99 Tenn.

Volume 99 — Tennessee Reports

85 opinions

99 Tenn. 1Railroad v. Sneed (1897)
1. CORPORATIONS. Requisites of wMd increase of capital stock of railroad company. It is essential to a valid increase of the capital stock of a railroad corporation organized under Acts 1875, Ch. 142, made while Acts 1883, Ch. 163, was in force, that the same should he effected throug'h an amendment of the charter g'ranted by the State upon formal application, and probated and registered as in case of original charters. An increase made upon mere resolution of the board of directors was void. (Post, pp. 3-14.) Acts eonsti-ued: Acts 1875, Ch. 142; Acts 1883, Ch. 163 (repealed by Acts 1893, Ch. 146). 3. Same. Subscriptions to invalid increase of capital stocli not collectible. A subscription to an increase of capital stock, made without compliance with the essential statutory conditions and requirements, cannot be enforced by the corporation. The subscriber does not thereby become a stockholder. The subscription contract is absolutely void as between the subscriber an,d the corporation, and he may recover back any sums paid thereon, as having been paid without consideration. (Post, pp. 6, 7.) Cases cited and approved: Brewer v. State, 7 Lea, 683; Anderson v. Railroad. 91 Tenn., 44; Cartwright v. Dickinson, 88 Tenn., 476; 33 Mo. App., 314, 330; 37 Fed. Rep., 508; 43 Minn., 337. Cited and disting-uished: 96 U. S., 338; 41 Fed. Rep., 531; 139 U. S., 417. 3. Same. Subscriber to illegally increased capital stoeh not estopped to deny UabiMty, when. , That a subscriber to the increased capital stock of a corporation actively participated in obtaining the increase, became thereafter a director, and paid up a large portion of his subscription, does not estop to deny his liability, in a suit by the corporation to recover the subscription, upon the g-round that the increase was illegal and void for want of compliance with essential statutory conditions and requirements. (Post, pp. 9, 10.) Cases cited and approved: Anderson u Railroad, 91 Tenn., 44; Cartwright v. Dickinson, 88 Tenn., 476; 37 Fed. Rep., 530; 105 D. S., 143; 5 Rich, 103; 33 Mo. App., 314; 139 Mass., 9-11.
99 Tenn. 15Rembert v. Edmondson (1897)
FROM SHELBY. Appeal from Chancery 'Court of Shelby County. Jno. L. T. Sneed, Ch.
99 Tenn. 20Judge v. Jones (1897)
Mortgages and Deeds of Trust. Passes after-acquirecl property, when. A deed of trust, conveying- a crop and ‘ ‘ all tools, gearing, and implements of whatever kind used, or to he used, in making or gathering said crop, including wagons of whatever kind,” to secure an existing debt, and also “money and supplies to he advanced,” is valid and effectual to pass a wagon and harness advanced six months later for use in gathering crop. Cases cited and approved: McCarty v. Blevins, 5 Yer., 195; Ted-ford v. Wilson, 3 Head, 312; Watkins v. Wyatt, 9 Bax., 250; 1 Hare, 549; 73 Mo., 179; 48 Miss., 513; 50 Miss., 390; 13 Wall., 302.
99 Tenn. 24Porter v. Duke (1897)
FROM TIPTON. Appeal from Chancery Court of Tipton County. John S. Cooper, Ch.
99 Tenn. 28Knights of Pythias v. Cogbill (1897)
FROM SHELBY. Appeal in error from the Circuit Court of Shelby County. L. H. Estes, J.
99 Tenn. 39Hill v. Hatch (1897)
Garnishment. Personal property taken from prisoner not subject to, toben. Pei'sonal property, in no way connected with the criminal charge, taken by police officers from a prisoner, either in accordance with police rules or without them, for the safe-keeping of such property, or to remove from his control the possible means of effecting his escape, is not subject to garnishment in the officers’ hands. Cases cited and approved: 65 Iowa, 665; 18 S. W. R., 195 (Tex.); 13 Ore., 47; 7 Cush. (Mass.), 257: 14 Gray, 229.
99 Tenn. 42Bank v. Hill, Fontaine & Co. (1897)
FROM SHELBY. Appeal from Chancery Court of Shelby County. John L. T. Sneed, Ch.
99 Tenn. 50Woods v. Woods (1897)
1. Limitations, Statütb op. For protection of decedents' estates begin to run, when. The periods of two and three years within which resident and nonresident creditors, respectively, nmst bring suit against personal representatives, do not begin to run until six months after their qualification, during which time they are exempt from-suit, or from date of accrual of cause of action, if that occurs later. (Post, pp. 53, 54.) Code construed: §§4481, 4451, 4012, 4007 (S.); §§ 3481, 3454, 3117, 3112 (M. & .VO; §§2784, 2760, 2279, 2274 (T. & S.). Cases cited and approved: Bright v. Moore, 87 Tenn., 186; Jones v. Whitworth, 94 Tenn., 617; Trott v. West, 9 Yer., 433; Bradford D. McLemoi'e, 3 Yer., 318. 2. Samis. Operate against creditors of insolvent estates. The statutes of limitations requiring resident and nonresident creditors to bring their suits against personal representatives within two and three years, respectively, after qualification, or after accrual of cause of action if that occurs later, operate against creditors of insolvent estates, after suggestion and advertisement of insolvency, as well as against creditors of solvent estates. (Post, p. 54.) Code construed: §§4481, 4012 (S.); §§ 3481, 3117 (M. & V.); §§ 2279, 2784 (T. & S.). Cases cited and approved: Latta v. Sumerow, 4 Lea, 489; Hearn ■i). Roberts, 9 Lea, 365; Prewett v. Goodlett, 98 Tenn., 82. 3. Samb. Running of, not anrested by deposit of claim with persdual representative of 'insolvent estate. The deposit of a note with the executors of an insolvent estate, and their recognition of it in their annual statement, and otherwise, as a “filed claim,” does not arrest or prevent the running of statutes of limitation, or relieve the creditor from the necessity of filing his claim in due time in Court administering the estate. (Post, p. 55.) Code construed: 4072, 4070 (S); U 3177, 3175 (M. & V.); ^2332, 2330 (T. & S.). Cases cited and approved: Bates v. Elrod, 13 Lea, 156; Prewett v. G-oodlett, 98 Tenn., 82. 4. Same. Bequest for delay not sufficient to arrest, when. That a creditor presented his claim to the executors of an estate for payment, left it with them, taking their receipt therefor, and was thereafter put off by their statements, made from time to time, that their attorneys had not fixed the matter up, does not constitute such special request for delay by the executors as will, under the statute, suspend or prevent the running of the statute of limitations in favor of the estate. (Post, pp. 55-57.) Code construed: 4482, 4013 (S.); f jj 3483, 3118 (M. &V.); H 2785, 2280 (T. & S.). Cases cited and approved: Trott v. West, 9 Yer., 433; Bank v. Leath, 11 Hum., 515; Birdsong v. Birdsong-, 2 Head, 603; Rick-etts v. Kicketts, 4 Lea, 163; Puckett v. James, 2 Hum., 565. 5. Same. For protection of estates, may be interposed by heirs and legatees. Heirs and leg-atees, when impleaded by creditors in an action, against the personal representative, may interpose, for the protection of their rights, the statutes of limitations of two and three years within which suit must be brought against the personal representative by resident and nonresident creditors, respectively, although these statutes were originally intended for the benefit of the personal representative only. (Post, pp. 57-59.) Cases cited and approved: Armstrongs. Dunlap, 3 Lea, 191; Davis v. Davis, 5 Lea, 179; Byrn v. Fleming, 3 Head, 663; Armstrong v. Croft, 3 Lea, 194. 6. Same. Running of, not prevented by existence of a will. The running of the statute of limitations requiring suit to be brought against personal representatives within two .and three years, is not prevented in favor of a creditor by the fact that there was a will which such- creditor had a right . to bring into court for construction, where the will was promptly probated, and he was entitled to nothing thereunder. (Post, pp. 59-63.) 17. Wills. Debts are not fixed as cm absolute charge i.upon life insurance. The personal creditors of a testator cannot enforce the payment of their claims from insurance money on the life of testator, •as a fixed charge thereon, under a provision in the will that he wishes his executors to pay from the proceeds of sueli insurance any personal indebtedness owed by him, after exhausting his other estate in connection with a subsequent provision, that it is his intention to prohibit the executors from using any of such money for the payment of debts of a firm ■of which he was a member, but to “permit ” them to use such fund in payment of his personal indebtedness, and that the former \jrovision shall be so read as to leave to the ‘ ‘ discre-. tion ” of the executors “ which, if any,” of the personal debts they shall pay from such fund. (Post, pp. 59-63.)
99 Tenn. 64Shepherd v. Carlin (1897)
Descent and Distbxbution. By and among negroes. The right of direct inheritance from the parents only, and not the right of collateral inheritance, is conferred hy Acts 1865-6, Ch. 40, providing that all free persons of color living together as husband and wife in this State, while in a state of slavery, are declared man and wife, and their children legitimately entitled to an inheritance in any property previously or subsequently acquired “by said parents.” Code construed: <¡(¡ 4179,4198 (S.); 3285, 3303 (M. & V.); U 3435a, 2447a (T. & S.). Cases cited and approved: 98 Í5T. C., 31; 108 N. C., 178; 16 S. Rep., T’SS.
99 Tenn. 68Oldham v. York (1897)
1. Wills. Quantity of land covered hy devise. A devise of a tract of land as 1,407 acres, referring- “for metes and bounds ” to a reg-istered deed from a designated person to testator, does not cover and pass title to a distinct adjoining tract of 65 acres, although both tracts comprised precisely 1,407 acres, and testator would otherwise die intestate as to the latter tract. (Post, pp. 74-77.) 3. Wills. Description of land. Metes and bounds control estimated acreage in the description of lands in a devise. (Post, pp. 76, 77.) Cases cited and approved: 130 U. S., 586; 117 U. S., 317. 3. Wills. Presumption against intestacy. The presumption against partial intestacy cannot avail where testator’s language is plain and unambiguous, but only where the words used, by “fair interpretation or allowable implication,” will embrace the property otherwise undevised. (Post, p. 77.) Code construed: \ 3897 (S.); 2 3005 (M. & V.); | 3164 (T. & S.). Cases cited and approved: Williams v. Williams, 10 Yer., 35; Armstrong v. Park, 9 Hum., 196; Gourley v. Thompson, 3 Sneed, 389; Reeves v. Reeves, 5 Lea, 655; Smith v. Puryear, 3 Heis., 708; Davis v. Smith, 9 Hum., 559; Crouch v. Shepard, 4 Cold., 388; Gourley v. Thompson, 3 Sneed, 392. 4. Possession. Constructive. Constructive possession of land will not avail under the statutes of limitations. (Post, pp. 77-79.)
99 Tenn. 80Quinn v. Catholic Knights (1897)
FROM SHELBY. Appeal from Chancery Court of Shelby County. John L. T. Sneed, Ch.
99 Tenn. 88Dan v. Street Railroad (1897)
Negligence. Of parent that does not defeat recovery for negligent MlUng of cMld. A father does not lose the rig'ht to recover from a street railway company for the death of a child, non svA juris, killed by the neglig'ence of the company, because he thoughtlessly or carelessly permitted the child to get out on the street.
99 Tenn. 92Rosenplanter v. Toof (1897)
1. Bills and Notes. Estoppel to deny indorsement. The acceptance, thoug-h made without full knowledg-e of all the facts, by the purchaser named therein, of an absolute bill of sale, reciting- that by its acceptance he assumes absolutely the payment of specified notes of the seller on which the former’s name appears as indorser, coupled with the failure of the purchaser to promptly repudiate the same after learning-, all the , facts, and after attachment of the property conveyed therein by creditors of the seller, estops such purchaser to claim as against the holder of one of such notes that he did not indorse the same, although the indorsement of his name was forg-edby the seller. (Post, pp. 93-103.) Cases cited and approved: Fitzpatrick v. School Com’rs, 7 Hum., 224; Jones v. Hamlett, 2 Sneed, 261; Moore v. Stovall, 2 Tea, 543. 2. Contract. Acceptance. And it is conclusively presumed that the purchaser's acceptance of the bill of sale was upon the terms, and conditions therein specified. Benefits and correlative burdens stand together. (Post, pp. 100, 101.) Case cited and approved: Moore, v. Stovall, 2 Lea, 543. 3. Same. Release. And the purchaser’s obligation to pay the notes assumed is not affected by the loss of the property by superior claim attaching after the making of the bill of sale. (Post, p. 102.)
99 Tenn. 104Memphis v. Memphis Savings Bank (1897)
PROM SHELBY. Appeal from Chancery Court of Sbelby County. Lee Ti-iorntoN, Sp. Ch.
99 Tenn. 113Pollard v. Wellford (1897)
1. Banks and Banking. Bank’s liability for paying forged check. Doctrine reaffirmed that a hank must, at its peril, pay a cheek to the actual payee or upon his genuine indorsement; and, ii it fail to do so from mistaking the identity of the payee, or hy paying upon a forged indorsement, it is responsible for the loss. (Post, p. 116.) 2. Same. Bank’s liability for paying forged check not excitsed by depositor’s negligence. Failure of a depositor in a hank to examine the checks of such bank when returned to him, the indorsements on which were forged, on none of which neither the bank nor the depositor had suffered any loss, will not prevent a recovery from the bank of an amount subsequently paid out by the bank on checks, the indorsements on which were forged in a similar manner. (Post, pp. 116-118.) Case cited and approved: 73 N. Y., 424. 3. Chanceey Pleading and Practice. Cross bill not maintainable to bring in a neiv party. A bank sued by a depositor for a balance it had paid out on checks, the indorsement on which was forged, cannot set up by way of cross bill that such checks were paid by it through the clearing house to another bank specified, which is not a party to the action, and that the latter bank is liable to it, as the issue raised thereby has no material connection with any litigation between the original parties. (Post, pp. 118-120.) 4. Same. Cross bill bringing in new party maintainable, when. But, under the practice in this State, a cross bill bringing in a new party whose presence is essential to the giving of full relief and ending the controversy, will he maintained. [Post, pp. 119, 120.) Cases cited and approved: Hildebrand v. Beasley, 7 Heis., 131; Hall v. Fowlkes, 9 Heis., 754; Odam v. Owens, 3 Bax., 446. 5. Appeal. Questions not reviewahle upon. A bank sued by a depositor for a balance paid ont by it on checks with forged indorsements, cannot, upon its sole appeal, complain of the action of the Court below in releasing the purported indorser jointly sued, where it hied no cross bill against him in the Court below, and did not seek by its pleading-s any relief against him. (Post, pp. 120, 121.)
99 Tenn. 122Columbia Veneer, etc., Co. v. Cottonwood Lumber Co. (1897)
CnABem OB’ Cotxkt. Oral instructions erroneous where written charge has been requested. It is reversible error ior the Court to deliver any part of his instructions to the jury orally, after he has been requested by either party to a civil suit to deliver a written charg-e. Act construed: Acts 1875, Ch. 37. Code construed: §4683 (S.); §3672 (M. & V.). Case cited and approved: Ins. Co. v. Trustees, etc., 91 Tenn., 135.
99 Tenn. 124Lynch v. State (1897)
PROM SHELBY. Appeal in error from Criminal Court of Shelby County. L. P. Cooper, J.
99 Tenn. 128Styles v. Harrison (1897)
FROM SHELBY. Appeal in error from Second Circuit Court of Shelby County. J. S. Galloway, J.
99 Tenn. 130Saunders v. City & Suburban Railroad (1897)
PROM SHELBY. Appeal in error ,from Circuit Court of Shelby County. L. H. Estes, J.
99 Tenn. 145Kaufman v. Fye (1897)
1. YeRdiot. Of three thousand dollars for breach of marriage contract sustained. ^ The facts set out in the opinion are held sufficient to support a verdict of $3,000 for breach of marriage contract. (Post, pp. 145-165.) 2. Breach of Promise. Defendant's unlawful purpose may aggravate damages. The jury may properly consider, in aggravation of damages in an action for breach of a marriage contract, that defendant induced plaintiff to visit him for the purpose of obtaining an opportunity to debahch her, and thereafter entered into a marriage contract for the same purpose, with the intention to violate such contract, although he was unsuccessful in his purpose. (Post, pp. 165-168.) Cases cited: (3-oodall v. Thurman, 1 Head, 216; Williams v. Hol-lingsworth, 6 Bax., 12; 33 Minn., 231; 15 Oregon, 277; 3 Ohio Cir. Ct., 305; 42 N. Y., 474; 1 N. J. Law, 77; 24 N: Y., 252. 3.Same. Unsuccessful plea of unchastity aggravates damages. A plea in an action for breach of marriage contract, setting up the unchaste conduct and want of virtue of plaintiff as a defense, though made without bad faith, may, .where there is a complete failure to prove the charge, be considered by the jury in aggravation of damages. (Post, pp. 168-171.) Cases cited: Ferguson v. Moore, 98 Tenn., 342; Williams v. Nor-wood, 2 Yer., 329; Wilson v. Nations, 5 Yer., 211; Braden v. Walker, 8 Hum., 34; Shirley v. Keathy, 4 Cold., 29; 30 N. Y., 285; 27 Mo., 600; 42 N. Y„ 474. 4. Charge ofi Court. Refusal of requests. The Court’s refusal to give requests which are substantially covered by the principal charge is not error. (Post, p. 171.)
99 Tenn. 172Memphis Barrel v. Ward (1897)
FROM SHELBY. Appeal from Chancery Court of Shelby County. John L. T. Sneed, Ch.
99 Tenn. 180Robertson v. State (1897)
FROM OBION. Appeal in error from Circuit Court of Obion County. W. W: Swiggart, J.
99 Tenn. 182Woods v. State (1897)
Cbiminal Practice. Opinion that does not disqualify juror. A juror is not disqualified to sit upon a trial for murder by reading a detailed account of tlie killing in the newspapers and forming an opinion thereon as to the guilt or innocence of the accused, where such account does not purport to be made by those who profess to know the'facts, and he states that he is without bias or prejudice, and can render a fair and impartial verdict solely on the law and the evidence, as the account read amounts.to rumor only, which will not disqualify. Constitution construed: Art. 1, Sec. 9 (U. S.), VI. Amendment. Cases cited: Rice v. State, 1 Yer., 432; McGowan v. State, 9 Yer., 184; Payne v. State, 3 Hum., 376; Moses v. State, 10 Hum., 456; Moses v. State, 11 Hum., 232; Alfred v. State, 2 Swan, 581; Ea-son v. State, 6 Bax., 466: Conatser v. State, 12 Lea, 436: Spence v. State, 15 Lea, 539.
99 Tenn. 189Wooten v. State (1897)
1. Chabse of Court. Erroneous in murder case. An instruction to the jury in a murder case, that if the death was hastened by the defendant’s act he would be guilty of some degfee of felonious homicide, although deceased might have died from other causes,'or would not have died from the blow if no other cause had co-operated with it, is erroneous without the qualification that defendant’s act must have been unlawful, and not justifiable. (Post, pp. 193, 194.) 3. Same. Erroneous refusal of requests in murder ease. It is error for the Court to refuse to charge defendant’s requests in a murder case, not covered by the original charge and supported by some evidence, to the effect that if the clot of blood formed on the brain of the deceased was produced by the use of stimulants, and that this, and not the unlawful act of the defendant, caused his death, or if the jury have a reasonable doubt as to how this is, they should acquit; and that if the deceased, of his own accord, and not by the wrongful or unlawful act of the defendant, overbalanced himself and staggered and fell to the pavement, and his death was thereby caused, or if the jury have a reasonable doubt in this respect, they should acquit. (Post, pp. 194, 195.) Case.cited and approved; Souey v. State, 13 Lea, 473, 480. 3. Criminal Practice. Challenge of jtvror. The Court’s error in requiring a defendant in a criminal case to challenge a disqualified juror peremptorily is not available in this Court for reversal, unless the record discloses that defendant exhausted all his peremptory challenges and was after-wards forced, over objection, to take an unacceptable juror. (Post, pp. 195-199.) Cases cited: McGowan v. State, 9 Yer., 193; Carroll u State, 3 Hum., 317; Henry v. State, 4 Hum., 370; 'Preswood v. State,’ 3 Heis., 468; Griffeeu. State, 1 Lea, 44; Holcomb v. State, 8 Lea, 430; Taylor v. State, 11 Lea, 731; Hannum v. State, 90 Tenn., 649; Mosesu State. 10 Hum., 456; Moses v. State, 11 Hum., 233; Alfred v. State, 2 Swan, 581; Major v. State, 4 Sneed, 600; Eason v. State, 6 Bax., 468; Woods v. State, ante, p. 182; Co-natser v. State, 12 Lea, 438; 116 U. S., 642; 120 U. S., 71, 430.
99 Tenn. 201Spellings v. State (1897)
FROM GIBSON. Appeal in error from Circuit Court of Gibson County. John R. Bond, J.
99 Tenn. 207DeBerry v. State (1897)
PROM SHELBY. Appeal in error from Criminal Court of Shelby County. L. P. Cooper, J.
99 Tenn. 218Railroad v. Spence (1897)
FROM WEAKLEY. Appeal in error from Circuit Court of Weakley County. John R. Bond, J.
99 Tenn. 224Nelson v. Vanden (1897)
1. Fraudulbstt Conveyance. Subsequent creditors, ivho are. The complainants in a suit to set aside a voluntary conveyance are held to he subsequent creditors of the grantor, although he owed them large sums at date of deed, where he afterwards paid off those debts and then contracted the debts sued on. (Post, pp. 229, 230.) Case cited : 46 N. J. Eq., 94. 2. Same. Voluntary conveyance not presumed fraudulent as to subsequent creditors. A voluntary conveyance will not be presumed fraudulent as to subsequent creditors, but fraud in fact must be established. (Post, pp. 231-233.) Cases cited and approved: Nicholas v. Ward, 1 Head, 324; Nelson v. Kinney, 93 Tenn., 443; Trezevant u Terrell, 96 Tenn., 528. 3. Same. Showing antecedent indebtedness to impeach a voluntary corvoeyance. Although subsequent creditors may impeach a voluntary conveyance by showing antecedent debts, to afford reasonable evidence of fraudulent intent, the mere existence of debts at the time’ of such conveyance is insufficient for this purpose if amply sufficient property is retained to meet the indebtedness. (Post, pp. 233, 234.) 4. Same. Debts created after regisVration of deed. One who gives credit to the grantor in a duly registered voluntary conveyance six months after its registration cannot claim that • he relied on the security of the property conveyed. (Post, pp. 234-240.) Cases cited: Martin v. Oliver, 9 Hum., 561; Levering- v. Ñorvell, 9 Bax., 176; Laird v. Scott, 5 Heis., 314; Trezevant v. Terrell, 96 Tenn., 528; White v. Bettis, 9 Heis., 645; Churchill v. Wells, 7 Cold., 364; 106 U. S., 260; 69 Am. Dec., 412. 5. Samis. Valid as to subsequent creditors. A voluntary conveyance is valid as to a subsequent creditor who ' had actual or constructive notice of the conveyance when the debt was contracted, and no actual fraud was practiced upon him, although existing- creditors remain unpaid, and the conveyance is fraudulent as to them. (Post, pp. 238-240.) Case cited and approved. Spence v. Dunlap, 6 Lea, 457.
99 Tenn. 241Collier v. Struby (1897)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. HoN. L. H. Estes, J.
99 Tenn. 256Ferry Companies v. White (1897)
1. Practice. MoUonto exclude plaintiff’s evidence. A motion by defendant to exclude plaintiff’s evidence from the jury, on the ground that it will not support a verdict in his-favor, is not proper practice in this State. {Post, p. 261.) 2. Charge oe Court. Not too general or abstract, when. A charge is not erroneous because of generalization and abstractions which lead up to the statement of the specific propositions of the law determining the rights and responsibilities of the parties on the issues of fact involved. {Post, pp. 261, 262. 3. Common Carrier. Negligent in protecting passenger agaAnst acts of other passengers. The lawfulness of the act of a passenger on an excursion boat, in recklessly using his g-un with a loaded shell, will not of itself excuse the owners of the boat from liability for an injury resulting from such passenger’s negligence or lack of caution, provided his action is such as to excite apprehension in a reasonably prudent person. (Post, pp. 262-264.) 4. Same. Swine. The owner of a steamboat is required to exercise the utmost vigilance and diligence in protecting its passengers from injuries by the neg-ligentand careless use of a loaded gun, exhibited by another passeng-er, where, under all the circumstances, such owner, or his officers and agents, might reasonably expect or anticipate the injury. (Post, pp. 264-270.) Cases cited: 6 Blateli., 158; 57 Me., 202; 90 N. Y., 588; 58 Miss., 200; 4 U. S. Cir. Ct. App., 231; 123 Ill., 9; 97 Mass., 361; 97 N. Y., 494; 23 L. R. A., 442. 5. Same. Charge as to defenda/nt's liability. An instruction in an action against a steamboat company for personal injuries to a passenger, that the evidence must satisfy them that the boat was being run by and in defendant’s interest at the time of the injury) sufficiently presents the defensive theory that the excursion, during- which plaintiff was injured, was an individual affair of a third person, for which the company was not liable. {Post, pp. 270-272.) 6. VERDICT. Not excessive. A verdict for $3,500 for an injury to a laborer who is shot in the finger and through, his thumb, and whose right arm is perforated with shot from the shoulder to his hand, many of'which were never extracted, and whose right leg also received several shot, by which his capacity for lifting- is permanently affected, is not excessive. {Post, pp. 258, 272.)
99 Tenn. 273Railroad v. Bolton (1897)
Master and Servant. Fellow servant. A railroad company is not liable tor an injury to a section hand caused by the negligence of the temporary section foreman while the latter was engaged as a laborer in a common work with the former. They are pro Tiac vice fellow servants. Cases cited and approved: 112 N. Y., 614 (S. C., 3 B. R. A., 559); 6 B. R. A., 5S4; 23 Fed. Rep., 363.
99 Tenn. 278Bank v. Looney (1897)
FROM SHELBY. Appeal from Chancery Court of Shelby County. John L. T. Sneed, Ch.
99 Tenn. 298Farris v. Sipes (1897)
1. Homestead. Widow and minor children not entitled, when. The widow and minor children of one who resided out of the State for five years before and at time of his death, have no right of homestead in land for which the decedent gave a bond for title shortly before his removal from the State, taking a note for the purchase money, which was subsequently assigned by him to one who, before the return to the State of the widow and children, purchased the land under a decree of foreclosure to enforce the purchase money obligation. (Post, pp. 299-302.) Case cited and distinguished: Collins v. Boyett, 87 Tenn., 336. 3. Same. For citizens only. The constitutional provision and statutes exempting homestead inure to benefit of citizens, and nonresidents are excluded from their operation. (Post, pp. 300, 301.) Cases cited and approved: Emmett v. Emmett, 14 Lea, 369; prater v. Prater, 87 Tenn., 78; Carigan v. Rowell, 96 Tenn.,190; Graham v. Stull, 93 Tenn., 680; Hicks v. Pepper, 1 Bax., 46. 3. Domicile. Of wife. The husband’s domicile controls the wife’s domicile. His change or abandonment of domicile operates as a change or abandonment of her domicile also. (Post, p. 300.) Case cited and approved: Williams v. Saunders, 5 Cold., 60. 4. Same. Of minor cMld. The parent’s domicile is the domicile of his minor child, and the latter’s right of homestead depends upon the existence of such right in the parent. (Post, p. 300.)
99 Tenn. 303Bruce v. Beall (1897)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
99 Tenn. 322Life Insurance Co. v. Spratley (1897)
FROM SHELBY. Appeal from Chancery Court of Shelby County. John L. T. Sneed, Ch.
99 Tenn. 338Ryan v. Monaghan (1897)
1. Wills. Contingent remainder. A devise to A for life, then to the “heirs” of B, creates a contingent remainder in favor of B’s' "heirs, ” which fails if B was living, and therefore without heirs when the supporting life estate terminated. (Post, pp. 339-341.') 2. Same. Inheritance passes to heirs. The inheritance, if not disposed of by the will, passes by operation of law to the heir, pending the determination of a contingency upon which a future estate is made to depend. (Post, p.'341.) Cases cited and approved: Clopton u. Clopton, 2 Heis., 31; Bigley v. Watson, 98 Tenn., 353. 3. Same. Executory devise. Under a devise to testator’s wife for life, then to the “heirs ” of his son, and then, if the son should “ die without issue and unmarried, ’’ to testator’s three brothers and a sister, the latter cannot take by contingent remainder, but do take by executory devise, and can maintain suit against the son after the first two estates have ended or failed, to have their interests declared and determined. (Post, pp. 341-343.)
99 Tenn. 344New York, etc., B. & L. Ass'n v. Cannon (1897)
FROM SULLIVAN. Appeal from Chancery Court of Sullivan County. Hugh G. Kyle, Ch.
99 Tenn. 352Wilcox v. Blackwell (1897)
1. Evidence. Recitals of deed. The recital in a deed purporting to convey three undivided interests in a tract of land, that the grantor had purchased two of such interests through regular conveyances from the owners thereof, is insufficient, in the absence of the conveyances referred to, to establish the fact that the owners of such interests had conveyed the same as recited. {Post, pp. 353,354.) 2. Cloud on Title. Removal of. The complainant in a suit to remove cloud from title must aver and prove title in himself, to the exclusion of title in all others, whether parties or not to the suit. (Post, pp. 354, 355.) Case cited and approved: King v. Coleman, 98 Tenn., 561.
99 Tenn. 356Rogers v. Tindall (1897)
FROM CAMPBELL. Appeal from Chancery Court of Campbell County. H. B. Lindsay, Cb.
99 Tenn. 364Hendrickson v. Cartright (1897)
PROM SULLIVAN. Appeal, in error from Circuit Court of Sullivan County. H. T. Campbell, J.
99 Tenn. 367Pile v. McCoy (1897)
PROM SULLIVAN. Appeal from Chancery Court of Sullivan County. Hugh G. Kyle, Ch.
99 Tenn. 371Electric Light Co. v. Gas Co. (1897)
From sullivan. Appeal from Chancery Court of Sullivan County. Hugh Gr. Kyle, Ch.
99 Tenn. 390Bank v. Matson (1897)
1. PRINCIPAL and Surety. Release of swrety. A surety is released from liability by the creditor’s agreement with the principal debtor, made without the surety’s consent, and upon a valid consideration, to extend the time of payment for a fixed and definite period. (Post, p. 394.) Cases cited and approved: Johnson u. Hacker, 8 Heis., 388; Ap-person v. Cross, 5 Heis., 481; Hill v. Bostick, 10 Yer., 415; Lea v. Dozier, 10 Hum., 447; Peay v. Poston, 10 Yer., 111. 2. Same. Same. But an extension of time to the principal debtor, for the payment of the indebtedness, to operate as a release of the surety, must be in pursuance of an actual, valid agreement for delay, either express or implied, for a definite or fixed time, and the mere taking of collateral or additional security, without extending the time of payment, will not release the surety, nor will the mere delay to collect the debt have that effect, in the absence of a valid agreement. (Post, p. 394.) -Cases cited and approved: Wilson v. Langford, 5 Hum., 320; Pen-dexter v. Vernon, 9 Hum., 89; Miller v. Knight, 6 Bax., 503; Miller v. Knig-ht, 7 Bax., 127. 3 Same. Same. No binding agreement which will release a surety on a note is necessarily implied from a trust deed, given by the principal debtor, after the note became due, conditioned that it shall be void if the note and other indebtedness is paid within six months from date, but further providing, that, if default is made in the payment of the amount secured, or any part thereof, or the interest thereon, on or before the end of the six months, the property may Be sold, and the proceeds applied to the indebtedness. (Post, pp. 393-397.)
99 Tenn. 398Reese v. Miles (1897)
1. Measure of Damages. For 'breach of. warranty as to quality of article sold. The measure of damages for the vendor’s breach of warranty of quality, is, ordinarily, the difference in value of the article sold and that delivered at the place of delivery, if there is a market there, and, if not, then in the nearest market, with freight added. (Post, p. 400.) Cases cited and approved: Coffman u Williams, 4 Heis., 239; McDonald v. Timber Co., 88 Tenn., 47. 2. Same. Same. But for breach of warranty as to quality of a commodity bought, with the vendor’s knowledge, to be resold on another market, the damag'es may include both the losses actually sustained and also the profits the purchaser would have made upon the resale on such market, had the article been what it was warranted to be. . (Post, p. 401.) Cases cited: McDonald v. Timber Co., 88 Tenn., 43; 78 N. C., 125; 31 N. C., 430; 9 Ex., 353. 3. Same. Evidence of. The recovery against a buyer for breach of his warranty as to quality on a resale, affords prima facie evidence of the amopnt of damages which he is entitled to recover from his seller for the breach of a similar warranty. (Post, pp. 399-402.)
99 Tenn. 403Williams v. Cox (1897)
FROM WASHINGTON. Appeal from Chancery Court of Washington County. John P. Smith, Ch.
99 Tenn. 409Maxwell v. Stuart (1897)
1. Statutes. Repeal of, by implication. Example. Acts 1871, Ch. 65, prescribing duties of Clerks, Registers, and other officials, in relation to keeping indexes of the records'of their respective offices, and defining their liability, both civil and criminal, for failure to do so, operates to repeal, by implication, the pre-existing statutes prescribing duties and defining liabilities of Registers of Deeds in this respect. The later statute covers the entire subject-matter of the earlier ones, and of necessity repeals them. [Post, pp. 414-416.) Act construed: Acts 1871, Ch. 65. Code construed: § 567 (S.); §§528, 456» (M. & V.); §§454, 456 (T. & S.). Cases cited and approved: Terrell v. State, 86 Tenn., 533; Poe v. State, 85 Tenn., 495; The Druggists’ Cases, 85 Tenn., 450. 2. Registeb oe Deeds. Liability for failure to Tceep full index. The failure of a Register of Deeds, through mistake of judgment, unattended by such circumstances of gross and inexcusable neglig-ence as implies willfulness, to index a trust deed in the names of both of its makers, does not render him liable on his official bond to the party thereby injured, under Acts 1871, Ch. 65, prescribing the duties of Registers with regard to indexes, and making any Register liable on his bond who shall willfully violate ” the statute in this respect. [Post, pp. 416-419.) Act construed: Acts 1871, Ch. 85. Cases cited: McTeer v. Debow, 85 Tenn., 123; Boyd v. Perris, 10 Hum., 406; Spears v, Smith, 9 Lea, 486. 3. Same. Method of indexing. The names of both makers of a trust deed should be indexed by the Register, where separate parcels of land belonging to each maker, separately and individually, are conveyed by sueli deed. (Post, pp. 417, 418.) Act construed: Acts 1871, Ch. 85.
99 Tenn. 420Crumley v. Watauga Water Co. (1897)
1. Watbe Companies. Obligation to fwntish water defined. A water company operated under a charter authorizing it to erect buildings and machinery of sufficient capacity to afford to the city of its location and the inhabitants thereof a plentiful supply of water, and to condemn private property for that purpose, and obligated by contract with such city to furnish water therein for families and domestic purposes at customary rates, cannot refuse to supply an inhabitant with water at its regular rates, and upon usual terms, because he refuses to pay a pre-existing indebtedness for which the company had extended credit and taken his note. Code construed: ¿§2499-2506 (S.). Cases cited and approved: 60 Pa. St., 27; 10 L. R. A., 122; 14 L. R. A., 424; 29 L. R. A., 876; 30 L. R. A., 447; 32 L. R. A., 697; 118 Ind., 206; 4 Cush., 60; 111 Mass., 464; 52 Mich., 499 (S. C., 50 Am. Rep., 266); 47 N. J. L., 333; 6 Wis., 539 (S. C., 70 Am..Dec., 479); 110 U. S., 347; 115 U. S., 650, 683. y 2. Same. General obligation of quasi public corporations. A water company, having, under its charter, the power to condemn private property for its necessary purposes, is not a mere private, but a quasi public corporation, that enjoys and must exercise its opportunities for gain subject to its obligation to the public, that it will supply water to all who apply therefor „ and tender the usual rates, which is an implied condition of the grant of its franchises.
99 Tenn. 429Watauga Water Co. v. Wolfe (1897)
PROM WASHINGTON. Appeal from Law Court of Washington County. H. T. Campbell, J.
99 Tenn. 434Sully v. Campbell (1897)
EROM' WASHINGTON. Appeal from Chancery Court of Washington County. John P. Smith, Ch.
99 Tenn. 442Witt v. Railroad (1897)
Common Carrier. LiabiMty for unauthorized delivery of goods obviated, when. A common carrier who delivers goods to the purchaser without requiring- surrender of bill of lading, and payment of draft thereto attached, as directed by the consignor, does not render himself liable to the consignor as for conversion of the goods, where the purchaser subsequently, but promptly, paid the draft to the bank that held it for collection, although the bank failed to remit proceeds, and subsequently became insolvent. Cases cited: Bank v. Cummings, 89 Tenn., 609; Charles v. Carter, 96 Tenn., 607.
99 Tenn. 446Pearson v. Gillenwaters (1897)
1. Administbation. Not devastavit to delay sale of bank stock. An administrator who, in good faith and upon reasonable grounds, postpones the sale of bank stocks, will not be held liable for loss to the estate resulting- from the subsequent depreciation of such stocks in consequence of events he could not forsee or control. He is permitted a discretion in fixing the time, place, and terms of selling stocks which is not allowable as to perishable prop- ' erty. Prejudicial haste and dangerous delay are alike to be avoided in sales of stocks. (Post, pp. 451-453.) Cases cited and approved: Deitzu Mitchell, 12Heis., 676; Mickle v. Brown, 4 Bax,. 468; Cator ex parte, 14 Lea, 408; Perry v. Wooten, 5 Hum., 524; James u Wingo, 7 Lea, 148; 103 Mass., 170; 32 N. W. Rep., 901. 2. Same. Same. An administrator who delays the sale of bank stocks at the instance or request of the parties beneficially interested, will not be held liable to such interested parties for loss resulting to the estate from such delay by reason of subsequent depreciation of such stocks. (Post, p. 453.) Cases cited and approved: Perry u Wooten, 5 Hum., 524; 103 Mass., 176; 32 N. W. Rep., 901. 3. Same. Advice of counsel protects administrator, when. That an administrator acted in accordance with the advice of counsel affords him protection within proper limits, especially where the advice was given as to the advisability of bringing or defending suits. (Post, pp. 453, 454.) Case cited and approved: James v. Wingo, 7 Lea, 148. 4. Same. Sale of land to pay debts proper, when. Sale of land to pay debts will be decreed where valid debts, in excess of the amount of personal assets, are shown, and the administrator has not wasted assets of the estaie. It is not necessai-y, in such ease, to await the actual application of the personal assets beforeordering' sale of the lands. (Post, %>%>■ 454, 455.) Case cited and approved: Doherty v. Choate, 16 Lea, 192. 5. Same. Purchaser not entitled to receiver of rents pending appeal. The purchaser of land at judicial sale made for payment of a decedent’s debts is not entitled to have a receiver of the rents and profits appointed, pending an appeal by the devisee from the decree confirming the sale. The purchaser takes rents only from date of final confirmation of sale by the appellate Court. (Post, pp. 455-457.) Cases cited and approved: Morford v. Hamner, 3 Bax., 391; Richmond v. Yates, 3 Bax., 204; Davis v. Reaves, 2 Lea, 649; Pickens v. Reed, 1 Swan, 80; Armstrong v. McClure, 4 Heis., 80; Ellis v. Poster, 7 Heis., 131; Shields v. Thompson, 4 Bax., 227; Lattau. Pierce, 11 Lea, 267. 6. Same. Devise for future services yields to rights of co-editors. A guardian for a minor appointed by a will giving to the latter specified land, in consideration of his future service as guardian, cannot set up his claim to the land under the will, in op- •• position to the equities and rights of creditors of the estate and to necessary expenses of administration. (Post, pp. 457-459.) 7. SUPREME Court. Effect of concwrrent finding of Master and Chancellor. The concurrence of the Master and Chancellor as to the compensation due to an administrator for his service, is not such a question of fact as is embraced in the rule giving such concurrence on a question of fact the weight of the verdict of a jury, as such determination is only an expression of opinion or an estimate. (Post, p. 459.) , Case cited and overruled: Hicks v. Porter, 90 Tenn., 13. 8. Same. Reviews finding of Court of Chancery Appeals, when. An estimate as to amount of compensation due an administrator for his services, is not such finding of fact by the Court of Chancery Appeals as is conclusive upon this Court, and the same will be reviewed by the Court upon proper'exception. (Post, pp. 459, 460.) 9. Same. Exception below sufficient, when. An exception in the lower Court, that no compensation should have been allowed an administrator, is sufficient basis for an exception in this Court to such compensation as is excessive in amount. (Post, pp. 460, 461.)
99 Tenn. 462Pearson v. Gillenwaters (1897)
Administeation. Exhaustion of ‘personal assets that justifies sale of lands: The personal assets of an estate have been “exhausted, in the payment of debts,” within the meaning' of Code, 4000, 4001 (S.), so far as to justify a sale of lands to pay debts, where the amount actually realized from the personal estate is insufficient to pay all the debts, although the personal assets were of sufficient value at one time for that purpose if they had been then disposed of, but have since depreciated in value without fault of the administrator, and thereby became insufficient. Cases cited and approved: Jones v. Douglass. 1 Tenn. Ch., 631; 2 Yesey, 241; 1 Ch. Cas., 190; Caine’s Cases, 96. Cited and distinguished: Bennett v. Cold well, 8 Bax., 483; Maxwell v. Smith, 86 Tenn., 544; Peck v. Wheaton, M. & Y., 359; Gilman v. Tisdale, 1 Yer., 285; Elliott v. Patton, 4 Yer., 10.
99 Tenn. 469Bank v. McCarty (1897)
1. Re&istbation. Upon invalid certificate of acknowledgment. The registration of a deed is ineffectual against the grantor’s creditors when made upon a certificate of acknowledgment before the Clerk of a Court in another State without certification of the Clerk’s official character by “the Judge, Chief Justice, or presiding magistrate of the Court.” Code construed: § 3731 (S.); \ 2860 (M. & V.); <5 2047 (T. & S.). 2. Same. Be-regislratton does not relate hack as against creditors. The re-registration of a defectively registered deed does not relate back, but takes effect as of date of the re-registration, as against the grantor’s creditors. Code construed: § 3749 (S.); § 2887 (M. & V.); ? 2072 (T. & S.). Cases cited and approved: Hays v. McGuire, 8 Yer., 91; Douglass v. Morford, 8 Yer., 373; Williams v. Walton, 8 Yer., 387; Groten-kemper u Carver, 9 Lea, 280; Stroud v. McDaniel, 12 Lea, 617.
99 Tenn. 472Cigar Co. v. Cooper (1897)
TasatioN. Of eigar stands. A licensed merchant or saloon keeper who sells cigars to consumers in connection with his regular licensed business, is liable for the special privilege tax laid upon “ cigar stands ” by the revenue Act of 1897, in addition to the privilege taxes laid upon merchants and saloon keepers. Acts construed: Acts 1897, Ch. 3.
99 Tenn. 476Lang v. Ingalls Zinc Co. (1897)
PROM JEFFERSON. Appeal from Chancery Court of Jefferson County. John P. Smith, Ch.
99 Tenn. 480Hughes v. Powers (1897)
1. REGISTRATION. Notation of deeds. When ditto marks are used in the notation of a deed for registration, they will be read as a repetition of the words immediately above them. While notations in which ditto marks are used are held valid, the practice is strongly disapproved. (Post, pp. 482 — 485.) Code construed: §567 fS.); §529 (M. & V.); §454 (T. & S.). 2. Same. Same. A deed becomes effective against the vendor’s creditors from the date of its notation for registration, although it may remain in the Register’s office, without being in fact registered, for a long period, and until the vendor’s creditors have attached the land conveyed. (Po.si, pp. 485, 488.) Code construed: §§ 3749, 3750 (S.); §§ 2837, 2888 (M. & V.); §§ 2072, 2073 (T. & S.). Cases cited and approved: Flowers v. Wilkes, 1 Swan, 408; Swep-son v. Bank, 9 Lea, 714; Woodward v. Boro, 16 Lea, 678; Boyce v. Stanton, 15 Lea, 399. 3. Deed. Certificate of acknowledgment. A certificate of acknowledgment attached to a deed, in the statutory form, except that the words,' “who acknowledged his signature to the annexed deed for all the purposes therein expressed,” are used instead of the statutory words, “who acknowledged that he executed the within instrument for the purpose therein contained, ” is sufficient, though the departure from the statutory form is deprecated. (Post, p. 485.) Code construed: §§ 3712, 3713 (S.); §§2850, 2851 (M. & V.); §§2038, 2039 (T. & S.). Case cited and approved: Davis v. Bogle, If Heis., 315. 4. Coubt of Chanceby Appeals. OoncVusimeness of its findings. The finding of the Court of Chancery Appeals that a deed was not withdrawn from the Register’s office after its notation and before its registration, is conclusive upon this Court. [Post, p. 486.) Act construed: Acts 1895, Ch. 76. Cases cited and approved: Austin v. Harbin, 95 Tenn., 601; Bradshaw v. VanValkenburg, 97 Tenn., 317; Railroad v. Knoxville, 98 Tenn., 1. 5.. Garnishment. Of indebtedness evidenced by negotiable notes in-ejfectuctl. A garnishment is properly discharged where the garnishee’s acknowledged indebtedness is evidenced by his negotiable notes, which are not surrendered, and whose owner is not shown, and as to which no indemnity is given or offered to Ihe garnishee. (Post, pp. 486, 487.) Code construed: § 5355 (S.); § 4336 (M. & V.); ? 3495 (T. & S.). Cases cited and approved: Huff v. Mills, 7 Yer., 43; Turner v. Armstrong, 9 Yer., 413; Daniel u Rawlings, 6 Hum., 404; Pickier v. Rainey, 4 Heis., 341; Matheny v. Hughes, 10 Heis., 404.
99 Tenn. 488Cottrell v. Rogers (1897)
FROM CLAIBORNE. Appeal from Chancery Court of Claiborne County. Hugh G. Kyle, Cb.
99 Tenn. 496Gaut v. Wimberly (1897)
FROM BRADLEY. Appeal from Chancery Court of Bradley County. T. M. McCoNNell, Ch.
99 Tenn. 500Railroad v. Wyrick (1897)
PROM GRAINGER. Appeal in error from Circuit Court of Grainger County. W. R. Hicks, J.
99 Tenn. 512Stephens v. Mason (1897)
FROM ANDERSON. Appeal in error from Circuit Court of Anderson County. W. R. Hicks, J.
99 Tenn. 515Wood v. Zeigler (1897)
1. Couet or Chancery Appeals. Fi/nding of, not conclusive, when. A finding of the Court of Chancery Appeals that an agent was not lawfully authorized to sign a contract for the sale of lands, is not conclusive upon this Court, where his authority is distinctly averred in the hill and admitted in the answer. (Post, pp. 517, 518.) 2. Sale or Land. Insufficient memorandum. A memorandum of a sale of land, which describes the land sold as “the Baldwin Place,” without giving the name of the State or county where located, or the name of the owner, is void. (Post, pp. 518-521.) Case cited and distinguished: Dougherty v. Chestnutt, 86 Tenn., 1.
99 Tenn. 522Cox v. Keathley (1897)
1. Homestead. Oormeyed only by joint deed of husbamd and wife. The right of homestead can he conveyed and extinguished only by the joint deed of husband and wife, when that relation exists. (Post, p. 523.) Constitution construed: Art. XI., J 11. Code construed: g 3798 (S.); g 3939 (M. & y.); g 3114a (T. & S.). Gases cited and approved: Mash v. Russell, 1 Lea, 543; Hoge v. Holister, 3 Tenn. Ohy., 606. 3. Same. Extinguished by deed of Imsband and wife without registration. The joint deed of husband and wife, duly signed and acknowledged by "both, is valid and effective as between the parties thereto without registration, and passes to the vendee and extinguishes the right of homestead in the lands conveyed (Post, pp. 524 — 526.) Code construed: gg3749, 3753 (S.); gg 3887, 3891 (M. & V.); gg3073, 3076 (T. & S.).
99 Tenn. 527Bank v. Morrow (1897)
FROM BRADLEY. Appeal from Chancery Court of Bradley County. T. M. McCoNnell, Ch.
99 Tenn. 532Hale v. Hale (1897)
EROM HAMBLEN. Appeal from Chancery Coart of Hamblen County. John P. Smith, Cb.
99 Tenn. 538Ellis v. Brabson (1897)
FROM SEVIER. Appeal from Chancery Court of Sevier County. H. B. Lindsay, Ch.
99 Tenn. 542Anderson County v. Hays (1897)
FROM ANDERSON. Appeal from the Chancery Court of Anderson County. Joseph W. Sneed, Sp. Ch.
99 Tenn. 569Jenkins v. State (1897)
PROM SEVIER. Appeal in error from Circuit Court of Sevier County. T. A. R. NelsoN, J.
99 Tenn. 578Dayton v. Coal & Iron Co. (1897)
Railroads. Not assessable by State board, when. A short line of railroad, situated in a single county, not owned or used by a common carrier, but belonging to a manufacturing company, and exclusively used by it as part of its plant and equipment for hauling its own material and products, is not such a railroad as the State Board of Tax Assessors is authorized to assess. Acts construed: Acts 1875, Ch. 78; Acts 1877, Ch. 19; Acts 1881, Ch. 104; Acts 1883 (Ex. Sess.), Ch. 16; Acts 1895, Ch. 120. Cases cited: Harris v. State, 96 Tenn., 496; Franklin County v. Railroad, 12 Lea, 521.
99 Tenn. 584Leach v. State (1897)
FROM ANDERSON. Appeal in error from Circuit Court of Anderson County. C. J. Sawyers, Sp. J.
99 Tenn. 598Dunn v. Dunn (1897)
FROM HAMILTON AND KNOX. Dunn v. Dunn Hamilton County. appealed from Chancery Court of T. M. McConnell, Ch. Jarvis v. McConnell appealed from Chancery Court of Knox County. H. B. Lindsay, Ch.
99 Tenn. 614Jones v. Richardson (1897)
FROM KNOX. Appeal in error from Circuit Court of Knox County. Joseph W. Sneed, J.
99 Tenn. 618Snyder v. Witt (1897)
FROM KNOX. Appeal in error from Circuit Court of' Knox County. Joseph W. Sneed, J.
99 Tenn. 623Ronner v. Welcker (1897)
1. Married Woman. Certificate of aclmmvledgment not effectually impeached, when. A certificate of a Notary Public of acknowledgment of a deed of trust by a married woman cannot be effectually impeached, four years after the acknowledgment, by evidence of the Notary and the married woman that the deed of trust was not read over to her, nor its contents stated by the Notary, where the Notary failed to give the explanation because he reasonably supposed and believed, from the assurances and conduct of the married woman, that she thoroughly comprehended it. (Post, pp. 624-627.) Code construed: l 3753 (S.); <j 2891 (M. & V.); g 3076 (T. & S.). Cases cited: Garth v. Port, 15 Lea, 690; Currie v. Kerr, 11 Lea, 142; Shields v. Netherland, 5 Lea, 196; Edwai'dsu Boyd, 9 Lea, 206; Grotenkemper v. Carver, 9 Lea, 286; Montgomery v. Hob-son, Meigs, 437; Finnegan w. Finnegan, 3 Tenn. Ch., 574. 2. Costs. How taxed, in suit disclosing uswry. Not the entire costs of the cause, but only the costs incident to the litigation over the question of usury, should be taxed to a creditor suing and recovering in part upon a usurious claim, under Code, § 4947 (S.), providing that a creditor who intentionally takes or reserves usurious interest shall pay full costs. (Post, pp. 627, 628.) Code construed: § 4947 (S.); $ 3930 (M. & V.); § 3205 (T. & S.).
99 Tenn. 629Fischer v. Fischer (1897)
Life Istsubance. Rights of beneficiary micler benefit certificate. The beneficiary named in a benefit certificate has no vested interest or right therein, notwithstanding his payment of assessments or incurring of'expenses on the faith of such certificate, that will prevent the insured from changing the beneficiary, where the constitution of the' society provides that a member may change the beneficiary at any time. Cases cited: Quinn,u Knights of Honor, ante, p. 80; Sofge v. Knights of Honor, 98 Tenn., 446; ’Catholic Knights n. Kuhn, 91 Tenn., 214; Handwerker v. Diermeyer, 96 Tenn., 619; Life Association v. Winn, 96 Tenn., 224.
99 Tenn. 639Lane v. Lane (1897)
FROM KNOX. Appeal from PI. B. LiNdsay, Chancery Court of Knox County. Ch.
99 Tenn. 649Debardelaben v. State (1897)
1. Gaming. Betting on horse races. Betting on horse races is indictable as gaming, unless the race is run within a substantial inclosure, and the bet made within the same in closure. {Post, pp. 650-652.) Act construed: Acts 1891, Ch. 115. Code construed: § 6817 (S.); § 5701 (M. & V.); §4881 (T. & S.). Cases cited: Ransome v. State, 91 Tenn., 717; Williams v. State, 92 Tenn., 275. 2. Constitutional Law. Glass legislation. The statute that declares betting on horse races illegal except by-persons within the inclosure where the race is run, is not vicious class legislation. The classification- is not arbitrary or capricious, and the Act embraces all persons, and affects alike all who are or choose to place themselves within its reach. (Post, pp. 652, 653.) Constitution construed: Art. I., Sec. 8; Art. XI., Sec. 8. Act construed: Acts 1891, Ch. 115. Cases cited and approved: Sutton v. State, 96 Tenn., 696; Stratton v. Morris, 89 Tenn., 500; Railroads v. ‘Crider, 91 Tenn., 490; State v. Alston, 94 Tenn., 674; Demoville & Co. v. Davidson County, 87 Tenn., 214. 3. Criminal Law. Ignorance cmd good faith not good, defenses. It is no defense to a prosecution for gaming that the defendant was ignorant of the law and believed that his license authorized his illegal act. (Post, pp. 653, 654.) Case cited and approved: Atkins v. State, 95 Tenn., 475.
99 Tenn. 655Riddick v. State (1897)
Ceiminal Costs. Paid by State after conviction only on return of nulla bona. The costs for which the State is liable in felony eases, nnder the “Jarvis Bill,” after conviction, cannot he adjudged or paid upon a mere declaration of the defendant’s insolvency by the Court, but alone upon an actual return of execution nulla bona. The return is the sole evidence of such insolvency that the law recognizes. Act construed: Acts 1897, Ch. 30.
99 Tenn. 657Aiken v. State (1897)
1. Criminal Costs. State not liable for oosts in misdemeanor ease. In no event is the State liable for the costs of a prosecution for misdemeanor. Act construed: Acts 1891, Ch. 23 (Ex. Sess.). Code construed: \ 7631 (S.); § 6467 (M. & V.); g 5587 (T. & S.). 2. Same. Paid by county after conviction, only on return of nulla bona. The costs for which the county is liable in misdemeanor eases, under the “Jarvis bill,” after conviction, cannot be adjudged against or paid by the county until there has been an actual return of execution nulla bona. The return is the only evidence of defendant’s insolvency that the law recognizes. Act construed: Acts 1897, Ch. 20.
99 Tenn. 659State v. Spurgeon (1897)
1. COMPTROLLER. Hits no power to employ counsel to represent State in Supreme Court. The Comptroller has no power to employ counsel to assist the Attorney-general in the State’s civil litigation in the Supreme Court. Constitution construed: Art. VI., Sec. 5. Acts construed: Acts 1879, Ch. 218; Acts 1891, Ch. 60; Acts 1865, Ch. 23. 2. Attorneys. Not entitled to lien upon recovery for fees. An attorney employed by the Comptroller to assist the Attorney-general in civil litigation oí the State in the Supreme Court is not entitled to a lien upon the State's recovery for fees, nor to be paid for such services out oí the recovery or other funds belonging to the State. Acts construed: Acts 1865, Ch. 23; Acts 1879, Ch. 218; Acts, 1891, Ch. 60. Code construed: §287 (S.); §268 (M. & V.); §235 (T. & S.).
99 Tenn. 667State v. Cummins (1897)
FROM HAMBLEN. Appeal from Chancery Court of Hamblen County. Hugh G-. Kyle, Ch.
99 Tenn. 684Railroad v. Harris (1897)
1. Taxation. Estoppel to deny exemption from ad valorem taxes. By demanding- and receiving from a railroad company a privilege tax lad by statute upon railroads not paying ad valorem taxes, the State precludes itself from asserting contemporaneous liability of such company for ad valorem taxes. (Post, pp. 688-691.) Cases cited: Railroad v. Hicks, 9 Bax., 443; 71 Fed. Rep., 314. 3. Same. Power to exempt. Doctrine re-affirmed, that under Constitution of 1834 the Legislature had power to make irrevocable grants of exemption from taxation by charter provisions. , (Post, pp. 691, 692.) Constitution construed: U. S. Const., Art. I., Sec. 10. State Const. (1834), Art. II., Sec. 38; Art. XI., Sec. 7. Cases cited: Memphis v. Bank, 91 Tenn., 585; Bank v. State, 9 Yer., 490; Memphis v. Hernando Ins. Co., 6 Bax., 537; State v. Butler, 13 Lea, 408; State v. Butler, 86 Tenn., 614; Memphis v. Bank, 91 2b., 546; Memphis v. Home Ids. Co., Ib., 561; State v. Bank of Commerce, 95 Ib., 336; 4 Wheat., 518; 95 U. S., 684. 3. Same. Strict construction against exemptions. A clear grant of organic or valid statute law must be shown by one who claims exemption, total or partial, from either ad valorem or privilege taxation. Every presumption is against any surrender of the taxing power, and every doubt must be resolved in favor of the State. Unless the intention to surrender that power is manifested by words too plain to be mistaken, it must be held still to exist. (Post, pp. 693-696.) Cases cited: Memphis v. Bank, 91 Tenn., 550; Memphis!). Home Ins. Co., Ib., 563; Memphis v. Bank, Ib., 579; Turnpike Cases, 93 Ib., 373; State v. Bank, 95 Ib., 337; Wilson v. Gaines, 9 Bax., 551; 16 How., 435; 18 Wall., 336; 31 Ib., 498; 95 U. S., 686; 98 Ib., 559; 117 Ib., 136; 120 Ib., 569; 143 Ib., 195; 10 How., 376; 116 U. S., 665; 133 Ib., 185; 361 Ib., 146; 164 Ib., 666. 4. Same. Charter exemption construed. An exemption from privilege taxation is not included in the exemption by charter of the capital stock, dividends, road, fixtures, depots, workshops, and vehicles of a railroad company. (The Court indicates that if the question were involved, and an open one, it would hold this exemption did not embrace and protect from ad valorem taxation either the “franchise” or “surplus” of the corporation.) (Post, pp. 696-699.) Cases cited: Railroad v. Morrow, 87 Tenn., 4Ó6; Railroad v. Bate, 12 Lea, 573; State v. Bank, 95 Tenn., 222; 161 CJ. S., 134, 149. 5. Sams. Exemption from ad valorem does not embrace privilege taxes. Exemption from ad valorem taxation does not include exemption from privilege taxation. The former is laid upon property values, and the latter upon occupations. (Post, pp. 699-761). Cases cited and approved: Turnpike Cases, 92 Tenn., 372; 109 U. S., 398; 161 U. S., 148; 143 U. S., 195; 164 ü. S., 666. Cases cited and distinguished: Memphis v. Bank, 91 Tenn., 546; Memphis v. Hernando Ins. Co., 6 Bax., 527; Bank v. State, 9 Yer., 490. 6. Same. Privilege tax is not levied upon exemption. A privilege tax levied upon railroad companies that do not pay ad valorem tax is a tax upon the occupation of operating such roads, and not a tax upon their exemption from ad valorem taxation. (Post, pp. 701-703.') » Acts construed: Acts 1889, Ch. 130; Acts 1891, Ch. 25 (Ex. Ses.); Acts 1893; Ch. 89; Acts 1895, Ch. 4 (Ex. Ses.); Acts 1897, Ch. 2. Cases cited: Turnpike Cases, 92 Tenn., 369. 7. Same. Creation of primileges. Rale. The Legislature has a very large discretion in the creation and taxation of privileges. Any occupation, business, employment, or the like affecting the public may be classed and taxed as a privilege. (Post, pp. 701, 702.) Constitution construed: Art. II., Sec. 28. Cases cited: Memphis v. Bank, 91 Tenn., 588; Reelfoot Lake, etc., District v. Dawson, 97 Tenn., 151; Turnpike Cases, 92 Tenn., 372; Kurth v. State, 86 Tenn., 136; Jenkins v. Ewin, 8 Heis., 456; Wiltse v. State, 8 Heis., 544; Staten. Sehlier, 3 Heis., 281; Columbia v. Guest, 3 Head, 414; Robertson v. Hennegar, 5 Sneed, 258; French u Baker, 4 Sneed, 193; Mabry v. Tarver, 1 Hum., 94. 8. CONSTITUTIONAL Law. Presumption as to constituUonaUty of statute. All intendments are in favor of constitutionality of statutes passed with requisite form and ceremonies, and where one of two reasonable constructions would render the law obnoxious to the Constitution, and the other would not, the latter will be adopted by the Courts, (Post, pp. 703, 704.) Cases cited and approved: State v. Yardley, 95 Tenn., 560; Cole Mfg. Co. v. Falls, 90 lb., 469; Ellis v. State, 92 lb., 93; Railroads V. Crider, 91 IK, 507; 12 Wheat., 436. 9. Same. “Low of the land” and “due process of law” a/re synonymous. “Due process of law” and “the law of the land,” as used in Constitutions, are synonymous phrases, and that which in statutes is violative of one is violative of the other also, and viceversa. (Post, p. 704.) Constitution construed: ü. S. Const., Fourteenth Amendment; State Const., Art. I., Sec. 8. Cases cited and approved: Staten. Staten, 6 Cold., 234; Knox u State, 9 Bax., 207; 16 Pa. St., 256: 11 Mich., 129; 18 How., 272; 96 U. S., 97. 10. Same. Corporation is a “person” or a “mcm.” A corporation is a “ person, ” within the meaning of the constitutional provision against taking property without due process of law; and it is a “man,” within the constitutional provision against taking property otherwise than by “the law of the land.” (Post, pp. 704, 705.) Constitution construed: U. S. Const., Fourteenth Amendment; State Const., Art. I., Sec. 8. Cases cited and approved: 164 U. S., 578; 165 lb., 150. 11. Same. Glassification of railroads for privilege taxes, valid. Classification of railroads for privilege taxation, by imposing such tax alone on those which do not pay ad valorem taxes, is not an unnatural and unreasonable classification which makes the tax a deprivation of property without due process of law, although there are but two railroads in the class. (Post, pp. 704-707.) Cases cited and approved: Sutton v. State, 96 Tenn., 696; State v. Alston, 94 lib., 674; Turnpike Cases, 92 lb., 369; Railroads v. Crider, 91 lb., 490; Stratton v. Morris, S9 lb., 500; Demoville & Co. v. Davidson County, 87 lb., 214; Budd v. State, 3 Hum., 498; Debardelaben v. State, ante, p. 649;' 163 U. S., 81; 165 lb., 150, 180, 688; 164 lb., 578; 134 lb., 232; 151 lb., 470. 12. Same. Statute imposing tax does not diminish corporate powers, rwhen. The constitutional provision against diminishing corporate powers by special laws does not apply to the mere imposition of a privilege tax on a company which is not exempt therefrom. (Post, pp. 707, 708.) Constitution construed: Art. XI., Sec. 8. Cases cited and approved: Stratton v. Morris, 89 Tenn., 522; Sutton v. State, 96 Tenn., 705; Debardelaben v. State, ante, p. 649; Memphis v. Bank, 91 Tenn., 583. 13. Same. Good faith or motive of Legislature not inquired into. The good faith of the Legislature in imposing a privilege tax on railroad companies that have charter exemptions from ad va-lore m taxation, or the motive to deprive them of that exemption, cannot be inquired into by the Courts. (Post, pp. 708, 709.) Cases cited and approved: Sutton v. State, 96 Tenn., 698; ColeMfg. Co. v. Falls, 90 Tenn., 481; Williams v. Nashville, 89 Tenn., 488; Peck v. State, 86 Tenn., 262; Ballentine v. Pulaski, 15 Lea, 634; Lynn v. Polk, 8 Lea, 229; Railroad v. County Court, ^ Sneed, 668; Ferguson v. Bank, 3 Sneed, 609. 14. Same. Power to impose and,fix amount of privilege tax. A Legislature which has the legal right to impose a privilege tax can exercise its discretion as to the amount of the tax. (Post, p. 709.) Cases cited and approved: Jenkins v. Erwin, 8 Heis., 477; 18 Wall., 331; 127 ü. S., 141; 134 U. S., 594. 15. Same. Tax does not affect interstate commerce, tohen. A railroad privilege tax *• for taking up and transporting freight and passengers from one point in this State to another point in this State,” does not affect interstate commerce. (Post, pp. 709-712.) Constitution construed: Ü. S. Const., Art. I., Sec. 8. Acts construed: Acts 1893, Ch. 89; Acts 1895, Ch. 4 (Ex. Ses.). Cases cited: State u Scott, 98 Tenn., 254; 164 U. S., 650; 141 O'. S„ 58; 9 Wheat., 195; 3 Fla., 162 (S. C., 25 L. R. A., 120); 55 N. J. L., 529 (S. C., 25 L. R. A. 134).
99 Tenn. 713Lockett v. Kinzell (1897)
FROM KNOX. Appeal from Chancery Court of Knox County. H. B. Lindsay, Ch.
99 Tenn. 719Bird v. Railroads (1897)
FROM KNOX. Appeal in error from Circuit Court of Knox County. Joseph W. Sneed, J.
99 Tenn. 729Hocking v. Insurance Co. (1897)
Fire Insurance. Forfeiture of mortgagee's rights by owner's burning property. The forfeiture of a policy of fire insurance wrought by the insurer’s fraudulent act in burning his own property to obtain the insurance, operates to defeat the rights of his mortg-agee of the property, to whom the insurance, in the event of loss, was made payable as his interest mig-ht appear. Cases cited: Donaldson v. Ins. Co., 95 Tenn., 280; 53 Ill., 151 (S. C., 5 Am. Dec., 37); 6 Gray, 169 (S. C., 66 Am. Dec., 410); 17 I Vis., 375 (S. G, 84 Am. Dec., 754); 17 N. Y., 391.
99 Tenn. 732Meek v. Thompson (1897)
MARSHALING Assets. Priority of lienors. One to whom land has keen mortgaged as security for a bona fide debt is entitled to have other land then owned by the mortgagor subjected to the payment of a prior judgment against such mortgagor, which was a lien on all the land, as against persons who, subsequently to the execution of such mortgage, obtained liens on such other land. i Cases cited and approved: Thompson v. Pyland, 3 Sneed, 538; Rice v. Hunt, 13 Heis., 350; Jones v. Maney, 7 Lea, 341; Hunt v. Ewing, 13 lb., 519; Boyce v. Stanton, 15 lb., 346. Case cited and distinguished: Gilliam v. McCormack, 85 Tenn., 598.