96 Tenn.

Volume 96 — Tennessee Reports

72 opinions

96 Tenn. 1Bank v. Martin (1896)
Genebal Assignment.- Fraudulent and void, ivhen. An instrument purporting to be a general assignment is fraudulent in law and void, as stipulating for unreasonable delay, which postpones the sale of the realty embraced therein for two years, and then provides that it shall be sold for one-third cash and balance on one and two years’ credit. Act construed: Acts 1881, Ch. 121. Cases cited and approved: Young d. Hail, 6 Lea, 175; Scheibler v. Mundinger, 86 Tenn., 674; Stedman v. Dobbins, 93 Tenn., 397; 80 Ill., 109; 69 Miss., 1. Cases cited and distinguished: Bennett v. Bank, 5 Hum., 612; Roane v. Bank, 1 Head, 526.
96 Tenn. 10McDaniel v. Whitsett (1896)
1. Bills and Notes. Material alteration. Alterations of a note, after its execution, are material and fraudulent and render it uncollectible, where the holder, for the purpose of increasing- its negotiability and security, and without the consent of the maker, changes its terms so as to make it payable to ‘1 holder ” instead of ‘ ‘ order, ” and adds to the recital that it was given for land the retention of an exj>ress lien thereon. (Post, pp. 11, 14, 15.) Cases cited and approved: Crockett v. Thomason, 5 Sneed, 344; Organ v. Allison, 9 Bax., 459; MeVey v. Ely, 5 Lea, 443; Blair v. Bank, 11 Hum., 84; Taylor v. Taylor, 13 Lea, 714. 3. Same. Same. Not obviated by erasxvre. Where a note has been rendered void by material and fraudulent alterations of its terms by the holder, after its execution, without the maker’s consent, its validity cannot be restored by erasure of the alterations, so as to make it collectible by the guilty holder. (Post, pp. 12, 13.) Cases cited and approved: Crockett v. Thompson, 5 Sneed, 344; Blair v. Bank, 11 Hum., 84; Organ u Allison, 9 Bax., 463; Me-Vey v. Ely, 5 Lea, 443; Taylor v. Taylor, 13 Lea, 714. 3. Same. Same. Not waived by maMr’s acts, when. Material and fraudulent alterations of a note, after its execution, by the holder, without the maker’s consent, are not waived by the latter’s proposal, after knowledge thereof, to renew and pay the note, which was not accepted, or by his payment of another note of the same series, similarly altered without objection. (Post, pp. 13, 14.)
96 Tenn. 16Bailey v. Drane (1896)
1. Inheritance Tax. Brothers. An estate acquired by will or inheritance from a brother or sister is not subject to inheritance tax. Chapter 174, Acts 1893, which taxed such estates, was repealed, by implication, by Chapter 89, Acts 1893, passed at a later hour of same day, which contains an express provision exempting such estates from taxation. (Post, pp. 17-19.) Acts construed: Acts 1893, Chs. 89, 174. Case cited and approved: State v. Alston, 94 Tenn., 674. 2. Same. Estates in remainder. A vested remainder for life, and a contingent remainder absolute in personal property, given to persons not within the excepted class, are subject to the collateral inheritance tax, under Acts 1893, Chapter 89, Section 7, and Chapter .174, Section 1, providing that all property in possession or expectancy, and all estates — real, personal, and mixed — of every kind whatsoever, which shall pass to persons other than those enumerated in the statute, shall be subject to such tax. And it is not material that such remainders are limited after a life estate given to a person belonging to the exempt class. (Post, pp. 20-23.) Acts construed: Acts 1893, Chs. 89, 174. 3. Same. Same. When due. The collateral inheritance tax upon a vested remainder for life, or on a contingent remainder absolute in personal property, is not payable under Section 3, Chapter 174, Acts 1893, except at the option of the remaindermen, until the termination of the precedent estate; and Section 6 of said Act, providing that if the legacy subject to the inheritance tax be given to any person for life, or any other limited period, upon a condition or contingency, if the same be money, the tax shall be retained upon the whole amount, and, if not money, application shall be made for the apportionment of the sum to he paid by such legatees, does not apply to either legacy. (Post, pp. 20-23.) Acts construed: Acts 1893, Chs. 89, 174. 4. Statutes. Repeal by implication. A statute repeals by implication the repug-nant provisions of another statute passed on the same day, but at an earlier hour. (Post, pp. 23, 24.) Cases cited and approved: Ins. Co. u Tax. Dist., 4 Lea, 644; Maney v. State, 6 Lea, 231; Knoxville v. Lewis, 12 Lea, 181; Ballentine v. Pulaski, 15 Lea, 633; The Druggists Cases, 85 Tenn., 450; Poe v. State, 85 Tenn., 495; Terrell v. State, 86 Tenn., 523; Hunter v. Memphis, 93 Tenn., 571; States. Yardley, 95 Tenn., 546; Shelton v. State, post, p. —•.
96 Tenn. 25Walton v. Walton (1896)
1. Marriage and Divorce. Juris Motion of suit for áworoe. The Courts of the county where the wife resides have no jurisdiction, under $ 3309 (M. & Y.) Code, of her suit for divorce on account of willful and malicious desertion, where the parties resided in another county at the time of their separation, and the husband, not being- a convict, resided' in another county when the suit was instituted, and was there found and served with process. Code construed: l 3309 (M. & V.); I 2451 (T. & S.). Case cited and approved: Majors v. Majors, 1 Tenn. Ch., 265. 2. Statutes. “May” means “shall,” wnen. ‘ ‘ May ” has the force of 11 shall ” in the statute providing that suits for divorce on account of desertion “ may be filed . . . in the Circuit or Chancery Court of the county or district where the parties resided at the time of their separation, or in which the defendant resides or is found, if a resident. ” Code construed: \ 3309 (M. & V.); § 2451 (T. & S.).
96 Tenn. 28Lunn v. Oslin (1896)
1. Homestead. Widow's use of Umber. A widow may use timber upon premises assigned to her as home- . stead in such manner and to such extent as will enable her to enjoy the estate without serious and permanent injury to the remaindermen. (Post, pp. 33, 34.) Cases cited and approved: Owen v. Hyde, 6 Yer., 334; 5 Mason, 13; G3 N. W. Rep., 368. 0. Case in Judgment. A widow is not guilty of waste who cuts and removes from premises assigned to her as homestead trees of small value, suitable for telegraph poles, and devotes the proceeds to making necessary repairs of buildings and fences, and also clears six acres for grass and grazing purposes, removing the useless timber of small value, and leaving- forrr trees to the acre for mast and shade, it appearing that this operated as a betterment of the land, and that sufficient timber was left to supply the premises. (Post, pp. 29-33.)
96 Tenn. 35Anderson v. Miller (1896)
1. AoxioNS. Maintainable foi' wrongful destruction of property by . owner who has been compensated by insurance. An action for' the wrongful destruction of property can be maintained by the owner and in his own name, although he has been fully compensated for his loss by an insurer who may be entitled, by subrogation, to the recovery. (Post, pp. 36-43.) Cases cited and approved: 17 Mich., 48; 103 Mass., 319; 105 Mass., 313; 35 N. J. L., 409; 4 Bing. N. E., 373; 13 Met., 99; 45 Maine, 453; 16 Pet., 501; 3 Barn. & Cress., 354; 31 Pa., 518; 17 N. Y., 438; 6 C. E. Green, 107; 51 Ill., 410; 53 Ill., 442; 38 Barb., 574. 2. Measueb oe Damages. For negligent injury of buildings. ' In an action for the negligent destruction or injury of buildings it is not error to charge that the owner is entitled to recover, as damages, such sum as will be sufficient to replace the buildings destroyed or injured by others of equal value, taking their age and depreciation into consideration. (Post, pp. 43, 44.) 3. Proximate Cause. What is. The proximate cause of the destruction of a leased building, in which the tenant has stored cotton, in violation of the rental contract, is not the fire which consumes it, but the tenant’s wrongful act in storing- the cotton therein, where it appears that the fire, which had originated elsewhere, would not have invaded the leased premises or caused any injury thereto but for the presence of the cotton. (Post, pp. 44-48.) Cases cited and approved: Deming- v. The Cotton Press Co., 90 Tenn., 353; Railroad v. Kelly, 91 Tenn., 699; Postal Tel. Co. v. Zopfi, 93 Tenn., 374. 4. Landlord and Tenant. Tenant’s rights. A tenant’s rights in the leased premises are measured by those of the landlord, and cannot exceed them. (Post, pp. 48, 49.) Cases cited and approved: Smith v. Street Railroad, 87 Tenn., 636; Railroad v. Bingliam, 87 Tenn., 533.
96 Tenn. 50Stewart v. Nashville (1896)
1. CONTRIBUTORY Negkligence. Burden of proof. Charge. It is error to charge, in. ■unqualified terms, that the burden is upon the plaintiff in a personal injury case to show affirmatively freedom from contributory fault or negligence on his part. The plaintiff must rebut contributory negligence when it is disclosed either by his own evidence or his adversary’s, or by both together, but until there is some evidence of contributory negligence there is no burden resting- upon him to disprove it. (Post, pp. 51-57.) Cases cited: Bamberger v. Street Railroad, 95 Tenn., 18; S3 Conn., 339; 120 Mass., 257. 2. Same. Same. Immaterial error. But the error of charging that the burden is upon the plaintiff in a personal injury case to show affirmatively his freedom from contributory negligence becomes immaterial, and is not cause for reversal, where the record discloses a clear case of contributory negligence on the part of the plaintiff, e. g.. that that he, being blind, was upon the streets unattended, and sustained his injuries by falling into a drain, or g-utter, of the existence and character of which he had full knowledge. (Post, p. 57.) 3. Same. Effect of bUndness. That plaintiff was blind constitutes no excuse for his failure to exercise ordinary care; on the contrary, common prudence requires that the blind should exercise far greater care, in proportion to the danger to which men in g-eneral are constantly exposed, than is required of those in full possession of the faculty of sig-ht. (Post, pp. 57, 53.) Cases cited and approved: 1 Allen, 172; 37 N. Y., 568.
96 Tenn. 59Payne v. Payne (1896)
MaRried Woman. Liable for costs of her unsuccessful suit for divorce. A married woman may be adjudg-ed to pay the costs of her unsuccessful suit for divorce. Code construed: l 3309 (M. & V.); § 2451 (T. & S.).
96 Tenn. 61Railroad v. Odil (1896)
1. Common CaReier. Deviation in route. A common carrier cannot jnstify a deviation in route, upon refusal of a connecting- carrier to receive freight on account of a strike, without notice to the shipper and instructions from him, where it appears that the goods could have been held and properly cared for, without endangering- their safety, until such notice had been given and instructions received. (Post, pp. 62-65.) Case cited and approved : Railroad v. Campbell, 7 liéis., 261. 2. Same. Sale of goods by. A common carrier cannot justify the sale of perishable freight which is obstructed in the course of its shipment by a strike, without notice to the shipper and instructions from him, when it appears that such notice could have been given and instructions obtained without inconvenience to the carrier or causing-any delay that would have endangered the safety of the goods. (Post, p. 65.) 3. Same. Inability for loss caused by substituted earner. A common carrier who unjustifiably substitutes another connecting carrier for the one named in the bill of lading, becomes insurer for the substituted carrier, and liable for loss of the goods while in the latter’s possession, even by inevitable casualties. And the shipper does not waive his right to recover from original carrier by making an effoit, at its instance, to hold the substitute carrier. (Post, p. 64.)
96 Tenn. 66Telegraph Co. v. Mellon (1896)
1. Telesbapii Companies. Action by beneficiary for nondelivery of telegram. One not the addressee of a telegram "but named as beneficiary therein, may. notwithstanding the absence of any contractual relation, maintain suit against a telegraph company for damages for failure to deliver same, as for breach of its statutory duty, under jig 1542, 1543 (M. & Y.) Code, to promptly transmit and deliver messages, or, in default thereof, to be liable to the party aggrieved for the damages suffered. {Post, pp. 67-72.) Code construed: §§1542, 1543 (M. & V.); 1323, 1324,(T. & S.). Cases cited and approved: Marr v. W. U. Tel. Co., 85 Tenn., 527; Wadsworth v. W. U. Tel. Co., 86 Tenn., 095; 75 Tex., 531; 77 Va., 173 ; 114 Ind., 511; 52 Ind., 1. 2. Same. Notice of claim for damages for nondelivery of telegram. A stipulation in the contract of a telegraph company that any claim for damag-es for nondelivery must be presented, in writing, within sixty days, is sufficiently complied with, where the telegram was never delivered, by the commencement, without precedent demand or notice, of an action by the beneficiary therein named, within sixty days after learning that such a telegram had been filed for transmission. (Post, pp. 72-75.) Cases cited and approved : Manier & Co. v. W. U. Tel. Co., 94 Tenn., 442; Glenn & Son*. So. Express Co., 86 Tenn., 594; 109 N. C., 527; 33 Fed. Rep., 362. 3. Same. Excessive verdict. A verdict of $500 for failure to deliver a telegram summoning- a, father to the sick bed of his son, who subsequently died without having seen his father, is excessive, where the latter received another messag-e in time to have reached his son prior to the latter’s death, and failed to do so only because he did not start promptly. (Post, pp. 75-78.) 4. Same. Evidence inadmissible. Evidence that, after the death of his son, a father was told that the latter had expressed a desire to see him, and wondered why he had not responded to a messag-e summoning him to his side, and believed that he was being neglected, is inadmissible in an action for damag-es for failure to deliver the telegram, where the father received notice of his son’s illness in time to have enabled him to have reached his side before his death if he had started promptly. (Post, p. 78.)
96 Tenn. 79McKinney v. Nashville (1896)
1. Sunday. What constitutes violation of city orcHmance forbidding opening of saloon on Sunday. The presence behind the bar of a saloon keeper and his bartender, early Sunday morning, constitxrtes a violation of a municipal ordinance forbidding the keeping open of places for the retail of liquor on Sunday, although they are merely engaged in winding up their week’s work. 2. Same. Same. A municipal ordinance forbidding' retailers of liquor to keep their places of business open on Sunday, or to deal out liquors from their places of business on that day, is violated by the admission by a saloon keeper of customers to a pool room and a dining apartment, doors of which leading into the saloon are left open. Case cited and approved: McNeal v. State, 92 Tenn., 720.
96 Tenn. 82Arnold v. State (1896)
Costs. Retaxat/ion of. The refusal of the Circuit Judge to retax costs, upon a motion made before judgment and, taxation thereof, which fails to specify the items or grounds of objection thereto, will not be reviewed in this Court upon a record containing no bill of exceptions. Case cited : Sherman v. Brown, 4 Yer., 561.
96 Tenn. 85Kirkpatrick v. Jenkins (1896)
1. Assighmbnt on ERROR. Insufficient, when. An assignment of error that the verdict is not supported by “ a preponderance of testimony” is bad, as the verdict must be sustained upon the facts, if there is any material evidence to support it. (Post, p. 87.) Cases cited and approved: Railroad u Mahoney, 89 Tenn., 312; Eller v. Richardson, 89 Tenn., 576; Insurance Co. v. Norment, 91 Tenn., 1; Sparta v. Lewis, 91 Tenn., 370; Peery v. Peery, 94 Tenn.', 329; Railroadv. Kenley, 92 Tenn., 208; Poole v. Jackson, 93 Tenn., 62; Scruggs v. Heiskell, 95 Tenn., 455. 2. Will. Not revoked by testator’s subsequent verbal deelwrations. No verbal declarations of testator, after the free and voluntary execution of his will, as to his intention and wish in regard to a daughter who is not provided for therein, can operate to revoke or impair the will. (Post, pp. 87, 88.) Code construed: $ 3008 (M. & V.); $ 2167 (T. & S.). Cases cited and approved: Allen v. Huff, 1 Yer., 404; Marr v. Marr, 2 Head, 303; Allen v. Jeter, 6 Lea, 674. 3. Same. Testator’s subsequent declarations, when admissible. Subsequent declarations of an alleged testator may be considered upon the issue of mental incapacity, but not upon the issue of undue influence, unless there is independent testimony indicating undue influence, and then only to show a condition of mind susceptible to such influence and the effect thereof upon the testamentary act. (Post, pp. 88, 89.) Cases cited and approved: Peery v. Peery, 94 Tenn., 328; 3 Am. Dec., 390; 11 N. Y., 157; 4 Dutcher, 274; 99 Mass., 112; 31 Am. St. Rep., 665. 4. Same. Same. The personal and family relations of a testator, the pecuniary condition of his children, and his statements respecting them in connection with his will, are admissible either to sustain or rebut the contention that certain inclusions or exclusions of children are unnatural, and indicative of mental infirmity. {Post, p. 90.) Cases cited and approved : Peery v. Peery, 94Tenn., 343; 99 Mass., 119; 17 Am. St. Rep., 553. 5. Same. Testator’s subsequent declarations not admissible, when. Declarations of testator subsequent to the execution of his will, as to whether a child born to his wife was his child, and as to the circumstances of her birth, are inadmissible to rebut the contention, based on the failure to provide for such child, that the will was not the testator’s voluntary act. {Post, pp. 91-93.) Cases cited : 17 Ala., 55; 33 Ala., 539.
96 Tenn. 94Sylvis v. Miller (1896)
Libel. Publication. The publication of a libel is not sufficient to sustain a civil action thereon, where it is sent through the mails by sealed letter, properly addressed to the plaintiff, and not seen by any third person until plaintiff opened and exhibited the letter to others. Such publication would suffice under the statute in a criminal prosecution for libel. Code construed: ?¿ 5552 (M. & V.); $ 4762 (T. & S.). Cases cited and approved: Fry v. McCord Bros.. 95 Tenn., 679; Hodges v. State, 5 Hum., 112; 43 Fed. Rep., 428.
96 Tenn. 98Minton v. Stahlman (1896)
1. Banks and Banking. Individual Viability of officers and directors defined. The officers and directors of a banking’ corporation are not individually liable, either under § 2507 (M. & V.) Code or upon common law principles, for the loss of a general deposit by the bank’s insolvency, in a suit brought against them in a Court of Law by the depositor for his own benefit, unless the loss has resulted, not from their mere negligence or inattention, but from their intentional fraud or willful mismanagement of the affairs of the bank. (Post, pp. 100-104.) Code construed: $ 2507 (M. & V.). Cases cited and approved: 7 Mo. App. Rep., 417; 67 Mo., 264. A different rule prevails in suits by or for the corporation brought in a Court of Equity. Wallace v. Bank, 89 Tenn., 652; Shea v. Mabry, 1 Lea, 344; Hume v. Bank, 9 Lea, 728. 2. Same. Same. Pleading. In a suit by a depositor to recover against the officers, directors, and stockholders of an insolvent banking corporation as individuals, the averment that they wrongfully, negligently, and knowingly failed to comply substantially with its articles of incorporation, and deceived the public and plaintiff in relation to its liabilities, in several particulars enumerated, does not state a case within $ 1716 (M. & V.) Code, which subjects them to liability for damages resulting from their “intentional fraud in failing to comply substantially with the articles of incorporation or in deceiving the public or individuals in relation to their liability. ” (Post, pp. 104-107.) Code construed: $ 1710 (M. & V.); § 1488 (T. & S.). Case cited and approved: Hume v. Bank, 9 Lea, 728. 3. Same. Same. What constitutes insolvency. Under g 5718 (M. & V.) Code, making the managing officers of a banking corporation individually liable to depositors for money received on deposit, when they knew, or had good reason to believe, the bank insolvent, a bank is treated as insolvent when it becomes unable to meet its liabilities as they become due in the ordinai'y course of its business. It is not insolvent, within the meaning' of this statute, so long as it is meeting' its liabilities as they become due, and there is a reasonable expectation on the part of its officers familiar with its business affairs of continuing to do so. Whether the officers acted in good faith and upon a reasonable expectation of continuing the business must be determined from a consideration of all the attendant eireximstances. (Post, pp. 107-111.) Code construed: § 5718 (M. & V.). Cases cited and approved: Comfort v. MeTeer, 7 Lea, 660; Tradesmen’s Pub. Co. v. Knoxville Car Wheel Co., 95, Tenn., 634; 23 Blatch., 191; 16 Wall., 277; 133 U. S., 576. 4. SUPREME Court. Immaterial error. If a demurrer to one count of a declaration should be erroneously sustained, the error is immaterial, and constitutes no cause for reversal, if the same issue is presented in another count, and determined upon the trial. (Post, pp. 106, 107.) 5. Same. Insufficient assignment of error. An assignment of error “that the verdict is contrary to the evidence ” is bad. It must aver that there is no evidence to support the verdict. (Post, p. 111.)
96 Tenn. 112Lipscomb v. Shofner (1896)
Malicious Prosecution. Lies when. An action for malicious prosecution will lie when a civil suit, brought maliciously and without probable cause, has resulted in actual damages, although it was begun by mere personal service of process, and was unattended by attachment of property or deprivation of personal liberty. Cases cited and approved: Smith v. Story, 4 Hum., 173; Smith v. Eakin, 3 Sneed, 461; Doll v. Cooper, 9 Lea, 576; Renkert v. Elliott, 11 Lea, 336. Cited and distinguished: Turner v. Turner, 85 Tenn., 387; Roul-ston v. Jackson, 1 Sneed, 138.
96 Tenn. 119Citizens' Rapid Transit Co. v. Seigrist (1896)
1. EleotRio Street Railroads. Bights and duties at grade crossings. An electric street railroad has no superior right of way over vehicles at grade crossings upon the streets or other public highways. The rights and duties of each are equal at such crossings. Each must exercise its right with due reg-ard to the right of the other, and in such careful manner as not unreasonably to abridge or interfere with the right of the other. Each must look and listen for the other, and take due precaution not to inflict or incur injury by collision. (Post, pp. 120-124.) Cases cited and approved: Memphis, etc., Ry. Co. u Logue, IB Lea, 34; 35 L. R. A., 508-9 and note. 3. Same. Same. Negligence of street railroad. An electric street railroad company is liable for injury resulting to the owner or driver of a vehicle from a collision with one of its cars at a grade crossing upon a public street or highway, caused by the motorman’s failure to regulate and control the speed of the car, on approaching the crossing, in such manner as to be able to prevent accidents. (Post, pp. 124-127.) Cases cited and approved: 53 Minn., 551; 47 Mo. App., 65; 53 Hun, 571; 68 Hun, 369; 99 Mo., 400; 139 N. Y., 135. 3. Same. Same. Driver of vehicle not negligent. Contributory negligence is not imputable to the driver of a vehicle that collides with an electr-ie street car, running at a reckless rate of speed, at a grade crossing upon a public street or highway, where he, from a point only ten yards from the crossing, looked for the car and saw it approaching rapidly some 300 to 350 yards away, and, believing that he had sufficient time to cross the track in safety, proceeded to do so without again looking-, assuming that the car would approach the crossing in a lawful manner. (Post, pp. 125-127.) Cases cited and approved: 53 N. W. R., 903; 33 N. E. R., 1063: 55 N. W. R., 743. 4. Samb: Same. Degree of core required at ffrossvngs. The degree of care required of persons crossing street railroads at grade crossings of streets or other public highways, is not so great as that required of persons at like crossings of steam or commercial railroads. (Post, p. 126.) Cases cited and approved: 52 N. W. R., 902; 22 N. E. R., 1063. 5. SUPREME Court. Will not reverse verdict upon the facts, when. If the strongest legitimate view or construction of the evidence that can he taken against the complaining party will support the verdict, this Court will not reverse upon the facts. (Post, pp. 124, 125.) Case cited and approved: Kirkpatrick v. Jenkins, ante, p. 85.
96 Tenn. 128Railroad v. Reagan (1896)
1. Vebdict. Sv/pported by the facts, when. The facts set out in the opinion are held sufficient to support a verdict of $1,500 in favor of a hrakeman, for injury to his hand sustained while uncoupling cars, by reason of the broken and dangerous condition of the follower plates and springs of the drawbars. (Post, pp. 130-133.)' 2. Evidence. Objection to form of question. The action of the trial Judge affords no cause for reversal when he sustains an objection to the form of question propounded to a witness, and then suggests the form of question that may be properly asked, which is answered without objection. (Post, p. 133.) 3. Same. General exception insufficient. It is not error for the Court to admit evidence over a general exception unless it is incompetent for any and all purposes. (Post, p. 134.) 4. Same. Braheman as an expert. It is competent to prove by an experienced brakeman, as an expert, his opinion and that of other skilled brakemen, as to the proper method of uncoupling cars, to rebut the charge that the plaintiff’s injuries resulted from his pursuing an .improper method in uncoupling cars and not from defects in the coupling apparatus. (Post, pp. 133, 134.) Cases cited and approved: 38 Ga., 409; 41 Am. & Eng\ R. R. Gases, 362. 5. Amendment. Of declaration properly allowed, when. Where plaintiff’s cause of action existed at common law, independently of statute, it is not error for the Court to permit him, over defendant’s objection, to amend his declaration after the evidence is concluded and before the jury are charged, by striking- out the mistaken and superfluous averment that his cause of action Rad arisen under the statutes and decisions of another State. (Post, pp. 136, 137.) Case cited: Railroad v. Sprayberry, 9 Heis., 853. 6. Action-. For injury sustained in (mother State. An action lies in the Courts of this State against a wrongdoer for an injury inflicted in another State. (Post, pp. 136, 137.) V. Raileoads. Duty of inspection of oars. The duty of a railroad to exercise ordinary care to discover and remedy defects in cars that mig-ht prove dangerous to its employees, applies, without any relaxation, to loaded cars received from other companies for transportation. (Post, pp. 134, 135.) Cases cited and approved: 100 N. Y., 463; 34 Am. St. Rep., 194. 8. Same. Duty us regards rules. It is the duty of a railroad company not only to promulgate a code of rules for the government of its employees but to enforce their observance. It is the duty of employees to inform themselves as to the printed and posted rules and regulations of the company, and to conform their conduct to them so far as they are reasonable. (Post, pp. 138-140.) 9. Same. Same. The employees of a railroad company may be justified in the nonobservance of its reasonable rules and regulations when they have been habitually disregarded and broken by the employees, with the knowledge and acquiescence and without the protest of the company. But mere disobedience of employees, without the knowledge or acquiescence of the company, will not justify any inference of an abandonment or waiver of its rules and reg-ulations. (Post, pp. 138-140.) 10. Charge oe Court. Repetition by giving request not required. The Court does not err in refusing to give special requests which are fully covered by the charge as delivered. (Post, pp. 137, 138.)
96 Tenn. 141Villines v. State (1896)
1. Indictment. Of retail druggist for violation of Agís 1893, Oh. 39. An indictment which, charges that a retail druggist unlawfully-compounded and dispensed medicines, filled prescriptions of physicians, and sold for medical purposes drugs, chemicals, poisons, and other like preparations, in violation of the requirements of Sec. 1, Ch. 39, Acts 1893, isg-ood, although it fails to negative the proviso contained in said section excepting physicians from its operation. Acts construed: Acts 1893, Ch. 39. 2. Saji®. Bale as to negativing exceptions. Whether an indictment shall neg-ative a proviso contained in the statute creating- an offense depends not upon the place that the proviso occupies in the statute, hut rather upon its relation to that clause of the statute defining the offense. That the proviso is in the same section that defines the offense does not constitute it part of the enacting clause, or require that it should he negatived. “Section” and “enacting- clause” are not synonymous. If the proviso is so expressed in the statute as to he incorporated in the definition of the offense, the indictment must neg-ative the proviso, otherwise it need not he done, although the proviso may be contained in the section that defines the offense. Cases cited and approved: State v. Ladd, 2 Swan, 225; 2 T. R,., 581; IV Wall., 168; 11 Cush., 130. Cited and disapproved: Mathews v. State, 2 Yer., 233.
96 Tenn. 148Hines v. Willcox (1896)
1. Evidence. Parol admissible to prove independent agreement collateral to zcritten contract, when. In a suit by a tenant against his landlord, seeking to recover for personal injuries sustained by reason of the dangerous condition of the leased premises, averring both negligence and breach of contract on the part of the landlord in failing to put the premises in good and safe condition, it is error to exclude parol evidence tending to prove that the landlord, before the written lease was made, and as inducement thereto, promised to put the premises in good and safe condition, and at the time of its execution gave assurance that this had been done, there being- in the written lease none of the landlord’s undertakings, but only the tenant’s, and nothing in conflict with this independent collateral agreement. (Post, pp. 149-159.) Cases cited: Bedford v. Elowers, 11 Hum., 342; Ellis v. Hamilton, 4 Sneed, 512; Bryan v. Hunt, 4 Sneed, 544; Price v. Allen, 9 Hum., 702; McLean v. State, 8 Heis., 22; Fields v. Stunston, 1 Cold., 40; Stewart v. Insurance Co., 9 Lea, 104; Weisinger v. Bank, 10 Lea, 330; Insurance Co. v. Mathews, 8 Lea, 508; Railroad v. Gammon, 5 Sneed, 571; Kearly v. Duncan, 1 Head, 400; Betts v. Demumbrune, Cooke, 48; Leineau v. Smart, 11 Hum., 308; Cobb v. Wallace, 5 Cold.. 539; Lytle v. Bass, 7 Cold., 303; Vanleer v. Fain, 6 Hum., 104; Dick v. Martin, 7 Hum., 203; Mitchell v. Bank, 8 Hum., 210; Cobb v. Oneal, 2 Sneed, 438; Bissenger v. Guiteman, 0 Heis., 277; Hicks v. Smith, 4 Lea, 464; Smith u O’Donnell, 8 Lea, 408; Hawkins v. Lee, 8 Lea, 42; Breeden v. Grigg, 8 Bax., 163; Waterbury v. Russell, 8 Bax., 162; Brady u Isler, 9 Lea, 356; Barnard v. Roan Iron Co., 85 Tenn., 139; McFarlane v. Moore, 1 Overton, 174; Hogg v. Cardwell, 4 Sneed, 157; Richardson v. Thompson, 1 Hum., 154; 7 L. R. A., 33 and notes; 17 L. R. A., 270 and notes. 2. Same. Same. Where there is any evidence tending to show that an independent parol agreement, collateral to the written contract, was entered into by the parties, it is error to exclude such evidence and withdraw that issue of fact from the jury. (Post, pp. 15!), ISO.) Cases cited and approved: Cobb v. Wallace, 5 Cold., 540; Stewart v. Insurance Co., 9 Lea, 104, 112. 3. LANDLORD and Tenant. Liability of landlord, leasing dangerous premises. If a landlord lease premises which are, at the time, in a dangerous condition, he will be liable for damages that may result therefrom to his tenant, if he knew of such unsafe condition of the premises and concealed the fact, or if by reasonable care and dilig-ence he could have known it, provided the tenant has exercised reasonable care and prudence for his own protection against the effects of his landlord’s wrongful act. (Post, pp. 160-162.) Cases cited and approved: Young u Bransford, 12 Lea, 244; 5 N. B. Rep., 248; 44 Am. Rep., 499; 19 Am. Rep., 164; 50 Am. Dec., 780; 59 Am. Dec., 733; 67 Am. Dec., 404; 50 Am. Rep., 659; 105 Mass., 477; 12 Am. St. Rep., 778; 18 Am. St. Rep., 431; 15 Am. St. Rep., 199. Cases cited and distinguished: Southern Oil Works v. Bickford, 14 Lea, 657; Banks v. White, 1 Sneed, 614.
96 Tenn. 163Stenberg v. Willcox (1896)
Landlokd and Tjestant. Landlord's liability to tenemfs guest for injury resulting from, unsafe condition of leased premises. Where unsafe premises are leased, to be used as a boarding house, the lessor, if he knew the unsafe condition of the premises, or could have known it by the exercise of reasonable care and diligence, is liable to the lessee’s guest or boarder who has sustained personal injuries as the result of such unsafe condition of the premises. Cases cited: Young v. Bransford, 12 Lea, 244; 59 N. Y., 28; 66 Md., 325; 20 Pa., 387; 26 Pa., 11; 8 Gray, 195; 29 N. J. L., 545; 76 N. Y., 92; 66 Cal., 182; 80 Ky., 598; 60 N. Y., 229; 98 N. Y., 249; 2 Salk., 460; 9 C. B., N. S., 377; L. K,., 2 C. P. Div., 311; 80 Maine, 62, 77; 5 Best & S., 78.
96 Tenn. 175Phipps v. Burnett (1896)
1. Paupbe Oath. Administered by Justice of the Peace. A pauper oath in lieu of prosecution bond for suit and attachment instituted in the Circuit Court, maybe taken before a Justice of the Peace. (Post, pp. 175-177.) Code construed: ?<j 39S, 3912 (M. & V.); §{¡ 343, 3192 (T. & S.). Case cited and approved: Knoxville Iron Co. u Smith, 86 Tenn., 45. Case cited and overruled: Graham v. Caldwell, 8 Bax., 69. 2. Attachment. Affidavit. An affidavit is sufficient which states the g-rounds for attachment to the best of affiant’s knowledge and belief. (Post, p. 177.) Case cited and approved: Bank v. Berry, 2 Hum., 443. Cited and disting-uished: Nelson v. Fuld & Co., 89 Tenn., 460.
96 Tenn. 178State v. Davidson County (1896)
1. CRIMINAL Costs. County’s liability to State. A county is not liable to tlie State for costs which., upon a commuted sentence for felony, are worked out in the county workhouse. But the county is liable if such costs are paid in cash or its equivalent. (Post, pp. 17.9-181.) Act construed: Acts 1891, Ch. 123, \ 12. Case cited: State v. Sibley, 4 Lea, 738. 2. Tan on Litigation. County’s liability to State. A county is not liable to the State for the State tax on litigation attaching to a conviction for misdemeanor, when the defendant, upon payment of fine and costs into the county treasury, in cash, is discharged without payment of the State tax on litigation. (Post, pp. 181, 182.) Case cited: Ex parte Griffin, 88 Tenn., 547. 3. Fines. County’s Mobility to State. A county is liable to the State for a fine paid into its treasury in cash upon a commuted sentence under an indictment charging a felony. (Post, pp. 182-184.) Code construed: $ 6077 (M. & V.), § 5236 (T. & S.)
96 Tenn. 185Carrigan v. Rowell (1896)
1. Administkation. Sevenyews does noibao- sale of lands to pay debts. A creditor’s suit for tire sale of a decedent’s lands to pay debts is not barred, thoug'h instituted thirteen years after the death, if brought within seven years after the final adjudication of the creditor’s claim against the estate, in a proceeding commenced in time and prosecuted with due diligence. (Post, pp. 18S-190.) Code construed: <$3119, 3483 (M. & V.); <$2281, 2786 (T. & S.). Cases cited: Henderson v. Tipton, 88 Tenn., 258; Henry v. Mills, 1 Lea, 144; Baht u Meek, 89 Tenn., 274; Woolridge ¶. Page, 1 Lea, 135. 2. Homestead. Abandonment of. The homestead rig'ht is abandoned by a widow, for herself and for her minor children during her lifetime, where she removes with them from this State and acquires a domicile, and remains with them, in another State. (Post, pp. 190-192.) Cases cited and approved: Emmett i>. Emmett, 14 Lea, 370; Hawkins v. Pearce, 11 Hum., 45; Lisenbee v. Holt, 1 Sneed, 50; Ilicks v. Pepper, 1 Bax., 46. Case cited and disting-uished: Farrow v. Farrow, 13 Lea, 120. 3. Same. The fee subject to debts. The remainder interest in lands assigned as homestead is subject to sale for payment of debts, even as against the widow and children of a decedent. (Post, p. 192.) Code construed: <j 2943 (M. & V.). Cases cited and approved: Howell v. Jones, 91 Tenn., 403; Luns-ford v. Jarrett, 2 Lea, 579; B’latt u. Stadler, 16 Lea, 371.
96 Tenn. 193Hickerson & Co. v. Insurance Companies (1896)
1. Hire Insurance. Arbitration clause operatime only where real differences are developed. The existence of a real difference between insurer and insured, arising- otrt of an honest effort to ag'ree, is necessary to make operative the condition in a fire policy that loss shall not be payable, or suit therefor maintainable, until the amount shall have been settled by arbitration. (Post, pp. 194-197.) Cases cited and approved: 13G U. S., 343; 169 Pa., 349; 38 L. R. A., 405; 83 Cal., 346. 3.Same. Same. Q-eneral objection to proofs of loss insufficient. A general objection to proofs of loss, which fails to point out in detail the specific items excepted to, and the g-rounds of exception, does not constitute such a failure to agree as renders the arbitration clause of an insurance policy operative to suspend payment of loss or suit for same. (Post, pp. 197, 198.) 3. Same. Appraisers act in a quasi judicial capacity. The appraisers act, under the arbitration clause of an insurance policy, in a judicial capacity, and must be free from bias in favor of either party. (Post, pp. 1.98, 199.) 4. Same. Arbitration clause luaived, -when. An insurer waives the arbitration clause by denying all liability, even when the policy expressly stipulates that the appraisal shall bind him only as to amount of loss, and not as to liability therefor. (Post, pp. 199, 200.) Cases cited: 169 Pa., 349; 30 Neb., 331; 35 Neb., 505; 11 L. R. A., 599; 33 Am. St. II., 5'91. 5. Same. Selection of umpire by appraisers. The insurer’s chosen-appraiser cannot arbitrarily or unreasonably demand that an umpire shall be selected who lives at a place remote from the fire, and who is unknown to the insured and his appraiser. (Post, pp. 200-207.) Cases cited and approved: 154 Ill., 9; 115 N. Y., 354; 38 L. R. A., 405; 101 N. Y., 363; 10 Daly, 538. 6. Same. Same. Waiver. And by sucli arbitrary and unreasonable demand that an umpire be chosen who lives at a place remote from the fire, and is unknown to the insured and his appraiser, the insurer waives all right to ar-bitration. (Post, pp. 200-207.) 7. Same. Measure of damages. The market value of lumber on the yard, at the time and place of fire, is the amount recoverable upon an insurance policy covering- it. (Post, pp. 207, 208.) 8. Same. Three-<iua/rter clause. The Court reaffirms its decision holding- the statute constitutional that made the three-quarter clause of fire policies inoperative and void. (Post, p. 208.) Cases cited: Dugger v. Insurance Co., 95 Tenn., 245.
96 Tenn. 209Moore v. State (1896)
1. Criminal Pbacticis. Iieoord recital of officers oath. The recital in the order respiting the jury in a felony case, that the officers placed in charge “were sworn according' to law to attend and wait on them” is sufficient. {Post, p. 212.) Cases cited and approved: Taylor v. State, 6 Lea, 335; Lancaster v. State. 91 Tenn., 386. 3. Cthminal Evidence. Physician’s experiments admissible. It is competent for physicians who saw deceased lying on the ground at the place where the homicide occurred, and who located the pistol halls fired into the hody, to testify with regard to an experiment subsequently made in the absence of defendant, in order to ascertain, if possible, the relative positions of' the .deceased and defendant when the fatal shot was fired. {Post, pp. 212, 213.) Cases cited and approved: Byers v. Railroad, 94 Tenn., 346; Boyd v. State, 14 Lea, 161; Lipes v. State, 15 Lea, 135; Railroad v. Ayers, 16 Lea. 735., 3. Same. General objection ineffectual. A general objection to the introduction of evidence is not available, if the evidence was competent upon any ground. {Post, pp. 213, 214.) Cases cited and approved: Reilley v. English, 9 Lea, 30; Miller v. State, 13 Lea, 323. 4. Same. Dying declaration admissible, when. A dying declaration, otherwise competent, will not be excluded because it was made five days before death. {Post, pp. 213-215.) Cases cited and approved: Epperson v. State, 5 Lea, 391; Baxter v. State, 15 Lea, 657; Lowry v. State, 13 Lea, 142'; Stewart v. State, 3 Lea, 598. 5. Same. Same. An objection to a paper as a dying declaration upon the ground that it was signed in the name of deceased by another, cannot be raised for the first time on appeal, especially where the witness who identified the paper and read it to the jury, was the party who wrote it at the dictation of deceased, and affixed the sigvnature in question. (Post, pp. 213-215.) <3. Same. Statements of deceased made in, defendant's presence admissible, when. Statements by deceased, made soon after and with regard to the affray, are admissible against defendant in a murder case, where they were made within his hearing, and were not contradicted by him, and were of such a nature that his silence affords an inference of his assent. (Post, p. 215.) 7. Same. Impeachment of xoitness by record showing infam/y. An authenticated copy of the record containing a judgment declaring- a witness infamous, and disqualifying- him from giving evidence, is admissible to impeach him. (Post, pp. 215, 216.) Case cited and approved: Boyd v. State, 94 Tenn., 505. 8. Same. Order of introduction of evidence rests in Oov/rt’s discretion. It is within the sound discretion of the trial Court, whether it will permit the prosecution to introduce testimony in rebuttal which should more properly have been introduced in the opening. (Post, pp. 216, 217.). 9. Same. Charge as to effect of proof of good character. An instruction that if the defendant, in a prosecution for murder, is shown to have been a man of good character previous to the homicide, it is a witness in his behalf, is proper, where the testimony as to his good character related to his reputation as a peaceable man, and was introduced to support his plea of self-defense, and the jury are further properly instructed as to the effect of reputation upon his credibility as a witness. (Post, pp. 218, 219.) 10.Same. Sweu/ring of witness waived. The failure to swear a witness for the State is waived where the counsel for defendant, with knowledge of the failure, cross-examines him as one fully qualified to testify, although defendant himself did not know of the omission. (Post, pp. 219, 220.) Case cited: 100 Mo., 347. 11. New Teial. Discretion of Gov/rt as to granting. The denial of a motion for a new trial in a criminal case on the ground of newly-discovered evidence, will not be disturbed on appeal, unless there has been an abuse of discretion by the trial Judg-e. (Post, pp. 219-223.) Case cited and approved: State v. Collins, 15 Lea, 434. 12. Same. Examination of witnesses in open Coit/rt proper. It is proper for the Court, upon a motion for a new trial in a criminal case, on the ground of newly-discovered evidence, to' require the presence of affiant in open Court, in order to test his knowledge and his credibility by an oral examination. (Post, p. 222.) Case cited and approved: Glidewell v. State, 15 Lea, 133. 13. Same. Counted' uffidimits admissible. The affidavits on a motion for a new trial in a criminal case, on the ground of newly-discovered evidence, may be opposed by counter affidavits. (Post, pp. 222, 223.) Cases cited and approved: McGavock v. Brown, 4 Hum., 250; 24 Pick., 240; 2 Caine, 260; 10 Wend., 288. 14. Sele-defeNSe. Charge of Court. An instruction that, to constitute self-defense, the belief or apprehension of dang-er, must be founded on sufficient circumstances to authorize the opinion that the deadly purpose then exists is not prejudicially erroneous, because it omits reference to fear of great bodily harm, where in three other places such a fear is stated to be a justification for killing in self-defense. (Post, p. 217.)
96 Tenn. 224Life Ass'n v. Winn (1896)
Evidence. Admissions of insured competent against beneficiary in life policy. Admissions of insured that he had forfeited a policy taken out for another’s benefit, are competent for defendant, in a suit by the beneficiary upon the x>olicy, where the insured never surrendered control of the policy and under its terms possessed a power of revocation and substitution of new beneficiary. Cases cited and approved: Insurance Co. -u. Booker, 9 Heis., 006; Insurance Co. v. Morris, 3 Lea, 103: Gosling- v. Caldwell, 1 Lea, 454; Catholic Knights u. Kuhn, 91 Tenn., 314; Tennessee Lodge v. Ladd, 5 Lea, 730; 136 Ill., 387; 110 Ind., 189; 41 Fed. Rep., 1; 106-Ind., 593; 70 Mich., 587; 70 Tex., 347; 86 ICy., 136.
96 Tenn. 229Eichengreen v. Railroad (1896)
1. False ImpbisoNment. Master liable when caused by Ms servant. False imprisonment oí an innocent person, on a eharg-e ol attempting to pass counterfeit money, which is procured by a railroad detective while acting within the scope of his authority, renders the railroad company liable, although in this particular matter he exceeded his authority, and acted contrary to his instructions respecting the caution to be exercised. {Post, pp. 230-239.) Cases cited and approved: Cantrell u Colwell, 3 Head., 471; By-ram v. McGuire, 3 Head, 530; Diehl v. Ottenville, 14 Lea, 191; 50 Am. Rep., 102; 43 Am. Rep., 141; 34 Am. Rep., 494; 99 Ind., 519. 2. Same. Same. An express order for an unlawful arrest by an agent of a railroad company, is not necessary to render the company liable, if the arrest was procured by the agent, acting within the scope of his employment. {Post, pp. 239-241.)
96 Tenn. 242State v. Foutch (1896)
1. Self-dhfhNS®. Justifiable shooting. It is self-defense for one to shoot, at his own house, with a pistol obtained for defensive purposes, a drunken blackguard, advancing upon him with a drawn open knife, who had intruded, an unbidden guest, on the occasion of a social party, and was indulging, in the presence of ladies and others, in oaths and obscenity, and refusing to desist or leave the premises after repeated remonstrance and invitations. Case cited and approved; 95 Ky., 62G. 2. Defjíjísk. Of home and family. The citizen has the right to protect his own home and family and to preserve peace, order, and the observance of decent behavior in his own house and in the presence of his family. He has the right to eject drunken, disorderly, and dangerous persons from his house, and to use all force that may be required for that purpose. If resisted and exposed to danger by the intruder, he may exercise his right of self-defense, and is under no oblig'ation to retreat or escape from his own premises to avoid trouble. He will not be denied the plea of self-defense by reason of his having obtained and used a deadly weapon on the occasion, if he did it only for the purpose of defending himself and family. Cases cited and approved:'Fitzgerald u State, 1 Leg. Rep., 53; Foutch v. State, 95 Tenn., 711.
96 Tenn. 249Turnpike Co. v. State (1886)
PROM WILLIAMSON. Appeal from Circuit Court of Williamson County. W. L. Grigsby, J.
96 Tenn. 252Parker v. Bethel Hotel Co. (1896)
1. CORPORATION. Not dissolved, by nonuser of franchises. The conveyance hy a corporation oí that part of its property which was necessary to carry on its business, and the fact that it never thereafter elected directors, or otherwise exercised its corporate powers, did not dissolve the corporation. (Post, pp. 270-275.) Cases cited and approved: State v. Butler, 86 Tenn., 614; Bache v. Nashville Horticultural Society, 10 Lea, 436; Maryville College v. Bartlett, 8 Bax., 231; 3 Watts, 46; 24 Pick., 49; 5 Johns. Ch., 366; 2 Doug., 134; 4 Rawle, 9; 24 Vt., 238; 14 Pick., 63; Hopk. Ch., 354; 13 N. J. Eq., 332; 7 Johns. Ch., 317; 3 Edw. Ch., 123; 47 Md., 239. '2. Same. OwnersMp of all the capital stock by one person does not work dissolution. The fact that all the shares in a joint stock company or corporation haye passed into the hands of a single persons does not, ipso facto, wor-k a dissolution of the corporation. \Posi, pp. 275-277. Cases cited and approved:' 14 Pick., 69; 42 Ga., 148; 26 Minn., 43. .3. Same. A stockholder owning all the shares has no title to its property. A stockholder of a solvent corporation, who becomes the owner of all the shares of stock of said corporation, does not thereby acquire any estate or title in the real estate of the corporation. It continues the property of the corporation. (Post, pp. 277-280.) Cases cited and approved: Keith v. Clarke, 4 Lea., 718; Lillard v. Porter, 2 Head, 176; 15 Vt., 519; 140 ü. S., 304; 26 Minn., 43. 4. Same. Property of corporation cannot be sold and coiweyed by its individual stockholders. The property of a corporation is not subject to the control of its individual members, whether acting separately or jointly. They can neither incumber nor transfer it, nor authorize others to do so. The corporation holds the property, and alone can convey or transfer it; and the corporation acts only throug-h its officers, subject to the provisions prescribed by law. The conveyance, therefore, of the property of a corporation by one who is sole stockholder therein, by deed executed in his ovvn name, is void. (Post, pp. 280, 281.) 5.Same. Real estate of corporation, hozo conveyed. Peal estate of a corporation can be conveyed only by deed executed in its name by a duly authorized officer or agent, and under seal, if it have a seal. (Post, p. 281.) Case cited and approved: Garrett v. Belmont Land Co., 94 Tenn.,. 460. 6. Same. Transfer of stock passes title to transferee. The transfer and assig-nment of certificates of stock in a corporation, either by absolute sale or by way of pledg-e, passes to the vendee or transferee the title thereto. (Post, pp. 281-284.) Cases cited and approved: Comicku. Richards, 8 Lea, 85; Cherry 'd. JTrost, 7 Lea, 1; Caulkins v. Gas Light Co., 85 Tenn., 683;' West Nashville Planing Mill Co. v. Nashville Saving's Bank, SO Tenn., 353. 7. Same. Rule requiring transfer on boohs of compcmy, effect of. The rule requiring transfer of stock on the books of the company, is a rule made solely for the benefit of the company. The title of the transferee is perfect, as betwéen himself and the transferer, and the transferee is entitled, upon presentation to the corporation of his certificate, to have himself registered on its books as the real owner. (Post, pp. 284, 285.) Case cited and approved: Smith v. Railroad, 91 Tenn., 331. 8. Same. Transfer of stock need not be in writing. A sale or transfer of stock, to be valid, need not be in writing.. A transfer is g-ood, althoug-h the seller of the stock never had a certificate at all, and although no certificate is issued to the transferee. (Post, p. 283.) 9. Laches. Mere delay not a bar generally. A Court of Equity will not enforce stale demands where the party seeking its aid has slept on his rights and acquiesced for an unreasonably long- time. Laches is always discountenanced. But delay alone, unaccompanied by other circumstances, will not necessarily preclude relief. Where the situation of the parties has not been altered, and one has not been put in a worse condition by the delay of the other, the defense, of laches does not generally apply. (Post, pp. 285-288.) Cases cited and approved: 3 Bro. Ch., 640; 28 Oliio St., 568; 13 Gratt., 354; L. B., 9 Eq., 44. 10. USURY. Who can plead. Tire right to plead usury is a privilege personal to the debtor. The exception to the rule embraces the debtor’s sureties, guarantors, heirs, devisees, and personal representatives. (Post, 288-292.) Cases cited and approved: Nance v. Gregory, 6 Lea, 343; McKinney v. Hotel Company, 12 Heis., 104; 39 Mo., 445; 44 N. H., 227; 32 Conn., 550; 13 Ind., 568; 26 Ohio St., 59; 49 N. Y., 635; 44 Minn., 208. 11. Sauk. Belief against usury will not be g'ranted in equity after a judgment at law on the debt. (Post, p. 292.) Cases cited and approved: Frierson v. Moody, 3 Hum., 561; Goff v. Dabbs, 4 Bax., 300. 12. Corporation. Cannot he dissolved in winding up proceedings. A corporation cannot be dissolved in equitable proceeding's brought by its creditors and its stockholders for its winding up. That could be done only by suit brought for that purpose by the State. (Post, p. 292.) * 13. Samis. Service of process on officers hold-bng over, sufficient. Service of process in a proceeding to wind up a corporation which had ceased to transact business, upon the last elected officers of the company, who, by the terms of the charter, held over until the election of their successors, was sufficient to bring the corporation before the Court. (Post, pp. 292, 293.)
96 Tenn. 294Carpenter v. Bell (1896)
Wills. Married woman’s capaoit/y to will realty governed by lex rei sitas. The capacity of a married woman, to devise land is to he deter mined by the lex loci rei sitas, and not by the law of the state of the testatrix’s residence. Cases cited and approved: Williams w Sannders, 5 Cold., 60; 46 N. Y., 144; 70 Wis., 19.
96 Tenn. 296State v. Copeland (1896)
FROM OVERTON. Appeal from Chancery Court of Overton County. T. J. Eisher, Ch.
96 Tenn. 328Hines v. Willcox (1896)
1. Landlohd and Tbnant. Duties,and Viabilities as regards dangerous premises. The Court, upon a rehearing of these causes, reaffirms its former decision, that hoth landlord and tenant must, in the absence of contract by the former to repair or warranting- safe condition of the leased premises, alike exercise due care and diligence to ascertain condition of premises and avoid injury to tenant or others from their unsafe condition. If. in such case, the landlord knows of the- unsafe condition of the premises, and conceals or misrepresents it, or if by the exercise of due care and diligence he should have known it, he is liable for injury resulting therefrom to his tenant, the latter not being in fault. But if the tenant knew of the unsafe condition of the premises, or by the exercise of due care and diligence might have known it, and thereby avoided the injury, he cannot recover of his landlord. (Post, pp. 334-336.) Cases cited and approved: 5 N. B. Rep., -; 155 Mass., 381; 73 Md., 469; 26 Pa. St., 11; 44 Am. Rep., 499; 150 Mass., 288; 162 Mass., 272. Cited and disapproved: 26 Am. Dec., 782. 2. Same. Landlord’s UabiUiig to terumt’s guest. And a landlord who leases premises to be used as a boarding house, is liable not only to the tenant who is g-uilty of no fault, but to the g-uest of the tenant for injuries resulting from unsafe condition of the premises, which was either known to the landlord and by him concealed or misrepresented, or which, by the exercise of reasonable care and diligence, mig-ht have been known to him. (Post, pp. 836-338.) Cases cited and approved: 59 N. Y., 28; 20 Pa., Ill; 60 N. Y., 229; 155 Mass., 381; 73 Md., 469; 80 Me., 62.
96 Tenn. 339Johnson v. Williams (1896)
AdmististRA XION. Liability of next of Mn for expenses of. A next of kin cannot be held individually liable for expenditures incurred, and professional services rendered, by an administrator in contesting' for ancillary administration, and in getting possession of the property of the decedent without the State, in the absence of an express or implied contract on her part to pay the same.
96 Tenn. 343Latta v. Brown (1896)
1. Wills. Compensation of devisee disappointed by zoidoiv’s dissent. Other devisees must contribute to make up a deficit in a devise, caused by the widow’s- dissent and election to take dower instead of the provision made by the will, to the extent that the refused share of the widow is insufficient to compensate the loss of the disappointed devisee. (Post, pp. 344-355.) Code construed: $ 3247 (M. & V.); g 3401 (T. & S.). Cases cited: Vincent v. Vincent, 1 Heis., 333; Robinson v. Harrison, 2 Tenn. Ch., 11; Colvei-tu Wood, 93 Tenn., 454; Thompson v. Stacy, 10 Yer.. 493; Whiten. Nashville, 2 Swan, 364; 21 Ohio St., 56, 81; 62 Ala., 310; 9 Gratt., 242; 65 Penn. St., 314; 136 Pa., 307; 17 Serg-. & R., 26; 3 L. R. A., 500; 15 Kans., 625; 14 L. R. A., 293; 34 Iowa, 437; 11 Am. Rep., 149; 73 Iowa, ls9; 12 L. R. A., 227; 87 Pa. St., 200; 5 Dana, 352. 2. Same. Acceleration does not obtain against a disappointed devisee. The right of remaindermen to be accelerated and immediately to enter upon and enjoy the use of land devised to them subject to a widow’s life estate, which arises when she refuses to take under the will, is subject to the superior right of a disappointed devisee, whose share is diminished by the widow’s dissent, to have compensation for such loss by taking the life interest which the widow refused. (Post, pp. 356, 357.) Cases cited: Robinson v. Harrison, 2 Tenn. Ch., 11; Waddell v. Terry, 4 Cold., 51; Armstrong u Park, 9 IIurn., 195; Brownu. Hunt, 12 Ileis., 405; State v. Smith, 16 Lea, 667; 14 L. R. A., 294; 5 Dana, 352; 1 Met. (I£y.), 515.
96 Tenn. 358Head v. Moore (1896)
CiiaNCBby Sale. Purchaser's right to credit for cash -payment upon resale. A purchaser at Master’s sale who makes the required cash payment, and, after the biddings are opened, leaves the money in the Master’s hands, is not entitled to credit for the amount upon his purchase at the resale made by the Master’s successor in office, when the fund has in the meantime been lost or tied up by the Master’s death or insolvency.
96 Tenn. 361Bang v. Windmill Co. (1896)
1. Bills and Notes. XTsv/i'lous, when. A note, though purporting to be given for labor and materials, is usurious upon its face, where it provides for six per cent, interest until its maturity and for ten per cent, interest after its maturity until paid. (Post, pp. 362-365.) Cases cited and approved: Richardson v. Brown, 9 Bax., 242 (S. C., 1 Leg. Rep., 349); 6 L. R. A., 427; 14 Am. Rep., ISO. Cited and distinguished: Garritty u Cripp, 4 Bax., 86; Brown v. Gardner, 4 Lea, 157; Bank v. Mann, 94 Tenn., 17. 2. Ciianceby Pleading and Practice. Ccmcellation of usurious note, granted, when. A note illegal on its face will be adjudged wholly void and un-' collectible in an unsuccessful action by the maker to enjoin its collection on the ground that it is void for want of consideration, where a transferee thereof brings the note into Court in its illegal shape by a cross bill, and asks to have it enforced. (Post, pp. 367, 368.) Cases cited and approved: Ottenheimer v. Cook, 10 Heis., 309; Bank v. Mann, 94 Tenn., 22. 3. Same. Belief upon answer cwul proof. Doctrine reaffirmed that relief may be granted upon matters which are not averred in the bill, but made to appear in the answer and by proof. This principle is not applicable, however, to this case. (Post, pp. 365-367.) Cases cited and approved: Rosen. Mynatt, 7 Yer., 31: Bailey v. Bailey, 8 Hum., 230; Mulloyn. Young, 10 Hum., 297; Bartee n. Thompkins, 4 Sneed, 623. 4. Cancellation. Of usurious note at suit of maker. Doctrine reaffimed that cancellation of note, usurious upon its face, will not be decreed in equity at suit of maker, except upon condition that he shall pay what is justly and leg'ally due on the note aftei- deducting'the usury. (Post, pp>. 365-367.) Case cited and approved: Sporrer v. Eifler, 1 Ileis.. 636. 5. Action. Upon usurious note, no recovery for original consideration. In an action hy the assig-nee upon a note usurious upon its iace there can be no recovery upon the original consideration. (Post, p. 368.) Cases cited and approved: Bank v. Mann, 94 Tenn., 22; Ofcten-heimer u Cook, 10 Heis., 309.
96 Tenn. 369Jones v. Hunt (1896)
1. Wills. Estate vests as of date of will. The devisees take equal, several, vested, and transmissible interests, as of date of the will, under a devise made to the children of testator’s deceased brothers and sisters, who “now reside in Louisiana,” “to be equally divided between them, share and share alike, ” it being the expressed intention of the testator “to give each one of said children an equal portion.” (Post, pp. 370-377.) Code construed: l 3035 (M. & V.). $ 2195 (T. &. S.). Cases cited and approved: Nichols v. Allen, 87 Tenn., 131; Perry v. Hig’h, 3 Head, 350; Cochreham v. Kirkpatrick, 1 Iieis., 327; Sharpe v. Allen, 5 Lea, 81; Reeves v. Reeves, 5 Lea, 655; Dixon v. Cooper, 88 Tenn., 177; Darden v. Harrili, 10 Lea, 422; Hot-tell v. Browder, 13 Lea, 677; Thompson v. Gaut, 14 Lea, 313; Praker v. Praker, 6 Bax., 352. 2. Same. Devisees talcen per capita. And under such testamentary provision the devisees take per capita, not per stvrpes. (Post, pp. 371, 375, 376.) 3. Same. Rules of construction. The Court states and applies several rules for the construction of wills in this opinion. (Post, pp. 371-377.)
96 Tenn. 378Long v. Mayberry (1896)
FROM MAURY. Appea] from Chancery Court of Maury County. A. J. AberNathy, Ch.
96 Tenn. 385State v. Railroad (1896)
1. Railroad Taxation. Distn'ibutable property. State, county, municipal, and railroad "bonds, the property of a railroad company, are assessable for taxation as its “distributable,” not as its “localized,” property, under Acts 1883, Ch. 1G (3d Ex. Ses.), which defines and distinguishes the “distributable” and “localized” properties of railroads, and prescribes the methods for their respective assessments. (Post, pp. 388-392.) Acts construed: Acts 1883, Ch. 16 (3d Ex. Ses.). Code construed; U 686-688, 693, 694, 695 (M. & V.). 3. Same. Comptrolleris hack assessor of omitted distributableproperty. The State Comptroller, as the collector of taxes laid upon the distributable property of railroads, alone had the power to back assess such property for taxation, when omitted from original assessment for state, county, and municipal purposes, and to certify the back assessments thus made for the years 1893, 1893, and 1894. The back assessment of the distributable property of a railroad for said years, by a County Trustee, is unauthorized and void. (Post, pp. 392-408.) Acts construed: Acts 1883, Ch. 16 (3d Ex. Ses.); Acts 1875, Ch. 78, Sec. 8; Acts 1879, Ch. 79; Acts 1887, Ch. 1; Acts 1883, Ch. 181. Code construed: 663, 664, 687, 700, 701, 704, 705 (M. & V.). Cases cited and approved: State v. Railroad, 14 Lea, 60; Franklin County v. Railroad, 13 Lea, 539. Cited and distinguished: Railroad v. Lauderdale County, 16 Lea, 688-693; Shelby County u Railroad, 16 Lea, 401; Railroad v. State, 8 Ifeis., 663. 3. Same. Back assessments of distributable property not within Acts 1889, Ch. 96, Sec. 36. Back assessments of omitted distributable property of railroads are not within the contemplation of Acts 1889, Ch. 96, Sec. 36, empowering certain officers therein enumerated to back assess property omitted or inadequately assessed. (Post, pp. 406-408.) Act construed: Acts, 1889, Ch. 96. Case cited: Grundy County uTenn. C., I. & R. R. Co., 94 Tenn., 395.
96 Tenn. 409Hopkins v. Railroad (1896)
1. Master AND Servant. Engineer and fireman are fellow-servants. A railway engineer remains the fellow-servant of the fireman on his train, when, being deprived of their conductor, each pursues, independently of the other, the duties prescribed for him by the rules of the company in such emergency, the engineer, thoug-h having the right to do so, assuming, in fact, no control over the fireman. (Post, pp. 410-415.) Cases cited and approved: Railroad v. Martin, 87 Tenn., 398; Railroad v. Wheless, 10 Lea, 741; Railroad v. Handman, 13 Lea, 433; Railroad v. Collins, 85 Tenn., 337; Railroad v. Lahr, 86 Tenn., 335; Fox v. Sanford, 4 Sneed, 36. 3. Railroads. Rules of, not applicable, when. The rules of a railway company prescribing the duties of an engineer when a train parts while in motion, have no application to a case where part of the train pulls out, leaving another portion standing at a station. (Post, pp. 416, 417.) 3. Proximate Cause. What is not. The failure of an engineer to observe a regulation of a railway company for prevention of collision when a train parts while in motion, is not the proximate cause of an injury to a trainman, that occurs during- a separation of the train, but not as a result of the engineer’s neg-lect. (Post, p. 416.) 4. Demurrer to Evidence. Practice prevails in Tennessee. The practice of demurring to evidence, although somewhat cumbersome and antiquated, and rarely susceptible of successful application, and attended with danger to the demurrant, prevails in this State, and is not a violation of the constitutional guaranty of the right of trial by jury, or of the constitutional provision that judges shall not charge juries with respect to matters of fact. (Post, pp. 417-458.) Constitution construed: Art. I., Sec. 6; Art. VI., Sec. 9. Cases cited and approved: Bedford v. Ingram, 5 Hay., 155; Ivey v. Hodg-es, 4 Hum., 155; Whirley v. Whiteman, 1 Head, 610; Railroad u. Mahoney, 89Tenn., 332; 134 CJ. S., 614. Cases cited and distinguished: Bacon v. Parker, 2 Overton, 54; Scruggs v. Brackin, 4 Yer., 528; Hunter v. Sevier, 7 Yer., 134; Littlejohn v. Fowler, 5 Cold., 288; Kirtland v. Montgomery, 1 Swan, 452; Ayers v. Moulton, 5 Cold., 154; Rohinson u Railroad, 2 Lea, 594; Gregory v. Underhill, 6 Lea, 207; Jones v. Cherokee, etc., Company, 14 Lea, 157; Cantrell v. Railroad, 90 Tenn., 638. 5. Same. Requisites of. A demurrer to evidence should set out the evidence in writing, and admit its truth and every legitimate inference to he drawn therefrom, and insist, notwithstanding, that no cause of action is made out. (Post, pp. 417-458.) Case cited: Summers v. Railroad, post, p. 459.
96 Tenn. 459Summers v. Railroad (1896)
1. DemuRRER to Evidence. Practice premails in Tennessee. Doctrine reaffirmed that the practice of demurring to the evidence prevails in this state, and is not open to any constitutional objection. (Post, pp. 460-462.) Cases cited and approved: Hopkins m. Railroad, ante, p. 409; Bed-ford v. Ingram, 5 Hay., 155. 2. Same. Requisites of. A statement or motion to perform the office of a demurrer to the evidence must be reduced to writing, must state all the evidence introduced by the adverse party, and admit the truth of the same with all legitimate inferences and deductions to be drawn therefrom. (Post, pp. 462-466.) Case cited and approved: Hopkins v. Railroad, ante, p. 409. 3. Same. Wfien defendant should demur. It is better practice for a defendant to demur at the conclusion of-the plaintiff’s evidence, without the introduction of evidence on his own behalf. (Post, p. 466.)
96 Tenn. 467Fry v. State (1896)
Evidtoxoe. Of general reputation. Where a defendant in a criminal case has testified in his own behalf, and evidence has been introduced both attacking- and sustaining- him upon his general reputation at his place of residence in this State for six years last past, it is an erroneous exercise of discretion for the Court to exclude sustaining evidence, offered in his behalf, of a good general reputation at the place of his for-mer residence in another and distant State, covering a period ending- six or seven years before the trial. Case cited and disting-uished: Crowder v. State, 8 Lea, 669.
96 Tenn. 472Pritchitt v. Nashville Trust Co. (1896)
CORPORATIONS, Pbivate. Rights of life tenant and remuAndeoinen as regards stock dimidends. A life tenant is entitled to stock dividends declared from net earning’s made after the respective rights of the life tenant and remaindermen have attached to corporate stock bequeathed to them.
96 Tenn. 496Harris v. State (1896)
1. Mandamus. Maintainable by State Board of Examiners of 7-ail-road assessinents, when. The State officials — viz.: Governor, Treasnrei’, and Secretary of State — composing- the State Board of Examiners of assessments of the distributable property of railroads, may, as re-lators, maintain mandamus, in the name of the State, against the State Comptroller and the members of the State Board of Assessors and Equalizers, to compel the performance by them, respectively, of the duties enjoined by statute in respect to the assessment of the distributable property of railroads. (Post, p. 505.) Case cited and approved: 37 N. Y., 344. 3. Assessment op Railboads pob Taxation. Powers of Boa7-d of Examiners. The State Board of Examiners of the distributable property of railroads has authority to demand from the State Board of Assessors and Equalizers a record meeting- the statutory requirements that the Board of Assessors shall certify to the Comptroller the amount to be taxed to each railroad company, “with all the facts ” that the Assessors are required to gather, to be by him submitted to the Board of Examiners, where the former board has failed to make up and transmit such record as will enable the latter to take intelligent action upon the assessments, and in such case the imperfect records may be remanded to the Board of Assessors for such addition and amendment as will supply the defects. (Post, pp. 505-513.) Acts construed: Acts 1875, Ch. 78; 1877, Ch. 19; 1881, Ch. 104; 1883, Gh. 16 (3d Ex. Sess.) Case cited and approved: Railroad v. Bate, 13 Lea, 574. 3. Same. Ma7idatory and discretionary duties of boards. The statutory requirements that the Board of Assessors shall certify ‘1 all the facts ” upon which its assessments are based, and, for this purpose, shall by some lawful method ascertain the facts, are mandatory. So, likewise, the requirement that the Board of Examiners shall confine themselves to the “record” thus made up, is mandatory. But the Board of Assessors exercises discretionary powers as to the methods to he pursued in ascertaining the facts, and in fixing valuations. (Post, pp. 506-511.) Case cited and approved: 65 Ala., 142. 4. Same. Not complete until Board ofMxaminers has acted. Assessments of distributable property of railroads are not complete until they have been acted upon by the State Board of Examiners. (Post, p. 506.) Acts construed: Acts 1875, Ch. 78; Acts 1877, Ch. 19. Case cited and approved: 22 Fed. Bep., 481. 5. Same. Construction of statutes relating to. The statutes relating to assessment of distributable property of railroads constitute a system, and should be construed so as to make that system consistent in all its parts and uniform in its operation. (Post, pp. 509, 510.) Acts construed: Acts 1875, Ch. 78; Acts 1877, Ch. 19; Acts 1881, Ch. 104; Acts 1882, Ch. 16 (2d Ex. Sess.). Cases cited and approved: 109 Ind., 466; 133 Ind., 526. 6. Mandamus. Return. Every intendment and presumption will be made against the return to a writ of mandamus which fails to answer the material allegations of the petition. (Post, p. 513.) Code construed: \ 4310 et seq. (M. & V.); \ 3567 et seq. (T. & S.). Case cited and approved : State v. Board of Inspectors, 6 Lea, 12. 7. Same. Same. Allegations in a petition for mandamus, not denied or confessed and avoided, are taken to be true. (Post, p. 513.) 8. Same. Same. A motion by a relator for a peremptory writ of mandamus is equivalent to a demurrer to the return for not stating facts sufficient to constitute a defense. (Post, pp. 513-516.) 9. Same. Writ refused, when. The granting' of the writ of mandamus, even when the right thereto is clear, lies in the strand discretion of the court; and where the court can see, upon a review of the whole ease, that public interests and business will be thereby prejudiced and hindered, or the rights of third persons injuriously affected, without reasonable expectation of compensating benefits, the writ will be denied. (Post, pp. 516-520.)
96 Tenn. 521Shelton v. State (1895)
1. Constitutional Law. Recital by amendatoi'y Act of the law amended. An Act entitled “An Act to amend the criminal laws of the State,” which defines and fixes the punishment for the grades of larceny and receiving stolen goods without any more specific recital than its caption affords of the title or substance of the laws amended, is void for want of compliance with the constitutional requirement that amendatory Acts shall recite in their caption, or otherwise, the title or substance of the law amended. Constitution construed: Art. II., I 17. Acts construed: Acts 1895, Ch. 205. Cases cited: Hunter v. Memphis, 93 Tenn., 571; Stateu Bunnells , 93 Tenn., 333; Ransome v. State, 91 Tenn., 718. 3. Same. What constitutes amendatory Act. And such Act is expressly amendatory, and not so merely hy implication. It falls, therefore, within the constitutional requirement as to amendatory Acts. Constitution construed: Art. II., § 17. Act construed: Acts 1895, Ch. 305. 3. Same. Recital of Act amended insufficient. The recital in such Act of the law amended as “the criminal laws of the State,” is not a sufficient compliance with the constitutional requirement as to amendatory Acts. Constitution construed: Art. II., (j17. Act construed: Acts 1895, Ch. 305.
96 Tenn. 528Trezevant v. Terrell (1895)
1. VOLUNTARY Convbyancb. Presumed fraudulent as to existing creditors. A voluntary conveyance is presumed fraudulent in favor of the donor’s existing- creditors. Cases cited and approved: Nicholas v. Ward, 1 Head, 323; Smith v. Greer, 3 Hum., 118; Susong v. Williams, 1 Heis., 631; Yost v. I-Iudiburg, 3 Lea, 627. 2. Same. Who is an existing creditor. A creditor does not lose his right against a voluntary conveyance for an existing indebtedness by taking notes for it and a subsequent indebtedness bearing- date after the conveyance. 3. Same. Void as to subsequent creditors, when. A voluntary conveyance, fraudulent as to existing, is likewise fraudulent as to subsequent indebtedness. Cases cited and approved: Young v. Pate, 4 Yer., 164; Greenlee v. Hays, 1 Tenn., 300; Nicholas v. Ward, 1 Head, 325. -
96 Tenn. 532Verhine v. Ragsdale (1896)
1. Estates. For Ufe. Tenancy by the cwrtesy. W. devised a farm to his wife as a home for herself and children, and to enable her ‘ ‘ to make provisions and snstenance for herself and them during her natural life, ” provided she did not remarry, in which event other provisions were made for her. The executors were authorized, if they deemed proper and she remained a widow, to sell the lands and reinvest the proceeds in “the purchase of a place for a home for herself and family. ” The widow did not remarry. The lands were sold, and proceeds reinvested in other lands under direction of the Court, in accordance with said will. Title to the lands purchased was conveyed to the said widow “in her own right of dowry>” and to her five children by their names, by regular warranty deed. The husband of one of the daughters, who died before her mother, claimed tenancy by the curtesy in the lands purchased. 3eld: 1. The widow took a life estate in the lands purchased. 2.That the husband of the daughter did not take any estate by curtesy in said lands on account of the existence of the widow’s life estate at her death. (Post, pp. 533-543.) Cases cited and approved: Prater v. Hoover, 1 Cold., 544; Reed®. Reed, 3 Head, 490; Dpchurch u Anderson, 3 Bax., 410. 2. Evidehce. Record amd decree as evidence. And a registered certified copy of the decree directing sale of the lands and reinvestment of proceeds, setting out all the essential facts upon its face, is admissible, in support and explanation of the deed taken, without certified transcript of any other portion of therecord. (Post, pp. 541, 542.) Case cited and approved: Whitmore v. Johnson’s Heirs, 10 Hum., 608, 609. 3. Answhb. Effect of, as to questíons of law. An erroneous insistence as to the construction of a deed, made in an answer, does not estop the defendant to set up a different and correct construction thereof at the hearing or on appeal. (.Post, pp. 538, 539.) Case cited and approved: Furman v. North, 4 Bax., 296.
96 Tenn. 544Moore v. State (1896)
Intoxicatin' (3- Liquoes. Violation of four mile lain. The sale, within four miles of a sehoolhouse, and outside an incorporated town, of “hop tonic” and “homestead cider,” drinks that are capable of producing intoxication, falls within the prohibition of the four mile law against the sale of ‘1 intoxicating beverages” or-“intoxicating liquors ” within four miles of any sehoolhouse and outside an incorporated town. Acts construed: Acts 1887, Ch. 167; Acts 1877, Ch. 33.
96 Tenn. 548Harrison v. State (1896)
1. Intoxicating Liquobs. What constitutes wholesale packages or quantities. The sales of intoxicating- liquors “in wholesale packages or quantities,” that may be lawfully made by manufacturers under the exception in their favor in the four mile law, are sales to purchasers of packag-es or quantities for the purposes of trade, and to be sold again, and not sales to persons for consumption. Acts construed: Acts 1887, Ch. 167; Acts 1877, Ch. 23. Cases cited and approved: State v. Tarver, 11 Lea, 658; Lowen-haught®. State, 11 Lea, 13; Webb v. Baird, 11 Lea, 667. 2. Same. Same. Case in judgment. A distiller violates the four mile law who sells and delivers, within four miles of- a schoolhouse, and not within an incorporated town, a barrel of whisky to a combination of persons organized to obtain whisky for consumption, who met, with their jugs and demijohns, at his distillery and made up the price of the barrel, and then received it from him, and paid for it, and divided it then and there among themselves, according to their respective contributions to the purchase — the parties intending thereby to evade the four mile law.
96 Tenn. 552Railroad v. House (1896)
1. Railboads. Observance of statutory preccuuMons within station grovmds. Railroad companies must observe the statutory requirements for prevention of accidents in the running' of trains over tracks within station grounds. (Post, pp. 553-556, 558.) Code construed: \\ 1398-1300 (M. & V.); 1166-1169 (T. & S.). Cases cited and distinguished: Patton v. Railroad, 89 Tenn., 370; Railroad v. Scales, 3 Lea, 688; Railroad v. Swaney, 5 Lea, 119; Railroad v. Scott, 87 Tenn., 494; Railroad v. Poster, 88 Tenn., 680; Railroad u Pugh, 95 Tenn., 419; Cox v. Railroad, 3 Leg. Rep., 168. 3. Same. Fencing Act does not apply, when. The railroad fencing statute does not apply to depots and stations, or to grounds immediately around them; or to the crossings of public highways, or to portions of track that lie within towns or cities, and are intersected by public streets. (Post, pp. 557, 558.) Act construed: Acts 1891, Ch. 101. Cases cited and approved: Railroads v. Crider, 91 Tenn., 507; Railroad v. Russell, 93 Tenn., Ill; Railroad v. Stoneeipher, 95 Tenn., 311; Railroad v. Hughes, 94 Tenn., 450. 3. Chahq-e of Coubt. Preswned correct, when. This Court presumes that the charge of the Court was correct and sufficient, where it has been omitted from the record, and there is a recital that it was “unexceptionable within itself.” (Post, pp. 555, 556.) Cases cited and approved: Railroad v. Poster, 88 Tenn., 671; Insurance Co. v. Sturges, 13 Heis., 339; Lane v. Keith, 3 Bax., 189. 4. Veeíjict. Not set aside, when. To induce this Court to set aside the verdict of a jury upon the facts alone, the complaining- party must take as true the strongest legitimate view of the evidence against him, and show that it affords no support for the finding of the jury. (Post, pp. 556“, 557.) Kirkpatrick v. Jenkins, ante, p. 85; Citizens’ Rapid Transit Co. v. Seigrist, ante, p. 119.
96 Tenn. 559Railroad v. Brown (1896)
1. DemuRebr to Evidence. Fatally defective, when. A demurrer to evidence is iatally defective which does not incorporate the evidence demurred to, and admit, in unequivocal terms, its truthfulness and all legitimate inferences and deductions to be drawn therefrom. {Post, pp. 560, 561.) Cases cited and approved: Summers v. Railroad, ante, p. 459; Hopkins v. Railroad, ante, p. 409; Bedford v. Ingram, 5 Hay., 155; 3 If. Blackstone’s Rep., 187; 20 How., 427; 140 Ill., 61; 17 Ela., 444; 3 Ala., 528. 2. New Triad. Motion for, must he passed upon. It is error for the Circuit Judge to submit the question of the sufficiency of the evidence to support the verdict to the decision of the Supreme Court, himself expressly refraining from expressing any opinion upon the matter. {Post, pp. 562, 563.) Case cited and approved: Railroad v. Lee, 95 Tenn., 389.
96 Tenn. 564Rutherford v. Swink (1896)
1. Mtjnioipal Cobpobations. Repeal of ordinance. A municipal corporation abandons its suit by repealing the ordinance for violation of which the suit was brought. (Post, pp. 565-568.) 2. Same. Same. The suit of a municipal corporation abandoned by repeal of the ordinance for violation of which it was brought, is not resuscitated by the repeal of the repealing ordinance. (Post, pp. 568, 569.) Case cited: 15 N. Y. Com. Law Rep. 762. 3. Same. Ordinances we not statutes. Municipal ordinances are not statutes within \ 47, (M. & V.) Code, providing that the repeal of a statute shall “not affect any right accrued, any duty imposed, any penalty incurred, nor any proceeding commenced ” under the statute repealed. (Post, pp. 566-568.) Code construed: $ 47 (M. & V.); $ 49 (T. & S.).
96 Tenn. 570Hurt v. Fisher (1896)
ACTION. By distributees maintainable without administration. Where there are no debts the distributees can, without administration, maintain an action, either at law or in equity, to recover the assets of an estate for distribution. Cases cited and approved: Christian v. Clark, 10 Lea, 638; Brandon v. Mason, 1 Lea, 616; Denning v. Todd, 91 Tenn., 422. Cases cited and distinguished: Trafford v. Wilkinson, 3 Tenn. Chy., 451; Thurman v. Shelton, 10 Yer., 385; Clark v. Clark, 3 Hay., 23.
96 Tenn. 574Warren v. Grocery Co. (1896)
Jury Tkiau. Demand for, fo-revocable. When a party has, upon his own. demand, been granted a jury trial, he cannot, tinder our statutes, afterwards waive his demand so as to deprive his adversary of a jury trial without the latter's consent. Acts construed: Acts 1875, Ch. 4; Acts 1889, Ch. 330. Cases cited and approved: Coulter v. Sewing Machine Co., 3 Lea, 115; Garrison v. Hollins, 3 Lea, 684.
96 Tenn. 580Brasfield v. Brasfield (1896)
• L. Husband and Wise. Husband, entitled to rents of wife’s lands upon dissolution of marriage, when. The husband’s right, reserved by $ 3329, (M. & V.) Code, to the continued possession and rents oí the wife’s lands held as her general estate, after dissolution of the marriage at his suit, is not impaired or affected by the provisions of Acts 1879, Ch. 141, exempting the rents of the wife’s lands from seizure for the husband’s debts. (Post, pp. 581-584.) Code construed; $ 3329 (M. & V.); $ 2473 (T. & S.). Acts construed: Acts 1879, Ch. 141. Cases cited: Coleman v. Satterfield, 2 Head, 264; Taylor v. Taylor, 12 Lea, 490; Lucas v. Kickerick, 1 Lea, 72G. 2. Same. Rents are not separate estate. The provisions of Acts 1879, Ch. 141, exempting- rents of wife’s lands from seizure for husband’s debts, does not make such rents her separate estate, so as to exclude the rights of the husband. (Post, pp. 583, 584.) Act construed: Acts 1879, Ch. 141. Case cited and approved: Abies v. Abies, 86 Tenn., 333. 3. Same. Wife Viable for costs of dimorce suit. A married woman may be adjudged to pay the costs of her own unsuccessful suit, and of the husband’s successful cross suit, for divorce. (Post, pp. 584, 585.) Code construed: l 3334 (M. & V.); § 2477 (T. & S.). Case cited and approved: Payne v. Payne, ante, p. 59.
96 Tenn. 586McCadden v. Slauson (1896)
1. Judgment. Presumption as to grounds of. A judgment declaring void the judgment of another State entered on a note, will he presumed, .in a subsequent action on the note, to have been rendered on the ground that the foreign judgment contravened the law of the foreign State, in the absence of evidence to the contrary. (Post, pp. 587-589.) 2. Same. If void, not merger of cause of action. A judgment which is subsequently declared void in a litigation between the parties, is not a merger of the cause of action so as to prevent a subsequent suit thereon. (Post, pp. 589. 590.) Cases cited: 7 N. H., 257; 66 Barb., 333. 3. Same. Conclusive upon parties. A judgment from which no appeal was taken, finding void a foreign judgment, is conclusive on the parties on whatever ground it was based. (Post, pp. 588, 589.) Case cited: 27 Am. Dec., 630.
96 Tenn. 591State v. Bank of Commerce (1896)
L Decree. Construed in connection with Court’s written opinion. To ascertain the sco.pe and effect of a decree, the Court may look to the written opinion upon which it was based. (Post, p. 595.) Cases cited and approved: Folkes v. State, 14 Lea, 19; 160 U. S., 356. 3. Same. Effect of. A decree based upon a written opinion that sustains one and overrules the alternative ground of relief stated in the bill, though silent as to the latter, has the legal effect of adjudicating both grounds in accordance with the opinion. (Post, pp. 595, 5.96'.) 3. Same. Not chcvnged at subsequent term. A Court has no power tp change or modify its decree of a former term except for clerical errors. (Post, pp. 596, 597.) Cases cited and approved: Elliott v. Cochran, 1 Cold., 389; 13 Pet., 488; 94 U. S., 499; 106 U. S., 464.
96 Tenn. 599Pioneer v. Cannon (1896)
PROM SHELBY. Appeal from Second Chancery Court of Shelby County. J. S. Galloway, J., sitting by interchange.
96 Tenn. 607Charles v. Carter (1896)
1. Evidence. Of custom inadmissible, when. Evidence of a custom by which the title to goods vests in the purchaser when placed on board the cars, although the bill of lading- is payable to the consignor, and is not to be delivered to the purchaser until payment of the draft, is inadmissible to contravene the principle of law to the contrary. (Post, pp. 613-6 LG.) Cases cited and approved: Cooper v. Sanford, 4 Yer., 452; Turney v. Wilson, 7 Yer., 340; Brooks v. Paper Co., 94 Tenn., 710; Railroad v. Nelson, 1 Cold., 272; Wilson v. Knott, 3 Hum., 473; 10 Wall., 390. 2. Sale. Delivery on board cars. The title to goods does not pass to the purchaser upon their delivery on board cars, where the seller consigns them to his own order at the place of final delivery; and they are at the latter’s risk while in transit as to depreciation in value by reason of their perishable nature. (Post, pp. 616-618.) 3.Sai.es. Vendee’s right to refuse goods unless inspectionis permitted. A purchaser of potatoes delivered by railway under an order for a choice, large, fresh, dry stock, may refuse to take them where they are consigned to the order of the seller, and the latter’s agents refuse to permit the former to inspect them within a reasonable lime after their arrival,.in consequence of which no inspection is made. (Post, pp. 617, 618.) 4. Píunch'Al and A gent. Carrier and bai ili are agents of seller, -when. The carrier and the bank are agents of the seller, when he consigns the goods to his own order, and attaches to the bill of lading a draft upon the purchaser for the price. (Post, pp. 617, 618.)
96 Tenn. 619Handwerker v. Diermeyer (1896)
1. Husband and Wife. Wife's interest in a ’benefit certificate. The wife takes no vested interest, but a mere expectancy that ceases upon her dying before her husband, in a certificate taken out by the husband for her benefit in a benevolent order — ■ e. g., Knights of Honor — whose by-laws permit him to change the beneficiary at his pleasure. (Post, pp. 626-627.) Cases cited: Life Association u. Wynne, cmte, 334; Tennessee Lodge u Ladd, 5 Lea, 731; McLean v. McLean, 6 Hum., 453. 3. Same. Wife's interest in life insurance. The wife has no vested interest in an ordinary policy of life insurance upon the husband’s life in which she is named as beneficiary, which is transmissible by descent upon her dying before her husband. (Post, pp. 624-627.) Code construed: £§3135, 3378, Subsec. 3 (M. & V.); 3394, 3439 (T. & S.). Cases cited: Gosling v. Caldwell, 1 Lea, 454; Insurance Co. v. Booker, 9 Heis., 619; Tennessee Lodge u. Ladd, 5 Lea, 731. 3. Same. Insurance taken by husband as a chose in action. If a benefit certificate taken out by a husband payable to his wife, and a policy on his life payable to her, are to be considered vested property interests of the wife, they are mere choses in action which, upon her death before that of her husband, become the absolute property of the latter. (Post, pp. 627-629.) Cases cited and approved: Scobey v. Waters, 10 Lea, 551; Mutual Protection Co. v. Hamilton, 5 Sneed, 369; Rice v. McReynolds, 8 Lea, 37; Tune v. Cooper, 4 Sneed, 396; Miller, exporte, 3 Lea, 57, 58; Joiner v. Franklin, IS Lea, 432; Wade v. Cantrell, 1 Head, 346; 85 N. Y., 593.
96 Tenn. 630Johnson v. Hudson (1896)
1. Constitutional Law. Statutes providing for payment of unclaimed costs into comity tn'easu/ry, valid. Doctrine reaffirmed that statutes are constitutional and valid, which provide that Clerks or other officers shall pay unclaimed costs and funds into the county treasury, there to remain until demanded ky the parties to whom same are due. (Post, pp. 631-637.) Code construed: U 577-581 (M. & V.); H 530-534 (T. & S.). Cases cited and approved: Deadrick v. Washington County, 1 Cold., 303; Head v. Barry, 1 Lea, 753; Massey v. (Heaves, 1 Tenn. Chy., 150-153. 3. Samis. Acts 1895, Ch. 137, $$ 3, 3, imoaMd. But Acts 1895, Ch. 137, §§ 3, 3, empowering and requiring the attorneys appointed hy the State Comptroller to investigate the hooks of Clerks and other officers, and collect from them unclaimed costs and other funds and pay over same, less fifteen per cent, commissions, to the parties entitled thereto, is an unlawful invasion of the rights of the citizen, and violates g 8 of the hill of rights. The State Comptroller cannot he authorized to employ attorneys for the citizen without his request or consent, and to be paid out of his funds. (Post, pp. 637-640.) Constitution construed: Art. I., g 8. Act construed: Acts 1895, Ch. 137. Cases cited: Reynolds v. Baker, 6 Cold., 338; Knox v. State, 9 Bax., 307.
96 Tenn. 641Chism, Churchill & Co. v. Bank (1896)
Bitjgs asd Notes. Drawee bank’s liability. A drawee hank which pays a draft, relying on a forged indorsement thereon of the name of a fictitious person to whom the payee indorsed it innocently, as the result of a fraud practiced upon him, is not thereby relieved from liability to the payee. Cases cited and approved: 46 Ohio St., 513; 136 N. Y., 318; 114 Mass., 311.
96 Tenn. 653Shelby County v. Exposition Co. (1896)
1. County Courts. Jurisdiction of, statutory. Doctrine reaffirmed that County Courts possess only such powers as are constitutionally conferred by statute. (Post, p. 657.) Case cited and approved: Railway Company v. Wilson County, 89 Tenn., 597. 2. Constitutional Law. Conferring powers upon counties. Having' power under the Constitution to authorize counties to impose taxes for county purposes, the Legislature necessarily has power to authorize County Courts to appropriate the moneys raised for such purposes. (Post, pp. 658, 659.) Constitution construed: Art. II., §29. Act construed: Acts 1895, Ch. 25. 3. Sajie. Exhibition at a state centennial exposition is a county purpose. An exhibition of the resources of a county at a State centennial exposition is a county purpose within the meaning of the constitutional provision authorizing the Legislature to confer power upon the counties to impose taxes for county purposes. (Post, pp. 659-661.) Constitution construed: Art. II., §29. Act construed: Acts 1895, ch. 25. Cases cited and approved: Nichol u. Nashville, 9 Hum., 252; Mc-Callie v. Chattanooga, 3 Head, 318; Adams v. Railroad, 2 Cold., 645; Railroad v. County Court, 1 Sneed, 637; 14 L. R. A., 479; 4 Am. Rep., 406; 18 L. R. A., 556; 11 Rhila., 276; 140 Mass., 381, 467; 92 Col., 59. 4. Same. State centennial exposition outside county is a county purpose. And the fact that the State centennial exposition is to be celebrated outside the territorial limits of the county does not make the exhibition thereat of the county’s resources other than a county purpose. (Post, pp. 661-663.) Oases cited and approved: Railroad v. County Court, 1 Sneed, 667; McCallie u Chattanooga, 3 Head, 318; Adams v. Railroad, 2 Cold., 645. 5. County. Pubtlc schools are resources of. The public schools of a county may be classed among her “resources,” within the meaning of a statute, and resolutions of a county court for an exhibit of the county resources at a State exposition. (Post, pp. 659, 660, 662, 663.) Act construed: Acts 1895, Ch. 25. 6. Cbntionnial Exposition. Appropriations to, not avoided by extension of its duration. An appropriation for a county exhibition at the State Centennial Exposition in 1896 is not avoided by a subsequent extension and prolongation of the exposition, so that, while beginning- in 1896, it shall be carried into the year 1897. (Post, pp. 663 — 665.) 7. Samk. Not a necessary party to suit to enforce county appropriations. The Centennial Exposition Company is not a necessary party to a suit to enforce payment of a county subscription. (Post, pp. 665-667.)
96 Tenn. 668State v. Layne (1896)
1. FobmbR Conviction. Plea of, for distwbing public worship. A plea of former conviction to a charge of disturbing public worship, which avers that defendant had been fined a specified sum by a Justice of the Peace upon his plea of guilty of a general charge of disturbing public worship, shows that the previous prosecution was under § 5663, (M. & V.) Code, imposing a fine of from $20 to $200 for disturbing public worship and not under § 2010, (M. & Y.) Code, which authorizes the imposition of a fine for disturbing public worship, of not more than $5 by a Justice of the Peace, without any plea of guilty. (Post, pp. 669-674.) Code construed: §§2010, 5663 (M. & V.); §§1511, 4853 (T. & S.). Case cited: Hollingsworth v. State, 5 Sneed, 519. 2. Disturbing Public Worship. Justice’s judgment imposing $4 fine void. A Justice’s judgment imposing a fine of only $4 upon a defendant pleading g'uilty of disturbing public worship, under the statute inflicting a fine of not less than $20 nor over $200, is void. (Post, pp. 672, 673.) Code construed: §5663 (M. & V.); §4853 (T. & S.). 3. Puba 03? Former Conviction. Requisites of. Doctrine reaffirmed that plea of former conviction, based upon a proceeding before a Justice under the statutes relating to small offenses, must aver with strictness the facts essential to the validity of the former proceeding. (Post, pp. 671, 672.) Code construed: §5819 (M. & Y.); §4994 (T. & S.). Cases cited and approved: McGinnis v. State, 9 Hum., 43, State v. Chaffin, 2 Swan, 493; State T. Clenny, 1 Head, 270; Rose v. State, 9 Lea, 389; State v. Atkinson, 9 Hum., 677; State v. Colvin, 11 Hum., 601; State v. Spencer, 10 Hum., 431.
96 Tenn. 677Railroad v. Brewing Co. (1896)
Common CabRieb. Erroneous charge as to delivering ca/rrier's MabiUty. An instruction authorizing a recovery against the delivering carrier for injury to hops in transportation, if the injury occurred through the failure of the first or any connecting carrier to furnish suitable cars, without limiting defendant’s liability to injury received in such cars on its own line, is reversible error. Cases cited: Railroad v. Weaver, 9 Lea, 38; Railroad v. Holloway, 9 Bax., 188; Transportation Co. v. Bloch Bros., 86 Tenn., 393; Railroad v. Dies, 91 Tenn., 181.
96 Tenn. 682Peters v. State (1896)
1. Pish Laws. Exception of private ponds does not embrace a latte. The exception oí private ponds irom the prohibition of the statute making it unlawful to take fish in the waters of this State except by rod or line, does not extend to a body of water called a lake, subject to periodic overflow by the Mississippi River, and covering- an area of 1,040 acres, of which one person owned 1,000 acres and another the remaining 40 acres. (Post, pp. 683-686.) Act construed: Acts 1805, Ch. 127. Case cited: 93 Pa. St., 458. 2. Same. Exception of lakes of fifteen square miles valid. The exception of lakes having an area of fifteen square miles and over, and subject to overflow or backwater from the Mississippi River, which is made in the statute prohibiting the taking of fish in the waters of this State except by rod or line, does not vitiate the statute. The classification is not arbitrary and unnatural, but reasonable, and resting- on the idea that such lakes, on account of their larger size and being periodically replenished from the river, are not liable to suffer thereby such material waste or destruction of their stock of fish as lesser lakes or streams. {Post, pp. 686, 687.) Constitution construed: Art. XI., § 8. Act construed: Acts 1895, Ch. 127. Case cited and approved: Morris v. Stratton, 89 Tenn., 497. 3. Same. Constitutional power to enact. Either general or special laws, as the Legislature may deem proper, can be enacted respecting the preservation of fish and game under Const., Art. XI., ?¿ 13, authorizing the enactment of such laws, and adding that they may be enacted and enforced in particular counties or geographical districts designated by the General Assembly. {Post, pp. 687, 688.) Constitution construed: Art. XI., $ 13: Act construed: Acts 1895, Ch. 127. 4. Same. Ownership of flsH. The owner of part of a lake has no constitutional rig'ht to the fish therein, which is unwarrantably interfered with by prohibiting them to be taken except in a specified, reasonable manner. {Post, pp. 688, 689.) Constitution construed: U. S. Const., XIV. Amendment. Case cited: 142 Ill., 30 (S. C., 16 L. R. A., 684). 5. Same. Legislative power to pass reaffirmed. The constitutional power of the Legislature to enact laws for the protection and preservation of game and fish is reaffirmed. {Post, pp. 688, 689.) Cases cited and approved: Maney v. State, 6 Lea, 318; 153 U. S., 133; 97 Ill., 320.
96 Tenn. 690Edgar v. State (1896)
1. CRIMINAL Practice. Motion to quash. A motion to quash an indictment, that states no specific grounds, will be disregarded. (Post, p. 691.) 2. Indictment. For false personation of another. An indictment under § 5621 (M. & V.) Code, making it a felony to falsely personate another in any legal proceeding whereby the latter’s rights or interests are affected, is sufficient, which avers the fact of such false personation in a suit pending in a Court of competent jurisdiction, and all the facts connected therewith, without stating more particularly how such " son’s rights or interests might be thereby affected. (I 691, 692.) Code construed: § 5621 (M. & V.); §4820 (T. & S.). 3. Ealsb Personation. What constitutes. The false personation of one person by another in a divorce suit against the former, by accepting service of process in such suit, in which a judgment prima facie regular and legal is rendered ag’ainst defendant, “affects” the interests of the latter, even though such judgment is void or voidable for fraud upon the Court and the person so personated, within § 5621 (M. &Y.) Code, making it a felony to falsely personate another in any legal proceeding in which his interests are in any way affected. (Post, pp. 692-695.) Code construed: § 5621 (M. & V.); § 4820 (T. & S.). Cases cited: Gettys v. Gettys, 3 Lea, 260; Chaney v. Bryan, 15 Lea, 589.
96 Tenn. 696Sutton v. State (1896)
1. Legiseattjbe. Determines policy of legislation. The Legislature determines for itself, and conclusively, without any power of review by the Courts, all questions touching the policy or impolicy of enacting laws, and their, merits or demerits. (Post, p. 698.) Constitution construed: Art. II., § 2. Cases cited and approved: Ballentine v. Pulaski, 15 Lea, 633; Lynn v. Polk, 8 Lea, 229; Peck v. State, 86 Tenn., 262; Williams v. Nashville, 89 Tenn., 488; Cole Mfg. Co. v. Palls, 90 Tenn., 481. 2. Constitutional Law. No fence" law rniconsUtMUonal. The classification of counties under the “no fence law” solely with reference to the census of 1890, without making any provision as to changes of population that might occur or be shown by any subsequent census, violates Art. I., $8, of the Constitution, which forbids deprivation of rights of the citizen except by “the law of the land,” and Art. XI., §8, which pro- • Mbits class legislation. (Post, pp. 698-706.) Constitution construed: Art. I., § 8; Art. XI., $ 8. Act construed: Acts 1895, Ch. 182. Cases cited and approved: Vanzantu. Waddell, 2 Yer., 260; Wally u. Kennedy, 2 Yer., 555; Bank v. Cooper, 2 Yer., 600; Jones v. Perry, 10 Yer., 71; Sheppard u Johnson, 2 Hum., 296; Budd v. State, 3 Hum., 483; Mayor v. Dearmon, 2 Sneed, 103; Brown v. Haywood, 4 Heis., 357; State v. Burnett, 6 Heis., 186; State v. Rauscher, 1 Lea, 97; Davis v. State, 3 Lea, 379; Maney <u. State, 6 Lea, 221; Hatcher v. State, 12 Lea, 371; Woodard u. Brien, 14 Lea, 523; Memphis v. Pisher, 9 Bax., 239; Burkholtz v. State, 16 Lea, 71. 3. Same. Same. Embracing counties having a population not less than 30,000 nor more than 34,000, as well as those which have 55,000 and over, and also any county adjoining one of these which has a-population of 35,100 and over, in a statute prohibiting stock to run at large, while other counties may adopt the statute by a majority vote, in an election ordered by the Quarterly Court, makes an unnatural, arbitrary, and capricious classification, which renders the statute invalid. (Post, pp. 706-710.) Act construed: Acts 1895, Ch. 182. Cases cited and approved: Demoville v. Davidson County, 87 Tenn., 214; Railroads v. Crider, 91 Tenn., 490; State v. Alston, 94 Tenn., 674; Stratton Claimants v. Morris Claimants, 89 Tenn., 500. 4. Same. Rule as to vaMcl class legislation. Legislation intended to affect a particular class, and not the public at large, must extend to and embrace equally all persons who are or may be in the like situation and circumstances, and the classification must be natural and reasonable, not arbitrary and capricious. (Post, p. 710.)
96 Tenn. 711Insurance Co. v. Kennedy (1896)
1. Foreign Corporations. Failing to comply w ith Acts 1891, C7i. 132. Doctrine reaffirmed that contracts of foreign corporations that have failed to file charters or register abstracts thereof, as required by Acts 1891, Ch. 123, are void. (Post, pp. 713, 714.) Act construed: Acts 1891, Ch. 122. Cases cited and approved: State v. Phcenix Ins. Co., 92 Tenn., 420; Cary Lombard Lumber Co. v. Thomas, 92 Tenn., 593; Haworth v. Montgomery) 91 Tenn., 16; Stevenson v. Ewing, 87 Tenn., 46; Isler v. Brunson, 0 Hum., 277; Bates u Watson, 1 Sneed, 377; Parker v. Cowan, 1 Heis., 520. 2. Birrs and Notes. Due foreign corporation not collectible, when. A note executed by insurance agents for uncollected premiums on policies issued by a foreign insurance company which had refused to file a copy of its charter and have an abstract thereof registered, as required by Acts 1891, Ch. 122, is void, although the makers had, before the passage of such Act, entered into a contract with the company by which they became responsible for all uncollected premiums. (Post, pp. 712-714.) Act construed: Acts 1891, Ch. 122. Case cited and distinguished: State u. O’Brien, 94 Tenn., 79.
96 Tenn. 718Simons v. Page (1896)
1. Res Ad judicata. Administrator failing to plead “no assets” or “fully administered.” Failure of an administrator to make the defense of “no assets ” and “fully administered ” in answer to a scire facias to revive judgments rendered against his intestate precludes him from subsequently making such defense. (Post, pp. 724, 725.)' Code construed: §§3109-3111 (M. & V.); §§2371-2273 (T. & S.). Cases cited: Blount v. Hopson, 1 Yei\, 399; White v. Archhill, 2 Sneed, 59S. 2. JURISDICTION. Waiver of objection to, by administrator appearing and pleading to scire facias. An administrator waives the question of jurisdiction of the court by appearing and pleading “no assets” and “fully administered ” to writs of scire facias seeking execution against him personally on judgments rendered against his intestate. (Post, p. 726.) 3. Injunction. Does not lie to stay collection of judgment against adnrtinislrator, when. An administrator against whom, as such, judgments against his intestate have been revived without any effectual plea by him of “no assets ” or “fully administered,” cannot enjoin the collection of the executions issued on such judgements out of his own property, unless he was prevented from making such defenses by fraud, accident, or wrongful act of the judgment creditors without negligence on his part. (Post, pp. 727, 728.) 4. Administrator. Suggestion of devastavit sufficient to sii/pport scire facias. A suggestion of record that there is a judgment against an administrator as such, and that execution has issued on such judgment and been returned nulla bona as to assets of the estate in the hands of the administrator, is equivalent to a charge oí devastavit sufficient to support a personal judgment against the administrator, unless he shows loss of the assets without his fault. (Post, pp. 728, 729.) Oases cited and approved: Frierson v. Harris, 5 Cold., 146; Hill-man v. Hiekerson, 3 Head, 575; Griffith u Beasley, 10 Yer., 434; White v. Archhill, 2 Sneed, 595; Graham v. Ruble, 1 Cold., 171.