mit anything indicating an absence of ordi- | apprehending that the injured animals would nary care on his part in his handling of the go on into the trestle. train. [2] After those in charge of a train perceive frightened animals on the track or near by, it is, of course, incumbent upon them to use ordinary care in the movements and conduct of the train. If they negligently operate the train so as to further frighten and cause the animals to injure themselves, the railroad company will be liable for such damage. This principle is well recognized, but, as has been observed, it is somewhat difficult to say just what is negligence under the varying conditions that may arise. The Supreme Court of Alabama has said this with reference to the duty of the trainmen to stop: Where an "animal is on the track frightened, and running under conditions that indicate that, unless the train is stopped, it will run into the trestle, and that the danger may be averted by stopping the train, a duty arises to stop it; and if the engineer negligently fails to do so, the company will be liable." N., C. & St. L. R. Co. v. Garth, 179 Ala. 162, 59 South. 640, 46 L. R. A. (N. S.) 430. The Court of Civil Appeals was of opinion that it was a question for the jury to determine whether under the conditions appearing in this case ordinary care required that the train should have been stopped. The decided cases are without exception to the contrary so far as we have been able to ascertain. Where there is nothing to prevent the animal from leaving the track and the speed of the train is slackened and it is moving slowly, a considerable distance in the animal's rear without unnecessary noise, it has been declared in all the cases that there was no negligence in not bringing the train to a full stop before the animal ran into the trestle. Gay v. Wadley, 86 Ga. 103, 12 S. E. 298; Brothers v. South Carolina R. Co., 5 S. C. 55; Chicago & N. W. R. Co. v. Taylor, 8 Ill. App. 108; Hot Springs R. Co. v. Newman, 36 Ark. 608; Pittsburg, C. & St. L. R. Co. v. Stuart, 71 Ind. 500; Georgia Pacific R. Co. v. Money (Miss.) 8 South. 646; and other cases collected in note 46 L. R. A. (N. S.) 430. It is said that under such circumstances the trainmen cannot foresee as a natural or probable consequence of the failure to stop that the animal will run out on the trestle rather than to the side when there is no obstruction. St. L., I. M. & S. R. Co. v. Bragg, 66 Ark. 248, 50 S. W. 273; Ramsbottom v. Atlantic Coast Line R. Co., 138 N. C. 38, 50 S. E. 448; N., C. & St. L. R. Co. v. Garth, supra. In the case before us the probability that the mules injured would run out to one side of the track was increased by the fact that four other mules in the bunch did so run out, and the engineer had less reason for If an animal is running along a fenced track, through a cut, or on an embankment leading to a trestle or stock gap, the case might be different. Under these conditions the engineer might reasonably anticipate that the animal would run into the trestle, inasmuch as the ways of escape to the sides of the track were not clear. Ohio Valley R. Co. v. Major, 12 Ky. Law Rep. 710; Indianapolis B. & W. R. Co. v. McBrown, 46 Ind. 229; Alabama G. S. R. Co. v. Hall, 133 Ala. 632, 32 South. 259. There may be other circumstances under which ordinary care would require the engineer to bring his train to a stop. Such circumstances existed in Davis v. Railroad (MS. 1912), and in other unreported cases. [3] There is no conflict in the testimony as to the facts of this accident. The witnesses are all in accord. We are of opinion that the facts disclose no negligence on the part of those in charge of the train of plaintiff in error, and it follows that the judgment of the Court of Civil Appeals and of the circuit court will be reversed, and this suit dismissed. HORN v. NICHOLAS et al. (Supreme Court of Tennessee. March 16, 1918.) 1. REPLEVIN 8(5) RIGHT TO REMEDY NOTE-POSSESSION. Where defendant's agent sold a third person a farm, taking notes, and the agent forged denotes as collateral to the bank, and then made fendant's signature as indorser, pledging the new forged notes, exact duplicates of the true notes, which defendant indorsed believing that could not have replevin to recover the true he had indorsed the genuine notes, the indorsee notes; the delivery of the false notes not having been a valid transference vesting legal title in the indorsee in view of Negotiable Instruments Act (Laws 1899, c. 94) § 16, making a contract concerning a negotiable instrument incomplete until delivery. 2. REPLEVIN 8(5)-RIGHT TO WRIT-NOTE -POSSESSION. which both parties thought was the valid note Assuming that the indorsee of a false note one was an equitable assignee, he could not maintain replevin to recover the true note, since to maintain replevin must show a legal from such a right recognized in courts of equity. right of possession or ownership as distinguished 3. REPLEVIN 8(5)-RIGHT TO WRIT-NOTE -POSSESSION "DELIVERY." Where defendant's agent sold a third person a farm, taking notes, and the agent forged defendant's signature as indorser, pledging the notes as collateral to the bank, and then made new forged notes, exact duplicates of the true notes, which defendant indorsed believing that he had indorsed the genuine notes, the indorsee could not have replevin to recover the true notes on the theory of constructive delivery, since "delivery" means transfer of possession from one person to another, and there could be no transfer of possession where the transferor had no possession. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Delivery.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. ASSIGNMENTS 48-EQUITABLE ASSIGN- [from March —, 1913. MENT-DISCRETION OF CHANCELLOR. An equitable assignment will be enforced or not in the sound discretion of the chancellor according to justice, but not so as to defeat intervening rights of third persons. 5. ESTOPPEL 98(2)-PURCHASER OF NOTE- Bill by W. L. Horn against R. W. Nicholas and others and W. B. Holcomb and the Cumberland Valley National Bank. The bill was dismissed as to the last two defendants. From the judgment rendered, Nicholas and others appeal. Affirmed. A. W. Akers, L. J. Rust, and F. M. Bass, all of Nashville, for appellants. Knight & Beasley, of Nashville, for Horn. Philpot's note was renewed several times. Some time prior to June 6, 1914, Holcomb paid to Philpot a sum sufficient to discharge one of the notes, and Philpot paid $1,000 on his own note to the Hermitage Bank; whereupon Philpot renewed his note to the bank in the sum of $4,000, with the three $2,000 notes yet attached as collateral security. Nicholas, unmindful of the forgery and of the wrongful use Philpot had made of his notes, sought to make use of them in a transaction of his own. Philpot advanced to his client, Nicholas, $1,717 on the first note of the series, but told him that to further the transaction referred to it would be necessary for him to indorse all of the notes to Philpot. The latter presented to Nicholas three instruments which purportedly were those signed by Holcomb. In fact, Philpot this time had cleverly forged the name of Holcomb as maker to three fictitious notes, exact duplicates of the true notes; and these were indorsed by Nicholas under the belief that he was indorsing the genuine notes of Holcomb to himself. There were then two series: The three genuine notes, with the name of the payee Nicholas forged as indorser, in the possession of the Hermitage Bank; and the three forged notes bearing the genuine signature of Nicholas as indorser. One of the last named Philpot negotiated (November 13, 1913) to complainant Horn, who took the same believing, as did Nicholas, that it was one of the true notes executed by Holcomb for the realty. WILLIAMS, J. This is one of numerous suits that have arisen by reason of a series of gross frauds perpetrated by one Everett Philpot, who was formerly engaged in the business of a real estate agent in the city of Nashville. The bill of complaint in this cause was filed by Horn against R. W. NichoRumors of other frauds of Philpot becomlas, Everett Philpot, W. B. Holcomb, and the ing current in the city, the officers of the Cumberland Valley National Bank to recov- Hermitage Bank called Nicholas into the er, by writ of replevin, from the last-named banking house, showed him the true Holcomb defendant, the possession of a note for $2,- notes with his name on the back, and asked 000, executed by Holcomb to Nicholas, on whether those signatures were his own. October 12, 1912, due three years from that Nicholas pronounced the signatures to be his, date; and, in the alternative, to have that and at the request of the bank officers exenote subjected to the payment of complain-cuted a written statement (June 9, 1914) to ant's claim against Nicholas by reason of a this effect: claimed assignment thereof to complainant "I have been shown three notes (describing by Nicholas; an impoundment of the note them) by the officials of the Hermitage Nationin the hands of the Cumberland Valley Bank al Bank. I recognize my indorsement on them also being sought. The history of this note as genuine." is as follows: Holcomb, the maker, was also called in to pass upon the genuineness of his signature, which he did. In October, 1912, Philpot, as agent for Nicholas, sold a farm to Holcomb, the latter executing to Nicholas three negotiable notes Holcomb did his banking business at the for $2,000 each (the one involved here being Cumberland Valley Bank and desired to have of the series) due one, two, and three years, his notes carried by that bank. He applied respectively, from date, and secured by an to that bank for money with which to take express vendor's lien on the realty sold. the notes over from the Hermitage Bank. Philpot was handed the three notes by Nicholas for safe-keeping in a safe in the office of the former. A loan of $4,000 was granted him with the understanding that the two last maturing notes would be brought from the Hermitage Bank and pledged as collateral to Holcomb's note to the Cumberland Valley Bank. Holcomb using said funds to acquire them, the Hermitage Bank, with the consent of Philpot. turned the notes over to Holcomb, and two of Philpot borrowed of the Hermitage National Bank $5,000, and took the three notes from the safe, forged the signature of Nicholas as indorser thereon, and pledged the same as collateral to the last-named bank to secure his own note of $5,000, due in four months them were duly pledged as collateral as had been prearranged. It is the last maturing gave rise to an equitable assignment of the one of said notes that complainant seeks to reach the counterpart of the false instrument Nicholas had indorsed to him. true $2,000 note to complainant Horn, in this aspect of the case. If it be conceived or conceded that the indorsement by Nicholas to Horn on the forged note amounted to an equitable assignment of one of the real notes, of equal amount and same maturity, to complainant Horn by Nicholas, we think it clear that such an equitable assignee cannot maintain replevin as is here sought. Complainant to that end must show right of pos It appears that, at the time Holcomb took the notes from the Hermitage Bank, he had knowledge of the contents of the above-written declaration of Nicholas touching the validity of his indorsements; and had been told by the bank's president that Nicholas had carefully examined the signatures on the backs of the notes. Later on, meeting session or ownership by a title recognized at Nicholas on the streets of the city, Holcomb had referred to the incident of thus vouching to the bank as to the maker's signatures, when Nicholas stated to Holcomb that his own signatures on these notes were also genuine. law, as distinguished from one, which is recognized only in courts of equity. Rice v. Crow, 6 Heisk. (53 Tenn.) 28; Richmond, etc., Foundry v. Carter, 133 Tenn. 489, 182 S. W. 240, and cases cited. But another phase of complain nt's bill to set up an equitable right to the real note in the possession of the Cumberland Valley Bank, and to demonstrate that the bank has no legal claim to the paper as against Nicholas, because of the forgery of the signature It does not appear, however, that Holcomb presents more difficulty. He seeks, as stated, informed the Cumberland Valley Bank of Nicholas' personal assurance to him, or that Nicholas made any direct representations to that bank respecting the notes. That bank relied upon Holcomb's assuring himself that the notes were genuine in every respect; of Nicholas; and therefore that the bank and the president of the bank says he relied for the validity of the notes in every re spect upon the statements made to him by Holcomb, after an examination by the latter. So far as he can recall, the written declaration of Nicholas as to his indorsement was never shown that bank. It is therefore argued in behalf of complainant Horn that the Cumberland Valley Bank cannot claim that Nicholas is estopped, or that complainant, as his privy, is estopped, since the bank was not misled to its hurt in taking the notes as collateral in reliance on anything said to it or done by Nicholas. Failing such an estoppel, it is further contended that the defendant bank cannot hold the note sued for under the forged indorsement of Nicholas, and that complainant as transferee of Nicholas is thereby entitled to the relief it seeks. has no defense as against complainant treated as Nicholas' equitable assignee. We need not decide, in this aspect of the litigation, whether since the enactment of the Negotiable Instruments Law there can be such an equitable assignment of a note, without a delivery actual or constructive, or whether the fact of indorsing the forged note with intention to negotiate and deliver a real one would constitute an equitable assignment of the valid instrument. [3] But Horn contends that there was a constructive delivery to him by Nicholas. Constructive delivery is recognized in one of the general provisions of the Negotiable Instruments Law thus: "Delivery' means transfer of possession, actual or constructive, from one person to another." We are unable to comprehend how Nicholas could make a constructive delivery of an instrument that How far are these insistences of complain- was not in his own possession or control. ant sustainable? The true note of Nicholas was in the posses Nicholas is a defendant and has filed no sion of another, the bank, at the time he purcross-bill seeking affirmative relief. [1] We have little difficulty in determining that complainant is not entitled to the remedy of replevin to get possession of the note held by the Cumberland Valley Bank. ported to transfer it to Horn; and we hold the contention that there was a constructive delivery to be unsound. [4] If such an equitable assignment be assumed, for purposes of test and disposition of the cause, complainant confronts a difficulty in the doctrine recognized in this state to the effect that the affording of that form of relief is in order to the attainment of just No delivery of any real note for $2,000 was made to Horn, and short of that there was no transference of the true $2,000 note which could vest legal title in him. Since the passage of the Negotiable Instruments results, and that an equitable assignment will Act, every contract on a negotiable instrument is incomplete until delivery of the instrument for the purpose of giving effect thereto. Section 16; also, 3 R. C. L. 967. Gregory v. Ross, 9 Baxt. (68 Tenn.) 599, is relied upon by complainant as sustaining his contrary insistence; but the rule in that case, if ever sound, has been abrogated by the terms of the uniform act. be enforced or not in the sound discretion of the chancellor, according to the circumstances of the case, but not so as to defeat the rights of third persons which have intervened. Trabue v. Bankhead, 2 Tenn. Ch. 412; 2 Pom. Eq. Juris. (3d Ed.) § 714. [5] Did Holcomb in taking over the notes from the Hermitage Bank have a status that admits of his asserting an estoppel as against [2] We need not decide whether the facts complainant? the instrument at or after maturity in his own right," thus indicating that by acquisition before maturity a discharge, precluding renegotiation does not result. By section 50 it is provided: Where the maker before its maturity ac- negotiable instrument is discharged when quires his own note, the common-law author- the principal debtor becomes the holder of ities were divided as to his right to be treated as a holder for the purpose of reissuance. Some of the cases held that payment in such case extinguished the instrument, so that the maker's subsequent transferee could not hold the other parties to the instrument liable. The doctrine of the other line of authorities is thus stated and approved in 8 C. J. 592, where the cases pro and contra are collected: "According to the better authority, such a payment operates as a mere purchase, and the payer may reissue the note before maturity, and his transferee may recover thereon against all parties to the instrument as a bona fide holder for value." The reasoning in support of the latter rule may be thus summarized: The intention of the maker to pay his paper before maturity is the more improbable. His undertaking is to pay at maturity, not before; "payment means payment in due course and not by anticipation;" before maturity he, as well as a third person, may discount the instrument, and the fact that the paper is in the maker's possession should not import notice that it has been extinguished. Its negotiability which originally was for the full period up to maturity date is not cut short or destroyed by reason of the fact that it has come into the maker's possession before maturity. In Morley v. Culverwell, 7 M. & W. 174, 151 Eng. Reprint 727, Lord Abinger, C. B., said: "A bill is not properly paid and satisfied according to its tenor unless it be paid when it is due; and consequently if it be satisfied before it is due, by an arrangement between the drawer and acceptor, that does not prevent the acceptor from negotiating it." Mr. Daniel, in the last edition of his Negotiable Instruments (page 914), after quoting the language of the above decision, states that in the first edition he had stated the law to be in accord with the New York or minority rule, but that "examination of the English authorities, and of the South Carolina case, has satisfied him of the error, and that the English view is correct." "Where an instrument is negotiated back to a prior party, such party may, subject to the provisions of this act, reissue and further negoforce payment thereof against any intervening tiate the same. But he is not entitled to enparty to whom he is personally liable." The privilege of acquiring in negotiation and of reissuing is thus broadly in favor of any prior party. And by section 30 an instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. It therefore appears that if Holcomb was led, as he claims, to acquire the paper from the Hermitage Bank, as from one which held the note under Nicholas' indorsement and which could pass title in a negotiation back to him, he had status to invoke estoppel against complainant, claiming in the right of Nicholas. Holcomb would be in the attitude of parting with his money in taking over the paper on faith that the Hermitage Bank held the instruments under valid indorsements. His was a purchase, and he became a holder, qualified and with limited rights it is true; and in respect thereof he could be misled to his hurt. A second satisfaction of his notes would now threaten Holcomb without fault on his part, otherwise. We hold that upon the facts stated Nicholas is estopped, and that Horn is affected by the same even if he were treated as having the equitable assignment he claims. When Nicholas gave the written statement to the Hermitage Bank, he must be taken to have understood fully that it related to instruments that were negotiable in character, and that were so to remain until maturity dates, long distant; and, further, that it would be relied on by any person in negotiating with the bank for the notes to whom knowledge of the statement might come. He equipped the then holder of the notes with evidence of his own making of the holder's ostensible power to transfer. The case is peculiarly one for the application of the doc This, we believe, is also the conception of bankers and men of commerce as to the rights of such parties; and it evidently was the one acted upon in the instant case. The doctrine admits of convenient results in prac-trine of estoppel in pais. tical operation, as the facts of this case man- [6] The estoppel having thus once arisen ifest. The maker was permitted to keep in favor of Holcomb, it inured to the benalive the lien securing the note by being al-efit of one thereafter purchasing or taking as lowed to acquire for reissue; whereas, if the note were to be treated as paid, it would be necessary to create a new lien to secure a fresh note. The Negotiable Instruments Law, it ap pears, is framed to accord with this view. By its section 119 (5) it is provided that "a security the instruments from him-in this case the Cumberland Valley Bank. 10 R. C. L. p. 809; and note to Holzbog v. Bakrow, 50 L. R. A. (N. S.) 1028. The bill of complaint was properly dismissed as to defendants Holcomb and the Cumberland Valley Bank. Affirmed. JONES v. STATE ex rel. JUVENILE COURT. Statutory certiorari from the circuit court lies to review the action of the juvenile court in proceedings involving the custody of a child, and statutory certiorari will issue, that the case may be tried again upon its merits in the circuit court, and not the common-law writ of certiorari, which opens for review merely the legality of the action of the inferior tribunal. Appeal from Circuit Court, Shelby County; Ben. L. Capell, Judge. CASEY-HEDGES CO. v. GATES. (Supreme Court of Tennessee. Feb. 27, 1918.) MASTER AND SERVANT 103(2), 191(1), 233 (1)-FELLOW SERVANTS-INJURIES TO SERVANT-DEFECTIVE APPLIANCES. Where cores are selected, inspected, and prepared by employés of another department, without supervision except the general supervision over both departments, a molder cannot recover for injuries from loaded defective cores coming to him, especially where he has an opportunity to inspect and select from the cores prepared. Certiorari to Court of Civil Appeals. Action by Walter Gates against the CaseyHedges Company. From a judgment of the Court of Civil Appeals affirming a judgment for plaintiff, defendant brings certiorari. Re versed, with directions. Habeas corpus by the State, on the relation of the Juvenile Court, against Chester R. Jones, involving the custody of Chester R. Jones, Jr. To review the proceedings, Jones petitioned for certiorari in the circuit Sizer, Chambliss & Chambliss, of Chattacourt, which dismissed the petition, and nooga, for Casey-Hedges Co. Tatum, Thach Jones appealed to the Court of Civil Appeals, & Lynch, of Chattanooga, for Walter Gates. which affirmed, and Jones again appeals. Judgment of the Court of Civil Appeals modified, and case remanded to the circuit court, with directions that writ of certiorari issue. L. H. Graves, of Memphis, for appellant. Julian G. Strauss, of New York City, for ap-il pellee. GREEN, J. In this case a petition for certiorari was filed in the circuit court of Shelby county to review certain proceedings in the juvenile court involving the custody of the child, Chester R. Jones, Jr. The trial judge was misled by the case of Childress v. State, 133 Tenn. 121, 179 S. W. 643, and thought that a judgment of the juvenile court was not reviewable in his court on petition for certiorari, but that this court had immediate appellate supervision of proceedings in the juvenile court. accordingly dismissed the petition for certiorari. He We have explained in State of Tennessee ex rel. v. Verbal Bockman, 201 S. W. 741, opinion just filed, that we inadvertently took jurisdiction in Childress v. State, supra, and that certiorari from the circuit court does lie to review the action of the juvenile court. It is statutory certiorari which will issue in this case, to the end that the case may be tried again upon its merits in the circuit court (Staples v. Brown, 113 Tenn. 641, 85 S. W. 254), and not the common-law writ of certiorari, which opens for review merely the legality of the action of the inferior tribunal (Conners v. City of Knoxville, 136 Tenn. 428, 189 S. W. 870). The judgment of the Court of Civil Appeals will accordingly be modified, and this case will be remanded to the circuit court of Shelby county, with directions that the writ of certiorari issue to bring up from the juvenile court proceedings herein and have a review of the case in the circuit court. GREEN, J. Walter Gates recovered a judgment for $1,500 against the Casey-Hedges Company for damages for personal injuries, which was affirmed by the Court of CivAppeals, and the case is before us on certiorari granted. Gates was an experienced iron molder in the employ of the plaintiff in error, and the basis of his suit is alleged negligence of the plaintiff in error in furnishing him with de fective appliances. Plaintiff in error relies on his motion for a directed verdict, the disallowance of which he assigns as error in this court. At the time he received his injuries the defendant in error was engaged in the casting of iron pipe. There was an explosion of the mold into which he and his assistant were pouring the melted iron, and by the force of the explosion this liquid was thrown onto the leg and foot of defendant in error, injuring him severely. The mold for casting iron pipe comprises the lower part known as the "drag." The upper part of the mold is called the "cope." The cope fits upon the drag. Both are concave. In the cylinder thus formed the pipe is molded. Within this mold before the liquid iron is poured therein is placed what is called the "core." This core is a tubular appliance whose outside circumference is smaller than the inside circumference of the mold. When the metal is poured into the mold it forms around the core, and the hollow or interior of the pipe is thus made. The core consists of an iron pipe called the arbor over which is spread a thin coating of damp sand. The arbor is perforated along its circumference, and each end of the arbor pipe is open. As molten iron cools it expels gases, and these gases escape through the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |