemptions from taxation are subject to collateral attack. (Post, p. 205.)</p> <p>2. Same. Acceptance of charter.</p> <p>Acceptance of charter is essential, and, to be effectual, it must be done within a reasonable time. A delay of twenty-four years is unreasonable. (Post, pp. 206-208.)</p> <p>Gases cited and approved: 4 Wheat., 518; 1 Greenl. Ii., 79; 10 Wend., 266; 1 Strob. Bq., 209; 2 McLean (C. C.), 195; 16 Conn., 179, 19f.</p> <p>3. Same. Exemptions wifhdnvwn by Constitution of 1870.</p> <p>The Constitution of 1870 forbids the granting of charter exemptions from taxation, and had the effect to withdraw all offers^ of charter exemptions from taxation which had not been previously accepted. (Post, p. 208.)</p> <p>Constitution construed: Art. I.. $ 8; Art. II., \ 28.</p> <p>Cases cited and approved: Nelson -u. Haywood, 87 Tenn., 781; Memphis -v. Bank, 91 Tenn., 574; 129 U. S., 479.</p> <p>4. Same. Effect of legislatime recognition.</p> <p>•Legislative recognition of a corporation by changing its name and situs, will not give vitality to a charter exemption from taxation which had not been accepted within a reasonable time and had been withdrawn, before acceptance, by the Constitution of 1870. (Post, pp. 208, 200.)</p> <p>5. Same. Case in fudyment.</p> <p>Failure for a period of twenty-four years, and until after the adoption of a Constitution prohibiting exemption from taxation, to accept a charter offering exemption from taxation to the corporation, will prevent a subsequent organization under the charter so as to secure the exemption, and the fact that, after organization, the corporation is recognized hy the Legislature "by a statute changing' its name and situs is immaterial. (Post, pp. 208, 209.)</p> <p>6. Samk. Exemption lost by chamtje of business.</p> <p>The charter of an insurance company cannot be changed, so as to permit it to do banking instead of insurance business and at the same time preserve an exemption from taxation, after the adoption of the Constitution of 1870 prohibiting such exemptions. (Post,'pp. 209-211.)</p> <p>Oase cited and approved: Memphis v. Bank, 91 Tenn., 574.</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. STERLING PlERSON, Ch.</p>

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

<p>1. INSURANCE. Statute regulating liability on policies not, retrospective.</p> <p>The Court will not construe as retrospective, Acts 1893, Ch. 107, Sec. 1, making- void stipulations limiting liability on insurance policies to less than the full amount of loss, if that does not exceed the amount of insurance. (Post. pp. 248, 250.)</p> <p>Acts construed: Acts 1893, Ch. 107.</p> <p>3. Same. Statute regulating liability on policies not denial of equal protection of the laws.</p> <p>The equal protection of the laws is not denied by Acts 1893. Ch. 107, Sec. 1, making void all stipulations in insurance policies limiting- liability to less than the full amount of loss, if this does not exceed the amount of insurance. (Post, pp. 248, 250-1.)</p> <p>Constitution construed: U. S. Const., XIV. Amendment.</p> <p>Act construed: Acts 1893, Ch. 107.</p> <p>3. Same. Statute regulating liability on policies 'not deprivation of rights or privileges contrary to law.</p> <p>Disseizin of privileges or deprivation of property otherwise than by the law of the land or due process of law, is not made by Acts 1893, Ch. 107, i¿ 1, making- void all stipulations in insurance policies which limit liability to less-than the full amount of loss, if this does not exceed the amount of insurance. (Post, pp. 248,251-257.)</p> <p>Constitution construed: Art. I., $ 8 (Tenn.); XIV. Amendment (Ü. S.)</p> <p>Act construed: Acts 1893, Ch. 107.</p> <p>Cases cited and approved: Transportation Co. v. Bloch Bros., 80 Tenn., 393; Mann v. Tel. Co., 85 Tenn., 539; Coleman v. Satter-field, 3 Head, 364; Taylor v. Taylor, 13 Lea, 490; Truss v. State, 13 Lea, 311; 47 Ohio St., 409; 8 Am. R. R. & Corp. Cas., 115; 43 Vis., 449, 403; 45 Vis., 388; 71 Vis., 454; 53 Maine, 333; 4 Dillon, 177; 13 Red. R., 530; 33 Red. R., 373; 35 L. R. A., 350.</p> <p>4. Sajik. Excepting cotton in bules does not vitiate statitte regulating liability on policies.</p> <p>Excepting instrrance upon cotton in bales from the provision in Acts 1803, Cli. 107, Sec. 1, making- void all stipulations limiting-liability to less than the full amount of loss if this does not exceed the amount of insurance, does not make an arbitrary, unreasonable, and unnatural classification in violation of the Constitution. (Post, pp. 257-261.)</p> <p>Constitution construed: Art. I., ?¿ 8.</p> <p>Cases cited and approved: Cole Manufacturing Co. v. Falls, 90 Tenn., 468; Stratton v. Morris, 89 Tenn., 498; Demoville v. Davidson County, 87 Tenn., 218; Parks v. Pai-ks, IS Ileis., 634; Davis v. State, 3 Lea, 380.</p> <p>Cases cited and distinguished: 22 L. R. A., 340; 24 L. R. A., 702; 22 S. W. R., 350; 10 S. E. R., 285.</p> <p>5. Sank. Acceptance of policy containing'void stipulation, effect.</p> <p>An insured does not waive the benefit of Acts 1893, Ch. 107, Sec. 1, providing that stipulations in insurance policies limiting liability to less than the full amount of loss, where such amount does not exceed the amount of insurance, shall be void, by accepting a policy containing such a stipulation. (Post, p. 261.)</p> <p>Cases cited and approved: 32 Fed. R., 273; 4 Dillon, 177; 52 Maine, 322; 47 Ohio St., 409.</p> <p>6. Statutks. When retrospective.</p> <p>The rule is well settled that the Courts will give a statute prospective, and not retroactive force, unless the purpose that it should have the latter effect is expressed by clear and positive command, or it is to be inferred by necessary or unequivocal and unavoidable implication. (Post, p. 246.)</p> <p>Cases cited and approved: 3 King’s Digest, \ 4801; 7 Johns.. 478.</p> <p>7. .Sank. Susceptible of two constructions.</p> <p>If a statute is susceptible of two constructions, one of which will maintain, and the other destroy it, the Courts will always adopt the former. (Post, p. 250.)</p> <p>8. Sank. Affecting foreign corporations, valid.</p> <p>Statutes cannot be obnoxious to any constitutional objection which prescribe terms upon which foreign corporations shall enter the State, or which exclude them altogether. (Post, pp. 250, 251.)</p> <p>Cases cited and approved: State u Insurance Co., 93 Tenn., 430; 137 U. S., 305; 118 ü. S., 394; 8 Wall.. 108; 119 U. S., 110; 94 Ü. S., 535.</p> <p>9. Save. Unconstitutional in part.</p> <p>A statute, unconstitutional in a separable and independent part, is not void in tolo. (Post, pp. 260, 261.)</p> <p>Cases cited and approved: Neely v. State, 4 Bax., 174; Burkholtz 1). State, 16 Lea, 11; Tillman v. Cocke, 9 Bax., 439.</p>

<p>1. Evidence. Declarations of party in possession are part of res gestee.</p> <p>Declarations of a person in possession of property, explaining and characterizing that possession, and showing in what capacity he holds, whether as owner, solely or jointly, or as agent, tenant, or trustee of another, and the like, are regarded as part of the res gestee of the possession, and when that or the ownership of the property are nnder inquiry, such declarations are received as explanatory of the possession. (Post, pp. 266-268.)</p> <p>Case cited and approved: 95 Am. Dec., 70, and note.</p> <p>2. Chabge oe Court, Ms to commingling of goods, erroneous.</p> <p>An instruction that makes the rights of the parties, in a case of wrongful and indistinguishable commingling of goods, turn upon the relative quantities or values that each may have in the common mass, is erroneous. The party through whose fault or negligence the wrongful mixture occurs, must, in such case, bear the loss and forfeit his goods. {Post, pp. 268, 269.)</p> <p>Cases cited and approved: 39 N. H., 557, 563; 19 Wis., 126; 22 Wis., 539; 26 Wis., 74; 20 Maine. 287; 10 Mich., 433; 30 Maine, 370.</p> <p>3. PRiNcirAi, and Agent. Attitude of agents creditors.</p> <p>The creditors of an agent who has wrongfully commingled his g-oods with those of his principal, and thereby forfeited them, cannot subject the agent’s goods, or their value, to payment of their debts. (Post, pp. 269, 270.)</p>

<p>1. Supreme Court. No reversal for exclusion of evidence.</p> <p>Refusal of Court to permit a witness to answer pertinent questions, affords no cause for reversal, unless the record shows affirmatively that the answers would have been competent and material evidence. (Post, pp. 272, 273.')</p> <p>Cases cited and approved: Holmai-k v. Molin, 5 Cold., 484; State v. Turner, 6 Bax., 303.</p> <p>3. Same. Reversal for 'Insufficiency of evidence.</p> <p>In suit by two joint addressees for failure of telegraph company to deliver a messag-e, the burden is upon the plaintiffs to show that neither received it, and want of proof on this point, as to either plaintiff, is canse for reversal. (Post, pp. 273, 374.)</p>

<p>1. Contract. Nudum pactum.</p> <p>A bond is nudum pactum whose sole purpose and consideration is to indemnify the obligee for the performance of his own legal obligation. (Post, pp. 275-278.)</p> <p>2. Sajee. Same.</p> <p>A bond is nudum pactum whose sole consideration is a payment made by the obligee to a third person in discharge of an existing leg-al oblig-ation. (Post, pp. 278, 279.)</p>

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

<p>1. Pabtition. Sale for ordered, when.</p> <p>A tract 'of mountain land, containing five thousand acres, and valuable chiefly for its timber and minerals, is not susceptible of equitable or advantageous partition in kind, and will be ordered sold for that purpose, as being manifestly for the interest of the owners, when the minerals and water are almost exclusively on one end of the tract, and the minerals undetermined in extent and value. (Post, pp. 291-294.)</p> <p>Code construed: 4024 (M. & V.); $ 3293 (T. & S.).</p> <p>Cases cited and approved: Reeves u Reeves, 11 Heis., 673; 55 Iowa, 235; 7 N. W. Rep., 523; 6 Paige, 545; 25 Miss., 760; 73 Ill., 405.</p> <p>2. Chancery Appears. Concurrent findings of Master and Chancellor.</p> <p>The concurrent finding of Master and Chancellor upon controverted questions of fact is entitled to the weight of the verdict of a jury, and the Court of Chancery Appeals errs by setting- aside such finding-, where there is any evidence to sustain it, and recommitting the matter for the taking of further evidence. (Post, p. 295.)</p>

<p>1. Declaration. Upon insurance poUoy.</p> <p>It is not essential to the statement oí a cause oí action against an insurance company which guaranteed a policy issued by another company, that it be declared against as a guarantor, but a declaration in the form prescribed by the Code, to recover against both, as joint insurers, a certain sum as the value of goods which they had insured, is sufficient. (Post, p. 2,97.)</p> <p>3. Genek'al Issue. Defense made under.</p> <p>Evidence that one of the insured set fire to the house in which the insured property was situated, is admissible in a suit upon the policy under the general issue. - (Post, pp. 297, 298.)</p> <p>Case cited and approved: Insurance Company v. Munday, 5 Cold., 554.</p> <p>3. Same. Same.</p> <p>The violation of an “iron safe clause” in an insurance policy may be shown 'in a suit upon the policy under the general issue. (Post, p. 299.)</p>

<p>FROM ROANE.</p> <p>Appeal from Chancery Court of, Roane County, lí. B. Lindsay, Ch.</p>

<p>FROM MORGAN.</p> <p>Appeal in error from Circuit Court of Morgan County. S. A. Rodgers, J.</p>

<p>FROM CAMPBEDL.</p> <p>Appeal in error from the Circuit Court of Campbell County. W. R. Hicics, J.</p>

<p>PROM LOUDON.</p> <p>Appeal from Chancery Court of Loudon County. H. B. Lindsay, Ch.</p>

<p>Sopjrkjie Coitht. Practice upon affirmance of decree of Court of Chancery Appeals.</p> <p>Upon affirmance of a money decree rendered by the Court of Chancery Appeals, this Court will enter a new judgment embracing- the amount of the decree affirmed, with interest thereon from the date of its rendition to the date of its affirmance in this Court.</p>

<p>Action. Quantum meruit does not lie.</p> <p>Recovery on quantum meruit cannot be had for services rendered under a promise that plaintiff should be compensated in certain property when he reached twenty-one years of age.</p>

<p>FROM FICNTRESS.</p> <p>Appeal from Chancery Court of Fentress County. B. M. Webb, Ch.</p>

<p>PROM FENTRESS.</p> <p>Appeal in error from Circuit Court of Fentress County. S. A. Rodgers, Judge.</p>

<p>PROM CAMPBELL.</p> <p>Appeal in error from Circuit Court of Campbell County. W. R. Hicks, Judge.</p>

<p>FROM CAMPBELL.</p> <p>Appeal from Chancery Court of Campbell County. H. B. Lindsay, Ch.</p>

<p>PROM CAMPBELL.</p> <p>Appeal in error from Circuit Court of Campbell County. W. R. Hicks, Judge.</p>

<p>Judgment Nisi. Essential to recovery of penalty from defaulting ■witness.</p> <p>A judgment nisi is essential to the validity of a proceeding by - scire facias to recover the statutory penalty of a defaulting-witness, and the want of it is not waived by appearance and defense on the merits.</p> <p>Oases cited and approved: Upton v. Girdner, 8 Bax., 183; State v. Thomas, 11 Lea, 113; Slaughter u. Bridwell, 1 Head, 313; Kincaid v. Rogers, 3 Sneed, 1; Nott v. Smith, 2 Sneed, 244; State v. Dill, 2 Sneed, 414; State v. Lacey, 3 Hum., 225; Dick-enson v. Kincaid, 11 Hum., 73; Duke v. Given, 4 Yer., 478; .State v. Patterson, 7 Bax., 246; Payton v. Stuart, Peck, 156; 17 Tex. App., 120; 30 Miss., 133; 20 111., 381; 21 Ala., 257, 563; 5 B. Mon., 172; 16 N. J. L., 94.</p>

<p>PROM SCOTT.</p> <p>Appeal from the Chancery Court of Scott County. H. B. Lindsay, Ch.</p>

<p>Mobtgagb. Distinguished from pledge. Registration.</p> <p>An assignment of all benefits to accrue from a rent contract providing- for the payment of a portion of the grain to be grown on a farm, constitutes a mortgage, not a pledge, as to a crop planted but not grown at the time of its execution, and registration thereof is essential to make it available against creditors of the assignor, who levy upon his interest therein before severance and delivery of the rents.</p>

<p>FROM MORGAN.</p> <p>Appeal from the Chancery Court of Morgan Comity. H. B. Lindsay, Ch.</p>

<p>FROM FENTRESS.</p> <p>Appeal from Chancery Court of Fentress County. B. M. Webb, Ch.</p>

<p>1. New Teial. For Court's failure to approve or disapprove verdict.</p> <p>This Court will reverse and remand a law cause where the J udge fails either to approve or disapprove the verdict of the jury, expressing a purpose and desire to have the facts and questions passed upon hy this Court without any affirmative action on his part.</p> <p>Cases cited: Railroad v. Lee, 90 Tenn., 570; Turner v. Turner, 85 Tenn., 389; Railroad v. Roddy, 85 Tenn., 403.</p> <p>2. Same. For use of diagrams not put in evidence.</p> <p>It is misconduct, for which a new trial will be granted, for the jury to examine and consider diagrams that have not been put in evidence.</p>

<p>FROM SEVIER.</p> <p>Appeal in error from Circuit Court of Sevier County. W. R. Hicks, Judge.</p>

<p>PROM COCKE.</p> <p>Appeal in error from Circuit Court of Cocke County. W. R. Hicks, Judge.</p>

<p>PROM HAMBLEN.</p> <p>Appeal in error from Chancery Court of Hamblen County. Jno. P. Smith, Ch.</p>

<p>FROM RHEA.</p> <p>Appeal from Chancery Court of Rhea County. T. M. McConnell, Ch.</p>

<p>FROM M’MINN.</p> <p>Appeal in error from Circuit Court of McMinn County. James Gr. Pares, Judge.</p>

<p>1. Railroads. Statutoi'y precautions not applicable, when.</p> <p>The statutory precautions for the prevention of accidents are not applicable to switching operations within the yards of a railway company. Common law rules control in such cases. (Post, pp. 420-422.)</p> <p>Code construed: $$ 1398-1300 (M. & V.); H 1166-1168 (T. & S.).</p> <p>Cases cited and approved: Goxv. Railroad, 3 Leg. R., 168; Railroad v. Rush, 15 Lea, 150; Taylor v. Railroad, 93 Tenn., 307; Railroad v. Wilson, 90 Tenn., 371.</p> <p>3. Charge of Coxjet. Reversal for inapplicable chwge.</p> <p>Reversal will be had for a correct, though inapplicable, charg-e, where it is apparent the jury were misled thereby to the appellant’s prejudice. (Post, pp. 422, 423.)</p>

<p>1. Execution. Norvretwn not excused, when.</p> <p>The nonreturn of an execution cannot he excused on account of the officer’s mistake or ignorance of law; e. g., that he, by mistake, construed the statute requiring the return to be made within thirty days to mean within a calendar month. {Post, pp. 42S, 427, 430, 431.)</p> <p>Code construed: ?¿ 4868 (M. & V.); § 4093 (T. & S.).</p> <p>Cases cited: Kinzer v. Helm, 7 Heis., 672; Neill v. Beaumont, 3 Head, 556; Kennedy v. Smith, 7 Yer., 472; Robinson u Harrison, 7 Hum., 139; Roger v. Donnell, 1 Head, 377-8; Wingfield v. Crosby, 5 Cold., 241; Smith v. Gilmore, 3 Sneed, 481; Chaffin v. Stuart, 1 Bax., 296; Webb v. Armstrong, 5 Hum., 379; Fowler v. McDaniel, 6 Heis., 530; Doyle v. Glenn, 4 Hum., 309; Barnes v. White, 2 Swan, 442; Chaffin v. Crutcher, 2 Sneed, 360; Young-'ll. Donaldson, 2 Heis., 56; Clingman v. Barrett, 6 Hum., 20; Bershears v. Warner, 5 Sneed, 676; Cannon v. Wood, 2 Sneed, 177; Perdue u Dodd, 1 Lea, 710; Phillips v. Terrell, 10 Heis., 417.</p> <p>2.. Same. Sufficiency of rePiwn determined from its face.</p> <p>The sufficiency or insufficiency of the return of an execution must be determined from what appears on the face of the return itself, and cannot be aided or avoided by extrinsic evidence. (Post, p. 429.)</p> <p>Cases cited and approved: Fussell v. Greenfield, 1 Sneed, 437; Hill <u. Hinton, 2 Head, 124; Bank u Barnes, 10 Hum., 244.</p> <p>3. Same. What constitutes a sufficient rePu/rn.</p> <p>A sufficient return of an execution .is one that shows on its face that the officer has done what the law and the writ required, or shows a good and lawful reason for his failure, and it must be full and complete in itself. (Post, p. 430.)</p> <p>Cases cited and approved: Raines v. Childress, 2 Hum., 449; Mc-Crory v. Chaffin, 1 Swan, 308; Eaken v. Boyd, 5 Sneed, 204; Bank v. Barnes, 10 Hum., 245.</p> <p>4. Same. Example of insufficient return.</p> <p>An officer's return of an execution is insufficient which shows on its face that he held the writ for sixteen days before making the levy, and discloses no reason for the delay. And the extrinsic fact, if admitted, that the officer delayed on promises of the debtor to pay, or because of his sickness and distress of the family, will not excuse his default. (Post, pp. 426, 427, 431.)</p> <p>Case cited and approved: Eakin v. Boyd, 5 Sneed, 205.</p> <p>5. Same. Same.</p> <p>An officer’s return of an execution is insufficient which shows on its face that the levy was made ten days before its return day, but discloses no reason for the failure to advertise and sell the property levied on. (Post, p. 431.)</p> <p>6. Same. Defenses that are not available.</p> <p>An officer cannot excuse himself for the nonreturn of an execution by showing that the debtor claimed defenses against the judgment. And such fact, not appearing on the face of the return, is irrelevant as regards the officer’s liability for an insufficient return. (Post, pp. 431, 432.)</p> <p>Cases cited and approved: Webbu. Armstrong, 5 Hum., 379; Cannon u. Wood, 2 Sneed, 177; Perdue u. Dodd, 1 Lea, 710.</p>

<p>1. Ebaudulent Conveyance. Deed of trust not fraudulent in law.</p> <p>The provisions in a deed oí trust of a stock of goods for a public sale by the trustee upon failure to pay tb e debt secured within six months, and for the inclusion of any g-oods that the grantor shall thereafter purchase and add to the stock, do not imply a reservation to the grantor of the rig-ht of possession and sale in the meantime, so as to render the deed fraudulent in law, where there is no provision that the trustee shall defer to enter and take possession until after default, and his power to make private sales before that time is not negatived. (Post, pp. 435-441.)</p> <p>Cases cited and approved: Bank v. Ewing-, 13 Lea, 598; Maney v. Kelloug-h, 7 Yer., 440; Henshaw v. Wells, 9 Hum., 568; Vance v. Johnson, 10 Hum., 314.</p> <p>Cited and distinguished: Bank v. Ebbert, 9 Heis., 153; Bank v. Haselton, 15 Lea, 316; Phelps v. Murray, 3 Tenn. Ch., 746.'</p> <p>3. Same. Deed of trust not fraudulent vn fact.</p> <p>Eraudulency in fact of a deed of trust of a stock of goods made to secure and prefer certain creditors is not established by proof ■ that the grantor was embarrassed by debt; that other creditors were urging their claims and watching- his movements; that the deed was made hurriedly in the nig-ht, and registered at an unusual hour, and that the grantor’s wife and clerk, without his knowledge or that of the trustee or beneficiaries, took some of the goods out of the store after the deed was executed. (Post, pp. 441, 442.)</p> <p>3. Samis. Fraudulent transfer of choses in action.</p> <p>A secret transfer of choses in action as additional security for a debt due to a'creditor already secured by a deed of trust, is fraudulent as against other creditors, where there was no well-defined agreement as to terms on which the choses were to be held, except that the proceeds were to relieve the debts provided for in the deed of trust to the extent realized thereon. (Post, p2>- 442, 443.)</p>

<p>EROM ROANE.</p> <p>. Appeal from Chancery Court of Roane County. Henry R. Gibson, Ch.</p>

<p>FROM IIAMBLEN.</p> <p>Appeal in error from Circuit Court of Hamblen County. W. R. Hicks, Judge.</p>

<p>FROM MONROE.</p> <p>Appeal from Chancery Court of Monroe County. T. M. McConnell, Ch.</p>

<p>1. Negligence. Employment of infant contmry to statutes constitutes.</p> <p>The employment of an infant in a mine in violation of the statute forbidding such employment and declaring it a misdemeanor, constitutes per se such negligence as renders the employer liable for all injuries sustained by the infant in the course of the employment. (Post, pp. 461-464.)</p> <p>Act construed: Acts 1881, Ch. 170.</p> <p>Cases cited and approved: 131 N. Y., 90; 78 N. Y., —.</p> <p>2. Same. Same.</p> <p>But such illegal employment of an infant does not per se constitute gross neglig-ence. (Post, p. 466.)</p> <p>3. Contkibtjtoby Negligencb. Available in defense of infant’s suit.</p> <p>Contributory negligence is available in defense of an infant’s suit for injuries sustained while employed in a mine contrary to statute, but the Court should explain fully to the jury the degree of care required of infants. (Post, pp. 464-466.)</p>

<p>1. Advebse Possession. Boundaries of.</p> <p>The occupation of part of a tract of land claiming- the whole, under a paper title defining its boundaries, is effective possession of the whole tract under the statutes of limitations. (Post, pp. 468, 469.)</p> <p>Cases cited and approved: Hightower v. Smith, 7 Yer., 500; Talbot v. McGavoek, 1 Yer., 362; Stewart v. Harris, 9 Hum., 715; Smith v. McCall, 2 Hum., 163; Tilghmanu. Baird, 2 Sneed, 196; Norvellu Gray, 1 Swan, 96; Snoddy v. Kreutch, 3 Head, 304; Coal Creek Co. v. Boss, 12 Lea, 1.</p> <p>2. Boundary. What sufficient.</p> <p>The occupation of part of a tract of land claiming the whole, under a deed giving its boundaries and describing it as a specified tract on a designated creek, containing about 200 acres, is effective as possession of the whole of a well-known tract of land of the same name, conforming in the main to the calls of such deed, although it contained 750 acres, and there is some doubt as to the location of the beginning- corner named in the deed, and attempted surveys of the land do not all correspond. (Post, pp. 469, 470.)</p>

<p>Malicious Mischief. Prisoner’s injury of county jail.</p> <p>A prisoner confined in a cage attached to a county jail, who makes an aperture in the walls of the cage, even for the purpose of effecting his escape, is guilty, under $ 5403, subsec. 1, declaring it a misdemeanor to wantonly injure any building or fixture attached thereto belonging to the State, or any county, city, town, or to another person.</p> <p>Code construed: § 5403 (M. & V.); § 4652 (T. & S.).</p>

<p>FROM KNOX.</p> <p>Appeal in error from the Criminal Court of Knox County. T. A. R. Nelson, Judge.</p>

<p>PROM RHEA.</p> <p>Appeal from the Chancery Court of Rhea County. T. M. McConnell, Ch.</p>

<p>FROM CAMPBELL.</p> <p>Appeal from Chancery Court of Campbell County. EL B. LiNdsay, Ch. .</p>

<p>FROM sequatohie.</p> <p>Appeal from the Chancery Court of Sequatchie County. T. M. McConnell, Ch.</p>

<p>FROM CAMPBELL.</p> <p>Appeal from Chancery Court of Campbell County. H. 13. Lindsay, Ch.</p>

<p>KJROM CLAIBORNE.</p> <p>Appeal from Chancery Court of Claiborne County. John K. Shields, Ch.</p>

<p>FROM RHEA.</p> <p>Appeal in error from Circuit Court of Rhea County. Jas. Gr. Parks, Judge.</p>

<p>1. Limitations, Statute of. Seven-years' admerse possession.</p> <p>Seven years’ possession of land, to lie effective to liar a superior title, must loe actual, adverse, continuous, exclusive, visible, and notorious. To be actual, it must be by inelosure if practicable, otherwise by such use as the premises are susceptible of. To be adverse, it must be hostile to all others. To be exclusive, it must exclude all hostile claims. To be continuous, it must be something more than a series of occasional trespasses attended with removals of coal, timber, and tanbark. To be visible and notorious, it must be such as gives to the true owner reasonable notice of its existence. (Post, pp. 529, 530.)</p> <p>Cases cited and approved: West v. Lanier, 9 Hum., 702; Cass v. Richardson, 2 Cold., 28; Copeland v. Murphy, 2 Cold., 71; Pullen v. Hopkins, 1 Lea, 744; Ilicks v. Tredericks, 9 Lea, 491; Garrett v. Land Co., 94 Tenn., 464; Kirkman v. Brown, 93 Xenn., 476.</p> <p>2. Same. Case in judgment.</p> <p>Occasional entries upon land for a period of more than seven years by one claiming it under color of title, attended with the removals therefrom of timber and tanbark, and of coal in small quantities, does not constitute such possession as will bar the superior title, where the conflict was only 25 acres on the outside line of a 5,000 acre tract, and'the true owner had no actual notice of the assertion of any adverse claim. (Post, pp. 527-534.)</p>

<p>FROM HAWKINS.</p> <p>Appeal from Chancery Court of Hawkins County. H. G. Kyle, Cli.</p>

<p>Coktkaot. Effect of arbitration clause.</p> <p>All the parties to a building contract, providing that a specified person shall have the sole and absolute right and authority to determine the amount of allowance for differences in case of alterations, are bound by his decision, unless it is fraudulent, or so excessive or unjust as to imply bad faith or gross neglect.</p> <p>Cases cited and approved: McDonald v. Railroad, 93 Tenn., 281; 114 CJ. S., 540; 109 U. S., 618; 138 U. S., 185; 34 Am. St. Rep., 403.</p>

<p>1. Constitutional Law. aLs to ■subject of statutes mandatory.</p> <p>The constitutional requirement that a statute shall not embrace more than one subject, which shall be expressed in the title, is mandatory. A statute framed in contravention of this provision is invalid. (Post, 23. 552.)</p> <p>Constitution construed: Art. II-, \ 17.</p> <p>Cases cited and approved: Cannon u. Mathes, 8 Heis., 518; Cole Mfg. Co. v. Halls, 90 Tenn., 482.</p> <p>2. Same. Title expresses sulxjeet.</p> <p>The title, “An Act to protect hotel, inn, and boarding- house keepers, ” sufficiently complies with the constitutional requirement that the subject of a statute shall be expressed in its title. The subject expressed in this title is the protection of the classes named. (Post, pp. 552-554.)</p> <p>Constitution construed: Art. II., g 17.</p> <p>Act construed: Acts 1895, Ch. 67.</p> <p>3. Same. Rule as 'to generality of title.</p> <p>Generality of the title of a statute is not objectionable unless it is made to cover legislation incongruous in itself, or foreign to its object. It is sufficient if the title describes, with adequate clearness, the general purpose and scope of the Act. It is not essential that the title be made an index or epitome of the statute, nor is it necessary that the title should set forth the modes, means, or instrumentalities which may be provided in the statute for its administration and enforcement. (Post, .pp. 553, 554.)</p> <p>Cases cited and approved: Luerhman v. Tax. T)ist., 2 Lea, 425; Ex parte Griffin, 88 Tenn., 547; Itailr.oads v. Crider, 91 Tenn., 494; Cannon u Alathes, 8 Heis., 519; Frazier v. Railroad, 88 Tenn., 140; State v. Wilson, 12 Lea, 247; Greene v. State, 15 Lea, 711.</p> <p>4. Samio. Title embraces only one subject.</p> <p>The title, “An Act to protect hotel, inn, and boarding- house keepers,” embraces only one subject, viz., the protection of the classes mentioned. (Post, p. 554.)</p> <p>5. Same. Statute embraces but one subject.</p> <p>A statute for the protection of hotel, inn, and boarding house keepers embraces but one subject, although, in several sections, it provides (1) that certain fraudulent acts, to the prejudice of hotel, inn, and boarding house keepers, shall be misdemeanors; (3) what shall constitute prima facie evidence of fraudulent intent in prosecutions for those acts; and (3) for the sale of baggage and other property left by defaulting patrons of hotels, inns, and boarding houses. (Post, pp. 550-552, 554-557.)</p> <p>Constitution construed: Art. II., $ 17.</p> <p>Act construed: Acts 1895, Ch. 67.</p> <p>6. Same. Singleness of statute. Buie.</p> <p>All matters which are naturally and reasonably connected with the subject of a statute, either directly.or indirectly, and all measures which will or may facilitate the accomplishment of the purpose of the statute, are properly included in it. (Post, pp. 555-557.)</p> <p>Cases cited and approved: Cannon u Mathes, 8 Heis., 533; Frazier v. Railroad, 88 Tenn., 158; Cole Mfg. Co. v. Falls, 90 Tenn., 483; Railroad v. Crider, 91 Tenn., 493; Railroad u Russell, 93 Tenn., 108; Railroad v. Hughes, 94 Tenn., 450; Railroad v. Stone-cipher, ante, 311.</p> <p>7. Same. Ms to repealing statutes. Definitions.</p> <p>In the constitutional provision that “all Acts which repeal, revive, or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived, or amended,’’the word “caption” is synonymous with “title,’’ and the word ‘ ‘ otherwise ” refers to the body of the repealing, reviving, or amending Act. (Post, p. 557.)</p> <p>Constitution construed: Art. II., $ 17.</p> <p>Cases cited and approved: State v. Runnels, 93 Tenn , 333; Ran-some v. State, 91 Tenn., 718; * Shelton v. State, MS.</p> <p>8. Sam®. Same. Implication.</p> <p>Repeals, amendments, and revivors of statutes by implication are not within the constitutional requirement that “all Act-which repeal, revive, or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived, or amended.” (Post, p. 558.)</p> <p>Constitution construed: Art. II., g 17.</p> <p>Cases cited and approved: Insurance Co. v. Tax. Dist., 4 Dea, C44; Maney u State, 6 Lea, 231; Knoxville v. Lewis, 12 Lea, 181; Ballentine v. Pulaski, 15 Lea, 633; Poe v. State, 85 Tenn., 495; Railroads'!). Crider, 91 Tenn., 507; Hunter u Memphis, 93 Tenn., 571.</p> <p>9. Saji®. Same. Repealing clause.</p> <p>That a statute contains an express general repealing clause does not bring- it within the constitutional requirement that the title or substance of the repealed Act shall be recited in the caption, or otherwise, by the repealing statute. The presence or absence of this repealing- clause is unimportant in determining the character-of the statute. (Post, pp. 558, 559.) Constitution construed: Art. II., $ 17.</p> <p>Act construed: Acts 1895, Ch. 67.</p> <p>Cases cited and approved: Insurance Co. v. Tax. Dist., 4 Lea, 644; Maney v. State, 6 Lea, 221; Knoxville v. Lewis, 12 Lea, 181; Ballentine v. Pulaski, 15 Lea, 633; Poe v. State, 85 Tenn., 495; Railroads-u. Crider, 91 Tenn., 507; Hunter'!). Memphis, 93 Tenn., 571.</p> <p>10. Same. Imprisonment for debt.</p> <p>A statute is not invalid, as authorizing- imprisonment for debt, which declares it a misdemeanor to fraudulently obtain hotel accommodations, or to fraudulently remove baggage, to defraud the proprietor. The imprisonment is inflicted for the debtor’s fraud, not for his debt. (Post, pp. 559-563.)</p> <p>Constitution construed: Art. I., I 18.</p> <p>Act construed: Acts 1895, Ch. 07.</p> <p>11. Same. Presumption as to constitutionality of statute.</p> <p>All intendments will be made, and all doubts resolved in favor of that interpretation of a statute which will support it and avoid eonflct with the Constitution. (Post, p. 580.)</p> <p>Cases cited and approved: Cole Mfg. Co. v. Kails, 90 Tenn., 469; Railroads v. Crider, 91 Tenn., 507; Ellis v. State, 92 Tenn., 93.</p> <p>12. Same. Trial by jury.</p> <p>The right of trial by jury is not abridged by a provision in a statute that proof of certain enumerated facts shall constitute ■prima facie evidence of fraudxrlent intent in the prosecution of an offense created by the statute. (Post, pp. 564-567.)</p> <p>Constitution construed: Art. 1., 6, 8, 9.</p> <p>Act construed: Acts 1895, Ch. G7.</p> <p>Cases cited: Railroads'» Crider, 91 Tenn., 498-9; McGuireu State, 6 Bax., 621; Willcox v. State, 3 Heis., 118; Hughes u State, 8 Hum., 75; Fields v. State, 6 Cold., 526; Poe v. State, 10 Lea, 680; Boyer v. State, 93 Tenn., 220; Coffee v. State, 3 Yer.. 283; Draper u State, 4 Bax., 246; Gray v. State, 4 Bax., 331; Wittu State, 6 Cold., 5; Epperson v. State, 5 Lea, 299.</p> <p>13. Statutes. Construed in light of all their provisions.</p> <p>The clause in the Act for the protection of hotel, inn, and boarding house keepers, which provides that refusal of a party to pay for food, lodging, or accommodations, shall constitute prima facie evidence of fraudulent intent, is to be construed with reference to the other provisions of the statute, and as referring to a fraudulent refusal. (Post, p. 587.)</p> <p>Act construed: 'Acts 1895, Ch. 67.</p>

<p>PROM WASHINGTON.</p> <p>Appeal from Chancery Court of Washington County. JNO. P. Smith, Ch.</p>

<p>1. Insolvent Debtor. Priority among creditors.</p> <p>One who sends a note and mortgage to a bank for collection, with a direction to the bank to “forward draft to me for balance, less its fee, is not entitled to a preferential claim on the funds of the bank upon its failure a few days after the collection is made, although it was hopelessly insolvent, and its officers knew the fact, when it received the note for collection. The bank becomes a debtor, not a trustee, in such case. (Post, pp. 580-582.)</p> <p>Case cited and approved: Aiken v. Jones, 93 Tenn., 353.</p> <p>3. Banks and Banking. Collections by.</p> <p>Collection by bank in a check upon itself is equivalent to collection in cash, even if the bank failed on the same day. (Post, p. 583.)</p> <p>Case cited and approved: Howard & Co. n. Walker, 93 Tenn., 453.</p>

<p>FROM HAMBLEN.</p> <p>Appeal from Chancery Court of Hamblen County. JNO. P. Smith, Ch.</p>

<p>FROM CAMPBELL.</p> <p>Appeal from the Chancery Court of Campbell County. EL B. LiNDSAY, Ch.</p>

<p>EROM GRAINGER.</p> <p>Appeal from Chancery Court of Grainger County. H. G. Kyle, Ch.</p>

<p>PROM HAMBLEN.</p> <p>Appeal from Chancery Court of Hamblen County: Wm. McFarland, Sp. Ch.</p>

<p>1. Limitations, Statute on. New stall that smes bar.</p> <p>Where an ejectment suit, commenced in 1873 before seven years’ adverse possession had run, was disposed of by nonsuit in 1888, and within one year thereafter a new suit was instituted for the same lands, the plaintiff’s rights are saved from the bar of the statutij of limitations under § 3449 (M. & V.) Code, although adverse possession had continued for more than seven years prior to the institution of the last suit. (Post, pp. 613, 614.)</p> <p>Code construed: § 3449 (M. & V.); § 9755 (T. & S.).</p> <p>3. Samis. Runs until amendment is made that introduces new cause of action.</p> <p>The doctrine of relation, with reference to the limitation of actions, is never applicable to an amendment which introduces a new cause of action. (Post, p. 615.)</p> <p>Cases cited and approved: Burg-ie v. Sparks, 11 Lea, 88; State v. Keller, 11 Lea, 403; Railroad v. Roster, 10 Lea, 351; Allen v. Link, 5 Lea, 454; Trousdale u Thomas, 3 Lea, 730; BTatley v. Railroad, 9 Ileis., 330; Miller u Taylor, 6 Ileis., 405; Crofford v. Cothran, 3 Sneed, 493; Nance v. Thompson, 1 Sneed, 331; Aug-usta Mfg\ Co. v. Vertrees, 4 Lea, <75; Corder v. Dolin, 4 Bax., 341; Lenoir v. Mining Co., 88 Tenn., 168.</p> <p>3. Samis. Same. Example.</p> <p>Where an ejectment suit, brought in 1873 before the bar of the statute of limitations had attached was disposed of by nonsuit in 1888, and within one year thereafter a new suit was instituted for the same body of lands, but disclaiming as to certain smaller included tracts, and thereafter, when one year from the nonsuit had elapsed, and seven years’ adverse possession of said smaller tracts had been completed, the plaintiff amended his declaration so as to sue for them also, the .suit is barred a's to these smaller tracts.</p> <p>Code construed: $ 3449 (M. & V.); ?¿ 3755 (T. & S.).</p> <p>4. Same. Assurance of title.</p> <p>Descent cast is an assurance of title within the meaning- of the Act of 1819, relating to the adverse possession of lands.</p> <p>Code construed: <jg 3459, 3460 (M. & V.); U 2763, 2764 (T. & S.).</p> <p>5. Same. Connecting possession.</p> <p>Possession of heir may he coupled with that of the ancestor holding under a paper title to make out seven years’ adverse possession of land under the Act of 1819.</p> <p>Code construed: 3459, 3460 (M. & V.); $$ 2763, 2764 (T. & S.).</p> <p>Cases cited and approved: Iluhbard Wood, 1 Sneed, 280; Meri-wether v. Vaulx, 5 Sneed, 310; King v. Rowan, 10 Heis., 675; Corder v. Dolin, 4 Bax., 240; Baker v. líale, 6 Bax., 51; Mai-r v. Gilliam, 1 Cold., 504; Walker v. Phillips, 92 Tenn., 495; Thurston v. University, 4 Lea, 513; Nelson v. Trigg-, 4 Lea, 706, Hanks v. Polsom, 11 Lea, 561; Sharp v. VanWinkle, 12 Lea, 19; Clark v. Chase, 5 Sneed, 636; Railroad v. Mabry, 85 Tenn., 47. •</p>

<p>Bills and Notes. Notice to indorsers.</p> <p>One of two joint indorsers of a note is bound by notice of nonpayment given to himself alone, under our statutes making all ■ joint obligations and promises joint and several, and subjecting joint obligors, including indorsers of negotiable paper, to several suits.</p> <p>Code construed: \\ 3484, 3486 (M. & V.); 3787, 3789 (X. & S.).</p>

<p>FROM WASHINGTON.</p> <p>Appeal from the Circuit Court of Washington County. H. T. Campbell, Judge.</p>

<p>Appeal. Decree not fmal.</p> <p>A decree releasing one who appeared as joint maker on one .of several notes in suit, and giving- judgment against the other maker on that and the other notes, and ordering a mortgage, securing the same, foreclosed, is not final for the purposes of appeal, either as of right or in the Chancellor’s discretion.</p>

<p>1. † CORPORATIONS. Insolment, and assets tocóme a fixed trust fund for creditors, when.</p> <p>A corporation which -has executed deeds of trust conveying its entire property, because of insufficient funds to meet the demands coming due, and has suspended business and turned its property over to the trustees, is insolvent so as to constitute its assets a fixed trust fund for pro rata distribution among its creditors, and invalidate the preferences made by such trust-deeds. (Post, pp. 642-648.)</p> <p>Cases cited and approved: Marr v. Bank, 4 Cold., 471; Moseby v. Williamson, 5 I-Ieis., 386; Comfortu Patterson, 3 Lea, 673; Bank u Lumber Co., 91 Tenn., 15; Smith v. Insurance Co., 3 Tenn. Chy., 737. ■</p> <p>3. Same. General creditor's bill lies to wind up, when.</p> <p>A creditor, without first obtaining judgment on his demand, can, under our statutes, maintain a general creditor’s bill to wind up the affairs of a corporation as insolvent, which had suspended business on account of its inability to meet its obligations as they fell due, and had, after such suspension, conveyed its entire property by trust-deeds, and turned same over to the trustees. (Post, pp. 648-650.)</p> <p>Code construed: §§ 4168, 5037, 5038 (M. &V.); §§ 3431, 4394, 4395 (T. & S.).</p> <p>Case cited and approved: Smith v. Insurance Co., 6 Lea, 569.</p> <p>3. Same. What constitutes an act of insolvency.</p> <p>The conveyance by trust-deeds, of a corporation’s entire property and surrender of possession thereof to the trustees, after its suspension on account of inability to meet its obligations as they fell due, constitutes an overt act of insolvency. (Post, p. 651.)</p> <p>4. Same. Director'* liability who assents to 'indebtedness in excess of the “ capital stock paid, in.” What is ‘ ‘ capital stock, paid in.”</p> <p>The capital stock of a corporation, within a provision of its charter that if its indebtedness shall exceed the capital stock paid in, the directors assenting thereto shall be individually liable for such excess, is the amount subscribed and paid by the stockholders, and not the amount of all the assets upon hand available for payment of debts, no matter how derived. (Post, pp. 851-657.)</p> <p>Cases cited and approved: Banku State. 9 Yer., 490; Street Railroad Co. u Morrow, 87 Tenn.. 400; Insurance Co. u Insurance Co., 11 Hum.. 1; Memphis u Ensley, 6 Bax., 553; Gaslight Co. u Nashville, 8 Lea, 406; 97 U. S., 697.</p> <p>5. Same. Same. What constitutes indebtedness.</p> <p>The term “indebtedness” in a provision of the charter of a corporation declaring that if its indebtedness shall, at any time, exceed the capital stock paid in, the directors assenting thereto shall be individually liable for the excess, includes the bonded debt of the company. (Post. pp. 657, 658.)</p> <p>Case cited: 113 U. S., 303.</p> <p>6. Same. Same. Enforced bp general creditor's bill.</p> <p>Where the liability of the directors of a corporation, under a statute for the excess of its indebtedness over the capital stock paid in, is a specific liability in favor of the creditors whose debts were illegally contracted, it is a fund for the benefit of all such creditors, and a bill to enforce it must be filed for the benefit of all creditors so situated, and not for one or more of them separately. (Post, pp. 658, 659.)</p> <p>Cases cited and approved: Moulton u Connell-IIall-McLester Co., 93 Tenn., 377; 93 U. S., 331; 30 Wall., 530.</p> <p>7. Same. Same. What assent is required.</p> <p>The assent of a director rendering him liable, under a clause of the charter of a corporation that if its indebtedness shall exceed the capital stock paid in, the directors assenting thereto shall be individually liable to the creditors for the excess, must be given in his capacity ás a director, acting concurrently with the authority of the official -board at an official meeting, but the official minutes are not the only evidence of such assent. (Post, pp. 660-663.)</p> <p>Cases cited and approved: Allison u Coal Co., 87 Tenn., 63; Hand v. Cole, 88 Tenn., 403.</p> <p>8. Same. Statutes malcing di/i'ectors Viable strictly construed.</p> <p>Doctrine reaffirmed that statutes creating liability of directors for debts of corporations are in derogation of common law and penal in their nature, and are strictly construed. (Zk/st, pp. 600-663.</p> <p>Cases cited and approved: Allison v. Coal Co., 87 Tenn., 03; Hand v. Cole, 88 Tenn., 403.</p> <p>9. Same. Directors’ Viability fot di/vidends declared.</p> <p>That the indebtedness of a corporation exceeds its capital stock paid in at the time of the declaration of a dividend, will not render directors liable to creditors, under a provision of the charter that creates such liability for declaring and paying any dividend when the company is insolvent, or when such dividend will diminish the amount of the capital stock, when the dividend is declared from profits estimated upon the basis that the assets are reasonably worth, or honestly believed to ■ be worth, larg-ely more than the company’s indebtedness. {Post, pp. 663-665.)</p> <p>10. Same. Same.</p> <p>The conduct of directors in declaring dividends is to be viewed, for the purpose of fixing- their individual liability to creditors, in the light of the financial status of the company at the time the dividend is declared, and is not to be determined by its ultimate insolvency, dire to a general paralysis, of business. (Post, p. 665.)</p> <p>11. Dease. Purchaser not liable for rental.</p> <p>The purchaser of a lease of realty at judicial' sale, made at the lessor's instance, for rents, is not liable for subsequently accruing contract rentals. {Post, pp. 666-668.)</p> <p>13. Eeoeivek. Adoption of lease.</p> <p>Permission of a receiver for the temporary occupation of property leased to the corporation will not constitute an adoption of the lease by the receiver, so as to bind the assets in his hands. (Post, pp. 668-670.)</p> <p>Cases cited: 13G U. S., 333; 145 U. S., (¡36; 101 N. Y., 585.</p> <p>13. Same. Dents not payable as operating expenses.</p> <p>Jlents accruing for property- leased by a corporation from the appointment of a receiver of its property until confirmation of a sale of the leasehold, do not constitute a prior charge upon the funds in the hands of the receiver, where he has not adopted the lease, on the ground that they are an operating-expense. (Post pp. (¡68-671.)</p>

<p>FROM SUMNER.</p> <p>Appeal from Circuit Court of Sumner County. A. H. Munford, J.</p>

<p>1. Amendment. Of declaration properly allowed.</p> <p>A declaration in an action for libel may be amended a sufficient length of time before trial, so that the defendant will not be surprised or prejudiced, by adding averments which merely show the purpose and object of the defamatory publication in a different and more specific manner. (Post, pp. 680-883.)</p> <p>3.Libel. Whether lamguage is libelous per seis a question of law. Demurrer.</p> <p>The question whether the language declared upon in an action for libel is libelous per se, is one for the Court to determine, and is properly raised by demurrer, where the language is unambiguous in itself and no special damages are alleged. (Post, pp. 882-684.)</p> <p>Cases cited and approved: Bank v. Bowdre, 93 Tenn., 740; Banner v. State, 16 Lea, 176.</p> <p>3. Same. When words are libelous per se.</p> <p>Words which, upon their face, and without the aid of extrinsic proof, are injurious, are libelous per se; but if their injurious character appear, not from their face, in their usual and natural signification, but only in consequence of extrinsic circumstances, they are not libelous per se. (Post, pp. 684, 685.)</p> <p>Case cited and approved: Bank v. Bowdre, 93 Tenn., 736.</p> <p>4. Same. Declaration insufficient.</p> <p>A declaration in an action for libel is insufficient which neither avers words actionable per se, nor special damages. (Post, pp. 685, 688.)</p> <p>5. Same. Language held not to be actionable per se.</p> <p>The publication in an abstract of unsettled accounts issued by a commercial ag-eney, of a memorandum that a person not a merchant or trader is indebted in a certain sum, in connection with a special notice to the effect that the information is furnished in strict confidence, for the exclusive use and benefit of the subscriber, is not libelous per se. {Post, pp. 680-682, 685, 686.)</p> <p>Cases cited: Bank u Bowdre, 93 Tenn., 733; 53 Am. R., 9.</p> <p>6. Same. Special damages not sufficiently averred.</p> <p>Special damag-es are not well pleaded by the general averments in a declaration in an action for libel, in publishing that there was an unsettled account against plaintiff, to the effect that plaintiff was damaged in a specified sum, and that the purpose of the publication was to cause him to be .suspected and believed to be without integ-rity and unworthy of credit or public confidence and social intercourse; and that he was greatly injured in his good name and credit and brought into public scandal, infamy, and disgrace, and was prevented from procuring any of the necessaries of life, and has suffered great anxiety and pain of mind, and become incapacitated for business. (Post, pp. 686-601.)</p> <p>7. Same. Rale as to special damages.</p> <p>When a publication is not libelous per se, special damages must be alleged and proven, in order to sustain the action. And the pleadings must aver, and proof show explicitly, each item of special damages and how it was sustained. (Post, pp. 688-600.)</p> <p>Cases cited and approved: Bank v. Bowdre, 93 Tenn., 734; 17 N. Y., 54.</p> <p>8. Same. Publication of.</p> <p>An action for libel does not lie, for want of publication, in favor of one who receives and alone reads a letter containing libelous matter against himself. But a criminal prosecution for libel does lie in such ease. (Post, pp. 601, 602.)</p> <p>Code construed: $5553 (M. & V.); $4763 (T. <& S.).</p> <p>Cases cited: Hodg-esu State, 5 Hum., 113; Swindles. State, 3 Yer., 581; State u Hollon, 13 Lea, 483; 18 Am. Dec., 105.</p> <p>9. Same. Same.</p> <p>The mere sending- of a libelous writing- through the mails in an ■unsealed envelope, does not constitute a publication thereof that will sustain a suit for damag-es. {Post, pp. (¡92-694.)</p> <p>Cases cited and distinguished: 20 Am. St. Rep., 120; 39 Neb., 574.</p>

<p>CoRporatioits. Not insoVoent, when.</p> <p>A milling- corporation, the value of whose properties have been reduced below the amount of its indebtedness by an accidental destruction of its plant by fire, does not, for a period of four months thereafter, become insolvent in such sense that its assets are a fixed trust fund for pro rata distribution among- its creditors, and incapable of being diverted or applied to any particular debt, to the exclusion of others, by the act either of the company or of a creditor, when the officers and directors continued to hold meeting-s for the discussion of the company's affairs, which were involved in litigation, and to collect and disburse funds, and to transact such other business as the situation afforded.</p> <p>Cases cited and approved: Comfort v. McTeer, 7 Lea, 653; Bank v. Lumber & Mfg. Co., 91 Tenn., 13; Tradesman Pub. Co. v. Car Wheel Co., ante, p. 634; 150 O. S., 371; 11 U. S. C. C. A., 330.</p>

<p>1. Attachment. Concealment as <jrounds for.</p> <p>That concealment of a debtor which will justify an attachment of his property under § 4192 (M. & V.) Code must he clandestine and intentional and for the purpose of evading' service of legal process. (Post, p. 703.)</p> <p>Code construed: l 4193 (M. & V.); $ 3455 (T. & S.).</p> <p>Case cited and approved: Bennett v. Avant, 2 Sneed, 151.</p> <p>2. Court of Chancery Appeai.s. What is a, finding of fact.</p> <p>The finding by the Court of Chancery Appeals that a debtor concealed himself clandestinely and intentionally and for the purpose of evading the service of process so as to justify an attachment of his property under $ 4192 (M. & V.) Code, though deduced as an inference from other facts and circumstances set out in the opinion, is such finding- of fact by that Court as is conclusive upon this Court, and precludes inquiry as to the correctness of the inference drawn. (Post, pp. 705, 706.)</p> <p>Act construed: Acts 1895, Ch. 76, tíec. 11.</p>

<p>FROM HUMPHREYS.</p> <p>Appeal from Circuit Court of Humphreys County. A. H. MuNeord, J.</p>

<p>FROM DEKALB.</p> <p>Appeal from, the Circuit Court of DelValb County. M. D. SmaxlmaN, Judge.</p>

<p>FROM WAYNE.</p> <p>Appeal in error from Circuit of Wayne County. Ed. D. Patterson, Judge.</p>