1. Other action pending. Ground for demurrer.
To recover land conveyed in violation of a restraint on alienation,
pendency of a prior suit on the same matter would not be ground
of demurrer, but for motion to elect. Travis v. Sitz, 156.
2. Grounds. Other action pending.
Pendency of a prior suit will not be ground for a plea in abate-
ment, where the bill states that the record in the old case has
been lost and cannot be found. Ib.
1. Railroads. Injuries to persons on tracks. Actions. Statute.
Shannon's Code, section 157, subd. 4, providing that every rail-
road company shall keep the engineer, fireman, or some other
person on the locomotive always on the lookout ahead, and
when any person appears upon the railroad, the alarm whistle
shall be sounded, the brakes put on, and every possible means
employed to stop the train and prevent an accident, does not
apply where a trespasser, walking along the railroad right of
way, was struck by a piece of timber which became loose and
projected from a lumber car; for there was nothing to show the
trespasser's danger to the engineer, who did not know of project-
ing timber. Preslar v. Railroad, 42.
2. Railroads. Injuries to persons on tracks.
loquitur.
Where a trespasser on a railroad right of way was struck by a
piece of timber which projected from a lumber car and it did
not appear how the lumber was loaded or whether the timber
was caused to project by reason of negligence of the railroad
company and there was no showing as to how long it had pro-
jected, negligence on the part of the railroad company cannot
be based on the doctrine of res ipsa loquitur. Ib.
3. Intoxicating liquors. Illegality. Right of action for price.
Mere knowledge on the part of the seller of intoxicants that the
buyer intends illegally to resell the liquors will not render the
contract void, so as to bar the seller's action for the purchase
price, though if the seller participates in or contributes to the
purchaser's intention to sell illegally, or does any act to facil-
itate or further the design to transgress the law, or has an in-
terest therein, the right to recover the price is lost. Jones &
Co. v. Wilkins, 146.
4. Intoxicating liquors.
price. Statute.
Sale of intoxicating liquors. Recovery of
Where the seller of liquors knew through its local agent that the
buyer was running a wide-open liquor saloon in violation of
law, and made the shipment to a transfer company, not to the
135 Tenn.]
(741)
ACTIONS-ACTS CITED AND CONSTRUED.
ACTIONS, RIGHT OF CAUSE-Continued.
consignee, marked merely with his initials, so that the public
would not know to whom it was to be delivered, such seller
could not recover the price, naving aided the buyer's design to
transgress the law and circumvented the legislature's object in
passing Acts (Ex. Sess.) 1913, chapter 1, requiring common car-
riers to cause all consignees of liquor to sign, before delivery, an
affidavit setting out his name, etc. Ib.
5. Contract or tort. Action on contract.
An action against the bank for damages resulting from breach of
a contract to loan money is an action sounding in contract, and
not in tort. Farabee-Treadwell Co. v. Bank & Trust Co., 208.
6. Carriers. Injuries by servant. Wanton acts.
Where an employee of a railway company compelled trespassers
stealing a ride to jump from the train when it was passing over
a trestle, although they had intended to alight shortly, his act
was wanton, and where the trespassers were injured, furnishes
ground for an action of damages. Railroad v. Marlin, 135.
7. Receivers. Insolvency receivers.
If the receiver has the legal title to the claim sued on, he has
generally a right to sue in the foreign State. Van Tuyl v. Car-
penter, 629.
8. Banks and banking. Insolvency receivers.
Until judicial determination of amounts needed for liquidation of
the corporation, the superintendent of banks, or statutory receiver,
though naving title to the assets and empowered to sue in a for
eign State, cannot bring such suit. Ib.
ACTS CITED AND CONSTRUED.
1819, ch. 28, sec. 1. Mines and Minerals. Title. Adverse possession.
By possession of surface. Conveyance of legal rights. Right of
access incident. Northcut v. Church, 541.
1829-30, Ch. 95. Courts. Establishment. Powers of legislature. "In-
ferior courts." Hodge v. State, 525.
1861, ch. 45. Attorney and client. United States.
gress. Moyers v. Memphis, 263.
1871, Ch. 46. Carriers. Carriage of passengers. Negligence. Mem-
phis St. Ry. v. Cavell, 462.
1877, ch. 23. Arrest. Arrest without warrant. "Breach of the
peace." Unlawful sale of liquors. State ex rel. v. Reichman, 653.
1879, Ch. 141. Husband and wife.
Travis v. Sitz, 156.
1887, Ch. 104, sec. 3. Commerce.
Wifes separate estate. Statute.
Interstate Commerce. Validity of
Railroad, 48.
Contract. Complaint. Roberts v.
1887, Ch. 359. Attorney and client.
gress. Moyers v. Memphis, 263.
1891, ch. 496. Attorney and client.
United States. Powers of Con-
1897, ch. 78. Liens. Priorities. Parker-Harris Co. v. Tate, 509.
1898, ch. 84. Bills and notes. Negotiability. Certain time. Acceler-
ation clause. White v. Hatcher, 609.
1899, ch. 94. Bills and notes. Forgery.
ACTS CITED AND CONSTRUED.
ACTS CITED AND CONSTRUED-Continued.
1899, ch. 243. Attorney and client. Lien.
Steel Const. Co. v. Walker, 55.
1901, ch. 141, sec. 1. Insurance. Life policies.
good faith. Silliman v. Life Ins. Co. 646.
1909, ch. 1. Sheriffs and constables. Powers and duties.
rel. v. Reishman, 653.
1905, ch. 172. Highways. Frightening mule. Action against auto-
mobile owner. Instruction. Statute. Black v. Moree, 73.
1905, ch. 173.
Liens. Conditional sales. Lien for automobile injury.
Priorities. "Deodand." Parker-Harris Co. v. Tate, 509.
1907, ch. 254.
Eminent domain. Highways. Use for other public
purposes. Underground pipes. Lea v. Railroad Co. 560.
1909, ch. 384. Intoxicating liquors. Evidence. Internal revenue li-
cense. Statute. Elmore v. State, 347.
1909, ch. 407. Bail. Pending appeal. Violation of ordinance.
ing v. Nichols, 295.
1909, ch. 479. Commerce. "Interstate Commerce." Engagements in
by liquor dealer. Statute. Hiller v. Crenshaw, 151.
1909, ch. 557. Sales. Constitutional sales. Criminal responsibility for
transfers. Statutes. Construction. "Knowingly or willfully."
Pappas v. State, 499.
Criminal Law. Appeal. Reversal. Failure to instruct.
Montgomery v. State, 577.
1911, ch. 36. Rape. Evidence. Corroboration of female. Bledsoe v.
The State, 143.
1913, ch. 1. Intoxicating liquors. Sale of intoxicating liquors. Re-
covery of price. Statute. Jones & Co. v. Wilkins, 146.
1913, ch. 2. Sheriffs and constables. Powers and duties.
1913, ch. 20. Courts. Decisions controlling. Matters not contested.
Van Tuyl v. Carpenter, 629.
1913, ch. 26.
Travis v.
1913, ch. 355.
Husband and wife. Wife's separate estate. Statute.
Sitz, 156.
Intoxicating liquors. Evidence. Internal revenue license.
Elmore v. State, 347.
1915, ch. 11. Sheriffs and constables.
Powers and duties. State ex
1915, ch. 78, sec. 12. Judges. Appointment. Powers of legislature.
Hodge v. State, 525.
1915, ch. 78. Courts. Establishment.
Powers of legislature. "In-
15. ch. 78, sec. 12. Judges. Statutes. Certainty. Intent of legislature.
1915, ch. 78. Clerks of courts. Judges.
utes. Validity. Ib.
Establishment of offices. Stat-
1915, ch. 78, secs. 4, 12. Clerks of courts. Judges. Holding two
offices. "Lucrative office." Ib.
1915, ch. 140. Attorney and client.
Constitutional law. Powers of
Congress. Depriving of property. Moyers v. Memphis, 263.
1915, ch. 161. Statutes. Validity. Subjects and titles of acts. Wit-
nesses. Privilege. Husband and wife. McCormick v. State, 218.
1915, ch. 186. Statutes. Construction. Title of act. Mengel Box Co.
v. Fowlkes, 202.
1915, ch. 667. Taxation. Special statutes. Constitutionality. Quinn
v. Hester, 373.
ADVERSE POSSESSION-ARREST.
See POSSESSION.
APPEAL AND ERROR.
1. Judgment. Notwithstanding verdict. Party entitled to move.
Where a case had been submitted to the jury and judgment en-
tered on a verdict for the plaintiff, a judgment non obstante vere-
dicto for the defendant rendered by the trial judge, at the re-
quest of the defendant, was error. Neill v. Insurance Co., 28.
2. Costs. On appeal. Expense of bill of exceptions.
Where a successful appellant in an action at law, by violating
supreme court rule 2 (126 Tenn. 716, 160 S. W. vii), requiring
bills of exception to state testimony in narrative and concise
form, increased materially the size of the transcript, he should
pay one-half of the appeal costs, notwithstanding the rule that
in actions at law the successful party is entitled to recover full
costs, since "full costs" do not include costs so added.
v. Brown, 140.
3. Scope of review. Intermediate court amount of damages.
Where the trial court and the court of civil appeals concur as to
the amount of damages to a property owner by destruction of his
easement of access by elevation of railway tracks across an adjacent
street, and the evidence is conflicting, the supreme court will
treat such concurrent finding as conclusive. Railroad Co. v. Mor-
iarity, 446.
4. Harmless error. Instruction.
In an action against a railway for injuries, where, under all the
evidence, there was no material issue of fact for the jury to deter-
mine on the question of defendant's negligence, error in charging
the doctrine of res ipsa loquitur was harmless. Memphis St. Ry. Co.
v. Cavell, 462.
5. Criminal law. Reversal. Failure to instruct. Statute.
Where refusal to give proper instructions does not affect the result
the verdict being fully in accord with the merits of the case, the
case must be affirmed, under Acts 1911, ch. 32, providing that no
verdict or judgment shall be set aside or any criminal cause for er-
ror in the charge, etc., unless in the opinion of the appellate court
it affirmatively appears the error has affected the result.
Montgomery v. State, 577.
1. Arrest without warrant. "Breach of the peace." Unlawful sale of
liquors.
"Breach of the peace" being a generic term including all violations
of public peace or order, includes unlawful sale, actual or threat-
ened, of intoxicating liquors, and the sheriff may arrest without
warrant therefor. State ex rel. v. Reichman, 653.
2. Arrest without warrant. Threatened sale of liquors.
The right of the sheriff to arrest without warrant for threatened un-
lawful sale of intoxicating liquors and to close the place of busi-
ness is not unlawful as an arbitrary invasion of property rights,
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