charge is given it left the jury to ascertain for themselves of what offense appellant would be guilty if he shot after deceased abandoned the difficuty. They gave appellant murder in the second degree. If the law had been charged it might not have been higher than manslaughter.

There is another question in regard to this abandonment, also, that should have been charged more favorably to appellant. The defensive theory was that there was no abandonment, and there being evidence of the fact that appellant was approaching a tree, and that this was only for the purpose of getting a better vantage ground from which to carry on the battle. If the jury should believe this state of fact, then there would be no abandonment of the difficulty, and appellant's right of self-defense would be in no manner abridged. Of course, in a difficulty like the one detailed in this evidence, matters and occurrences move in rapid succession; and if there was an abandonment at all, or if appellant was approaching the tree for the purpose of getting a vantage ground, it must have been done in an almost incredibly short space of time. The rapidity of the movements of the parties, and the shortness of a difficulty of this character, where self-defense, manslaughter and abandonment of the difficulty all congregate within a moment or two of time, would call on the court to be specifically certain with reference to the law when those issues are set forth in the charge.

We would call attention, also, to another phase of the charge on self-defense. The twenty-fourth subdivision of the charge, which pertains to self-defense, is as follows: "On the other hand, if you find and believe from the evidence, that prior to the killing, J. A. Cundiff had made threats to kill or inflict serious personal violence upon the defendant, J. W. St. Clair, and you further believe from the evidence that J. W. St. Clair, before the killing, was informed of said threats, and was warned that Cundiff was a dangerous man; and you further believe from the evidence that on the occasion of the killing that J. A. Cundiff used words or did acts, or used words and did acts which indicated a purpose and intention on the part of Cundiff to carry said threats into execution," etc. This charge is criticised because it coupled the right of self-defense with the fact that appellant was warned Cundiff was a dangerous man. In other words, that the law of self-defense was curtailed by the fact that deceased was a dangerous man. It is too restrictive, or rather it is a burden upon selfdefense which the law does not justify. statute authorizes the slayer to act in selfdefense where threats have been communicated to the slayer; and the party slain at the time of the difficulty did some act manifesting his intention to execute the threat. It is not necessary that he be a dangerous man. It is true that the statute authorizes the introduction of evidence that deceased was a

The

violent and dangerous man, but it does not make the right of self-defense depend upon that fact. It depends upon the fact that the deceased did some act manifesting his intention to execute the threat. The evidence in regard to the dangerous character of the deceased is introducable as evidence, in the case to be weighed by the jury. The slayer would have as much right to act in self-defense if his life was in danger, either actually or apparently, whether deceased was or not a dangerous man, and the right of self-defense is not curtailed by reason of the fact that deceased was not known as a dangerous man.

There are over 40 questions presented for revision, including those discussed. Many of them we deem unnecessary to be reviewed. Among other things stated in the motion for new trial is the misconduct of the jury, as well as the further fact that on several occasions separation occurred. The evidence in regard to this is voluminous, covering nearly 100 pages. But, in view of the disposition made of the case, these matters are not discussed. Nor is the further question in regard to the formation of the jury and the manner of selecting and summoning the special venire, as it will not occur upon another trial.

This record contains nearly 800 pages of rather closely typewritten matter, and it occurs to us that the salient features necessary for the disposition of it on this appeal might have been easily placed within 200 pages; at least in a much smaller compass than was done. It places upon this court a very great burden, and an unnecessary one, to go through such tremendous records to review a few questions, when they could have been easily presented by being properly and judiciously stated. We make the suggestion that, in preparing records for appeal to this court, they be made up entirely with the view of presenting concisely and succinctly, yet fully, the questions to be decided, omitting all unnecessary details. It is true that, under the recent act of the Legislature, the right is given to send up the stenographic report, and perhaps in some instances this may be necessary, but such cases are or ought to be rare Occurrences. The "narrative" form of perpetuating the evidence for appeals is the better practice, and is not in violation of the recent act of the Legislature, when attorneys and the court below see proper to do so. Of course we would not undertake to criticise their action in this respect; but, where this practice can be avoided, we suggest that it be done. The crowded condition of our docket renders it now almost impossible for this court to dispose of the rapidly increasing appeals. These suggestions are made in order that trial courts and attorneys may be of assistance in the rapid disposition of appeals, and without suggesting or Intimating that any right, real or imaginary they may have, shall be curtailed.

For the errors discussed, the judgment is reversed, and the cause remanded.

LEWIS v. SHELBY COUNTY. (Supreme Court of Tennessee. May 12, 1906.) 1. ANIMALS-DISEASES-DESTRUCTION.

Acts 1901, p. 283, c. 156, authorizing the state live stock inspector to slaughter any diseased animal when the public safety demands its destruction, renders his action in destroying an animal unquestionable in any subsequent proceeding.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Animals, § 82.]

2. CERTIORARI-INFERIOR TRIBUNALS.

Acts 1901, p. 283, c. 156, authorizing the state live stock inspector to slaughter any diseased animal in the interest of public safety, provides for the appointment of commissioners to determine the animal's value and makes the same county charge. Held, that the judgment of the commissioners may be reviewed by certiorari to the circuit court.

3. ANIMALS-DISEASE-DESTRUCTION.

On presentation of a certificate by the commissioners to the county court it had no jurisdiction to fix for itself the value of the animal.

Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor.

Proceedings by Gillie Lewis against Shelby county to recover the value of an animal destroyed by the state live stock inspector under Acts 1901, p. 283, c. 156. From a judg. ment in favor of claimant, the county ap peals. Affirmed.

Lee Thornton, for appellant. J. S. McKinley, for appellee.

NIEL, J. Chapter 156, p. 283, of the Acts of 1901 is entitled "An act to prevent the spread of communicable diseases among domestic animals in the state of Tennessee," etc.

Section 10 of this act provides:

"That whenever, in the opinion of the state live stock inspector, the public safety demands the destruction of any animal, or animals, under the provision of this act, he shall, before ordering the killing or the slaughtering of the same, appoint three competent and disinterested freeholders, who shall be affirmed or sworn before proceeding to act, and they shall make a just and true valuation of said animal or animals to be so killed or slaughtered, and in valuing shall consider the health and condition of the animal when killed, and they shall make and deliver a written certificate, setting forth all the essential facts in the case to the lawful owner, who shall present the same for payment to the chairman of the county court of the county in which such animal or animals are so killed or slaughtered, and the same shall constitute a county charge, to be paid as other claims against the county are."

Gillie Lewis was the owner of a mule which the inspector examined. Believing it to be infected with glanders, the inspector appointed three persons, in accordance with the section above quoted, to place a valuation upon the mule, before he caused it to be slaughtered. These commissioners valued

the mule at $60, and made their certificate accordingly. This certificate was presented to the quarterly county court on one of the regular days of the April term 1905.

Instead of accepting the certificate as final evidence of a county charge, the county court instituted an inquiry within its own body, to ascertain the true value of the mule. After hearing the evidence it fixed the value at $25, and declined to pay any further sum.

Thereupon the county and Gillie Lewis made up an agreed case, embodying the foregoing facts and brought the matter before the chancery court of Shelby county for adjudication by proper legal proceedings.

The chancellor decreed that the valuation fixed by the commissioners under the act was conclusive, and could not be inquired into nor questioned. A judgment was thereupon rendered in favor of Gillie Lewis against the county for $60. From this judgment the county has appealed and assigned errors.

The only assignment we need consider raises the question as to whether the valuation fixed by the commissioners was final.

We are of opinion that the inspector had, under the police power, the right to destroy the mule, and this could not be questioned in any subsequent proceeding. The proceedings, however, before the commissioners, instituted for the purpose of fixing the value of the mule were judicial in their nature. The commissioners constituted one of the numerous inferior tribunals, created by the Legislature from time to time, without the grant of a right of appeal or writ of error to the parties concerned. The judgments of such tribunals may, however, still be reviewed. The property practice in such a case is an application to the circuit court for a writ of certiorari. Either party dissatisfied may apply for this writ and have the question re-examined upon the merits in the circuit court. The scope of this writ, as applicable to inferior tribunals of the class referred to herein, will be found fully discussed in the case of Staples v. Brown, 113 Tenn. 639, 85 S. W. 254.

Neither party having obtained a review of the judgment of the commissioners, in the only manner open to them, it must be treated as final.

The action of the county court in attempting to fix for itself the value of the mule was beyond its jurisdiction.

The judgment of the chancery court will, therefore, on the grounds stated in this opinion, be affirmed.

were accepted after they were due, and, of the seven, two were accepted only after insured had executed a certificate of good health. Of the remaining five, two were forwarded by mail on the day they became due, and three were paid and accepted after due, unconditionally, of which one was paid one day after it was due; one two days, and one sent by mail to the home office of defendant one day after it was due, and received five days after due. The revival contracts recited that the policy had become forfeited for nonpayment of premiums, and contained an express agreement that insured should pay his future premiums promptly. Held, that such facts were insufficient to establish an habitual course of dealing justifying insured in believing that the insurer would not insist on a forfeiture of the policy for failure to pay premiums at maturity.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1057, 1716.]

2. SAME-INDULGENCE IN PAYMENT.

Mere indulgences in the payment of premiums do not constitute a waiver of the condition authorizing forfeiture for nonpayment of premiums when due.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1057, 1716.]

3. SAME DEATH.

PAYMENT OF PREMIUMS AFTER

A course of dealing between insurer and insured, whereby the former has accepted payment of premiums after maturity, does not bind it to accept premiums for the purpose of avoiding forfeiture, where they are not tendered until after insured's death.

4. SAME PREMIUMS PAYABLE IN INSTALLMENTS-CONDITION SUBSEQUENT.

Where the annual premium on a policy is payable in installments, a failure to pay any installment works a forfeiture, though the condition be construed as a condition subsequent.

5. SAME-INCONTESTABILITY.

Where a policy provided that it should be incontestable after three years if the payments required should have been made when due, such clause should be construed to mean that the policy was incontestable for causes other than nonpayment of premiums. 6. SAME POLICY-CONSTRUCTION.

An insurance policy provided that if the premiums which were payable quarterly were paid when due, the insurer would pay to the insured's representative the face value of the policy "less the balance of the dues for the current year of the death of the insured," and any indebtedness of insured to the association, followed by a provision for forfeiture on failure of insured to pay when due any moneys required to be paid under the policy. Held, that such provisions gave the insurer the right to deduct from the face of the policy installments not due at the time of insured's death but which became due during the current year, in case insured regularly met his payments at maturity, and did not confer on insured a right to insurance for the whole current year on the payment of installments of the policy.

7. SAME-FAILURE TO PAY CLAIM-PENALTIES. Where plaintiff was not entitled to recover under a policy, she could not recover the penalty prescribed by Acts 1901, p. 248, c. 141, for the insurance company's withholding the amount alleged to be due thereon.

Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor.

Action by M. E. P. Thompson, as administratrix, against the Fidelity Mutual Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Turley & Turley, for appellant. R. Lee Bartels, for appellee.

WILKES, J. This is a suit to collect a life insurance policy. The bill upon its face shows that the insured died in default of payment of the last premium. The complainant seeks to recover upon two theories, one that there was a course of dealing between the insured and the company by which the insured was allowed to pay his premiums after they became due, and in consequence of this course of dealing complainant was led to believe that he might make such payments within 30 days after they became due.

The last payment which was allowed to go by default was due December 30, 1904. The insured was then absent from his home at Memphis, and in his last sickness; but of this the company had no notice.

The company mailed notice in due time and in the usual way of the maturity of this premium, but it was never received by Thompson or his wife, or any one else for him, so far as the record shows.

The policy provides as follows: "The Fidelity Mutual Life Association, in consideration of the application for this policy, which is made a part hereof, and the payment to said association of seven and 83/100 dollars ($7.83) upon the thirtieth days of the months of March, June, September, and December in every year, for a period of twenty years from March 30th, 1896, and thereafter in the event of the continuance of this contract, the payment of renewal premiums on the date aforesaid, does hereby receive Wil

liam Y. Thompson, of Memphis, Tennessee, as a member of said association, and issues this policy of insurance and hereby promises to pay the sum of twenty-five hundred dollars to the administrators, executors, or assigns of said member within ninety days after proof of death," etc. "less the

balance of the dues for the current year of the death of the insured, and any indebtedness of the member to said association, subject, however, to all the requirements hereafter stated, and the conditions herein indorsed, which are hereby referred to and made a material part of this contract.

"(2) Provided, any moneys required to be paid under this policy, during the continuance of this contract, must be actually pald when due to said association; otherwise, this policy shall be ipso facto null and void, and all moneys paid thereon shall be forfeited to the said association."

The policy was issued on the 30th of March, 1896, and delivered to the insured on April 3, 1896, at which time he paid the initial premium. The insured died on the 14th of January, 1905, in default in the payment of the premium due December 30, 1904. On a day between January 20 and 23, 1905, a tender of the premium due December 30,

1904, was made to the Nashville office of the defendant. At that time the company was not aware that Thompson had died, and that fact was not communicated to it at the time of tender. The agent in charge at the Nashville office, advised the party making the tender that it could not be accepted because it was overdue, unless accompanied by a certificate of good health.

At the time the policy was issued, the insurer had an office in Memphis, but during the summer of 1900, this office was abolished, and the insured was instructed to pay his premiums by mail to the Nashville office. The subsequent premiums were paid to the Nashville office.

There were thirty-six premiums due upon the policy between the date of its issuance and the death of the insured. Of these, seven were accepted after they were due. Of these seven, two were accepted only when the insured had executed a certificate of good health, Of the five remaining premiums, two were forwarded by mail to the Nashville office on the day they became due, thus leaving only three premiums that were paid and accepted after due, unconditionally. Of these three premiums one was paid one day overdue, one two days overdue, and one sent by mail to the home office one day after due, and received five days after due.

The evidence shows that the certificates of health executed by Thompson and the revival contracts recited that the policy had become forfeited for nonpayment of premiums at maturity, and there was an express agreement on the part of the insured that he was to pay his future premiums promptly. The correspondence that passed between the cashier of the Nashville officer and the insured in reference to the premium due December 30, 1900, shows that it was necessary, in order to protect Thompson's insurance, that the cashier should pay his premiums on the due date, out of her own funds. The subsequent correspondence between the cashier of the same officer and Thompson, in reference to the premium due June 30, 1901, made known to Thompson that his policy had been forfeited because his premium was not paid promptly, and that before he could be reinstated it was necessary for him to execute a health certificate.

We cannot, in view of the evidence in regard to the payment of premiums which we find in the record, conclude that there was an habitual course of dealing between the parties which would justify the insured in believing that the company would not insist upon a forfeiture of the policy if he failed to pay his premiums when they fell due, so as to bring the case within the operation of the rule laid down in Insurance Co. v. Hyde, 101 Tenn. 396, 48 S. W. 968; Insurance Co. v. Eggleston, 96 U. S. 572, 24 L. Ed. 841.

The doctrine is there laid down, that any agreement declaration, or course of dealing on the part of an insurance company which

leads the insured honestly to believe that by conformity thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon a forfeiture, though it may be claimed under the express letter of the contract.

As was said by the court in case of Equitable Assur. Soc. v. McElroy, 83 Fed. 631, 28 C. C. A. 365:

"The course of dealing between the insured and the insurer must be such as to justify the insured in believing that the company will not insist upon a forfeiture of the contract for his failure to pay his future premiums when due; that the insured does believe this and that he acts on this belief. Otherwise, there is no estoppel on the part of the insurer to insist upon prompt payment and forfeiture for failure to pay ad diem." The rule is laid down by Mr. Bacon, Mr. Joyce and other text-writers that the "course of dealing" between the insured and the insurer as to accepting overdue premiums must amount to a custom or habit in order to estop the insurer from insisting on forfeiture for the failure to pay a subsequent premium ad diem; and that not only must it be shown that the premiums were habitually received after they were due, but that the insurer intended to waive the prompt payment of future premiums, or that the assured, as a reasonable man, was led to believe by its action that the insurer had waived the condition of forfeiture. Bacon, vol. 2, § 431; Joyce, vol. 2, § 1368; Vance, p. 353; Crossman v. Association, 143 Mass. 435, 9 N. E. 753.

That mere indulgencies in the payment of premiums do not constitute a waiver of the condition of forfeiture for failure to pay premiums when due. Thompson v. Insurance Co., 104 U. S. 252, 26 L. Ed. 765; Easley v. Association, 91 Va. 169, 21 S. E. 235.

In the case of Thompson v. Insurance Co., supra, the claim made was similar to the contention made in this case. Justice Bradley said:

"If the permission to pay a premium or premiums after maturity was a matter of indulgence on the part of the company, it cannot be justly construed as a permanent waiver of the clause of forfeiture, or implying an agreement to continue the same indulgence for time to come. As long as the insured continued in good health, it is not surprising and should not be drawn to the company's prejudice, that it was willing to accept the premium after maturity, and waive the forfeiture which might have been insisted upon. This was for the mutual benefit of themselves and the insured at the time, and in each instance in which it happened, it had respect only to that particular instance with out involving any waiver in reference to future payments. The insured had no right, without some agreement to that effect, to rest on such voluntary indulgence shown on

one occasion or a number of occasions, as a ground for claiming it on all occasions. If it were otherwise, an insurance company could never waive a forfeiture on occasion of a particular lapse without endangering its right to enforce it on occasion of a subsequent lapse."

Under the above authorities, before complainant can recover in this case, she must show:

(1) That the course of dealing between the insurer and the insured, in reference to the acceptance of overdue premiums, amounted to a custom or a habit.

(2) That by reason of this course of dealing, the insured was justified in believing that the company would not insist upon a forfeiture for his failure to pay his subsequent premiums ad diem.

(3) That the insured did actually believe that he could postpone the payment of his future premiums after maturity without the risk of a forfeiture.

(4) That the insured acted upon this belief in this instance, and that by reason thereof, did not pay the premium due December 30, 1904, at its maturity.

But this rule does not in any event apply, unless the payment is made and accepted during the life of the insured, so that we consider this course of dealing as really unimportant.

A permission to pay a premium after due date during the life and good health of the insured is not equivalent to a permission to pay after his death. It is well settled that a course of dealing between the parties, under which the insurer accepted overdue | premiums when the insured was in good health, will not give his representative or himself the right to pay or tender his premiums after maturity, and he is in a bad state of health, or had died. Bacon, vol. 22,

431; Crossman v. Association, 143 Mass. 436, 9 N. E. 753-755; Insurance Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671, 36 L. Ed. 496; Association v. Miller, 85 Ky. 88, 2 S. W. 900.

The reason of this is, there has been an increase in the risk or hazard. An insurer might be willing to accept an overdue premium and reinstate an insured when his condition of health is the same as when the policy was originally issued, but it cannot be argued from this that he should be required to reinsure or reinstate the same person when he was or is in extremis. The course of dealing, if any, was to accept the overdue premiums, from a live man, not a dead one. At the time the tender was made in this case Thompson was dead.

As bearing somewhat upon this feature of the case, it had been held that illness of the insured is no excuse for his not paying his premium when due. The law and his contract require him to make provision for meeting his premiums when due, and if he fails to do this, he cannot be heard to complain by

saying that he was physically unable to attend to his business. Thompson v. Insurance Co., 104 U. S. 257, 258, 26 L. Ed. 765; Klein v. Insurance Co., 104 U. S. 88, 26 L. Ed. 662; Carpenter v. Association, 68 Iowa, 453, 27 N. W. 456, 56 Am. Rep. 855.

In the case of Want v. Blunt, 12 East. Rep. 183, the contract provided that upon payment of premiums on a certain day, or within fiften days thereafter, that upon the death of the insured the company would pay to his widow the amount named in the policy. The insured died in default of the payment of his premium, but it was tendered the company within fifteen days after his death. The court held that the payment was not made in time; that the condition in the policy permitting the insured to pay within fifteen days after the due date of the premium meant, should pay "within fifteen days after due date, during the life of the insured."

Said the court: "This contract of insurance must be construed according to the meaning of the parties expresed in the deed. The risk insured against is W.'s death. The duration of the insurance is so long as he continues to make his payments, but the insurance is not to be void if paid within fifteen days after due. The question to be determined is whether at the death of the insured the policy had expired. The insurance is for a quarter of a year, and so on, from quarter to quarter, contingent upon the payment of premiums in advance. The death of the insured happened after one of the quarters had ended and when a new one had begun, but no payment of premium had been made as a consideration for the insurance for the new quarter. As the protection offered was only up to the beginning of a new quarter, its continuance thereof being dependent upon the payment of another quarter's premium, there was no insurance upon his life at the time of his death, hence the death happened during a period not covered by the policy. The payment of a premium for another quarter was equivalent to making a new assurance, though under a former policy. The frame of this policy shows that the premium must be paid during the life of the assured."

This case was followed by Pritchard v. Association, 3 C. B. 622. Said Justice Willes:

"The provision for revival upon the good health of the insured assumes that the subject upon which the insurance is to attach is a living person, otherwise, the stipulation would be absurd. The very foundation of a life policy is that it is a contract for the payment of a certain sum upon the future death of a person then in being, in consideration of the present payment of the premium. The renewals or revivals of the contract, like the original, are clearly only for future assurance on a living person."

In the policy in the present case, it is provided that the insurance shall not be bind