Volume 97 — Tennessee Reports

<p>1. Verdict. Set aside, when.</p> <p>Doctrine reaffirmed and illustrated that a verdict will not he set aside by this Court upon the facts alone, if there is any material evidence to support it. (Post, pp. 3-7.)</p> <p>Case cited and approved: Railway Co. v. Mahoney, 89 Tenn., 311.</p> <p>3. INSURANCE, Lire. Wa'rner of preliminary proofs of death.</p> <p>The insurer’s refusal to pay on any other grounds, or his denial of liability without giving reasons, waives the furnishing of proofs of death or defects in them if they have been furnished. (Post, pp. 7, 8.)</p> <p>3. Pleading. General issue.</p> <p>“ Not guilty ” is a nullity, and tenders no issue, when pleaded as the general issue in an action upon a contract. (Post, pp. 9-13.)</p> <p>Code construed: gg 4634-4638 (S.); {¡¿3623, 3624, 3625, 3627 (M. & V.); 2913-2915 (T. & S.).</p> <p>4. Same. Of conditions to contact.</p> <p>The defense that insurance tickets or policies have been issued without authority, and in violation of a condition indorsed thereon that not exceeding two tickets of $3,000 each should he issued to the same person, is not available, in a suit thereon, where neither the general issue nor a special plea setting it up is interposed. (Post, pp. 9-13.)</p> <p>Cases cited: Warren *. Kennedy, 1 Heis., 437; Bank v. Hicks, 4 Hum., 326; Insurance Co. v. Munday, 5 Cold., 548; Plowman v. Poster, 6 Cold., 52; 94 Ala., 434.</p> <p>5. DejiuereR. Profert and oyer.</p> <p>Although plaintiff has, in his declaration, made profert of the contract sued on, it cannot be looked to upon demurrer, unless oyer thereof has likewise been demanded and g’ranted. (Post, pp. 13-17.)</p> <p>Cases cited: Harlan u. Dew, 3 Head, 503; Martin v. Bank, 2 Cold., 332; 3 McL., 241; 14 Gratt., 24; 1 Bibb, 328, 571; 7 J. J. Mar.,' 219.</p>

<p>PROM GIBSON.</p> <p>Appeal in error from Chancery Court of Gibson .County. A. G. Hawkins, Ch., sitting by interchange.</p>

<p>1. Landloed and Tbnant. Landlord's duty as to secrel defeats.</p> <p>The duty of disclosing to a tenant hidden defects and secret conditions that contribute to make the property unsafe, is not imposed upon a landlord who is ignorant of them, without fault or neg'ligence on his part. (Post, pp. 37-41.)</p> <p>Cases cited and approved: Banks v. White, 1 Sneed, 614; Oil Works v. Bickford, 14 Lea, 657; 98 N. Y., 345; 56 N. Y., 398 (S. C., 15 Am. R., 438); L. R. 5 Q. B., 501; 10 C. B., 591; 135 Mass., 380; 130 O. S., 713; 147 U. S., 413.</p> <p>Cited and distinguished: Hines v. Willcox, 96 Tenn., 148, 328.</p> <p>3. Same. Lcmdlord's duty as to Jwe escapes.</p> <p>Fire escapes need not he provided by a landlord for the safety of a tenant or for anyone on the premises by the latter’s invitation or permission, unless this is required by statute or ordinance. {Post, pp. 41-45.)</p> <p>Cases cited and approved: 136 Mass., 84 (S. C., 30 Am. R., 661); 126 Mass., 90; 131 N. Y., 194 (S. C., 15 L. R. A., 194).</p> <p>3. Repeal. Of ordAncmoe by implication.</p> <p>An ordinance requiring fire escapes on buildings of specified kinds, when it is a subsection of a general ordinance covering the whole subject of erection of buildings within the city, repeals by necessary implication an earlier ordinance which made a different list of the buildings to be provided with fire escapes, and placed the control of the matter in the hands of a different officer. {Post, pp. 42-44.)</p> <p>Cases cited and approved: Poe v. State, 85 Tenn., 495; State v. Terrell, 86 Tenn., 533; State, exrel., v. Butcher, 93 Tenn., 679; 13 R. I., 473; 67 Ill., 103.</p> <p>4. Pim Escapes. Failure to comply with ordinance reqiiAiring.</p> <p>Failure of the owner of a 'building’ to comply with the ordinance as to fire escapes, even if not of itself the ground of an action by a person injured thereby, is at least a matter to be considered in connection with other facts and circumstances on the question of negligence. (Post, pp. 44, 45.)</p> <p>Cases cited: Queen v. Dayton, etc., Co., 95 Tenn., 458; 33 Minn., 323 (S. C., 53 Am. R., 47); 40 Minn., 103 (S. C., 12 Am. R., 698); 111 U. S., 228; 106 Mass., 458 (S. C.. 8 Am. R., 356); 89 Pa. St., 71 (S. C., 33 Am. R., 726); 40 Md., 312 (S. C., 17 Am. R., 603); 11 R. I., 456 (S. C., 23 Am. R., 502); 1 Disney, 532.</p>

<p>1. Taxation. Bemainder estate not Moble.</p> <p>Neither a remainder estate nor its owner is liable under our statutes for taxes that accrued against lands during the existence of the life estate. The life estate and its owner are alone subject to this burden. The tax lien attaches to the life estate alone, and the sale for taxes affects only the life estate. (Post, pp. 47, 48.)</p> <p>Cases cited and approved: Nashville v. Cowan, 10 Lea, 209; Stovall v. Austin, 16 Lea, 700.</p> <p>2. Same. Life tenant is owner.</p> <p>The life tenant is the ‘ ‘ owner ” of lands for purposes of taxation. (Post, p. 48.)</p> <p>Code construed: g 625 (M. & "V.): g 561 (T. & S.).</p> <p>3. Payment. Officious, of taxes by remainderman.</p> <p>The payment by a remainderman of taxes for which the life estate and its owner are alone liable is officious, and the amount cannot be recovered or enforced against the life estate by suit. (Post, pp. 48, 49.)</p> <p>4. Bemaindebman. Cannot maintain bill qwkt timet, when.</p> <p>The remainderman cannot maintain a bill quia timet to impound the rents of land and compel their application to the payment of delinquent taxes that have accrued during the life estate, or to sell the life tenant’s interest for that purpose. (Post, pp. 47-49.)</p>

<p>1. Murdeb. Conviction upon circmnstanUal evidence sustained.</p> <p>Conviction oí murder in first degree upon circumstantial evidence is sustained upon the facts set out in the opinion. (Post, pp. 52-5,9.)</p> <p>2. EVIDENCE. Blood stains.</p> <p>Evidence that stains, found recently after the murder, on the gloves of defendant, were produced "by blood, is competent, although the witness is unable to state whether or not it is human blood. (Post, pp. 58, 59.)</p> <p>3. Same. Admission and withdrawal of.</p> <p>The admission of evidence which appears at the time to be competent and its' withdrawal upon subsequent disclosures that render or are supposed to render it incompetent, accompanied by proper instructions to the jury to disregard it, affords no cause for reversal, even if the evidence was inadmissible (Post, pp. 59-62.)</p> <p>4. Same. Confessions.</p> <p>The admission of confessions made in defendant’s presence, implicating him in the homicide for which he is on trial, which were not denied by him, is not cause for reversal, although defendant was, at the time, under arrest, when the jury were fully instructed as to the dang-erous and unsatisfactory character of such evidence and as to the limited purposes for which they were permitted to consider it. (Post, pp. 62-66.)</p> <p>Case cited and approved: Queener v. Morrow, 1 Cold., 123.</p> <p>5. Chabge oe Coitbt. ' Correct as to implied confessions.</p> <p>Charg-e of Court as to confessions made in defendant’s presence implicating- him in the crime for which he is on trial, is correct, which admonishes- the jury of the dangerous and unsatisfactory character of such evidence, and instructs them that it must affirmatively appear that defendant heard and fully understood such confessions; that he did not deny them; that they were such as reasonably called for denial by him; that the circumstances were such as admitted of denial and free action on his part, and that such confessions were not, even then, to be accepted as proof of the facts stated, but given such weight only as the jury deemed right. {Post, pp. 62-67.)</p> <p>Cases cited and approved: 35 Ind., 317; 86 Ind., 104; 39 Am. R,., 636; 37 N. Y., 303; 13 Abb. Pr., ET. S., 209; 43 Col., 444; 108 Mass., 285, 464; 10 Ga., 511; 10 N. C., 377.</p> <p>6. Same. CmTecMon of.</p> <p>An erroneous statement of the law in the Court’s charge, which is distinctly recalled and corrected in an additional instruction given at the request of a party, affords no cause for reversal. (Post, pp. 68, 69.)</p> <p>7. Witness. Confirmatory statement.</p> <p>Evidence that certain witnesses had made statements on the afternoon of the homicide for which defendant is on trial, in the latter’s presence, to the effect that he had hidden the gun with which the deceased was killed, is admissible in confirmation of similar testimony given by them on the trial to support their credibility as witnesses, although defendant denies that such statements were made. (Post, p. 69.)</p> <p>Case cited and approved: Queener v. Morrow, 1 Cold., 123.</p> <p>8. Change oe Venue. Absence of defendant.</p> <p>An objection, first made on appeal, that the venue of a trial for murder was chang'ed, in the absence of defendant, on application of his counsel, is not available where defendant’s presence at the motion for change of venue would have exposed him to mob violence, and there is nothing to show that he did not authorize the filing of the petition. (Post, pp. 70, 71.)</p>

<p>1. Trusts. An active one.</p> <p>A deed creates an active trust when by its terms a trustee holds the property conveyed, and its rents and profits, and its proceeds if sold, for the sole use and benefit of the g-rantor’s wife, free from his control, debts, and liabilities, and from those of. any future husband. [Post, pp. 73, 77-81.)</p> <p>Cases cited and approved: Cardwell v. Cheatham, 2 Head, 17; Ellis v. Fisher, 3 Sneed, 234; Murdock v. Johnson, 7 Cold., 612; Hooberry v. Harding, 10 Lea, 397; Harding v. Insurance Co., 2 Tenn. Ch., 468; Jourolmon u Massengill, 86 Tenn., 97; Campbell v. Fields, 1 Cold., 416; Hicks u Gosling-, 1 Lea, 570: Head v. Temple, 4 Heis., 34; Henson v. Wright, 88 Tenn., 507; Porter v. Lee, 88 Tenn., 782.</p> <p>2. Same. Void conveyance of trust estate.</p> <p>A conveyance to secure the husband’s debt of property held by a trustee, for the sole benefit of the wife, free from the control, debts, and liabilities of the husband, is void, although the husband and wife and the trustee join in its execution. The wife had no title to convey. The trustee’s deed is in violation of the trust, and therefore inoperative. [Post, pp. 81-83.)</p>

<p>1.. Taxation. Charter exemption construed.</p> <p>The capital stock of a corporation is not exempt from taxation under a provision in its charter that it ‘ ‘ shall pay to the State an annual tax of one-half of one per cent, on each share of capital stock subscribed, which shall be in lieu of all other taxes.”- (Post, pp. 87-100.)</p> <p>Constitution construed: U. S. Const., Art. I., Sec. 10.</p> <p>Cases cited and approved: 161 U. S., 134-148, modifying- 95 U. S., 679; 104 U. S., 493; Memphis v. Home Insurance Co., 91 Tenn., 558; Memphis v. Memphis City Bank, 91 Tenn., 574.</p> <p>Cited and overruled: Union Bank v. State, 9 Yer., 490; Memphis v. Hernando Insurance Co., 6 Bax., 527; Bank v. Memphis, 6 Lea, 703; Memphis'». Farrington, 8 Bax., 539; Bank®. McG-owen, 6 Bax., 703; State®. Butler, 13 Lea, 400; State®. Butler, 86Tenn., 614; Memphis v. Bank and Insurance Companies, 91 Tenn., 546; State v. Bank, 95 Tenn., 231.</p> <p>2. Fedebad Question. State Courts yield to Federal.</p> <p>A decision of the United States Supreme Court against a contract exemption from taxation on capital stock of corporations, will be followed by the State Court, even if the latter thinks the exemption should be sustained, and its decision to that effect would not be reviewable. (Post, p. 99.)</p> <p>Case cited and approved: 6 Wheat., 264-384.</p> <p>3. Same. Same.</p> <p>A holding by the United States Supreme Court that the State decisions on a given subject have not been so long and firmly established as to constitute a rule of property, is conclusive on the State Courts, where a Federal question is involved. (Post, p. 99.)</p>

<p>FROM SHELBY.</p> <p>Appeal in error from Criminal Court of Shelby County. L. P. Cooper, J.</p>

<p>1. Bills and Notes. Renewal Toy non compos accommodation wi-dorser.</p> <p>The mental incompetency of an accommodation indorser at the time of signing a note in renewal of one which he indorsed when fully competent to do so, does not prevent his estate from being- liable on the renewal note, when the holder took it in good faith and thereupon extinguished and surrendered the old note, so that he cannot be restored to his original position. (Post, pp. 121-131.)</p> <p>Cases cited and approved: 32 Vt., 652; 38 N. J. L., 536; 2 Exchq. B., 489; 38 Ind., 181; 10 Pa. St., 56 (S. C., 49 Am. Dec., 573); 78 Pa. St., 407 (S. C., 21 Am. B,., 24); 97 Pa. St., 543.</p> <p>Cited and distinguished: 46 Iowa, 62.</p> <p>2. CORPORATIONS. Notice to.</p> <p>The knowledge of one member of the discount committee of a bank, being- also president of the bank, who was not present when the renewal of a note was taken, and had no part in the transaction, is not enough to charge the bank with notice of the fact, known to him, that the indorser of the note had become incompetent to do business. (Post, pp. 131, 132.)</p> <p>Cases cited and approved: Bank v. Campbell, 4 Hum., 395.</p>

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

<p>FROM DYER.</p> <p>Appeal from the Chancery Court of Dyer County. Jno. S. Cooper, Ch.</p>

<p>1. Depositions. Exception to, wntenable, when.</p> <p>Exception to depositions, as having been taken before issue joined, is untenable when made by minor defendants to original and cross bills involving the same questions of fact, where their guardian ad litem, who had made formal answer to the original bill several months before, but had not answered cross bill, represented them in the taking of the depositions and fully cross-examined the witnesses. (Post, pp. 186, 187.)</p> <p>2. Evidence. Declarations of grantor in possession part of res gestee.</p> <p>A grantor’s delaration that his deed was a “sham” and fraudulent, made after its execution, but while he remained in possession, control, and management of the premises conveyed, is competent as part of the res gestee of his possession and to explain its character in a suit involving the validity of such deed. (Post, p. 187.)</p> <p>Cases'cited and approved: Brooks v. Lowenstein, 95 Tenn., 267; 95 Am. Dec., 70.</p> <p>3. Same. Decla/rations of grantor in presence of holder of title.</p> <p>In a suit to set aside as fraudulent a series of conveyances, whereby the husband’s property was vested in his wife, it is competent, as tending to show her knowledge of the fraud, to prove that the husband stated in her presence that his deed, the first of the series, was a “sham” to defraud his creditors, and that she tacitly admitted the truth of the statement. (Post, pp. 187, 188.)</p> <p>Case cited and approved: Daugherty v. Marcum, 3 Head, 323.</p> <p>4. Same. Declan-ation of holder of title.</p> <p>In a suit to set aside as fraudulent a series of conveyances, whereby the husband’s property was vested.in his wife, it is competent to prove the statements, made while he held the title, by any of the parties throug'h whom it passed, tending to show that the transaction was a fraudulent scheme. {Post, pp. 188.)</p> <p>5. Fraudulent Conveyance. Subsequent pun-ehaser cannot recover.</p> <p>A purchaser of land, though having no actual notice of a prior registered conveyance hy his grantor, made without consideration and with intent to defraud existing creditors, is not protected as an innocent purchaser, and cannot, even as against the volunteer, obtain affirmative relief setting such conveyance aside. (Post, pp. 189-191.)</p> <p>Code construed: <¡3143 (S.); <¡2424 (M. & V.); <¡1759 (T. & S.).</p> <p>Case cited and approved: Laird v. Scott, 5 Heis., 346; 5 Pet., 256.</p> <p>6. Same. Subsequent purchaser can defend against.</p> <p>The heirs of a fraudulent grantee of land, who never took possession, cannot recover the land from one who subsequently, and without actual notice of the first deed, purchased the land for full value, Without fraud from the fraudulent grantor, the latter being in possession, exercising ownership and control at the time of the purchase, although the prior deed had been registered, and was fraudulent only as to creditors. {Post, pp. 191-198.)</p> <p>Cases cited and approved: Marr v. Gilliam, 1 Cold., 507; Parks v. McKamy, 3 Head, 297; Nichols v. Cabe, 3 Head, 91.</p> <p>7. Maxim. Glean hands.</p> <p>He who comes into a Court of Equity asking its aid, must come with clean hands. {Post, pp. 189-191.)</p>

<p>1. Evidence. Parol admissible, when.</p> <p>Parol evidence is admissible to prove that a vendor, at time of making deed for realty, entered into an independent collateral contract, pui-posely omitted from the writings, to transfer to the purchaser the policies of insurance upon the improvements. {Post, pp. 201, 202.)</p> <p>Cases cited and approved: Hines v. Willcox, 96 Tenn., 148, 328; Stenberg v. Willcox, 96 Tenn., 163, 328.</p> <p>2. Statute oe Limitations. Set-off not brnred, when.</p> <p>A set-off evolved from the consideration of the original contract, upon which the action is based, is not barred by the statute of limitations, where the statutory period had not expired when the original bill was filed, although it had expired before the set-off was pleaded. {Post, pp. 202-205.)</p> <p>Code construed: ¿ 4639 (S.); ¿3628 (M. & V.); ¿2913 (T. & S.).</p> <p>Cases cited and approved: Williams v. Lenoir, 8 Bax., 395; Railroad v. Parks, 86 Tenn., 554; Caldwell v. Powell, 6 Bax., 82; Moore v. Tate, 87 Tenn., 725; Lowery v. Hawes, 10 Heis., 688.</p> <p>Cited and distinguished: Stone v. Duncan, 1 Head, 103; Harris ■u. Snider, 9 Hum., 743.</p> <p>3. Set-oee. Recovery of excess.</p> <p>And defendant may, in such case, recover excess of the set-off over the plaintiff’s demand. {Post, p. 205.)</p>

<p>FROM SHELBY.</p> <p>Appeal from Criminal Court of Shelby County. L. P. COOPER, J.</p>

<p>1. Supeeme Court. Bill of exceptions.</p> <p>This Court cannot, on the hearing of a law case, look to the evidence, though copied into the transcript, unless it has been made part of the record by bill of exceptions. (Post, pp. 218, 219.)</p> <p>Cases cited and approved: Bank v. Lowe, Meigs, 225; MeKeel v. Bass, 5 Cold., 151; Railroad v. Roster, 88 Tenn., 671; Marble Co. u. Black, 89 Tenn., 119; State v. Hawkins, 91 Tenn., 140.</p> <p>Cited and distinguished: Stadler v. Hertz, 13 Lea, 318.</p> <p>2. Same. Presumption in absence of bill of exceptions.</p> <p>In the absence of a bill of exceptions showing the evidence submitted in the Court below, this Court presumes conclusively that it was sufficient to justify the judgment rendered. (Post, p. 219.)</p> <p>Cases cited and approved: Kincaid v. Bradshaw, 6 Bax., 102; Phillips v. Phillips, 5 Lea, 451; Scruggs u Heiskell, 95 Tenn., 455.</p>

<p>1. Intoxicating Liquobs. Wife may recover for injury resulting from forbidden sale to Imsband:.</p> <p>A sale of intoxicating- liquors to an habitual drunkard, after notice from the latter’s wife forbidding it, in violation of Acts 1889, Ch. 68, making such sale a misdemeanor, is per se such negligence as renders the seller liable to the wife for the death of the husband, or other injury resulting to her from such sale. (Post, pp. 222-224.)</p> <p>Act construed: Acts 1889, Ch. 68.</p> <p>Case cited and approved: Queen v. Dayton, etc., Co., 95 Tenn., 458.</p> <p>2. Same. Same. Pleading notice.</p> <p>In the wife’s suit against a saloon keeper to recover damages for sale of liquors to her drunken husband, in violation of Acts 1889, Ch. 68, it is sufficient to aver in general terms that the defendant was duly and lawfully served with notice not to sell to the husband, without setting out the notice and the Sheriff’s return thereon. (Post, p. 224.)</p> <p>Act construed: Acts 1889, Ch. 68.</p>

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

<p>FROM HAMILTON.</p> <p>Appeal from the Circuit Court of Hamilton County. JOHN A. Moon, J.</p>

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

<p>FROM HAMILTON.</p> <p>Appeal from Circuit Court of Hamilton County. JOHN A. MOON, J.</p>

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

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

<p>FROM HAMILTON.</p> <p>• Appeal from Circuit Court of Hamilton County. JOHN A. MOON, J.</p>

<p>FROM HAMILTON.</p> <p>Appeal from Circuit Court of Hamilton County. HoN. JohN A. MooN, J.</p>

<p>1. Statute of Limitations. Foreclosure of mortgage securing barred notes.</p> <p>A foreclosure sale under a mortgage or deed of trust is not barred by the running of the statute of limitations against the ndtes secured so as to bar the recovery of a personal judgment thereon. (Post, pp. 260, 261.)</p> <p>Cases cited and approved: Fisher v. Fisher, 9 Bax., 71; Lincoln v. Purcell, 3 Head, 143; G-udger v. Barnes, 4 Heis., 570; White v. Blakemore, 8 Lea, 63; Smith v. Goodlett, 93 Tenn., 330; Harris v. Vaughn, 3 Tenn. Chy., 483.</p> <p>3. Homestead. Right of, extinguished.</p> <p>The owner of land subject to homestead, extinguishes the homestead right therein by purchasing notes given for the purchase price of the land and having priority over the homestead right, and by thereafter purchasing the land at foreclosure sale made under deed of trust given to secure said notes. There is no such merger of the legal and equitable estates, in such case, as extinguishes the debt and lien for purchase money and revives homestead. (Post, pp, 261, 262.)</p> <p>Cases cited: 73 Am. Dee., 639; 111 ü. S., 744.</p> <p>3. Mortgages and Deeds oe Trust. Foreclosure of deed of trust.</p> <p>The sale under a deed of trust should be made by the trustee therein named, without asking the aid or incurring the cost of a Court proceeding for that purpose, in the absence of complications requiring the direction of a Court. ' (Post, p. 263.)</p> <p>Case cited and approved: Clark v. Jones, 93 Tenn., 643.</p>

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

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

<p>1. Appeal. Ides from entry of decree mmc pro tunc.</p> <p>Appeal lies by a party adversely affected from an entry mmc pro tunc of a decree for divorce. (Post, pp. 280, 281.)</p> <p>2. Decree. Nwnc pro tunc for divorce.</p> <p>A decree for divorce will, upon satisfactory evidence, be entered nunc pro time, after the death of a party, upon the intervening application of a third persoii whose rights, acquired upon faith of the divorce, are jeopardized by the failure to spread the decree upon the record. (Post, pp. 281, 282.)</p> <p>Cases cited: 7 Cush., 282; 89 Cal., 478: 83 Cal., 415.</p> <p>3. Pleading- and Practice. Filing of papers.</p> <p>A pleading or other paper is deemed, in legal contemplation, as filed when handed to the clerk or his deputy for that purpose, although he may fail to make the proper indorsement of the fact thereon. (Post, pp. 282, 283.)</p> <p>Case cited and approved: Montgomery v. Buck, 6 Hum., 416.</p> <p>4. Chancery Pleading and Practice. Effect of pro confesso.</p> <p>Where the defendant to an intervening petition, seeking to have a decree for divorce entered nunc pro tunc, submits to decree pro confesso, the averments of the petition not in conflict with the original record, stand as admitted. (Post, pp. 283, 284.)</p> <p>Case cited and approved: Shea v. Mabry, 1 Lea, 319.</p>

<p>Deed. Acknoivledged before Notary who is a stockholder and director in the grantee corporation.</p> <p>The fact that an acknowledgment of a deed of trust'to a corporation was taken by a stockholder and director who was a Notary Public, does not make the instrument invalid, in the absence of any improper conduct, bad faith, or undue advantage arising out of his relation to the corporation. But the practice is condemned and discouraged.</p> <p>Cases cited and approved: Holmes v. Eason, 8 Lea, 754; Posey v. Eaton, 9 Lea, 500; Grundy County u T. C. I. & R. Co., 94 Tenn., 326; Beaumont u Yeatman, 8 Hum., 543; Tipton v. Jones, 10 Heis., 564; 61 Ill., 310; 13 Mich., 344.</p> <p>Cited and distinguished: Rhea v. Isely, 1 Leg. Rep., 292; Shields v. Netherland, 5 Lea, 197.</p>

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

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

<p>Justice oe the Peace. Abandonment of office.</p> <p>A justice of tlie peace does not abandon or vacate his office in the district in which he was elected by opening an office in another district, in which he spends much more of his time and transacts much more official business, keeping distinct sets of dockets,, books, and papers for each district, where he continues to reside in the former district, and designates one day in every month on which he will be present at his office therein the entire day, and is present portions of other days at any time when he is needed to attend to official business therein.</p> <p>Constitution construed: Art. VI., ?¿ 15.</p> <p>Code construed: 5939 (S.); § 4903 (M. & V.); <S 4137 (T. & S.).</p> <p>Case cited and approved: Strain v. Hefley, 94 Tenn., 669.</p>

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

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

<p>1. Pkinoipal and Agent. Delegation of agent’s authority.</p> <p>An order by one broker to another to purchase cotton for a specified company, does not make the latter the owner of cotton purchased in his own name, by a third broker employed without authority by the second broker to fill the order. (Post, pp. 327-331.)</p> <p>Case cited and approved: Lancaster Mills v. Merchants, etc., Co., 89 Tenn., 61.</p> <p>S. Supreme Court. Not bound by conclusions of law drawn by Court of Chancery Appeals.</p> <p>A conclusion drawn by the Court of Chancery Appeals from certain facts found by it, that the ownership of cotton in suit was in a specified eonupany, is a conclusion of law which is not binding upon this Court. (Post, pp. 329-332.)</p>

<p>1. Mechanics’ Lien. Policy of the law in reference to.</p> <p>It is the policy of our law to protect and enforce the lien of mechanics and furnishers, and not to allow them to he defeated by any technical niceties of construction. (Post, p. 341.)</p> <p>Cases cited and approved; Burr v. Graves, 4 Lea, 552; Cole Mfg. Co. u Falls, 90 Tenn., 466.</p> <p>2. Same. The purchaser, not his vendee, is owner under executory contract.</p> <p>The purchaser is not the agent or contractor of his vendor, but the owner of the property within the meaning of Acts 1889, Ch. 103, relating to mechanics’ liens, where he takes possession of a lot and treats it as his own under an executory contract, which leaves the leg-al title in the vendor to secure unpaid purchase money, but contemplates that the purchaser shall erect a building thereon, and, after clearing the property of all liens of mechanics and material men, shall receive an advance from the vendor upon a mortgage thereof; and, in such case, mechanics and material men employed by the.purchaser in erection of the building, cannot obtain personal judgment against the vendor for their demands, and they are not ' required to give notice either to the vendor or to purchaser to perfect their liens. (Post, pp. 338-345.)</p> <p>Act construed: Acts 1889, Ch. 103.</p> <p>Cases cited and approved: Alley v. Lanier, 1 Cold., 540; 123 Ill., 98; 5 Am. St. Rep., 490; 126 Ill., 72 (S. C., 9 Am. St. Rep., 532); 40 Minn., 441; 12 L. R. A., 33.</p> <p>3. Same. Has priority over vendor’s mortgage.</p> <p>The vendor in an executory contract under which the purchaser takes possession of the lot and treats it as his own, and which contemplates the erection of a building- by him and the passing of the title and execution of a mortgage to secure the purchase price and advances on the building-, thirty days after completion of the building and proofs that there are no mechanic’s liens, is not the owner within the meaning- of Acts 1889, Ch. 103, requiring of subcontractors thirty days’ notice to the owner of a mechanic's lien, and notice to the vendor is not essential to give such a lien priority over his mortgage subsequently executed in compliance with the contract. {Post, pp. 338-345.)</p> <p>Act construed: Acts 1889, Ch. 103.</p> <p>Cases cited and approved: 45 N. Y., 766; 56 N. Y., 610; 45 Am. Dec., 678; 61 Am. Dec., 681; 36 Minn., 9.</p> <p>4. Same. Adjustment of equities of third persons.</p> <p>Where brick were furnished for a building situated on two adjoining lots, the titles to which were derived from distinct sources, and which were subject to the distinct claims, liens, and equities of third persons, the furnishers’ lien against one of the lots was limited, in a contest among such third persons, to the value of brick used on that particular lot. {Post, pp. 345, 346.)</p> <p>5. Same. Attachment must he issued and leaned loithin a yea/r.</p> <p>A mechanic’s or furnisher’s lien is abandoned if the lien claimants fail to have attachment issued and levied within one year after the accrual of their right. Mere commencement of suit in time, followed by issuance and levy of attachment after expiration of one year, will not save the lien. {Post, pp. 346, 347.)</p> <p>Cases cited and approved: Barnes v. Thompson, 2 Swan, 316; Brown v. Brown, 2 Sneed, 437; Burr v. Graves, 4 Lea, 552; Shelby v. Hicks, 5 Sneed, 200; Dollmanu Collier, 92 Tenn., 660.</p> <p>6. Appeal. By mortgagee, effect of.</p> <p>A mortgagee who is a party defendant to an action for the enforcement of a mechanic’s lien, and whose mortg-age is by the decree below subordinated to the mechanic’s lien, may contest, on his appeal, the existence and regularity of the lien, al-thoug-h the owner and mortg-agor, by failing to appeal, has waived any right to complain, so far as he is concerned. {Post, p. 347.)</p> <p>7. Mechanics’ Lien. Intervening petition insufficient.</p> <p>The mere filing by a mechanic’s lien claimant of au intervening petition, under a bill by another lienor within the time under the statutes that attachment must be issued and levied to preserve the lien, without making anyone a party, does not save the lien; nor does the fact that it was agreed that the papers in the intervention, which had been lost, might be supplied; nor the fact that after the expiration of the time limited by the statute, a bond was allowed to be filed nunc pro tunc. (Post, pp. 347, 348.)</p> <p>8. Samis. Not lost, if attachment is issued and levied in time, by failure to attach under supplemental bill.</p> <p>It is not essential to the preservation of a mechanic’s lien under the statute requiring' an attachment to be issued and levied within one year from the accrual of the right to a lien, that the trustee and beneficiary in a deed of trust from the owner, g-iven after the accrual of the lien, shall be proceeded ag-ainst within such time; but it is sufficient if a bill against the owner is filed and attachment issued -and levied within the year, and the other parties may be thereafter brought in by an amended and supplemental bill, without the issuance of another attachment. (Post. pp. 348-350.)</p> <p>9. Supbeme Court. Sustains findings of Chancellor and Court of Chancery Appeals, when.</p> <p>An assignment of error in a suit to enforce mechanics’ liens, that the claims found by the Master were not sufficiently proved, will be held insufficient where there is some proof to sustain them, and the Chancellor and Court of Chancery Appeals have concurred in the Master’s findings. (Post, p. 350.)</p>

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

<p>1. Costs. For several suits for taxes, how adjudged.</p> <p>The costs of only the first bill will be allowed for bringing- three, bills for taxes on the same real estate for three separate years, where all the taxes were due at the time of filing the first bill, under Acts 1891, Ch. 26, Sec. 17 (Ex. Ses.), providing that the bill shall include all taxes due and unpaid at the time of filing thereof not included in bills previously filed. (Post, pp. 359-361.)</p> <p>Act construed: Acts 1891, Ch. 26 (Ex. Ses.).</p> <p>2. Same. Same.</p> <p>The costs of the last two of three separate bills for collection of taxes of different years, due on the same real estate, all of which were due when the first bill was filed, will be adjudged against complainants, under Acts 1891, Ch. 26, Sec. 17 (Ex. Ses.), requiring a bill for taxes to include all those due and unpaid at the date of its filing. (Post, pp. 359-361.)</p> <p>Act construed: Acts 1891, Ch. 26, Sec. 17 (Ex, Ses.).</p> <p>3. Attoeneys’ Fees. What are alio toed baeh tax attorneys.</p> <p>A tax fee of only nine dollars will be allowed for filing- a bill for the collection of taxes ag-ainst land divided for purposes of sale into nine blocks, which are subdivided into ninety lots, assessed to the same owner for three several years according to blocks, without any separate valuation upon the lots, under Acts 1891, Ch. 26, Sec. 17 (Ex. Ses.), providing that when taxes are collected after filing the bill, a tax fee of one dollar for each “ piece or parcel of land ” shall be paid to the attorney. (Post, pp. 361-363.)</p> <p>Act construed: Acts 1891, Ch. 26, Sec. 17 (Ex. Ses.).</p>

<p>Costs. Betaxation of.</p> <p>This Court will not retax costs of attendance and mileage of witnesses allowed without contest in the Court below, upon petition, supported by affidavits, averring- that the fees were illegally taxed and allowed. Relief must be first asked and refused in the Court below.</p> <p>Cases cited and approved: State u G-oodbar, 8 Lea, 451; Sherman v. Brown, 4 Yer., 561.</p>

<p>1. BlbvatoRS. Obligation to passengers.</p> <p>The obligation to passeng-ers on elevators and those attempting to become passengers, is the same as that of common carriers to passengers, and those in charge of elevators are bound to exercise the highest decree of care and precaution. (Post, pp. 370, 371.)</p> <p>Cases cited and approved: 62 Eed. Rep., 139 (S. C., 25 L. R. A., 33); 4 L. R. A., 673; 5 L. R. A., 498; 30 S. W. Rep., 1010; 34 Am. Rep., 329.</p> <p>2. Same. Contributory negligence.</p> <p>Whether or not it was contributory negligence for one to enter an elevator shaft through the door, which had negligently been left open, and to pull the rope by which the elevator was operated, that will defeat recovery for injuries resulting from being caught by the elevator, is a question for the j ury upon conflicting evidence tending to show that a prudent person, under the circumstances, might not have observed that he was entering the shaft. There is evidence to support the verdict in favor of the plaintiff in this case. (Post, pp. 371, 372.)</p>

<p>FROM KNOX.</p> <p>Appeal from Circuit Court of Knox County. J. W. Sneed, J.</p>

<p>1. Dedication. Of alley.</p> <p>The laying out of an alley upon a plat or plan and also upon the ground operates as a dedication of it, not only in favor of those who buy from the donor, relying upon the existence of the alley, but also in favor of all who buy in the general plan of the locality. (Post, p. 381.)</p> <p>Cases cited and approved: Sims v. Chattanooga, 2 Lea, 694; 137 N. Y., 317; 138 N. Y., 184.</p> <p>2. Same. By user.</p> <p>A public way may be established by evidence of adverse user fox* a long period of time, without any express dedication, if it is shown that the user is under a claim of right, and not merely permissive, but mere permissive use is not sufficient to establish a dedication. {Post, p. 381.)</p> <p>Cases cited and approved: Worth u Dawson, 1 Sneed, 59; Sharp v. Mynatt, 1 Lea, 375; 67 Ill., 368.</p>

<p>BURDEN of Proof. Complai/iia/nt must affvrmaWoely show prescription.</p> <p>The burden is upon a complainant who seeks to establish a right of way by prescription, to show affirmatively that during the entire prescriptive period the owners of the servient estate were competent to convey a title, at least when the owner, at the time the adverse user commenced, was under disability of coverture.</p> <p>Case cited and approved: Ferrell v. Ferrell, 1 Bax., 339.</p>

<p>1. Landlobd and Tenant. Maker of -trust deed contracting to become tenant removable by unlawful detainer.</p> <p>The maker of a deed of trust in possession may contract in such deed with the trustee and beneficiary, that foreclosure of the deed of trust shall create the relation of landlord and tenant between the purchaser and maker, and that, upon the latter’s default in surrendering possession, he may be removed by a writ of unlawful detainer. (Post, pp. 388-301.)</p> <p>Code construed: $ 5093 (S.); $ 4075 (M. & V.); (i 3344 (T. & S.).</p> <p>Cases cited and distinguished: Ballowu. Motheral, 5 Bax., 603; Kuhn v. Ifeiser, 3 Head. 83.</p> <p>3. Same. Constructive entry by landlord attaches, when.</p> <p>A constructive entry, that enables him to maintain unlawful de-tainer, attaches as soon as title is acquired by a purchaser at a foreclosure sale made under a deed of trust containing an ag-reement by the maker that he will become tenant of the purchaser at such sale. (Post, p. 391.)</p> <p>3. Same. Reservation of formal right of re-entry unnecessary, when.</p> <p>No express reservation of a formal rig-ht of re-entry by the purchaser under a deed Of trust is -necessary to enable him to maintain unlawful detainer, where such deed contains a stipulation that a foreclosure thereof shall create the relation of landlord and tenant between the maker and purchaser, and that, if the former refuses to surrender possession, he shall be removable by the writ of unlawful detainer. (Post, p. 391.)</p>

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

<p>Gabnishmeiít. Property and dues subject to.</p> <p>Garnishment, under the provisions of our statutes, reaches and fastens on any debt, whether due or not, owing- by the garnishee, or any property of the debtor in his hands, either at the date of service of the notice of garnishment, or at the date of the answer, or in the meantime.</p> <p>Code construed: §§4816-4818, 4820, 4826, 5245 (S.); §§ 3801-3803, 3805, 3811, 4226 (M. & V.); §§3088-3090, 3092, 3098, 3485 (T. & S.).</p> <p>Cases cited: Matheny v. Hughes, 10 Heis., 405; English v. King, lO.Heis., 666; YanVleet v. Stratton, 91 Tenn., 477.</p>

<p>EROM IÍNOX.</p> <p>Appeal in error from Circuit Court of Knox County. J. W. Sneed, J.</p>

<p>Wbit of Error. Does not Me, when.</p> <p>A writ of error lies from final judgments and decrees only, and cannot, therefore, he successfully prosecuted from an interlocutory order refusing to dissolve an injunction.</p> <p>Code construed: §4911 (S.); § 3895 (M. & V.); (Í 3176 (T. & S.).</p> <p>Cases cited and approved: Gibson -u. Widener, 85 Tenn., 16; Younger v. Younger, 90 Tenn., 25; Gurley v. Railroad, 91 Tenn., 486.</p>

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

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

<p>FROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. H. B. Lindsay, Cb.</p>

<p>FROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. J. W. Sneed, J., sitting- by exchange.</p>

<p>FROM KNOX.</p> <p>Appeal in error from Circuit Court of Knox County. J. W. Sneed, J.</p>

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

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

<p>FROM SULLIVAN.</p> <p>Appeal from Chancery Court of Sullivan County. John P. Smith, Ch.</p>

<p>FROM SULLIVAN.</p> <p>Appeal from Chancery Court of Sullivan County. Hugh G. Kyle, Ch.</p>

<p>1. Statute oe Reatos. Not reqtiired, to he pleaded, when.</p> <p>The statute of frauds need not he specially pleaded to defeat specific performance of a parol contract for the sale of land, when the vendor brought suit, tendering performance on his part, and seeking to enforce the contract by sale of the land for balance of purchase price, or, in the alternative, to recover possession of the property, if the vendee declined to confirm the sale; and the vendee answered denying that the terms of the contract were correctly stated in the bill, and filed cross bill insisting upon invalidity of contract, and asking that the purchase money paid, with interest and value of improvements, be refunded to him; and the vendor answered the cross bill, reiterating his tender of performance, and tendering the vendee the option to complete the sale or set it aside as he might prefer. (Post, pp. 486, 487.)</p> <p>Case cited and approved: Citty v. Manufacturing Co., 93 Tenn., 380.</p> <p>3. Rescission. Of parol side of land stating the account.</p> <p>The rules for stating the account upon rescission of a parol sale of land, are correctly stated in Mason v. Swan, 6 Heis., 450, and Treeee v. Treece, 5 Lea, 334.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox County. H. B. Lindsay, Ch.</p>

<p>FROM SULLIVAN.</p> <p>Appeal from Circuit Court of Sullivan County. H. T. Campbell, J.</p>

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

<p>FROM HAWKINS.</p> <p>Appeal in error from Circuit Court of Hawkins County. H. T. Campbell, J.</p>

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

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

<p>1. Banks and Banking. Reclaiming deposit from receiver of insolvent banlt.</p> <p>Brand in receiving’ a deposit of cash, or of a check treated as cash, after bank officials know that it is hopelessly insolvent, will not give the depositor a preferential claim against assets in the hands of the receiver of the bank, if the bank, before its failure, had commingled the cash with its general funds and had received credit for the check from a correspondent to whom it had been forwarded, although there was due from the correspondent more than the amount of the check which went into the hands of the receiver. (Post, pp. 535-538.)</p> <p>Cases cited and approved: Aiken v. Jones, 93 Tenn., 353; Sayles v. Cox, 95 Tenn., 579; Belding Bros. v. Brankland, 8 Lea, 67.</p> <p>a. Same. Presmnption as to date of crediting draft.</p> <p>And a credit for a draft, given by one bank to another on the same day that the latter failed, will not be presumed, in the absence of proof, to have been given after the failure, in order to entitle one who deposited the draft in the insolvent bank after its officers knew it was insolvent, to reclaim the proceeds of the draft out of the assets in pn-eference to other creditors who seek to have them distributed prorata. (Post, pp. 538, 539.)</p>

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

<p>Bakes and Banking. Title of cheek delivered to tank does 'not pass, when.</p> <p>The title to a check does not pass to a bank to which it is delivered by the holder, without, any special agreement, express or implied, in regard thereto, when it is not entered up to the latter's credit, and the bank, at the time of receiving it, was hopelessly insolvent, to the knowledge of its officers; and a receiver of such bank subsequently appointed, who forwards such check to the drawee, and collects the amount, will be compelled to refund same to the depositor.</p> <p>Cases cited and approved: Aiken v. Jones, 93 Tenn., 353; Sayles v. Cox, 95 Tenn., 583.</p>

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

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

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

<p>1. Sale. ImpUed warranty by manufacturer against latent defects.</p> <p>In the sale by a manufacturer of machinery for a special purpose, there is an implied warranty that covers latent defects that would render it unfit for that purpose, although they could not have been discovered by proper tests. (Post, pp. SIS, 576.)</p> <p>Cases cited and approved: Overton u. Phelan, 2 Head, 445; 110 CJ. S., 108; 78 Am. Dec., 163; 34 Am. Rep., 102.</p> <p>2. Same. Same. Case in judgment.</p> <p>The manufacturer of a easting in which blow holes are unavoidable, impliedly warrants that they will not be unusual or avoidable by the exercise of necessary care and skill in its manufacture to make it reasonably fit and proper for use, and he is not relieved, as a matter of law, from liability even though such blow holes might not be discoverable, after the manufacture, by any inspection short of destroying the cast. (Post, pp. 576-578.)</p>

<p>Common Carries. Liability for injury to passenger on freight train.</p> <p>A passenger taking a freight train assumes the increased risks and diminution of comfort incident to that mode of travel, and he cannot recover for an injury resulting, without the carrier’s negligence, from the usual and necessary incidents of operating such trains, such as jars and jerks in coupling cars, which he negligently fails to observe and guard against.</p> <p>Cases cited aud approved: 17 Wall., 357; 95 U. S., S91; 27 Am. & Eng. R. R. Cas., 216; 34 Id., 557; 16 Ill., 568.</p>

<p>Judgment Lien. Must be enforced within MveVoe months.</p> <p>Unless a judgment lien is enforced h.y sale of the lands within twelve months after rendition of the judgment, it will not prevail against subsequent incumbrances, even where sale was delayed by agreement, and execution was levied and bill filed within the twelve months to enforce the lien.</p> <p>Code construed: § 4708 (S.); <5 3694 (M. & V.); $ 2980 (T. & S.).</p> <p>Cases cited: Porter v. Cocke, Peck, 30; Harrison v. Wade, 3 Cold., 505.</p>

<p>1. CouRt of Chancery Appeals. Decision and finding of a majority legal and valid.</p> <p>The decision and finding made, over objection properly interposed, by two of the three judg'es constituting the Court of Chancery Appeals, without the presence or participation of the other member at any stage of the proceedings, are legal and valid, although the statute creating said Court does not, in terms, make a majority of its members a quorum, and provides for filling the place of an absent member by appointment. (Post, pp. 592-602.)</p> <p>Constitution construed: Art. VI., $ 2.</p> <p>Act construed: Acts 1895, Ch. 76.</p> <p>Code construed: U 69, 375 (S.); U 56, 342 (M. & V.); gjj 59, 397a (T. & S.). '</p> <p>Cases cited and distinguished: Radford Trust Co. v. Lumber Co., 92 Tenn., 136; Austin v. Harbin, 95 Tenn., 600; 79 U. S., 396; 21 Wend., 211; 7 Cowan, 529; 1 B. & P., 229; 2 Atkins, 212; 1 Doug., 119; 52 Ver., 87 (S. C., 36 Am. Rep., 734).</p> <p>2. Same. Objection to competency properly made by petition to rehear.</p> <p>The objection that a majority of the Court of Chancery Appeals could not, in the absence of one of its members, hear and determine a cause, is not waived, though presented for the first time by petition to rehear, where the cause was argued before a full bench, and afterwards considered and decided in the absence of a member. (Post, pp. 592-595.)</p> <p>3. Statutes. Construed in the light of Code provisions.</p> <p>Althoug'h the Code provision that “all words giving a joint authority to three or more persons or officers, g'ive such authority to a majority of such persons or officers, unless it is otherwise declared,” is, by its terms and context, applicable only to the Code and the body of law embraced therein; yet, it may be looked to, as indicative of the spirit and policy of our legislation in the construction of subsequent statutes, so as to build up an uniform and harmonious system. (Post, pp. 595, 596.)</p> <p>Code construed: $ 69 (S.); § 56 (M. & V.); $ 59 (T. & S.).</p>

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

<p>jMastkk and Servart. Master not liable for servant’s injury, when.</p> <p>A servant injured by falling from a defective elevated walkway used in the course of his employment cannot recover against the master for his injuries, where the defects of the walkway, caused by the wear of long' use, were plain and obvious, requiring no special or expert skill to detect them, and were equally within the observation and knowledge of both parties, although the servant had notified the master of the existence of the defects and obtained from him an indefinite promise to repair them, which, however, did not afford the inducement for his remaining in the service.</p> <p>Cases cited and approved: Railroad v. Smith, 9 Lea, 685; Telephone Co. v. Loomis, 87 Tenn., 504.</p>

<p>FROM m’mINN.</p> <p>Appeal in error from Circuit Court, of McMinn County. W. T. Lake, Sp. J.</p>

<p>EROM SEVIER.</p> <p>Appeal from Circuit Court of Sevier County. W. R. Hicks, J.</p>

<p>FROM RHEA.</p> <p>Appeal from Circuit Court of Rhea County. Jas. G. Pares, J.</p>

<p>1. CONSTITUTIONAL Law. Title covers body of Act, when.</p> <p>There is no variance between the caption and body of a statute where, under the title, ! ‘An Act to extend the statute of limitations to liens on realty and to quiet titles, ” it is enacted, inter alia, that liens retained in deeds or created by mortgages, deeds of trust, and assignments of realty to secure debts shall be barred in ten years from maturity of the debts secured. (Post, p. 652.)</p> <p>Constitution construed: Art. II., $17.</p> <p>Act construed: Acts 1885, Ch. 9.</p> <p>Case cited and approved: Hyman v. State, 87 Tenn., 109.</p> <p>2. Statute oe Limitations. Renewal of notes does not extend lien.</p> <p>tinder Acts 1885, Ch. 9, a lien on realty is barred at the expiration of ten years from the maturity of the original debt secured, although the debt may have been kept alive and the time of its payment postponed by renewals of the notes within ten years next before the institution of the suit. (Post, pp. 652, 653.)</p> <p>Act construed: Acts 1885, Ch. 9.</p> <p>3. Vendoe’s Lien. Barred, when.</p> <p>A vendor’s express lien for purchase money is lost when he knowingly permits a subvendee to hold and claim the land as his own under an absolute deed, for a period of seventeen years, and to make valuable improvements upon it without any successful effort to enforce his rights. (Post, pp. 653-655.)</p> <p>4. Court of Chancery Appeals. Act creating is constitutional.</p> <p>The Act creating the Court of Chancery Appeals is constitutional. The provision that the written finding of facts by that Court shall be conclusive upon this Court is'not an unconstitutional limitation upon the jurisdiction of this Court, nor an unconstitutional invasion of the judicial department by the Legislature. (Post, %>%>■ 653-661.)</p> <p>Constitution construed: Art. VI., 1, 2; Art. II., §1.</p> <p>Case cited and approved: Hundhauser v. Insurance Co., 5 Heis., 704.</p>

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

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

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

<p>PROM POLK.</p> <p>Appeal in error from Circuit Court of Polk County. J'. G. Parks, J.</p>

<p>FROM KNOX.</p> <p>Appeal in error from Circuit Court of Knox County. Joseph W. Sneed, J.</p>

<p>1. Supreme Court. Remanding cause.</p> <p>Two suits were heard together, in one of which the vendor sought to recover balance on purchase money note, and in the other the vendee sought to have the note canceled and to re-, cover for overpayments thereon. The chief contest was over a $1,000 credit, and upon the question of partial failure of title. Both questions were decided by the Chancellor and by the Court of Chancery Appeals against the vendee. The $1,000 was disallowed upon the facts and inferences drawn therefrom. The credit for failure of title was disallowed for want of pleadings. The vendor’s testimony as to the $1,000 was confused and contradictory. The vendee had not pleaded failure of title on account of a misundei-standing.</p> <p>Held: The decree should be reversed and the cause remanded for amendment of pleadings and further proof, this Court saying: “The questions of fact and law are so mixed and complicated, and the condition of the record so peculiar, that, were it an appeal from the Chancer-y Court direct, for an adjudication of the questions by us, without the intervention of the Court of Chancery Appeals, it would be hardly possible, with any certainty, to do justice between the parties.” (Post, pp. 728-737.)</p> <p>Code construed: § 4905 (S.); $ 3889 (M. & V.); $ 3170 (T. & S.).</p> <p>2. Court op Chancery Appeals. Findings of.</p> <p>When the Court of Chancery Appeals sets out the facts fully in its finding, this Court draws its own inference and conclusion from the facts thus found, and is not concluded by the arguments or inferences of the Court of Chancery Appeals based thereon or drawn therefrom. (Post, pp. 734-736.)</p>