Volume 98 — Tennessee Reports

<p>1. Chancery Practice. Rules as to weight of findings of Master cmd Chancellor and of Court of Chcmcery Appeals not a/pplicable, when.</p> <p>The two well settled rules of chancery practice,.viz.: (1) That the concurrent finding upon a question of fact by the Master and Chancellor has the weight of a verdict in this Court, and will not, therefore, be set aside if there is any evidence to sustain it; and (2) that the findings of facts by the Court of Chancery Appeals are conclusive upon this Court, have no application to a case where the question is one of legal deduction or inference from ascertained and indisputable facts embodied in the reports of findings. The question, in such case, is one of law, not of fact, in the decision of which this Court is not trammeled by the findings of the other Courts. (Post, pp. 3-10.)</p> <p>Acts construed: Acts 1895, Ch. 76.</p> <p>Cases cited: Brown v. Daily, 85 Tenn., 218; Turley v. Turley, 85 Tenn., 251; Turley v. Cooley, 3 Leg. Rep., 193; Fitzsimmons v. Johnson, 90 Tenn., 418; Dollman v. Collier, 92 Tenn., 660; Wilson v. Bog'le, 95 Tenn., 290; Railway v. Mahoney, 89 Tenn., 312; Sparta v. Lewis, 91 Tenn., 370; Scruggs v. Heiskell, 95 Tenn., 455; Kirkpatrick v. Jenkins, 96 Tenn., 85; Citizens’, etc., Co. v. Seigrist, 96 Tenn., 119; Mobile, etc., Co. u House, 96 Tenn., 552; Austin v. Harbin, 95 Tenn., 601; Bank v. Evans, 95 Tenn., 705.</p> <p>3.Cobpokatiojsts. Stock subscriptions not collectible, when.</p> <p>That a corporation has not issued, and has divested itself of the power to issue, stock certificates in accordance with the contract of subscription, is a good and valid defense to a suit brought against the subscriber by the corporation or its as-signee, to recover the amount of his subscription. (Post, pp-10-16.)</p> <p>3. Same. Prior issuance of certificates for entire capital stock..</p> <p>That certificates for the entire capital stock had been previously issued to others, and were still outstanding, is a good and valid defense to a suit by the corporation, or its assignee, against a subscriber to collect the amount of his subscription. (Postr p. 16.)</p> <p>Cases cited: 13 Ind., 220; 10 N. Y., 550; 2 Disney (Ohio), 261.</p> <p>4. Same. Subscriber entitled to original stock.</p> <p>A subscriber to the orignal stock of a corporation is entitled to-the thing' contracted for, viz.: Certificates issued directly to himself for original stock, and will not be compelled to accept-certificates originally issued to another, or certificates for preferred stock, especially when they have been issued without, authority. (Post, p. 21.)</p> <p>5. Same. Conversion of subscriber’s wndetivered shares of stock.</p> <p>A corporation is guilty of a wrongful conversion of the undelivered stock certificates of its subscriber, when, after their issuance, it canceled them, and reissued certificates covering the amount to its assignee of the subscription, who proceeded, as owner thereof, to dispose of the shares and appropriate the proceeds to his own use. (Post, pp. 16-22.)</p> <p>Case cited and distinguished: Farrington case, 13 Lea, 333.</p>

<p>1.CojimoN Carribe. Recovery for injuries sustained in alighting from a moving train.</p> <p>A passenger can recover for an injury sustained in alighting from a moving train, when, hy the carrier’s fault, he had no choice hut to leave the cars, while in slow motion, or submit to the inconvenience of being carried beyond his destination — the speed of the train not being such as to indicate danger. (Post, pp. 29, 30.)</p> <p>Case cited: Railroad v. Massengle, 15 Lea, 328.</p> <p>2.Same. Must give sufficient time for passengers to leave tn'ains.</p> <p>A common carrier is guilty of negligence if it fails to stop its trains at stations a sufficient length of time to enable passengers, including the aged and very young, by the exercise of due care and diligence, to leave the cars in safety and without hurry or confusion, or if, after having waited a reasonable time, it starts its train when it was known, or should by reasonable care have been known, that passengers were in the act of alighting from the cars. (Post, pp. 30, 31.)</p> <p>3.Same. Rendering passenger assistance in alighting from train.</p> <p>As applied to a woman, aged seventy-six years and weighing two hundred pounds, the following instruction, taken as a whole, is not erroneous, to wit: “It was the duty of defendant company to use all reasonable care and diligence for her safety while on and getting off of the train, and to give a reasonable time on arriving at the depot (her destination), to alight from the train in safety, and it was the duty of the company, or some agent or employee of defendant in charge of the train, to see that sufficient time was given for that purpose, and, if necessary, to assist her in making her exit. ” (Post, pp. 31, 32.)</p>

<p>1. Homestead. Does not pass under partition sale.</p> <p>Homestead of minor defendants does not pass under a sale of the premises for partition, when the hill fails to disclose the existence of such homestead right, or any purpose to sell it, and does not tender any issue as to the right or advisability of its sale. The purchaser takes the land, in such ease, subject to the homestead right. (Post, pp. 34-39.)</p> <p>3. Same. Not defeated by an allowance out of proceeds of a sale for partition. . <</p> <p>The right of the minor defendants to homestead in kind, out of lands sold for partition, cannot be defeated by an order of the Court, made after the sale, allowing them the value of the homestead out of the proceeds of the sale. Such allowance operates as appropriation to the purchaser’s benefit of funds • belonging to the minors themselves and to other parties. (Post, p. 39.)</p>

<p>FROM WARREN.</p> <p>Appeal from Chancery Court of Warren County. Walter S. Bearden, Ch.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. J. W. BoNNER, J.</p>

<p>1. CiRcuit Court. Exercises judicial functions in determining contest for office of Sheriff.</p> <p>The Circuit Court, in determining- an election contest involving the office of Sheriff, does not sit as a special tribunal, but as a Court in the exercise of its judicial functions. (Post, pp. 66-68.)</p> <p>Code construed: 1308, 1309 (S.); {¡§ 1097, 1098 (M. & V.); £§ 888, 889 (T. & S.).</p> <p>Cases cited and approved: Dodd v. "Weaver, 3 Sneed, 669.</p> <p>Cited and disting-uised: Ex parte Chadwell, 1 Tenn. Ch., 96; Wade v. Murray, 3 Sneed, 50.</p> <p>3. Appeal. Lies from judgment in contested election case.</p> <p>And an appeal lies from the judgment of the Circuit Court in a case of contested election over the office of Sheriff. (Post, pp. 66-70.)</p> <p>Code construed: H 4879, 4891 (S.); §§ 3864, 3876 (M. & V.); U 3147, 3159 (T. & S.)</p> <p>Cases cited and approved: Dodd v. Weaver, 3 Sneed, 669; Blackburn 1). Vick, 3 Ileis., 377; Lewis v. Watkins, 3 Lea, 179; Boring v. Griffith, 1 Heis., 456.</p> <p>Cited and distinguished: Wade v. Murray, 3 Sneed, 50; Exporte Chadwell, 3 Tenn. Ch., 96.</p>

<p>1. SUPREME Court. Sustains judgment upon Judge’s general findings, when.</p> <p>A judgment pronounced by the Circuit Judge in general terms, and without any request for a specific written finding, will not be disturbed by this Court, if there is material evidence to support any theory upon which the judgment can be legitimately rested. (Post, p. 75.)</p> <p>Case cited and approved: Brooks v. Paper Co., 94 Tenn., 701.</p> <p>2. Detinue. Maintainable, when.</p> <p>Plaintiff in an action of detinue must have at the commencement of a suit a general or special property in the subject-matter- and the right to its immediate possession. (Post, p. 76.)</p> <p>3. Same. Outstanding title a good defense. '</p> <p>Defendant in detinue may defeat the plain tiff's recovery by proof that the right of property and possession is outstanding in a third person. (Post, pp. 76, 77.)</p> <p>Cases cited and approved: McEerrin v. Perry, 1 Sneed, 313; Par-ham u Riley, 4 Cold., 9; Collier u Year wood, 5 Bax., 581.</p> <p>4. Same. Not maintainable, when.</p> <p>Detinue will not lie against one who obtained possession of the property in a lawful manner, and has been guilty of no tortious conversion or wrongful detention, but who had, prior to the commencement of the action and before demand made, without knowledge of the plaintiff’s claim, and in good faith, transferred the property to another, and thereby lost possession and the right of control over it. (Post, pp. 77-81.)</p> <p>Cases cited and approved: Haley v. Rowan, 5 Yer., 301; Hunter v. Sevier, 7 Yer., 134; 41 Ala., 167; 39 Hiss., 484; 10 Ired., 429.</p> <p>5. Estoppel. Of mortgagor by act of his attorney.</p> <p>A mortgagor whose attorney, after the foreclosure of the mortgage, borrows the abstract of title furnished by her to the mortgagee from a purchaser of a portion of the land, with promise to return it, is estopped to assert title thereto in an action of replevin for its recovery. (Post, pp. 77, 78.)</p> <p>6. Abstract of Title. Goes to grantee.</p> <p>An abstract of title furnished by the owner of real property, with a view to its sale or mortgage, follows the title and becomes the property of the purchaser, as a part of his muniment of title, unless an express contract is made by the parties to the contrary. (Post, pp. 77, 78.)</p>

<p>1. Statute op Limitations. Rmvning of, not suspended, when.</p> <p>The mere filing of an unbarred claim with the administrator, or a demand upon him for its payment, does not, in the absence of a special request made by him of the creditor to delay suit for “a definite time,” suspend the running of the statute of limitations barring suits against personal representatives. (Post, pp. 85-87.)</p> <p>Code construed: §§ 4013, 4482 (S.); §§ 3118, 3482 (M. & V.); \\ 2280, 2785 (T. & S.).</p> <p>Cases cited and approved: Chestnutt v. McBride, 1 Heis., 389; Byrn v. Fleming, 3 Head, 658; Ricketts v. Ricketts, 4 Lea, 163; Trott v. West, 9 Yer., 435.</p> <p>2. Administration op Insolvent Estates. Claims hatred, when.</p> <p>Claims against an insolvent estate, due at or within six months after administration, are barred, thoug-h presented and filed in the insolvent proceedings before distribution of the funds of the estate, if the period had previously elapsed that bars suits against personal representatives. (Post, pp. 88-97.)</p> <p>Code construed: $ 4070 (S.); § 3175 (M. & V.); § 2330 (T. & S.).</p> <p>Cases cited and approved: ■Miller v. Taylor, 6 Heis., 479; Todd v. Wright, 12 Heis.. 442; Bibb v. Tarkington, 2 Lea, 21; Martin v. Blakemore, 5 Heis., 50; Latta v. Sumerow, 4 Lea, 489; Hearn v. Roberts, 9 Lea. 365; Bates v. Elrod, 13 Lea, 156; Harley v. Merrell, 2 Tenn. Chy., 620.</p> <p>3. Same. Same.</p> <p>Claims against an insolvent estate that fall due more than six months after the date of administration, are barred if they are not presented and filed in the insolvent proceedings within two years after their maturity. (Post, pp. 96-98.)</p> <p>Code construed: g 4070 (S.); g 3175 (M. & V.); g 2330 (T. & S.).</p> <p>4. Same. Same.</p> <p>Claims against an insolvent estate, that fall due after suggestion of insolvency, must be filed within two years after their maturity, and before the distribution of the funds of the estate, or they will be cut off from participation therein. (Post, pp. 98-98.)</p> <p>Code construed: $4070 (S.); $ 3175 (M. & V.); $ 2330 (T. & 8.).</p> <p>Cases cited and approved: Hearn v. Roberts, 9 Lea, 365; Bates v. Elrod, 13 Lea, 156.</p> <p>5. Same. Same.</p> <p>Claims against an insolvent estate which have been reduced to judg-ment or put in suit against the administrator before sug-g-estion of insolvency, are not excluded from participation in the assets of the estate, if presented before distribution' of the funds, thoug-h after the period barring suits ag-ainst personal representatives had elapsed. (Post, pp. 98-98.)</p> <p>6. Same. Effect of statutory injunction.</p> <p>The statutory injunction against suits resulting- from suggestion and advertisement of the insolvency of an estate does not operate to prevent the running of the statute of limitations against creditors. "While creditors are enjoined against bringing suits, they are required to present and file their claims in due time in the insolvent proceedings, or they will be barred. (Post, pp. 98-98.)</p>

<p>1. Husband and Wife. Alienation of husband.</p> <p>The wife has a right of action against one who has wrongfully-alienated her husband’s affections, but she cannot, without an enabling statute, enforce this right by suit in her own name, until her coverture has been terminated. (Post, p. 105.)</p> <p>Cases cited and approved: 8 Mass., 89; 2 So. Rep., 491; 28 N. E. Rep., 99.</p> <p>2. Same. Wife’s statutory right to sue.</p> <p>The wife cannot maintain an action in her own name against one whose wrongful acts, committed during her coverture, have resulted in the alienation of her husband’s affections, by virtue of the statute which provides for the prosecution and defense of actions by and against a deserted wife (1) in the husband’s name when he might have prosecuted or defended; (2) in her own name for causes that arose subsequent to the desertion. (Post, pp. 107, 108.)</p> <p>Code construed: \ 4505 (S.); g 3505 (M. & V.); $ 2805 (T. & S.).</p> <p>Case cited and approved: Hester v. Hester, 88 Tenn., 270.</p>

<p>1. Partsebship. What constitutes.</p> <p>A partnership is created by an agreement entered into by the members of an “Alliance lodge,” whereby they, in consideration of reduced prices and expected profits, subscribe severally for “stock” in a co-operative store, to be organized without incorporation, and the stock to be under the control of three directors, to be elected annually by the lodge, to act in conjunction with the principal stockholder, who is to be the principal salesman. (Post, pp. 110-116.')</p> <p>Cases cited and approved: Mallory v. Oil Works, 86 Tenn., 598; 65 Ill., 533; 19 Ind., 44; 37 Ind., 399; 20 Me., 413; 60 N. H., 294.</p> <p>2. Same. Dissolution.</p> <p>Members of a partnership are estopped, as against the firm creditors, to claim that a dissolution resulted, from changes in which they concurred or acquiesced. (Post, pp. 116-118.)</p> <p>3. Same. Same.</p> <p>A partnership for the term of five years, “unless two-thirds of the stockholders agreed to discontinue the business in a shorter time,” is not dissolved by a sale of his transferable shares therein by a member. (Post, pp. 116-118.)</p> <p>Cases cited and approved: 124 Mass., 81; 50 Vt., 668; 57 Vt., 316.</p>

<p>1. Appeal. From second verdict.</p> <p>An appeal from a final judgment brings up for review the proceedings of a former trial, preserved by hill of exceptions, in which a verdict favorable to appellant was set aside. {Post, pp. 120, 121.)</p> <p>Act construed: Acts 1875, Ch. 106.</p> <p>Code construed: U 4851, 4852 (S.); U 3836, 3837 (M. & V.).</p> <p>Cases cited and approved: State v. Perry, 4 Bax., 438; King- v. Miller, 8 Bax., 382; Railroad v. Conley, 10 Lea, 533: Morgan v. Bank, 13 Lea, 241; Chesapeake v. Higgins, 85 Tenn., 620; Railroad v. Scott, 87 Tenn., 497; Railroad v. Lee, 90 Tenn., 570.</p> <p>2. Supreme Court. Will not disturb Judge's action setting aside verdict, when.</p> <p>The Supreme Court will not disturb the action of the trial Judge in setting aside a verdict as unsupported by the evidence, if, upon the facts, the correctness of the verdict is “fairly debatable.” (Post, pp. 121,122.)</p> <p>3. Same. Charge not part of MU of exceptions.</p> <p>Where the record contains two bills of exceptions taken upon separate trials, and upon suggestion of diminution a charge of the Court is sent up, which is not ear-marked for either trial, it will not be treated, for the purpose of putting the trial Judge in error, as the charge given on the second trial. [Post, p. 122.)</p>

<p>Master and Servant. Not fellow-servants.</p> <p>One employed by shippers to load potatoes from wagons into ears placed on side tracks, does not become a fellow-servant with the train’s crew so as to defeat his recovery for an injury inflicted by the neg'ligence of the engineer, when he, not as a mere volunteer in the service of the railroad company, but for the purpose of expediting his employer’s business, assists, at the request, or with the consent, of a brakeman, in placing a car in a convenient place for loading, and is negligently injured while thus engag-ed. And the company’s liability cannot be defeated on the ground that the brakeman acted without authority, or that sufficient facilities had been provided by the company for placing the cars, without other assistance.</p> <p>Cases cited and approved: 57 Am. Rep., 606; 54 Am. Rep., 803; 25 L.R. A., 659; 10 It. R. A., 97.</p> <p>Cited and distinguished: 63 Tex.. 77; 4 Am. & Eng. Rep., 589, 599; 30 Atl. Rep., 116, 533.</p>

<p>1. Dedication. Of road, by mortgagor.</p> <p>Third persons cannot object that a dedication oí mortgaged land íor a public road was invalid because of the mortgage, where the mortgagee makes no objection. (Post, pp. 134, 135.)</p> <p>Cases cited: 6 Peters, 431; 1 Ohio, 478; 3 Cush., 290.</p> <p>2. Tuenpikes. Bight to tolls.</p> <p>The provision of § 1939 (M. & V. Code), that turnpike companies shall not be entitled to the privileges with reference to locating their toll gates therein conferred, if they shall “charge toll to persons going to mill, to church, or to election, ” is in the nature of a condition subsequent, and has the effect to release such persons from payment of tolls, but does not authorize an injunction to restrain the collection of tolls from other persons. (Post, pp. 136, 137.)</p> <p>Code construed: $ 2457 (S.); £ 1939 (M. & V.).</p> <p>3. Same. Acceptance by commissioners.</p> <p>A turnpike road is sufficiently received and examined by all the commissioners to authorize the collection of tolls, where all three commissioners go over and examine the road, and agree ' to receive it provided certain things are done, and thereafter two commissioners go over it, with the consent of the third, and report the changes made as ordered, after which all join in a report accepting the road, and authorizing the collection of tolls. (Post, pp. 137, 138.)</p>

<p>1. Libel aitd Slander. Special plea embraced in general issue.</p> <p>A special plea in an action for slander is covered "by the general issue, and should be stricken out as immaterial, which denies that the words and charges contained in the declaration are correct in form and substance, denies that the meaning attributed to the language is its legitimate construction, and denies that the words were spoken in a malicious sense, but avers that they were spoken in an innocent sense, with no intent to malign or defame. . (Post, pp. 141-143.)</p> <p>2. Same. Plea of justification.</p> <p>A plea of justification in an action for libel is bad, where it does not admit that defendant spoke the alleged slanderous words, but states that “ if ” he did he was justified in doing so. (Post, p. 143.)</p> <p>3. Same. Oou/rt construes the language, ivhen.</p> <p>The construction of language which is not ambig-uous, and is slanderous per se, is for the Court instead of the jury. (Post, pp. 143, 144.)</p> <p>Case cited: Bank v. Bowdre, 92 Tenn., 723.</p> <p>4. Same. Words slanderous per se.</p> <p>A statement that a designated person has stolen corn from the speaker, and that he is a thief, and has been one from his cradle, is slanderous per se. (Post, pp. 140, 141, 144.)</p> <p>5. Same. Same.</p> <p>A statement that a designated person had been guilty of rape, and torn every rag of clothes off one of the nicest women in a specified county, is slanderous per se. (Post, pp. 140, 141, 144.)</p> <p>6. Same. No defense that words were innocently used.</p> <p>That one who used languag-e which was slanderous per se, did' so in an innocent way, and with no intent to malign or injure the person of whom it was spoken, furnishes no leg-al excuse for making- the statement. (Post, pp. 144, 145.)</p> <p>7. Evidence. As to character.</p> <p>The Judge should not, before the testimony is introduced, fix a limit on the number of witnesses that he will permit to be examined on the question of the good or bad character of the parties, before such character is put in issue. (Post, pp. 145-147.)</p>

<p>1. Supreme Court. Question made for first time on appeal.</p> <p>An objection that the two counts of the declaration setting up the same cause of action are incompatible, cannot be first taken on appeal where the verdict is clearly referable to one of such counts. {Post, pp. 149, 150.)</p> <p>2. Declaration. Counts not incompatible.</p> <p>A common law count for damages to stock killed by a railroad train is not incompatible with a count, under Acts 1891, Ch. 101, authorizing recovery for an appraisement of the stock killed or crippled, and an attorney’s fee in addition, if the jury agree with the appraisers as to value, and the company had failed for sixty days after the appraisement, and before commencement of the suit, to pay the amount thereof. {Post, pp. 149, 150.)</p> <p>Act construed: Acts 1891, Ch. 101.</p> <p>3. Evidence. Appraisement of value of stock wider Acts 1891, Ch. 101, not admissible, when.</p> <p>An appraisement of the value of stock killed by a railroad train is not admissible in evidence where the reports of the appraisement fail to show that the appraisers were disinterested householders of the county, or that they were sworn before undertaking the office of appraisers, or that they ever examined the stock killed, as required by Acts 1891, Ch. 101, to make such ap-praisement prima facie evidence as to the value of the stock killed. (Post, pp. 150-152.)</p> <p>Act construed: Acts 1891, Ch. 101.</p>

<p>1. Covenant oe Seizin. Rents deducted from vendee’s recovery for breach of.</p> <p>The rental value of the premises during- the possession of the vendee must he deducted from his recovery for breach of a covenant of seizin, which is caused by an outstanding contingent remainder, where his deed gave him at least a life estate, and the life tenancy has continued so as to preclude the re-mainderman from demanding rents for any part of the time. [Post, pp. 158-160.)</p> <p>2. Same. Restoration of possession by vendee recovering for breach of.</p> <p>Restoration of possession is an indispensable ingredient of a decree in equity in favor of a vendee for breach of a covenant of seizin, caused by an outstanding contingent remainder, where his deed gave him at least a life estate, and he has had, and continues to have, the benefit of possession. (Post, pp. 160-163.)</p> <p>3. Same. Vendee alloioed f or permanent improvements.</p> <p>A recovery for improvements to the extent that they may have permanently enhanced the rental or useable value of the life estate, may be allowed to the vendee, with his purchase money, interest thereon, and taxes paid, on breach of a covenant of seizin caused by an outstanding contingent remainder, when his recovery in equity is conditioned on his restoration of possession to the vendor, and his aecoifnting for his rise of the premises. (Post, pp. 163, 164.)</p> <p>4. Same. Definition of.</p> <p>A covenant of seizin is an assurance to the vendee that the vendor has the very estate, in .quantity and quality, which his deed purports to convey. It is a personal covenant in presentí, and, if not true, is breached the instant it is made, and an immediate right of action accrues to the vendee for its breach without and before eviction. (Post, pp. 156, 157.)</p> <p>Cases cited and approved: Kincaid v. Brittain, 5 Sneed, 119; Becolis v. Younglove, 8 Bax., 387; Park v. Cheek, 4 Cold., 26; Robinson v. Coulter, 90 Tenn., 707; Baird v. Goodrich, 5 Heis., 23.</p> <p>5. Same. Measure of damages for breach of, in ordinary oases.</p> <p>If the breach of covenant of seizin be total, or such as the ven-dee may treat as total, the measure of damages for such breach is ordinarily the amount of consideration paid, with interest thereon (Post, pp. 157, 158.)</p> <p>Cases cited and approved: Kincaid v. Brittain, 5 Sneed, 119; Park v. Cheek, 4 Cold., 27; Becohs v. Younglove, 8 Bax., 387.</p> <p>6. Same. Abatement of recovery by rents.</p> <p>But the vendee’s recovery of the consideration, with interest, for breach of the covenant of seizin, is subject to abatement for the rents accruing during his possession of the premises, when it appears he cannot be made liable therefor to the owner of the paramount title. (Post, pp. 158-160.)</p> <p>Case cited and approved: Park v. Cheek, 4 Cold., 28.</p>

<p>1. Taxation. Unauthorized levy by county.</p> <p>The authority to levy and collect a special railroad tax to pay a specific debt and to divert such surplus of said tax as may remain at the end of each year, after meeting all demands on this particular account, to the extinguishment of any just debt against the county, does not justify the intentional levy and collection of a larger railroad tax than is necessary to meet the yeai-ly demands of the railroad liability in order to raise a surplus for other purposes, but simply authorizes the application to general purposes of such accidental and unavoidable surplus of the railroad tax levied in good faith as may remain at the end of each year. (Post, pp. 177, 178, 180.)</p> <p>Acts construed: Acts 1893, Ch. 179.</p> <p>2. Constitutional Law. Title and subject of statute.</p> <p>The body of a statute is broader than its title, and the statute is unconstitutional and void when under the title “An Act authorizing- the application of the railroad fund of Montgomery County to other purposes after the debt is paid ” it is enacted that an annual appropriation and diversion of the surplus of the county railroad fund may be made. (Post, pp. 178, 179.)</p> <p>Constitution construed: Art II., $17.</p> <p>Act construed: Acts 1893, Ch. 179.</p> <p>3. Injunction. Against collection of tax denied.</p> <p>-Taxpayers cannot maintain, on behalf of themselves and other taxpayers, a bill to enjoin the collection of a railroad tax by a county, although the tax is illegal as being in excess of the amount required for the particular purpose, where they have delayed to bring suit for a whole year, and until the greater part of the tax had been collected. (Post, p. 181.)</p> <p>i. Same. To prevent mlsappropriaUon of special county funds.</p> <p>Taxpayers may maintain an action to enjoin any misappropriation of railroad funds in the hands of the county officials, or which may come into their hands thereafter, to the payment of other debts than the railroad debt, for which they were raised, until that is wholly extinguished, where such misappropriation is threatened under an illegal provision of an Act authorizing the application of any surplus remaining at the end of the year to the credit of the railroad fund after payment of accrued interest and past due bonds against the county. (Post, pp. 181, 182.)</p> <p>5. County Funds. Application of.</p> <p>“The taxpayers of every county have the right to know for what purpose they are being- taxed, and also to know that taxes collected from them for any specific purpose are applied to such purpose, and not to some other, at. the discretion of county officials, and according to their ideas of public policy or expediency. The law does not provide for the mixing of special and ordinary funds, nor the supplementing of one by the other by county officials, . . . but the law lays down the rule of action for county officials, as well as all others, and from it they cannot depart. When the people consent to be taxed for any purpose they cannot complain, but when they are taxed for one purpose and the fund applied to another, and ■ when they are misled as to the purposes for which they are being- taxed, they have a right not only to complain, but á remedy to redress the grievance, if they apply to the Courts in the proper way and at the proper time.” (Post, pp. 179, 180.)</p>

<p>1. New TRIAL. Continuance.</p> <p>A bill does not lie by the successful party, to impeach and set aside an order made after adjournment, entering- and continuing- a motion for a new trial, and to have final judgment entered upon the verdict. The order attacked is merely interlocutory, and, if improvidently or illegally made, could be vacated or set aside by the Court at the subsequent term, on motion. (Post, pp. 184-186, 188, 189.)</p> <p>Case cited and approved: Allen v. Shanks, 90 Tenn., 359.</p> <p>2. Chancery Practice. Issues for jury trial.</p> <p>When a jury trial is demanded in a chancery cause, there should be submitted to the jury such issues of fact as are determinative of the rights of the parties, and, in default thereof, the Chancellor cannot enter decree upon the verdict. (Post, pp. 187, 188.)</p> <p>3. Same. Example of insufficient issues for jury trial.</p> <p>The Chancellor cannot enter decree for the complainant establishing a right of way by prescription, upon a verdict in his favor, where the issues submitted to the jury embraced merely the fact as to whether or not the complainant used the way, and as to the period of the use, without any reference to the character of such use. (Post, pp. 186-188.)</p>

<p>3. Wills. Count inquires on its own motion as to propriety of construing.</p> <p>The Court will, on its own motion, investigate the question whether or not a hill for the construction of a will has for its purpose merely the declaration of future rights, although all parties desire to have the will construed, as a premature adjudication as to such rights would in law be no adjudication at all, and would not be binding-. (Post, pp. 107-200.)</p> <p>a. Same. When application for construction maintainable.</p> <p>An application originating with the executor, but joined in by a legatee and those claiming as remaindermen, for the construction of a will, to determine whether the legacy is absolute or limited to a life estate, will not, be dismissed as premature where the purpose of the executor is to learn whether or not he shall require security from the leg-atee upon turning- over the fund to her, and the purpose of the legatee is to be relieved of any bond or restriction, and to know whether she has an absolute power of disposition or must hold the fund for the reidaindermen, although there is no allegation of waste or improper management or peril to the funds which would entitle the remaindermen to a present determination of their rig-hts if the application was made by them alone. (Post, pp. 197-200.)</p> <p>Cases cited and approved: Booker v. Booker, 5 Hum., 507; Reid v. Watkins, 11 Lea, 158.</p> <p>3. Same. Absolute power of disposition annuls limitation over.</p> <p>A limitation over after a bequest of personal property with unlimited power of disposition in the first taker, is void, as the two estates are inconsistent. (Post, pp. 200, 201.)</p> <p>Cases cited and approved: Smith v. Bell, M. & Y., 303; Bean v. Myers, 1 Cold., 337.</p> <p>4. Same. Unlimited power of disposition implied.</p> <p>The unlimited power of disposition in a legatee, which will defeat an attempted limitation over, need not necessarily he given in express words, but may be implied by the language of the will. (Post, p. 201.)</p> <p>Cases cited and approved: Bradley v. Carnes, 94 Tenn., 37; Williams v. Jones, 3 Swan, 630; Booker v. Booker, 5 Hum., 503.</p> <p>5. Same. Absolute estate not out down by subsequent provisions, when.</p> <p>The Courts refuse to cut down an estate already g-ranted in fee or absolutely when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not in themselves clear, unmistakable, and certain, so that there can be no doubt of the meaning- and intention of the testator. (Post, pp. 205, 206.)</p> <p>Cases cited: 144 N. Y., 387; 103 N. Y., 453; 81 N. Y., 356; 11 B. R. A., 610; 7 B. R. A., 517; 8 L. R. A., 696.</p> <p>6. Same. Same. Example.</p> <p>An absolute legacy to a daug-hter is not cut down to a life estate by a subsequent clause providing that the legacy shall be paid over to trustees for her benefit, but that if she reaches twenty-one unmarried it shall be paid to her directly “to be held and used by her until her marriage,” and then to be settled upon a trustee, to be held in trust for her during her natural life, and if she dies without living children her share of the “estate” to go to the testator’s sons, as the reference to her life will be construed merely to measure the'duration of the trustee’s estate, and not that of her own, and the limitation over held to take effect only in the event of her death before testator, where such construction accords with the theory of the will; and a contrary construction would be inconsistent with the absolute gift of the land to her, in view of the use of the word “estate ” in the limitation over. (Post, pp. 193-195, 201-207.)</p> <p>Cases cited: 63 Am. Dec., 397; 119 Mass., 173; 78 Penn. St., 436; 93 Penn. St., 514; 11 Am. St. R., 933; 7 L. R. A., 517; 8 B. R. A., 696; 11 B. R. A., 610.</p> <p>7. Same. Limitation over upon legatee's death before testators.</p> <p>A limitation over, under a bequest of personal property, in the event of the death without living children of the first taker, to whom the will in the first instance gives an absolute power of disposition, will be construed to take effect only in the event oí the death of the first taker before that of the testator, unless a contrary intention clearly appears from other provisions, as the testator cannot be presumed to intend to cut down an absolute estate already given, by a subsequent provision. (Post, pp. 193-195, 207-220.)</p> <p>Cases cited and approved: Vaughn u Carter, 85 Tenn., 302.</p>

<p>1. ConxRAct. Hoiv construed.</p> <p>The proper construction of a contract is not dependent on any name given to the instrument by the parties, or on any one provision, but upon the entire body of the contract and the legal effect of it as a whole. (Post. p. 229.)</p> <p>Cases cited and approved: Cole v. Singer Mfg. Co., 4 Lea, 439; Cowan v. Sing'er Mfg'. Co., 93 Tenn., 376; 103 U. S. Rep., 344.</p> <p>3. Trust. Does not exist, when.</p> <p>No trust can be imposed upon funds or goods in the hands of an assig'nee for creditors, even if they were held by the assignor as an agent, unless they are kept separate and can be identified. (Post, pp. 229, 230.)</p> <p>Cases cited and approved: Aiken v. Jones, 93 Tenn., 353; Sayles v. Cox, 95 Tenn., 579.</p> <p>3. Sale. What constitutes.</p> <p>A contract of sale transferring the title of the goods, and not a mere agency, is created by an agreement called ‘! special selling factor appointment,” under which the consignee is required to pay for the goods within sixty days, whether sold or not, at an amount fixed in advance, with certain allowances for carting-, storing, insuring, and selling, whether the goods are carted, stored, insured, or sold or not, without requiring the consignee to make any account of sales or to keep the proceeds thereof separate, but giving him all the advantage and risk of the advancement or decline of prices. (Post, pp. 223-225, 231-253.)</p>

<p>1. Constitutional Law. Interstate commerce.</p> <p>A statute violates the commercial clause of the Federal Constitution, and is void, which imposes a privilege tax upon “persons, other than photographers of this State, soliciting pictures to he enlarged outside of this.State.” (Post, pp. 258-262.')</p> <p>Constitution construed: U. S. Const., Art. I., §8, clause 3.</p> <p>Act construed: Acts 1895, Ch. 4, Sec. 3 (Ex. Ses.).</p> <p>2. Interstate Commerce. What constitutes.</p> <p>Soliciting pictures to he enlarged outside of the State constitutes interstate commerce, and a tax laid upon persons engaged in that business, whether they he the nonresident principals or their agent, constitutes an illeg'al burden upon the business itself. (Post, p. 257.)</p> <p>Cases cited.,and approved: Hurford v. State, 91 Tenn., 669; 120 U. S., 129; 153 U. S., 289; 12 Wheat., 444; 127 U.S., 645; 136 U. S., 104; 91 U. S., 278; 9 Wheat., 1; 135 U. S., 108; 141 U. S., 58; 128 U. S., 129; 129 U. S., 141.</p> <p>Cited and disapproved: Robbins v. Taxing District, 13 Lea, 303.</p> <p>3. Statutes. Unconstitutional in part.</p> <p>The unconstitutionality of that clause of the Revenue Act of 1895 which imposes a privilege tax on soliciting pictures to be enlarged outside the State, as violating the commercial clause of the Federal Constitution, does not affect any other part of the Act. (Post, p>. 262.)</p> <p>Act construed: Acts 1895, Ch. 4 (Ex. Ses.).</p> <p>Cases cited and approved: Dugger v. Ins. Co., 95 Tenn., 246; Reelioot Lake, etc., Dist. u Dawson, 97 Tenn., 151.</p>

<p>1. Bond. Liability of sv/reties on Clerk and Master’s.</p> <p>The sureties on a Clerk and Master’s bond are liable to printers for fees taxed and collected, but not paid over by their principal, for advertising- sales and publishing nonresident notices. (Post, pp. 264-2S8.)</p> <p>Code construed: gg 6435, 3843, 3843 (S.), gg 5336, 3973, 3974; (M. & V.); gg 4585, 3149, 3150 (T. & S.).</p> <p>Cases cited and distinguished: 84 Am. Dec., 518; 14 Miss., 51; 4 Strobhart, 30.</p> <p>3. Same. Same.</p> <p>And the sureties on a Clerk and Master’s bond cannot avoid liability for printers’ fees for advertising sales and publishing nonresident notices which were taxed, collected, and withheld by their principal, upon the ground that the required affidavit of the printer, or his foreman, had not been filed. (Post, pp. 267, 268.)</p> <p>Code construed: g 6436 (S.).</p>

<p>1. Married Woman. Judgment against is valid,.</p> <p>A judgment obtained against a married woman is valid, and may be enforced against her general estate, although she could have defeated it by pleading coverture. (Post, p. 271.)</p> <p>Cases cited and approved: Crawford v. Crawford, 1 Leg. Rep., 37; Howell v. Hale, 5 Lea, 406; Yeatman v. Bellmain, 6 Lea, 491; Chatterton v. Young, 2 Tenn. Chy. Rep., 770.</p> <p>2. Same. Separate estate not subject to execution.</p> <p>A married woman’s separate estate is not subject, even after the termination of her coverture, to seizure under execution issued upon a personal judgment rendered against her during covert-ure for a debt not chargeable upon her separate estate. (Post, pp. 271-276.)</p> <p>Cases cited: Jordan®. Heebie, 85 Tenn., 412; Jordan®. Everett, 93 Tenn., 390; Litton v. Baldwin, 8 Hum., 209; Cherry ®. Clements, 10 Hum., 555; Shacklett ®. Polk, 4 Heis., 109; Robertson ®. Wilburn, 1 Lea, 633; Ragsdale ®. Gossett, 2 Lea, 739; Warren ®. Freeman, 85 Tenn., 513; Eekerly ®. McGhee, 85 Tenn., 661; Chatterton ®. Young-, 2 Tenn. Chy. Rep., 768; Theus ®. Dugger, 93 Tenn., 41; Webster®. Helm, 93 Tenn., 323; Bank ®. James, 95 Tenn., 15.</p>

<p>1. Bills and Notes. Pa/rol agreement that principal shall be Viable as surety enforceable.</p> <p>A parol contract, whereby the parties agree that the ostensible principal shall be liable only as surety on a note, may be proved and enforced in equity. (Post, pp. 279, 281, 282.)</p> <p>2. Collateral Security. Application of proceeds.</p> <p>Where notes are deposited by a debtor ‘ ‘ as collateral security for any of my [his] indebtedness,” their proceeds, when collected and held without appropriation by the creditor, will be applied by the Court to and among the several debts secured, according to the principles of equity. (Post, pp. 280-285.)</p> <p>3. Same. Same. Example.</p> <p>The Court will direct the application of the proceeds of a general deposit of collaterals, in the absence of any valid direction by the creditor, to the debt which was the oldest, and on which security had been given, in preference to younger debts for which there were no sureties. (Post, pp. 280-285.)</p> <p>Cases cited and approved: Bussey v. Gant, 10 Hum., 238; Mason v. Smith, 11 Lea, 67; Fulton v. Davidson, 3 Heis., 648; Lippman v. Boales, 16 Lea, 283; 95 Am. Dec., 291; 29 Am. Dee., 687; 37 Am. Dec., 623; 32 Barb., 23; 2 Stark., 101.</p> <p>Cited and disapproved: 6 Cranch, 8; 15 Conn., 437.</p>

<p>1. Statute op Limitation's. Does not run against married woma/n, when.</p> <p>The statute of limitations does not run during coverture against the right of a married woman to set aside an unauthorized or fraudulent conveyance by a trustee of lands held for her use and benefit, and to recover the lands, where the trustee has estopped himself from suing- or joining in her suit by executing the deed. (Post, pp. 293, 294.)</p> <p>Cases cited and approved: Herron v. Marshall, 5 Hum., 443; Parker v. Hall, 2 Head, 643; Bay less v. Elcan, 1 Cold., 99.</p> <p>Cited and distinguished: Williams v. Otey, 8 Hum., 563; Watkins v. Specht, 7 Cold., 585;_ Woodward v. Boro, 16 Lea, 683.</p> <p>3. Innocent Pukciiaseb. Informal plea of, amcuilable, when.</p> <p>Defendants in an action to Set aside a conveyance made by a trustee, on the g-round that the conveyance was in breach of the trust, and that the proceeds were misappropriated, may avail themselves of proof on pleas of innocent purchaser, embodied in their answers, where none of the pleas, though informal, were excepted to, and issue has been taken upon them, and the cause has gone to proof without objection. (Post, p. 294.)</p> <p>Code construed: §§6138, 6310, 6344 (S.); §§5071, 5143, 5177 (M. & V.); §§4338, 4400, 4433 (T. & S.).</p> <p>Cases cited and approved: Rhea v. Allison, 3 Head, 177; Jarmon u Farley, 7 Lea, 141; Mulloy v. Paul, 3 Tenn. Chy., 155.</p> <p>3. Same. • Plea of, not available, when.</p> <p>The plea of innocent purchaser cannot be invoked by one who purchases a trust estate at a sale, authorized and made alone for reinvestment, with notice, upon the face of the deeds or otherwise, of an actual or intended misappropriation or diversion. of the proceeds of sale from the purposes of the trust. (Post, pp. 294, 295.)</p> <p>Case cited and approved: Loughmiller v. Harris, 2 Heis., 558.</p> <p>4. Same. Plea of, available, when.</p> <p>The plea of innocent purchaser is available to protect one, who, without actual or constructive notice of an intended misappropriation or diversion of the proceeds of sale from the purposes of the trust, purchases the trust estate at a sale made for reinvestment, where the purchaser’s deed conforms to the terms contained in the deed creating- the trust and authorizing the sale. (Post, pp. 295, 296.)</p> <p>Cases cited and approved: Webster v. Helm, 93 Tenn., 322; Bank v. James, 95 Tenn., 8.</p> <p>5. Tetjsts. Purchaser not required to see to reinvestment of proceeds of sale.</p> <p>A purchaser of land from a trustee, at a sale ma.de for reinvestment, upon the terms of the original trust, is not required to follow up the consideration and see that it is applied as the trust contemplates, where the deed to him was executed in strict compliance with all requirements of the deed creating the trust. (Post, pp. 295, 296, 298, 299.)</p> <p>Cases cited and approved: Williams v. Otey, 8 Hum., 568; Loug'b-miller v. Harris, 2 Heis., 559; Brown v. Foote, 2 Tenn. Chy., 263.</p> <p>6. Evidence. Presumption.</p> <p>A purchaser of land from one to whom it had been conveyed by a trustee, by a deed showing entire conformity to the terms of the deed creating the trust, will not be presumed to have had notice of anything more than is recited in the deed by the trustee. (Post, pp. 295, 296.)</p> <p>7. Estoppel. Of married woman.</p> <p>A married woman cannot set aside a deed made by herself and a trustee, for land held by such trustee as her separate estate in accordance with an antenuptial contract, and recover the land, on the ground that the proceeds had been misappropriated, where she, with full knowledge of the purposes of the deed, and in order to consummate such purpose, executed a written request on the trustee for the conveyance, and joined therein, in strict compliance with the requirements of the ante-nuptial contract, by which subsequent purchasers of the land have been misled into believing there was no defect of title. (Post, pp. 296-298.)</p> <p>Cases cited and approved: Iiowell v. Hale, 5 Lea, 405; Pilcher v. Smith, 2 Head, 209; Cooley v. Steele, 2 Head, 604; Galbreath v. Lunsford, 87 Tenn., 89: Crictenden v. Posey, 1 Head, 312; Gates v. Cord, 93 Tenn., 334.</p>

<p>Will. GHming absolute estate.</p> <p>An absolute estate in the testator’s wife, free from any trust, is created by a will giving- to her all his estate, with a request that, if at her death any of the property is unconsumed, she shall give a specified amount to a designated person, but providing that it is to be hers to dispose of as she sees proper, and that only in the event that there is more than will be necessary for her wants and needs is she to give such an amount.</p> <p>Cases cited: Anderson v. McCullough, 3 Head, 613; Anderson v. Hammond, 2 Lea, 281; Pillow u Rye, 1 Swan, 185; Downing v. Johnson, 5 Cold., 229; McGavoek v. Pursly, 1 Tenn. Chy.,-411; Bradley v. Carnes, 94 Tenn., 27.</p>

<p>1. CORPORATIONS. Ratification of unauthorized issue of bonds.</p> <p>The ratification of an unauthorized issue of bonds will be presumed in favor of innocent third persons, without any direct or formal act of confirmation, where the corporation has for a considerable time continued to use such illegal bonds, as collateral security on its renewal and other notes, releasing thereby other personal security thereon, under such circumstances as to render it incredible that the facts concerning the original issue were not fully known at the time to the corporation, its officers, directors, and stockholders. (Post, pp. 309-315.)</p> <p>3. Samis. Same. Notice of illegality of act.</p> <p>The knowledge of stockholders and directors that an issue of bonds in the name of a corporation was unauthorized, such as is essential to ratification by acquiescence, may be shown by circumstances that raise a reasonable inference that they knew of such illegality at the time of their acquiescence. (Post, pp. 309, 310.)</p> <p>3. Chancery Pleading and Practice. Innocent purchaser.</p> <p>Objection will not be entertained, when made for the first time in this Court, to the sufficiency of a plea of innocent purchaser incorporated in an unsworn answer upon which issue was joined and proof taken without exception in the lower Court. (Post, pp. 315-317.)</p> <p>Code construed: §? 6138, 6183, 6183, 6310, 6344 (S.), §?5071, 5115, 5143, 5177 (M. & V.); H 4338, 4373, 4400, 4433 (T. & S.).</p> <p>Cases cited and approved: Harris'». Smith, ante, p. 386; Rhea v. Allison, 3 Head, 177; Jarman v. Parley, 7 Lea, 141; Mulloy v. Paul, 3 Tenn. Chy., 155.</p> <p>4. Same. Assignment of error bad, when.</p> <p>An assignment of error will not be considered in this Court, which raises a question not made in the pleadings or noticed in the evidence in the Court below. (Post, p. 319.)</p> <p>5. Assignments fob Creditors. Assignee not cm innocent purchaser.</p> <p>The assignee for creditors of a corporation is not in the position of an innocent purchaser as to bonds of the corporation embraced in the assignment and attacked for fraud, in their issue, and the creditors who come in under the assignment are entitled to only such rights as the assignee has. (Post, pp. 315, 318.)</p> <p>6. Same. Begistratton.</p> <p>An assig-nee for creditors of a corporation is neither a creditor nor a Ijona fide purchaser within the meaning of the registration laws, nor are the beneficiaries, under the assignment, mortgagees for value, but mere volunteers. (Post, pp. 318, 319.)</p> <p>Case cited and approved: Nashville Trust Co. v. Bank, 91 Tenn., 336.</p> <p>7. Same. . Description of property coiweyed.</p> <p>An assignment for creditors of a lumber and manufacturing corporation. conveying its plant “and all appliances used in operating its plant and factory,” passes a mill building' situated on leased premises four hundred yards from the company’s main mill, and used in connection with, and as part of, the plant. (Post, pp. 319, 320.)</p> <p>8. Same. Creditors’ rights wider.</p> <p>Creditors of a corporation, who come in under an assignment for creditors, can work out their rights ag'ainst third pei-sons only through the assignee and under the assignment to him, and, if he is estopped to question the validity of bonds secured by a mortgage upon the corporate property, or takes the property subject to the mortgage, they are similarly affected. (Post, pp. 320, 321.)</p> <p>9. Action. By one for himself and, others.</p> <p>If suit brought by one person on behalf of himself and others in the same right fails as to the party bringing it, it will be dismissed also as to those on whose behalf it was brought, and who may have intervened thereunder. (Post, pp. 321, 322.)</p> <p>10. Mobtgages and Deeds of Trust. Of corporation to secure bonds, valid tvhen.</p> <p>The mortgage of a corporation to secure an issue of bonds, which conveys no more property than was reasonable and necessary to secure the amount thereof, is not void because it reserves possession and delays sale for ten years, and provides for a limited liability of the trustee. (Post, pp. 321, 322.)</p>

<p>1. Criminal Practice. Former acquittal available without formal plea.</p> <p>Former acquittal oi one of several offenses embraced in an indictment resulting by implication from a verdict of guilty upon a former trial as to other offenses charged, is available on a subsequent retrial without a formal plea, as it fully appears from the record in the particular case. (Post, p. 325.)</p> <p>2. Same. Former acquittal and once in jeopardy.</p> <p>A general verdict of “guilty of arson,” upon an indictment charging, in two distinct counts, the burning of a dwelling ' house and the burning of a barn, as parts of one transaction, does not operate as an acquittal upon -the count charging the burning of the barn so as to protect the accused from a retrial thereon upon the reversal of the first verdict, as both counts charged arson, and the conviction covered both. (Post, pp. 325-329.</p> <p>Cases cited and distinguished: Hallu State, 3 Lea, 553;' Lawless v. State, 4 Lea, 177.</p> <p>3. Federal Question. Does not arise.</p> <p>And the denial of the benefit of a former acquittal in such case does not raise any federal question. Such proceeding- constitutes due process of law, and the State Court’s decision on this point is final and conclusive. (Post, p. 329.)</p> <p>Cases cited: 139 U. S., 462; 141 U. S., 209; 110 U. S., 516; 149 U. S., 645; 143 ü. S., 442; 46 Fed. Rep., 388; 54 Fed. Rep., 334.</p>

<p>Wills. Expenses of unsuccessful contest</p> <p>Tlie nominated executor, who acts in g'ood faith, is entitled to have the costs and reasonable attorney fees incurred by him in an unsuccessful effort to have the will probated, paid out of the assets of the estate, although he was a legatee and the only person interested in sustaining the will.</p> <p>Cases cited: Cornwell v. Cornwell, 11 Hum., 487; Bennett u Bradford, 1 Cold., 471; Bowden v. Higg's, 9 Lea, 347; Douglass v. Baber, 15 Lea, 655; Smith v. Harrison, 3 Heis., 330; John u Tate, 7 Hum., 388.</p>

<p>1. Banks and Banking. Usages as to malúng collections.</p> <p>One who chooses a bank as a collecting agent, impliedly agrees that the agency may be performed in accordance with such reasonable methods prevailing at the place of collection as have ripened into usage not in conflict with the general law, althoug-h he has no knowledge of its existence. (Post, pp. 340, 341.)</p> <p>Cases cited and approved: Sahlien v. Bank, 90 Tenn., 221; Howard u. "Walker, 92 Tenn., 452.</p> <p>Cited and distinguished: Walker v. Walker, 5 Heis., 425.</p> <p>2. Same. Same.</p> <p>A custom of a bank receiving a draft for collection, to accept in payment a check by the acceptor on another bank, and present such check to the latter bank for payment at eleven o’clock in the forenoon of the following business day, and leave it with such bank, a reasonable time for examination, is lawful and proper. (Post, pp. 338-340.)</p>

<p>1. EVIDENCE. Of plaintiff’s clvwrch membership admissible.</p> <p>Evidence that plaintiff, in an action for seduction under promise of marriage, had been, for several years, a member of the church, is admissible on her standing and reputation. (Post, p. 345.)</p> <p>2. Same. Exclusion of, as to matters not in issue.</p> <p>It is not competent to inquire of the plaintiff, in an action for seduction under promise of marriage, if she had been furnished a written statement by her attorney to memorize in regard to what she would swear about an abortion and birth of a child, when the pleading-s present no such issue, and she had already answered generally that she had not seen or been furnished any statement. (Post, p. 345.)</p> <p>3. Same. Same.</p> <p>It is not competent to inquire of the plaintiff in an action for seduction under promise of marriage, if she did not tell defendant she intended to kill the child, and that he dissuaded her, when such fact is not put in issue by the pleadings. (Post, p. 345.)</p> <p>4. Same. Questions not susceptible of intelligible answers.</p> <p>A question that is asked in such a g-eneral way that no intelligible answer can be given is properly excluded. (Post, pp. 345, 34(i.)</p> <p>5. Seduction. Charge defining seduction.</p> <p>The statement in the Court’s charge in a seduction case, that it is ‘1 not indispensable that the man u se seductive arts or promises, but any act or promise or deception of the man, by which he overcomes the scruples of the woman, and induces her to have sexual intercourse with him, would constitute the offense,” does not constitute reversible error, where it is immediately followed by the qualification “but if the woman, without being deceived, and without any false promises, deception, or artifice, voluntarily submits to the connection, the law affords her no remedy, and she cannot recover.” (Post, p. 346.)</p> <p>6. CHARGE op Court. That jury a/re judges of the laio incorrect.</p> <p>An instruction that the jury are the judges of the law, as delivered to them by the Court, is misleading in a civil action, as the jury must take the la was given by the Court. (Post, pp. 346,347.)</p> <p>7. Statute op Limitations. Bars action for seduction, luhen.</p> <p>The statute of limitations does not begin to run against the right to maintain an action for seduction under promise of marriage, so long as the man, by continuous acts, promises, and artifices, keeps up the illicit intercourse, as seduction is in such case a continuous act. (Post, p. 347.)</p> <p>Case cited and approved: Davis v. Young, 90 Tenn., 303.</p> <p>8. Verdict. Not gambling, when.</p> <p>A new trial will not be granted because the jury took an average of the several judgments as a tentative mode of arriving at a verdict, where the result was not satisfactory, and was abandoned, and the verdict was subsequently rendered for only half the amount of the average. (Post, pp. 347, 348.)</p> <p>9. Witness. Corroboration.</p> <p>It is not error for the Court to refuse to instruct the jury that the testimony of the plaintiff in an action for seduction under promise of marriage, could not be believed if she had consented to an abortion without the corroboration essential in the case of an accomplice. (Post, p. 348.)</p> <p>10. Damages. For seduction.</p> <p>The jury on a trial for seduction under promise of marriage, may look to^any indignity offered plaintiff during the trial, or any imputation against her character, or impeaching- her virtue, if untrue and wantonly made, as an element of damag-e. (Post, p. 348.)</p> <p>Cases cited and approved: Williams v. Norwood, .2 Yer., 330.</p> <p>11. Same. Special, not recoverable, ‘when.</p> <p>Damag-es cannot be recovered in an action for seduction under promise of marriage, for abortion and attendant indignities, unless special damag-es therefor are claimed in the pleadings. (Post, pp. 348-350.)</p> <p>13. Same. Erroneous charge as to vindictive.</p> <p>An instruction that it is the “duty ” of the jury to render vindictive damages against defendant in an action for seduction under promise of marriage, if they find him guilty, is erroneous, as the giving of such damages is within the discretion of the jury. (Post, pp. 34.9, 350.)</p> <p>13. ARGUMENT op Counsel. Not cause for reversal, when.</p> <p>A judgment against defendant in an action for seduction under promise of marriage, will not be reversed because plaintiff’s counsel, in his closing argument, applied harsh epithets to defendant, where no objection was made on the trial. (Post, p. 350.)</p> <p>14. Same. Shedding teci/rs.</p> <p>A judgment against defendant in an action for seduction under promise of marriage, will not be reversed because plaintiff’s counsel in his closing argument shed tears in the midst of an eloquent and impassioned appeal to the jury. (Post, pp. 350-352.)</p>

<p>1. Decree. By consent.</p> <p>The rule that a decree which is not confined to the matters presented in the pleadings is subject to avoidance, does not apply to a consent decree when the Court had jurisdiction of the parties and of the subject-matter. (Post, p. 357.)</p> <p>Cases cited: Boyce v. Stanton, 15 Lea, 347; Gilreath v. Gilliland, 95 Tenn., 383; Rogers v. Breen, 9 liéis., 679; Randolph v. Bank, 9 Lea, 68; 101 0. S., 389; 113 0. S., 361.</p> <p>3. Same. Effect of disability of pu/rty to consent decree.</p> <p>The disability of coverture of a party to a consent decree, who does not avoid it in her lifetime, will not prevent the decree from being binding- on those ’ claiming under her after her death. (Post, pp. 357, 358.)</p> <p>Cases cited: Jones v. McKenna, 4 Lea, 630; Musgrove v. Lusk, 3 Tenn. Chy., 580.</p> <p>3. Estate ry Curtesy. Does not attach to a Ufe estate.</p> <p>The husband’s estate by the curtesy does not attach to lands in which the wife has only a life estate. (Post, p. 358.)</p> <p>Cases cited and approved: Beecher v. Hicks, 7 Lea, 307; Alexander v. Miller, 7 Heis., 81.</p> <p>4. Remainders. Vesting of, fmored.</p> <p>A remainder will be regarded as vested rather than contingent if the disposition is so obviously upon the border as to be inherently doubtful between the two. (Post, pp. 358, 359.)</p> <p>5. Same. To life tenants cMldren not extinct until her death.</p> <p>A remainder to the children of a woman who has an estate fox-life, is not extinguished until her death, although she may be very old and childless, as the law does not assume that there is an impossibility of issue at any age, however great. (Post, pp. 360-362.)</p> <p>Cases cited and approved: Garner v. Dowling, 11 Heis., 52; 32 Am. Dec., 401; 83 Pa. St., 483.</p> <p>6. Same. Taken by devise and not by descent.</p> <p>The rule that ‘ ‘ one who holds the same estate by devise that the law casts on him by descent is in by descent and not by devise,” has no application when the devisee is not the heir. (Post, p. 362.)</p> <p>Case cited: Hoover v. Gregory, 10 Yer., 451.</p> <p>7. Same. Extinguished and title becomes absolute, when..</p> <p>The iee is not in abeyance while a remainder is contingent under a consent decree in partition giving one party a life estate, with remainder at her death to her children then living- or the issue of such as may be dead, but the fee abides with her during- such contingency, and, if the line of remaindermen is extinct at her death, her title is freed from the remainder and subject to disposal by her will. (Post, pp. 363-374.)</p> <p>Cases cited: 1 Me., 280; 9 Mass., 37; 78 Ky., 410; 16 Gray, 568, 574.</p> <p>8. Rule in Shelley’s Case. Not applicable.</p> <p>The statute abrogating the rule in Shelley’s case, by providing that, on the termination of a life estate, with remainders to heirs, or heirs of the body of the life tenant, such heirs shall take as purchasers by virtue of the remainder so limited to them, gives no rights to “heirs” to whom no remainder was limited as against devisees of one who was not only a life tenant, but in whom the fee abode subject to a contingent remainder to her surviving- children or issue of children, when, by the extinction of the line of her descendants during- her life, the remainder failed, and her title at the moment of her death became absolute. (Post, pp. 373, 374.)</p> <p>Code construed: §3674 (S.); § 2814 (M. <& V.); §2008 (T. & S.).</p> <p>Cases cited: Williams v. Williams, 10 Heis., 568; Hurst v. Wilson, 89 Tenn., 271.</p>

<p>Damages. Measivre of, for digging ditch on another’s Umd.</p> <p>The measure of damages for wrongfully cutting ditches on another’s land, is not the difference in the value of the land before and after the digg-ing- of the ditches, as in case of a permanent injury, hut the cost of restoring the premises to their original condition.</p> <p>Cases cited and approved: Nashville v. Comar, 88 Tenn., 415; Harmon u Railroad, 87 Tenn., 622.</p>

<p>1. Lien. Of judgment creditor upon debtor’s equAty of redemption.</p> <p>A judgment creditor acquires a lien upon his debtor’s equity of redemption in mortgaged lands from the date of his filing bill to foreclose the mortgag-e and subject the equity to the payment of his debt; and this lien expands to embrace and subject to sale any enlargement of the debtor’s interest to the extent of the entire fee resulting from payment in part or a full discharge of the mortgage debt made pending the suit. (Post, pp. 3S4, 385.)</p> <p>Code construed: $$ 6091, 6095 (S.); §§ 5025, 5029 (M. & V.); $$ 4282, 4286 (T. & S.).</p> <p>Cases cited and approved: Eulg-hum v. Cotton, 6 Lea, 591; Schultz v. Blackford, 9 Lea, 431.</p> <p>2. Mobtgages ajtd Deeds oe Tbitst. Release and loss of priority.</p> <p>A mortg-agee, who, with knowledge that the mortgag-or’s judgment creditor had filed bill and secured lien upon the equity of redemption, releases the mortgag-e absolutely, to enable the mortgagor to sell and convey the property, upon an agreement that the notes for the purchase price, secured by a vendor’s lien, are to be transferred to him in place of the mortgage, loses his rig-ht to priority of satisfaction over the judgment creditor out of the property or its proceeds, especially where the release and conveyance are not simultaneous, and there was no ag-reement at the time to keep the mortgage alive. (Post, pp. 384-393.)</p> <p>Cases cited: Belcher v. Wiekersham, 9 Bax., 121; 73 Ind., 425; 73 Iowa, 555 (S. C., 5 Am. St. Rep., 701); 13 Col., 513, 526; 31 N. J. Eq., 205; 92 Col., 229, 493; 67 Mo., 434; 9 Gill., 185 (S. C., 52 Am. Dec., 691); 1 Sand. Ch., 383; 29 Md., 178; 38 Md., 271; 20 Ill., 54; 34 Mo., 639; 39 Md., 409; 15 Pet., 21; 14 Mass., 351; 101 Mass., 426; 31 Grattan, 791; 50 Ark., 108.</p>

<p>1. Judg-ment Lieu. -Attaches to after-acquired lands.</p> <p>A judgment lien attaches to after-acquired lands, and continues for a year from the date of their acquisition, overreaching, if properly enforced, all intermediate alienations of the debtor, although he may have held the lands by unregistered deed, (Post, pp. 396, 397.)</p> <p>Code construed: §4710 (S.); § 3696 (M. & V.); §8982 (T. & S.).</p> <p>Cases cited and approved: Greenway v. Cannon, 3 Hum., 178; Chapron v. Cassaday, 3 Hum., 661; Davis v. Benton, 2 Sneed, 666; Relfe v. MeComb, 2 Head, 559; Coward v. Culver, 12 Heis., 541; Vance u McNairy, 3 Yer., 171.</p> <p>2. Samis. Jiwrden of proof.</p> <p>The burden is upon a judgment creditor seeking to enforce his statutory lien against real estate of the debtor to bring his judgment within the Code, § 2980, providing that the lien of a judgment or decree fastens upon land only when obtained in the county where the debtor resides at the time of its rendition, or, if rendered in another county, when a certified copy thereof is registered in the county where he resides, if a resident of the State, and, if a nonresident, in the county where the land lies. (Post, pp. 397, 398.)</p> <p>Code construed: §§4708, 4709 (S.); §§3694, 3695 (M. & V.); §§2980, 2981 (T. & S.).</p> <p>3. Same. Lost If not enforced within a year.</p> <p>A judg-ment upon lands is lost if not enforced by levy and sale within a year after it attaches, unless its enforcement is prevented by injunction, writ of error, appeal, or other adverse Court proceeding. (Post, p. 398.)</p> <p>Code construed: §§ 4710, 4711 (S.); §§ 3696, 3697 (M. & V.); §§ 3982, ' 2983 (T. & S.).</p> <p>Cases cited: Greenway v. Cannon, 3 Hum., 178; Chapron v. Cas-saday, 3 Hum., 661; Davis v. Benton, 2 Sneed, 668; Relfe v. MoComb, 2 Head, 560; Dickinson v. Coliins, 1 Swan, 516; Kelly i). Thompson, 2 Heis., 279; Smith v. Holmes, 12 Heis., 469; Bang-ess v. Partee, 1 Leg. Rep., 92.</p> <p>4. Same. Nut enforced in equity.</p> <p>That the judgment debtor’s deed was unregistered, and that he had conveyed the land to a third person, pending- the existence of a judgment lien thereon, presents no obstacle to the enforcement of the lien by levy and sale that would justify the interposition of a Court of Equity on behalf of the lien creditors. (Post, p}). 398-400.)</p> <p>5. Same. Sume.</p> <p>A jrtdgment lien cannot be extended beyond the statutory period by the judg-ment creditor’s unnecessary and unsuccessful suit in equity for its enforcement. (Post, pp. 399, 400.)</p> <p>Cases cited and approved: Gardenhire v. King, 97 Tenn., 585; Harrison'». Wade, 3 Cold., 505.</p> <p>Cited and disting-uished; Kerr v. Kerr, 3 Lea, 225; Shepherd v. Wqodfolk. 10 Lea, 593.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from Circuit Court of Davidson County. J. W. Bonner, J.</p>

<p>SEPARATE Estate. JYqi charged with debt, when.</p> <p>A bill in equity does not lie to enforce against a wife’s separate estate an indebtedness incurred by her before marriage, for which decree has been rendered against her husband as her trustee, but not making it a specific charge upon her separate estate, although the husband and his sureties prove insolvent and an execution on the decree has been returned nulla bona, as the decree, in effect, simply adjudg-ed the husband and trustee individually liable, and a bill to enforce a former decree cannot vary or amend or enlarge its scope.</p>

<p>1. Bills and Notes. Demand and protest not essential, when.</p> <p>The general rule that the holder of a note or hill is not required to make personal or other demand on the maker, as a condition of holding- the indorser, if the place of payment designated in the note or hill is closed on the day the paper falls due, is not modified or altered hy the fact that a new hank is occupying the place where the old hank at which the paper was made payable had formerly heen engaged in business. {Post, pp. 422-426.)</p> <p>Cases cited: Ocoee Bank v. Hughes, 2 Cold., 53; Bynum v. Apper-son, 9 I-Ieis., 637; Lane v. Bank, 9 Heis., 419.</p> <p>3. Same. Demand and protest essential, when.</p> <p>The holder of a hill or note, payable hy its terms at a particular national bank, must, as a condition of holding the indorser, present the same to a receiver of the hank appointed hy the Comptroller of the Currency because of its insolvency, and in charge of its assets, administering them for the benefit of its creditors, where the place in which he is administering- his trust, though not the former hanking house, is in the same city, and its location is well known in the business community. {Post, pp. 428, 429.)</p> <p>Case cited and approved: Bank v. Junk Bros., 94 Tenn., 634.</p> <p>3. Same. Place of payment.</p> <p>The “place of payment ” of a bill or note may he a house, hank, counting-room, store, or other place of business where the holder can deposit or provide funds to meet it, and where a legal offer to pay can he made. (Post, p. 4S5.)</p> <p>4. Banks and Banking. Effect of insolvency and receimership.</p> <p>The closing of the doors of a national hank hy the Comptroller of the Currency, on account of insolvency, and the appointment of a receiver and placing him in charge of its assets, to administer them for the benefit of creditors, does not extinguish the corporation or work a forfeiture of its charter. (Post, pp. 426-428.)</p> <p>Cases cited: 14 Wall., 383; 104 ü. S., 54, 462; 161 U.’S., 1.</p> <p>5. SUBROGATION. Not alloivecL, when.</p> <p>The indorsee of a note secured by a vendor’s lien upon one of two lots covered by a prior vendor’s lien on both, which was reconveyed by the original purchaser, is not entitled to be subrogated to the rights of the holder of the original vendor’s lien in the lot retained by such purchaser because the latter, without fraud, interposed a cross bill in an action to foreclose the original vendor’s lien and thereby procure the sale of the lot conveyed in exoneration of that retained, where the purchaser never became liable upon the note because of the failure of the holder to make due presentment to the maker. (Post, pp. 429-433,)</p>

<p>1. MeasuRE of Damages. For lessor's failure to give possession.</p> <p>The measure of damages for the refusal of a lessor to let the lessee into possession of the premises is the difference "between the rental stipulated and the value of the leasehold interest, and such measure should not be qualified by the use of the term “market”to characterize the value of the leasehold interest, where the premises are of such a peculiar character that the leasehold cannot be said to have a market value. (Post, pp. 440-445.)</p> <p>Case cited: 145 U. S., 522.</p> <p>2. Supreme Court. Will not reverse for error, when.</p> <p>If a decree correct in amount has been rendered upon full consideration of all competent evidence, it will not be reversed for abstract error in the order of reference declaring- the rule as to the measure of damag-es. (Post, p. 445.)</p>

<p>1. Ksights of TIonob. Rights of beneficiary wider benefit certificate.</p> <p>A beneficiary named in a benefit certificate of the Knights of Honor, has not such vested interest therein as will prevent the member from changing the beneficiary, and surrendering the certificate for a new one, when the certificate itself and the rules of the order reserve to the member the ultimate right to cancel and dispose of the certificate. (Post, pp. 447-453.)</p> <p>Cases cited and approved: Handwerker v. Diermeyer, 96 Tenn., 619; Life Association v. Winn, -96 Tenn., 336; Catholic Knights v. Kuhn, 91 Tenn., 214; Tennessee Lodge v. Ladd, 5 Lea, 719; 133 N. Y., 85.</p> <p>2. Same. Reasons for changing benejicia/ry in certificate.</p> <p>The insufficiency of the reasons inducing a member of the Knights of Honor to change the beneficiary in a benefit certificate from his wife to his children by a former wife, does not affect the validity of the change, where the power of revocation and change is reserved in the certificate itself, and authorized by the rules of the order, and the first beneficiary has, therefore, no vested interest. (Post, p. 453.)</p>

<p>1. Advbese Possession. Chives only possessory right to land, when.</p> <p>Seventeen years’ adverse possession of land, under a parol gift, vests the possessor, not with a title, hut with a mere posses-sory rig-ht, which is lost by a surrender or abandonment of the possession to the true owner by the possessor or his heirs, although the latter may be minors. (Post, pp. 455-459.)</p> <p>Cases cited and approved: Marr v. Gilliam, 1 Cold., 489; Crutsin-ger v. Catron, 10 Hum., 26.</p> <p>2. Possession. Constructive, with true owner.</p> <p>The constructive possession of land goes with the title. Where, therefore, a possessor, after acquiring a possessory right, abandons the possession, the constructive possession does not remain with him or his heirs, but reverts to the owner of the title. (Post, pp. 459, 460.)</p> <p>3.- Tenancy by Curtesy. Possessory right.</p> <p>Tenancy by curtesy does not attach to the wife’s mere posses-sory right to land. (Post, p. 460.)</p>

<p>Set-off. By surety for breach, of ■warranty made with principal.</p> <p>A surety sued alone upon a note without joining- his principal, cannot set off or recoup a claim for damages for breach of a warranty, made by the payee with the principal, without the consent of the latter.</p> <p>Code construed: §4641 (S.); § 3630 (M. & V.); §3930 (T. & S.).</p>

<p>1. Rescission. Laches.</p> <p>A vendor's bill for rescission of a sale on account of the vendee’s fraud, is properly dismissed pn demurrer, as showing laches on the part of complainant, where it appears that he delayed suit for three years after discovery of the facts constituting the alleged fraud. (Post, pp. 470, 471.)</p> <p>Cases cited and approved: Knuckolls v. Lea, 10 Hum., 576; Ruohs v. Bank, 94 Tenn., 73; 93 U. S., 63.</p> <p>2. Same. Barred, when.</p> <p>A vendor’s bill for rescission of a sale on account of the vendee’s fraud, is properly dismissed on demurrer, as showing a claim barred by the statute of limitations, where it appears that suit was brought after the vendee had been in possession under his contract for seven years, and the complainant does not aver ignorance, without his own fault, of the alleged fraud. (Post, pp. 471-473.)</p> <p>Cases cited and approved: Nicholson v. Lauderdale, 3 Hum., 200; Shelby v. Shelby, Cooke, 183; Peck v. Bullard, 2 Hum., 41; Haynie v. Hall, 5 Hum., 290; 22 Wall., 347; 136 U. S., 386.</p>

<p>1. Rescission. Granted, tuhen.</p> <p>A transaction, unconscionable in its nature, effected by false and fraudulent representations made to a person enfeebled in body and mind by an incurable disease, addicted to opium, and harassed by g’loomy apprehensions, though not insane, will be rescinded at the suit of the party defrauded, or his heirs or representatives.</p> <p>Cases cited: Hadly u Latimer, 3 Yer., 537; Coffee v. Ruffin, 4 Cold., 514; Seat v. McWhirter, 93 Tenn., 569; G-ass v. Mason, 4 Sneed, 506; Craddock v. Cabiness, 1 Swan, 481; Parrott v. Parrott, 1 Heis., 687; Knóx u Haralson, 2 Tenn. Ch., 236.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. J. W. BoNNer, J.</p>

<p>1. Will. Buie in Shelley’’s case.</p> <p>Tlie rule in Shelley’s case does not apply, and the first taker is not vested with the fee, under a devise of lands to testator’s two daug-hters, and to the survivor of them if either should die without a child, and to be held free from the debts .of their husbands if they should marry, and to descend “to their children.” {Post. pp. 527-529.)</p> <p>3. Same. Same.</p> <p>The words “ child ” or “ children ” are words of purchase, not of limitation, unless controlled by other lang-uag-e of the will, and are not the equivalent of the terms “heirs” or “heirs of his body,” as used in the statement of the rule in Shelley’s case. (Post, pp. 527-529.)</p> <p>3. Same. Language not precatory.</p> <p>The phrase, “ it is my will and desire,” is not merely precatory, but sufficient, when so intended, to pass and vest an estate. (Post, p. 529.)</p> <p>4. Equitable Estoppel. Does not attach, ivhen.</p> <p>The absolute owner of lands, who, entertaining an honest belief that he had but a life estate therein, knowingly, but without fraud, actual or constructive, permits, or even aids his children in conveying a remainder interest they are supposed to have therein, to a purchaser equally innocent and ignorant of the true state of the title, is not estopped to reclaim his title from such purchaser. (Post, pp. 529-533.)</p> <p>Cases cited and approved: Morris v. Moore, 11 Hum., 434; Askins v. Coe, 13 Lea, 677; Patton v. McClure, M. & Y., 339;.6 John’s Ch., 167.</p> <p>5. Estoppel. Of guarantor of title.</p> <p>One who becomes guarantor or surety that a minor shall make title to lands, is estopped thereafter to set up title in himself to the land, ag-ainst the purchaser, though he may have acted in ignorance of his own title and in perfect good faith. (Post, 2yp. 533, 534.)</p>

<p>1. Will. Of married woman, invalid when.</p> <p>A married woman’s will, invalid when made, for her want of testamentary capacity, is not vitalized without re-execution and republication, though she retains it in her possession until her death, and treats and speaks of it as her will after the passage of a statute conferring' testamentary capacity upon married women, which remained in force at her death. ■</p> <p>Code construed: §4347 (S.); § 3351 (M. & V.); § 3486 (T. & S.).</p> <p>3. Same. Sume.</p> <p>A married woman’s will, invalid when made, for her want of testamentary capacity, hut recognized by her as her will until her death, after the passage of a statute empowering- married women to make wills, though never re-executed or republished by her, does not become operative and effectual by virtue of the statute requiring wills to be construed to speak and take effect as if executed immediately before death, and to pass all property then owned by the testator, unless a contrary intention clearly appears.</p> <p>Code construed: § 3937 (S.); § 3035 (M. & V.); § 3195 (T. & S.).</p>

<p>1. Supbeme Court. Record entries of motions for new trial, and m arrest, essential.</p> <p>It is essential in this Court, as regards that class of questions which must he made by motion for new trial or in arrest of judgment, that such motions, and the 'action of the Court thereon, should be entered upon the minute book, and the omission to do so cannot be supplied by a recital in the bill of exceptions that such motions were made and overruled. (Post, pp. 542, 543.)</p> <p>2. Charge op Court. Erroneous refusal to eharcje request.</p> <p>It is reversible error for the Court to refuse to g'ive defendant’s request to the jury presenting its theory of the case, where, in a suit ag-ainst a railroad company for the killing of a person found mangled and unconscious near its track, there is no direct evidence of the manner of death, but circumstances supporting almost equally the theory advanced by plaintiff, that deceased was killed by a front-end collision, and the theory advanced by defendant that he was injured in an attempt to board the train while in motion. (Post, %>%>. 543, 544.)</p>

<p>FROM WILSON.</p> <p>Appeal in error from Circuit Court of Wilson County. W. C. Houston, J.</p>

<p>1. Deed. Effect of, between grantor and grantee.</p> <p>A deed, as between the grantor and grantee, passes the title as contemplated by its terms, whether it be with or without consideration, and whether it be made in good faith or for a fraudulent purpose, and whether registered or not, and the title is not revested in the grantor by the mere nonclaim of the grantee and the nonchange of possession. (Post, p. 566.)</p> <p>Case cited: Woods v. Bonner, 89 Tenn., 411.</p> <p>2. L&.UD Law. Assignment of lo/nd held by entry.</p> <p>The enterer’s assignment of “ the land ” described in his plat and certificate of survey is* ineffectual to pass title, however ancient the entry, if no grant had issued upon the entry and no possession, sufficient to raise presumption of a grant, had been held thereunder. (Post, pp. 566-568.)</p> <p>Cases cited and approved: Cannon v. Phillips, 2 Sneed, 211; Snoddy v. Kreutch, 3 Head, 302; Williams v. Donnell, 2 Head, 695. i</p> <p>3. Same. Rights of assignee of plat and certificate of survey.</p> <p>The assigmee of a plat and certificate of survey acquires not title to the lands therein described, but only the right to receive a grant therefor from the State upon proper presentation and proof of the assignment. (Post, pp. 568, 56!).)</p> <p>Cases cited and approved: Wilburn v. SpofEord, 4 Sneed, 699; Smith v. Peace, 1 Dea, 591; Holcomb v. Canady, 2 Ileis., 613.</p> <p>4. Same. The interest of (tn enterer and Ms assignee subject to levy and sale.</p> <p>The interest of the enterer of lands, and of his assigmee, is subject to levy of execution, and passes, with the right to demand and receive a grant from the State, to purchaser at execution sale upon a proper transfer by the Sheriff. (Post, p. 569.)</p> <p>Code construed: $ 4761 (S.); $ 3746 (M. & V.); $ 3033 (T. & S.).</p> <p>Cases cited and approved: Bumpas v. Gregory, 8 Yei\, 46; Lee v. Crossna, 6 Hum., 281; Hall v. Heffly, Id., 444; Crutsing-er v. Catron, 10 Hum., 29.</p> <p>5. Ejectment. Plaintiff must show title.</p> <p>To eject the possessor of land or to remove a cloud from title, the plaintiff must aver and prove title in himself. (Post, pp. 570, 571.)</p> <p>Code construed: $4970 (S.J; $3953 (Ml & V.); $3229 (T. & S.)</p> <p>Cases cited and approved: Anderson v. Talbot, 1 Heis., 408; Ross v. Young, 5 Sneed, 627; Estill v. Deckerd, 4 Bax., 499; Iloyal v. Bryson, 6 Heis., 139; Coal Creek Co. u Ross, 12 Lea, 1; Lang-ford v. Love, 3-Sneed, 309; Campbell'». Campbell, 3 Head, 325; Walker v. Pox, 85 Tenn., 154; Garrett v. Belmont Land Co., 94 Tenn., 460; Evans v. Belmont Land Co., 92 Tenn., 348.</p> <p>6. PAEor, Sale of Land. Not enforced, when.</p> <p>A parol vendee of land out of possession cannot have the sale completed and enforced so as to dispossess independent third parties who are in possession, claiming in their own z-ightfrom an entirely different source, notwithstanding the established doctrine that a parol sale of land is voidable only, and not void, and that independent third parties cannot intervene to prevent its completion and enforcement when the vendee is in possession, and both he and the vendor are ready, able, and willing to comply with its terms. (Post, pp. 571, 572.)</p> <p>Cases cited and approved: Brakefield v. Anderson, 87 Tenn., 206; Phillips v. Kimmons, 94 Tenn., 563; Citty v. Mfg. Co., 93 Tenn., 278; Sneed v. Bradley, 4 Sneed, 301.</p> <p>7. Same. Same.</p> <p>At least the affirmative act of one of the parties to a parol sale of land, and the assent or acquiescence of the other, is essential to justify the Court in divesting and investing title. (Post, p. 572.)</p>

<p>1. RailRoads. Notice to agent of the killing of stock.</p> <p>The notice required to be given, under Sec. 4, Ch. 101, Acts 1891, by the owner of an animal killed or injured by a train, to the nearest agent of the railroad company, of such owner’s application to a Justice of the Peace for the appointment of appraisers to assess damages, must be given to the agent of the company nearest the place where the accident occurred, no matter whether he lives in the same civil district or even the same county.</p> <p>Act construed: Acts 1891, Ch. 101, See. 4.</p> <p>2. Same. Appraisement of value of stock without the required notice iwoalid.</p> <p>And an appraisement of the value of stock killed by a train, made upon notice to other than such nearest agent of the company, is invalid, and it is error to admit it in evidence in a suit for the value of the animal.</p> <p>Act construed: Acts 1891, Ch. 101.</p>

<p>1. Veedict. Not aside, ivhen.</p> <p>A verdict will not be set aside by this Court upon consideration of the facts, if there is any material reliable evidence to support it. It will not be set aside upon the ground that the weight or preponderance of the evidence is ag-ainst it. (Post, p. 581.)</p> <p>Cases cited and approved: Kirkpatrick v. Jenkins, 96 Tenn., 85; Minton v. Stahlman, 96 Tenn., 111.</p> <p>3. Charge oe Court, As to sympathy in personal injury ease.</p> <p>An instruction in an action for personal injuries, to the effect that the sympathy is very properly aroused in behalf of the person injured, but that the Court and jury must bear in mind that the questions for determination are how the accident occurred, which party is to blame, and the extent of the injury, though subject to criticism for meagerness and as not being sufficiently guarded, will not be deemed reversibly erroneous where no further charge upon the point was asked. (Post, pp. 581, 582.)</p> <p>3. Public Roads. Duty of drivers on.</p> <p>A driver upon a public road should have his horse and vehicle under such usual, ordinary, and reasonable control as to be able to prevent a collision. (Post, p. 585.)</p> <p>Case cited: 13 Am. Rep., 135.</p> <p>4. Same. IAabiUty for injuries caused by collision of vehicles in passing each other.</p> <p>A driver cannot avoid liability for injuries by collision to one riding in a preceding vehicle going in the same direction because the latter violated the statute requiring that when vehicles are traveling in the same direction, the one in the rear may pass by going to the left, and - that no driver shall stop his vehicle without turning so far to the right as to leave half of the road free, open, and unobstructed for other travelers and vehicles, where, after noticing that the preceding vehicle had turned to the left, he might have avoided a collision by turning to the right. (Post, pp. 583-585.)</p> <p>Code construed: ¡¡§1601, 1603, 1605 (S.); U 1310, 1312, 1314 (M. & V.); 1173, 1175, Í177 (T. & S.).</p> <p>Case cited: 73 Am. Dec., 407.</p> <p>5. Same. Duty of driver of Mndmost vehicle.</p> <p>It is the duty of a driver of the hindmost of two vehicles proceeding in the same direction, who desires to pass the other vehicle which is occupying the portion of the roadway to which he is entitled, to stop and give warning to the driver of that vehicle, so as to avoid a collision, and not to attempt to pass unless he can do so safely. (Post, p. 588.)</p> <p>6. Same. Bights of drimer in leaving road.</p> <p>The driver of the preceding- of two vehicles going in the same direction is not guilty of negligence in occupying that side of the public road to which the hindmost driver is ordinarily entitled, when it is necessary for him to do so, in entering his premises, and he remains thereon only a reasonable time. (Post, pp. 583-585, 587.)</p> <p>7. Same. What care is required of driver as to horse and vehicle.</p> <p>A driver upon a public highway is required to exercise ordinary care in the selection and use of horse and vehicle. He is not required to have horse and vehicle absolutely free from defects or vices, but only to exercise reasonable care in this respect. (Post, p. 587.)</p> <p>8. Evidence. Nob objectionable as calling for opinion, when.</p> <p>A question as to whether a vehicle could pass between the middle of the avenue and the fence on one side is not objectionable, as calling for mere opinion, where the witness has already stated that there was an open space of some twenty feet between those points. (Post, pp. 587, 588.)</p> <p>9. Remittituk. Of part of verdict for damages.</p> <p>The trial Judge may, as a condition of denying the motion for a new trial made by defendant in an action for tort, require a remittitur of a part of a verdict, which he deems excessive; but it is optional with the plaintiff to comply with such condition or to suffer a new trial. (Post, pp. 588-530.)</p> <p>Cases cited: Branch u Bass, 5 Sneed, 366; Railroad v. Jones, 9 Heis., 37; Massadillo v. Railroad, 89 Tenn., 661; Railroad v. Wallace, 91 Tenn., 35; Railroad v. Garrett, 8 Lea, 450; Railroad v. Foster, 10 Lea, 366.</p>

<p>1. Life Instjkaitc®. Death results from accidental means, when.</p> <p>The death of the insured results from injuries sustained by “accidental means,” within the meaning of a life and accident policy, though he was shot and killed while advancing in an angry and threatening manner upon his slayer, if he did not know at the time, and had not reason to believe, the latter was armed with, and would use, a deadly weapon. (Post, pp. 594, 595.)</p> <p>Cases cited and approved: Insurance Co. u Bennett, 90 Tenn., 256; 36 Miss., 531; 136 Mo., 104 (S. C., 30 L. R. A., 309).</p> <p>2. Sam®. Death not result of voluntary exposure to unnecessm-y danger, when.</p> <p>The death of the insured does not result from 1 ‘ voluntary expos ure to unnecessary danger ” within the exception of a life and accident policy, althoug-h he was shot while advancing toward his slayer, with angry and threatening demonstrations, after the latter had warned him not to approach, unless he knew, or had sufficient reason to believe, that his adversary was armed, and, on his continued advance,, would shoot to kill. (Post, pp. 595-598.)</p> <p>Cases cited and approved: Miller v. Ins. Co., 92 Tenn., 167; 102 Pa. St., 263; 58 Mo., 13; 34 Wis., 389; 126 Mo., 104.</p> <p>Cited and distinguished: 80 Ga., 541; 133 N. Y., 366; 134 Mass., 175.</p>

<p>1. Judgment. Against married woman, void.</p> <p>A judgment in personam against a married woman, in the teeth of her plea of coverture, for a debt contracted during marriage, is void, although rendered upon a contract binding her separate estate. (Post, p. 601.)</p> <p>2. Sepaeate Estate. Must be described in proceedings to subject.</p> <p>A creditor who seeks to have the separate estate of a married woman applied to the satisfaction of a debt which she has agreed shall be a charge upon it, must, in his proceedings, point out such separate estate, as the existence of such an estate, within reach of the process of the Court, is a jurisdictional fact. (Post, p. 601.)</p> <p>3. Same. What can be subjected to debts.</p> <p>Contracts or undertaking's entered into by married women, charging their separate estate with debts, can only be enforced against the separate estate free from restraint which she held at the time of entering into the engagement, or so much thereof as remains in her ownership at the time judgment is rendered. (Post, pp. 601, 602.)</p> <p>i. Same. Justices of the Peace have no power over.</p> <p>A Justice of the Peace has rio jurisdiction to subject, in any form, the separate estate of a married woman to her debt, as the estate is purely equitable in its nature, and the statute providing that the jurisdiction of Justices of the Peace extends to all equity causes when the subject-matter does not exceed fifty dollars, and that any Justice before whom any cause may be pending, where the subject-matter does not exceed that amount, shall hear and determine it upon the principles of equity and render such judgment or decree as the merits may require, in the same manner as Courts of Chancery, do not'clothe Justices with the power of a Chancellor, but merely authorizes them to determine cases by equitable principles, if necessary. (Post, pp. 602, 603.)</p> <p>Code construed: 5935, 5936 (S.); $$ 4898, 4899 (M. & V.); gjj 4133, 4134 (T. & S.).</p> <p>Cases cited and approved: Putnam ®. Bently, 8 Bax., 85; State v. Coving-ton, 4 Lea, 51; Anderson v. Kimbrough, 5 Cold., 360; Harris v. Hadden, 7 Lea, 316.</p>

<p>Tendee. Extinguishes debt sued on and terminates suit, when.</p> <p>An action on an open account is terminated and the debt sued for extinguished, where the plaintiff accepts a sum, less than his claim, with costs, tendered and paid in by defendant as a full satisfaction of plaintiff’s demand and accrued costs, without obtaining any modification of the terms of the tender by order of the Court or consent of the defendant.</p> <p>Code construed: §§4647, 4661 (S); §§ 3636, 3650 (M. & V.); § 3936 (T. & S.).</p> <p>Cases cited and approved: 98 Ala., 638; 95 Ala., 338; 69 Ala., 369; 55 Mo., 468; 14 Mo. Ap., 103.</p> <p>Cases cited and distinguished: Keith v. Smith, 1 Swan, 93; Mc-Nairyu Bell, 1 Yer., 503; Keys v. Roder, 1 Head, 30; Miller v. McKinney, 5 Lea, 93; Bank v. Ewing, 13 Lea, 608; 77 Am. Dec., 488.</p>

<p>1. EvxdbNce. Of situation of premises after accident.</p> <p>It is competent for witnesses to testify that when they visited the store on the day after an accident from falling .into an elevator well, no guard rail was there, and that they asked for it to inspect it, and searched for it, but could not find it, where the defendant claimed, a.t the time, that there was a guard rail, and that it was broken at the time of the accident. (Post, Jjp. 628, 629.)</p> <p>2. Negligence. Proximate cause of injury.</p> <p>The negligence of the proprietor of a store in failing' to guard an elevator shaft, and not the stumbling of the customer, is the proximate cause of the death of a customer from falling- into the shaft, after stumbling over a platform upon which the goods which he was inspecting were displayed in close proximity to the shaft. (Post, pp. 629, 630.)</p> <p>Cases cited and approved: Postal Tel. Co. v. Zopfi, 93 Tenn., 374; Anderson v. Miller, 96 Tenn., 45.</p> <p>3. Same. Ben dering proprietor of store liable to customer falling into elevator shaft.</p> <p>The proprietor of a store is guilty of negligence rendering' him liable for the death of a customer, who was free from contributory negligence, by falling into an elevator shaft located in close proximity to the place where he was inspecting goods, in failing to protect the shaft, or in using a guard rail for that purpose which was so manifestly defective as to be no protection to one who might fall against it without extraordinary force. {Post, pp. 630-633.)</p> <p>4. Same. Customer visiting store not gvMty of, when.</p> <p>A customer on his first visit to a store, who is unfamilar with the surroundings, may, without imputation of negligence, rely upon the safety thereof. (Post, pp. 633, 634.)</p> <p>Cases cited and approved: 127 Ind., 1; 154 Mass., 599.</p> <p>5. Verdict. JVoi set aside as excessive, when.</p> <p>A verdict of $10,000 for the death of a man fifty-seven years old, in good health, strong and vig’orous, having an expectancy of over sixteen years, according to the tables of mortality, and earning about three or four hundred dollars a month, will not be disturbed, on appeal, as excessive, although, as the result of obligations he had been obliged to pay as surety, he had failed in business, and was carrying on trade in the name of'his wife. (Post, pp. 634, 635.)</p>

<p>1. Couet and Jury. Court construes written instrument.</p> <p>The Court should construe a written instrument put in evidence, and not submit its construction to the jury. (Post, pp. (¡37, 638.)</p> <p>3. Bills and Notes. Transfer of nonnegotidble, for collection.</p> <p>The provision in a note that it is not negotiable, does not prevent its transfer to an agent for collection for the payee. (Post, pp. 638, 639.)</p> <p>3. Fire Insurance. No defense to premium note that soVvent company went into liquidation providing for policies.</p> <p>That an insurance company went into liquidation during the life of the policy, is not a defense to an action upon a premium note, where it was solvent at the time and reinsured its risks in a good company, although the insured was not a party to the reinsurance. (Post, p. 639.)</p> <p>4. Same. Premium note collectible though default suspends policy.</p> <p>The fact that by the terms of a premium note the policy is suspended while the note is overdue and unpaid, does not defeat or prevent the collection of the entire note, after the same has, by its terms, become due. (Post, pp. 639-642.)</p> <p>Cases cited: Caruthers v. McBurney, 3 Sneed, 590; Lane*. Manning, 8 Yer., 435; Holms v. Johnson, 13 I-Ieis., 155; Wallu. Marsh, 9 Bax., 438; Miskelly u Pitts, 9 Bax., 193; 19 Mich., 451 (S. C., 3 Am. Rep., 95); 60Ind., 515; 30 Ohio St., 340; 40 Ohio St., 135; 39 Wis., 11; 6 L. R. A., 87; 83 Ky., 574; 30 N. Y., 157; 47 Mich., 447; 65 Mo., 81.</p> <p>Cited and distinguished: Daleu. Cont. Ins. Co., 95 Tenn., 38.</p>

<p>1. Measure or Damages. For breach of contract of sale.</p> <p>1 Doctrine reaffirmed, that the measure of damages for breach by the seller of an executory contract of sale is the difference between the contract price and the market value of the article at the time and place of delivery. (Post, p. 645.)</p> <p>. Cases cited and approved: Coffman v. Williams, i Heis., 233; McDonald v. Unaka Co., 88 Tenn., 38.</p> <p>2. Same. Evidence of market price.</p> <p>Evidence of the price of oil on three days during which it would have been received by defendant, if shipped with reasonable promptness by plaintiff, as provided in the accepted orders given by defendant, is not inadmissible as an average of prices and as speculative, in determining the damage from failure to deliver. (Post, pp. 645-649.)</p> <p>3. Set-oee. Amount in excess of plea abated.</p> <p>An excess allowed to defendant above the amount claimed in his plea of set-off and recoupment will be abated on appeal, although no objection on that ground was made in the trial Court. (Post, p. 646.)</p>

<p>1. Damages. Special m/ust he amerred.</p> <p>Special damages, such as those resulting- from the loss of contracts, cannot he proved or recovered in an action for personal injuries, unless the grounds for them are alleged in the declaration. (Post, p. 652.)</p> <p>Cases cited and approved: Rose u. Perry, 8 Yer., 156; Eastham v. Crowder, 1<J Hum., 194; Simpson v. Markwood, 6 Bax., 340; Fry v. McCord, 95 Tenn., 678.</p> <p>3. EvideNOE. What jury should consider.</p> <p>A case must , he determined upon the evidence given upon the trial, and not upon any knowledge or information any one ox-more of the jury may have as to the facts outside of the record, and the Court should so instruct the jury in clear and distinct terms, especially when a juror asks for instruction upon the point. (Post, pp. 652, 653.)</p> <p>3. CHARGE of Court. Failure to charge as to damages is error.</p> <p>The failure to charge on the subject of damages in an action for personal injuries is reversible error, although no request for instructions on that point was made. (Post, pp. 653, 654.)</p> <p>Cases cited and approved; Foster v. Collins, 6 Heis., 3; Manier v. Smith, 7 Bax., 434; Allen v. State, 5 Yer., 453.</p> <p>Cited and distinguished: Southerland v. Shelton, 13 Heis., 374; Mayor v. Bell, 13 Lea, 161; Maxwell v. Hill, 89 Tenn., 585; Telephone Co. v. Poston, 94 Tenn., 696.</p>

<p>1. Railroads. Liability absolute, when.</p> <p>The liability of a railroad company is absolute for the killing of a person upon its track by a backing engine and tender, which are not engaged in switching within the company’s yards. The statutory precautions apply in such ease, and the manner of running the engine and tender precludes the possibility of observance. (Post, pp. 657-662.)</p> <p>Code construed: $$ 1574, 1575 (S.); U 1298, 1299 (M. & V.); $$ 1166, 1167 (T. & S.).</p> <p>Cases cited and approved: Railway v. Wilson, 90 Tenn., 271; Railroad v. Pugh, 95 Tenn., 421; Railroad u Smith, 6 Heis., 174; Railroad v. White, 5 Lea, 542.</p> <p>Cited and distinguished: Railroad v. Seaborn, 85 Tenn., 391.</p> <p>2. Contributory Negligence. In crossing railroad track.</p> <p>A person is not guilty of contributory negligence in passing at night behind a- freight train, after waiting for it to pass, at a public crossing- in a city, and is surprised and struck by an engine and tender backing- silently and rapidly in an opposite direction along a parallel track only eight feet away, without any light or lookout, and without sounding bell or whistle. (Post, pp. 662, 663.)</p> <p>3. Same. The duty to stop, look, and listen for train defined.</p> <p>The duty of a person about to cross a railroad track to stop, look, and listen is not absolute and universal. This requirement must receive a reasonable construction, and the failure to observe it does not always constitute negligence. (Post, pp. 663, 664.)</p> <p>4. Verdict. Not reversible as exeessi/ve. Verdicts — $3,000 for killing a negro woman twenty-five years of age, and $2,500 for killing a negro boy twelve years of age— when the parties were guilty of no contributory neg-lig-enee, and the facts would justify the giving- of exemplary damag-es, will not be set aside as excessive in amount. (Post, p. 664.)</p>

<p>1. Constitutional Law. Wisdom and policy of legislation.</p> <p>The Legislature, not the Courts, determines and is alone responsible for the wisdom, propriety, desirability, and policy of statutes. These matters are committed to the intelligence, patriotism, and discretion of the representatives of the people, and the Courts will not run a race of opinions with these representatives upon the question of the wisdom, propriety, or expediency of their action. (Post, pp. 6TS-681.)</p> <p>Cases cited and approved: McG-innis v. State, 9 Hum., 47; Washington v. Mayor, etc., 1 Swan, 180; Davis v. State, 3 Lea, 378; Ballentine v. Pulaski, lñ Lea, 634; Lynn v. Polk, 8 Lea, 229; Peck v. State, 86 Tenn., 262; Williams v. Nashville, 89 Tenn., 438; Cole Mfg. Co. v. Palls, 90 Tenn., 481; Sutton v. State, 96 Tenn., 698.</p> <p>2. Same. Extent and limits of legislative power.</p> <p>The Leg-islature has unlimited power to act in its own sphere of legislation, except so far as restrained by the Constitution of the United States and the Constitution of the State. (Post, p. 681.)</p> <p>Cases cited and approved: Bellu. Bank, Peck, 269; Hope v. Dead-eriek, 8 Hum., 8; Davis v. State, 3 Lea, 377; Stratton v. Morris, 89 Tenn., 497.</p> <p>3. Same. Statute valid unless it violates some provisioti of the Constitution.</p> <p>A statute which does not violate some provision of the Constitution cannot be annulled by the Courts, whether its provisions are wise or unwise, or whether its operation be hurtful or beneficial. (Post, p. 681.)</p> <p>4. Same. Same.</p> <p>It is settled law that he who insists upon the unconstitutionality of a statute, must point out the specific provision of the Constitution which it expressly, or by unavoidable implication, violates. It cannot be annulled upon supposed natural equity, the inherent rights of freemen, or upon any general or vague interpretation of a provision of the Constitution beyond its plain and obvious import, or as being opposed to a spirit supposed to pervade the Constitution, but not expressed in words, or as being contrary to the genius of a free people. (Post, pp. 681-683.)</p> <p>Cases cited and approved: Davis v. State, 3 Lea, 377; Stratton v. Morris, 89 Tenn., 497; Bell v. Bank, Peck, 269: Hope v. Dead-eriek, 8 Hum., 8; Demoville v. Davidson County, 87 Tenn., 220; Reelfoot Labe v. Dawson, 97 Tenn., 159; Luehrman v. Tax. Dist., 2 Lea, 438.</p> <p>5. Same. Rules for construing statutes.</p> <p>Courts do not exercise arbitrary powers in construing either statutes or constitutions. The Courts give to statutes upon trial for their constitutionality, the benefit of every reasonable doubt, indulge every reasonable intendment in their favor, and adopt that construction, in cases of doubt, which will sustain the validity of the law. (Post, pp. 681, 682.)</p> <p>Cases cited and approved: Morrell v. E’ickle, 3 Lea, 81; Garvin v. State, 13 Lea, 162; State v. Yardley, 95 Tenn., 550; Cole Mfg\ Co. v. Palls, 90 Tenn., 466; Ellis v. State, 92 Tenn., 93; Horne v. Railroad, 1 Cold., 74; Railroads v. Crider, 91 Tenn., 506.</p> <p>6. Same. The “Jarvis bill ” does not taJte “partieula/r services ” of the citizen.</p> <p>The “Jarvis bill,” in forbidding- the payment out of the State or county treasuries of compensation to officers and witnesses, for such services as they have ordinarily been required to tender on behalf of the State in the administration of the criminal laws, does not deprive them of such “ particular services ” as the Constitution forbids to be taken from the citizen for pub-' lie use without compensation. (Post, pp. 683-697.)</p> <p>Constitution construed: Article I., Sec. 21.</p> <p>Acts construed: Acts 1897, Ch. 20.</p> <p>7. Same. “Particular services” defined:</p> <p>“ Particular services,” within the meaning of the constitutional provision that no man’s particular services shall be demanded without the consent- of his representatives or just compensation, means peculiar services, limited services — not ordinary or general services. Ordinary services, such as may be required of all citizens or officials by general or valid special laws, are not particular services. (Post, p. 684.)</p> <p>Constitution construed: Article I., Sec. 21.</p> <p>Cases cited and approved: Washington v. Nashville, 1 Swan, 180; Wright u State, 3 Heis., 256; Houseu White, 5 Bax., 692; Neely v. State, 4 Bax., 174; Avery v. State, 7 Bax., 331; Taylor v. Chandler, 9 Heis., 360; 8 Ind., 467; 59 Ind., 12, 18; 14 Ore., 20.</p> <p>8.Sams. Jarvis bill infringes no vested common law right.</p> <p>The Jarvis bill infringes no vested right of the citizen. The right to costs did not exist at common law, and is the creature of statute. The liability of State and counties for costs is purely of statutory creation. Statutes creating- such liability are construed with g-reat strictness. They may be amended or repealed at pleasure. The constitutional provisions forbidding-suit against the State without its consent, and forbidding the use of public funds without appropriations made by law, make affirmative legislative action necessary to the payment of costs out of the public treasury. (Post, pp. 688-695.)</p> <p>Constitution construed: Article I., Sec. 17; Art. II., Sec. 24.</p> <p>Cases cited and approved: Mooneys v. State, 2 Yer., 578; Morgan v. Pickard, 86 Tenn., 208; State v. Odom, 93 Tenn., 446; State v. Barton, 3 Ilum., 13; Prince v. Statet 7 Hum., 137; Tucker v. State, 2 Head, 556; Lynn u. Polk, 8 Lea, 121; Watson v. Bank, 3 Bax., 395; Stateu Sneed, 9Bax., 479; Stoutu State, 91 Tenn., 405; Shelton v. State, 96 Tenn., 521; Avery v. State, 7 Bax., 331.</p> <p>9.Same. When statute is “the lato of the land.”</p> <p>A statute is “the law of the land,” which embraces all persons who are already or who may thereafter come into similar situations, conditions, and circumstances. If classifications are resorted to, they must be natural and reasonable, not arbitrary and capricious. (Post, pp. 698-701.)</p> <p>Cases cited and approved: Mayor v. Dearm on, 2 Sneed, 104; State v. Rancher, 1 Lea, 97; Davis v. State, 3 Lea, 367; Maney v. State, 6 Lea, 221; Ilatcher v. State, 12 Lea, 371; Woodard v. Brien, 14 Lea, 523; Stratton v. Morris, 89 Tenn., 499; Bank v. Cooper, 2 Yer., 600; State v. Staten, 6 Cold., 233; Knox v. State, 9 Bax., 202; Duggers. Insurance Co., 95 Tenn., 245; Sutton v. State, 96 Tenn., 696.</p> <p>10.Same. Same. Jarvis bill.</p> <p>The Court will not review the discretion of the Legislature in appropriating or refusing to appropriate public funds for the purposes oí government, upon the ground that its classifications of the objects provided for or denied appropriations are not natural and reasonable, but arbitrary and capricious. (Post, pp. 698, 699.)</p> <p>Acts construed: Acts 1897; Ch. 30.</p> <p>11. Same. Same. Same.</p> <p>The classifications of the ‘ ‘ Jarvis bill, ” both in providing for payment of costs in certain cases and refusing costs in other eases, and in compensating witnesses in certain instances and refusing compensation in other instances, are not arbitrary and capricious, but natural and reasonable when viewed in the light of former legislation and the circumstances confronting the Legislature. (Post, pp. 698-701.)</p> <p>Acts construed: Acts 1897, Ch. 30.</p> <p>13. Same. Fain-and impartial trial.</p> <p>There is no constitutional guarantee, express or implied, that secures to persons put on trial for crime the services of impartial Sheriffs, impartial Clerks, or impartial witnesses. The requirement of impartiality is confined to the jury. (Post, pp. 701-703.)</p> <p>13. Same. Same. Jarvis MU.</p> <p>The provisions of the Jarvis bill making the payment, by the State or counties, of costs and fees of officers and witnesses in criminalc ases dependent upon conviction, does not deprive the accused of the benefit of any constitutional guarantees relating- to, the trial of ci-iminal cases. The fees of the jurors, and of the Sheriff for summoning the jury, are excepted, and not left to depend on conviction. The Clerk is a mere amanuensis of the Court to enter its orders. The Justice is remotely interested, and has no direct connection with the trial. The interest of witnesses goes to their credit. (Post, pp. 704-706.)</p> <p>Constitution construed: Art. I., Sec. 6.</p> <p>Act construed: Acts 1897, Ch. 30.</p> <p>Cases cited and approved: Grundy County v. Tenn., etc., Co., 94 Tenn., 395; Clapp <u. State, 94 Tenn., 186; Eason u State, 6 Bax., 475; McGinnis v. State, 9 Hum., 47; Trigally v. Memphis, 6 Cold., 383; Hogan v. Chattanooga, 2 Leg. Rep., 12; Yardley case, 95 Tenn., 563; Railroads v. Crider, 91 Tenn., 489.</p> <p>14. Same. Repeals by implication.</p> <p>Reference to laws repealed is not necessary in an original statute which repeals them only by necessary implication. (Post, pp. 707, 70S.)</p> <p>Constitution construed: Article II., Sec. 17.</p> <p>tAct construed: Acts 1897, Ch. SO.</p> <p>Oases cited and approved: Home Ins. Co. v. Taxing Dist., 4 Lea, 650; Maney v. State, 6 Lea, 218; Railroads v. Crider, 91 Tenn., 506; Knoxville v. Lewis,‘IS Lea, 181; State v. Yardley, 95 Tenn., 546; Ballentine v. Pulaski, 15 Lea, 633; Poe v. State, 85 Tenn., 495; Hunter v. Memphis, 93 Tenn., 571.</p>