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t««M
HARVARD LAW LIBRARY
9f
^iL3
• r
-'
3\
OF CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF TENNESSEE
FOB THE
December Term, 1 89S;
AND FOB THE
April Term, 1899.
GEORGE W. PICKLE,
ATTORNRY-GBNBKAL AND KBPORTBR.
VOLUME xvin.
NASHVILLE, TENN. :
Marshall & Bbuge Co. , Stationers and Printers.
1900.
Qis^.^^Mofl.- / o/^^i^
Judges of the Supreme Court
OF TENNESSEE.
STATE AT LARGE.
WALLER C. CALDWELL,
WM. K. McALISTER.
EASTERN DIVISION.
DAVID L. SNODGRASS, Ch. J.
MIDDLE DIVISION.
JOHN S. WILKES.
WESTERN DIVISION.
W. D. BEARD.
ATTORNEY -GENERAL AND REPORTER.
GEORGE W. PICKLE,
Krwocville, Tenn.
Court of Chancery Appeals
OF TENNESSEE.
EASTERN DIVISION.
R. M. BARTON, Jk.
MIDDLE DIVISION.
S. F. WILSON.
WESTERN DIVISION.
M. M. NEIL.
(HI)
Clerks of the Supreme Court
OF TENNESSEE.
ALEX. McMillan Knoxville.
JAMES TURKEY Nashville;.
J. W. BUFORD, Jr Jackson.
Chancellors
OF TENNESSEE.
John P. Smith, 1st Division Jonesboro.
Thos. M. McConnell, 3d Division Chattanooga.
Walter S. Bearden, 4th Division . ... Shelbyville.
T. J. Fisher, 6th Division Carthage.
H. H. Cook, 6th Division Franklin.
A. J. Abernathy, 7th Division Pulaski.
J. S. Gribble, 8th Division Lebanon.
A. G. Hawkins, 9th Division Huntingdon.
John S. Cooper, 10th Division . . ..Trenton.
John L. T. Sneed, 11th Division Memphis.
H. G. Kyle, 12th Division Rogersville.
C. W. Tyler, Montgomery County, Clarksvilie.
• Ohancellon H. B. Lindsay and Lee Thornton, whose Courts have l)eeu abol-
ished, are omitted from this list.
(IV)
Circuit Judges
OF TENNESSEE.
H. T. Campbell,
W. R. Hicks,
Floyd Estill,
W. T. Smith,
M. D. Smallman,
J. W. Bonner,
John W. Childress,
W. C. Houston,
Samuel Holding,
A. H. Munford,
Levi S. Woods,
w. h. swiggart,
T. J. Flippin,
L. H. EsTEs,
J. S. Galloway,
Jas. G. Parks,
Jno. R. Bond,
Jos. W. Sneed.
1st Circuit Greeneville.
2d Circuit Clinton.
4th Circuit Winchester.
6th Circuit Sparta.
6th Circuit McMinnville.
7th Circuit Nashville.
2d Circuit Court. .Nashville.
8th Circuit Woodbury.
9th Circuit Columbia.
10th Circuit Clarksville.
11th Circuit Lexington.
12th Circuit Union City.
13th Circuit Somerville.
14th Circuit Memphis.
2d Circuit Court . . Memphis.
17th Circuit Cleveland.
18th Circuit Brownsville.
Knox Circuit Knoxville.
Criminal Judges
OF TENNESSEE.
J. M. Anderson, for Davidson County Nashville.
L. P. Cooper, for Shelby County Memphis.
* Circuit Judges 6. A. Bodgers and W. L. Grigsby, and Criminal Judges C. W.
Tjler, T. A. R. Nelson, and John M. Taylor, whose Courts have been abolished, are
omitted from these lists.
(V)
'Attorneys-General
OF TENNESSEE.
F. D. B. Harmon,
G. Mc. Henderson,
Wm. E. Donaldson,
M. G. Butler,
George W. Sutton,
Robert Vaughn,
LiLLARD Thompson,
Frank Boyd,
H. C. Carter,
B. J. Howard,
J. W. Lewis,
S. L. COCKROFT,
M. R. Patterson,
A. J. Fletcher,
Wm. Wallace Wade,
1st Circuit Greeneville.
2d Circuit Rutledge.
4th Circuit Jasper.
5th Circuit Gainesboro.
6th Circuit Fayetteville.
7th Circuit Nashville.
8th Circuit Lebanon.
9th Circuit Waynesboro.
10th Circuit Wav^erly.
11th Circuit Jackson.
12th Circuit Paris.
13th Circuit Dyersburg.
14th Circuit Memphis.
17th Circuit Cleveland.
18th Circuit Trenton.
• District-attorneys F. D. Owlngs, W. B. Leech, E. P. Mynatt. and Thomas F.
Martin are omitted from this list, as their Courts were abolished.
(VI)
,1
Cases Reported.
American Express Co., Mem-
phis v 336
Balch, Medlin V 710
Bank & Trust Ck>., FPool v.. 29
Barge, Scatchard v 282
Bedford v. McDonald 358
Benham Furniture Co., Dor-
nan Bros. V 303
Bickford, Shelby County v. . . 395
Bierce, Robinson v 428
Boon, Whitelaw Furniture
Co. V 719
Boyd U.Hunt 495
Breyer V. State 103
Brien v. Robinson 157
Burke v. Street Railway Co. . 409
Elsythe, The Precious Blood
Society v 40
Farrell, Russell v 248
Fittsv. State 141
Fitzgrerald v. Standish 383
Fletcher v. Railroad 1
Foster, Morley v 241
Foster v. State 33
Fox & Wheatley v. Fox 77
Frazier, Carpenter v 452
G.
Galloway, Meacham v 415
C.
Carpenter v. Frazier
Carroll v. Taylor
Catholic Knights, McCarthy v.
Cooper V. Overton
Craig, Railroad v ^
Dan, Street Railway Co. i\ . .
Darmody, Schilling v
De aney. Railroad v
Dickson, Knights of Honor v,
Dornan Bros, v, Benham Fur-
niture Co
Douglas, Thane tn
462'
451
345
211
298
Hamilton i\ Henney Buggy
Co 714
Henney Buggy Co., Hamil-
ton r 714
Howard, Street Railroad Co.u 474
Hunt, Boyd v 495
J.
,«^ Johnson, Laughlin i; 455
.on Jones V. Nixon 95
439
^gg ■ Judges' Cases, The 509
255 I ^
303 , Kenton, Turnage r 388
307 Knights of Honor v, Dickson 255
(VII)
vin
Cases Repobted.
L.
Landreth Co. u Schevenel... 486
Laug^hlin v. Johnson 455
Lockwood, Viley v 426
K.
Morley u Foster 241
Maydwell, Persica v 207
Meacham v. Galloway 415
Medlin v. Balch 710
Memphis v. American Express
Co -.: 336
Memphis City Bank v. Smith 467
Memphis V. Waite 274
Moore v, Moore 149
Kc.
McCarthy v. Catholic Knights 345
McCuUy 17. State 509
McDonald, Bedford v 358
McEinney v. Nashville 131
Nashville, McEinney i) 181
National Fertilizer Co. v.
Travis 16
Neely, Railroad u 700
Nixon, Jones v 95
O.
Overton, Cooper V 211
P.
Page, Weakley V 179
Persica v, Maydwell 207
Polk V. Williams 370
P'Pool V. Bank & Trust Co. . 29
B.
Railroad v. Craig 298
Railroad v. Delaney 289
Railroad, Fletcher v 1
Railroads. Neely 700
Railroad v. Tiernan 704
Robinson v, Bierce 428
Robinson, Brien t^ 157
Royal Ins. Co. i;. Vanderbilt
Ins. Co 264
Russell V. Farrell 248
Ryan v. Terminal Co Ill
8.
Scatchard v. Barge 282
Schevenel, Landreth Co. v... 486
Schilling u Darmody 439
Sharp v. State 9
Shaw, Telephone & Telegraph
Co. V 313
Shelby County v. Bickford . _ 395
Slack D. Saddoth 375
Smith, Memphis City Bank v. 467
Smith u State 721
Smith, Weaver 17 47
Standish, Fitzgerald v 383
State, Breyer t? 103
State, Fitts v 141
State, Foster v 33
State, McCuUy D 509
State, Sharp 17 9
State, Smith u 721
State, Thornton 17 509
State, Ward 17 724
Street Railway Co. , Burke 17. . 409
Street Railway Co. v. Dan... 320
Street Railroad Co. 17. Howard 474
Suddoth, Slack 17 375
T.
Taylor, Carroll 17 451
Telephone & Telegraph Co.
17. Shaw 3J3
Casbs Reported.
IX
Terminal Co., Byan v Ill
Thaneu Douglas 307
The Precious Blood Society
t7. Elsythe 40
Thornton V. State 509
Tiernan, Railroad v 704
Travis, National Fertilizer
Ck). V 16
Trust Co. u Weaver 66
V.
Viley V. Lockwood 426
18 p— B*
Vanderbilt Ins. Co., Royal
Ins. Co. V 264
W.
Waite, Memphis v _ 274
Wardu State 724
Weakley v. Page 179
Weaver v. Smith 47
Weaver, Trust Co. v 66
Whitelaw Furniture Co. v.
Boon 719
Williams, Polk t? 370
Cases Cited.
A.
Algood V. State 87 Tenn., 163 548, 563
Allen u MeCuUough 3 Heis., 185 154
Allen u. The Bank 6 Lea, 558 366
Allison V, Allison 1 Yer., 16 431
Alloway, Bankhead i; 6 Cold., 75 374
AUoway v. Nashville 88 Tenn., 510 138
Almony u Hicks 3 Head, 41, 89 98, 100
Anderson V. Talbott 1 Heis., 407, 408 98
Anderson v. Turbeville 6 Ck)ld., 161 117
Armour, Deaderick i; 10 Hum., 588, 594 171, 173
Austin 17. McKinney 5 Lea, 499 433
Austini?. Richards 7 Heis., 665 431
B.
Bank, Allen 17 6 Lea, 558 366
Ball 17. Hannan 1 8 Lea, 683 700
Bank 17. Bank 7 Lea, 430 379
Bank, Black 17 4 Hum., 368 68
Bank, Bowdre 17 93 Tenn., 736 395, 396
Bank 17. Cooper 3 Yer., 633 683, 691
Bank 17. Divine Grocery Co 13 Pickle, 603 ._ 139
Banki7. Ewing 13 Lea, 601 101
Bank, Ruohsv 10 Pickle, 73 44
Bank of Tennessee, Martin i7 3 Cold., 333 404
Bankhead 17. Alloway 6 Cold., 75 _ 374
Bannon, Gin Co. 17 85 Tenn., 713 364
Barnes, Scoggins 17 8 Bax., 560 _ 460
Barnett 17. Clark 5 Sneed, 436 431
Bates 17. Sullivan 3 Head, 393 353
Baxt»ir, Saunders 17 _ 6 Heis., 393 353
Belle 17. Watson 3 Lea, 338 343
Belmont Land Co. , Garrett i7 10 Pickle, 460 46
Berry, Harvey 17 1 Bax., 353 68
Cases Cited. xi
Belote V. White 2 Head, 703 392
Bennett 1?. Read 4 Heis., 440 444
Bethel, Brinkley v 1 9 Heis., 786 46
Bing, Memphis V 94 Tenn., 645 339
Black V. Bank 4 Hum., 368 68
Black, Marble Ck>. v 5 Pickle, 121 406
Blackwell, Wilcox v 99 Tenn., 352 101
Blonnt V. Medlin 2 Tenn., 199 333
Booker, Southern Life Ins. Ck>. v. 9 Heis., 606, 628 351, 354
Boyd V. Insurance Co 6 Pickle, 212 354
Bowdre V. Bank 92 Tenn., 736 295
Boyles, Massengill V .-_ 4 Hum., 206 333
Bradley V. Carnes 94 Tenn., 27 168
Bransford, Young 17 12 Lea, 232 311
Brewer 1). Davis 9 Hum., 208, 213. ..570, 629, 694
Brew r. Van Deman 6 Heis., 433, 444 191, 498
Breyer, State V. 7 Lea, 682 465
Bridges V. Cooper 14 Pickle, 394 61
Bridges, Farrar 17 3 Hum., 565 490
Bridgewater r. Gordon 2Sneed, 5.^. 171, 172
Brinkley tJ. Bethel 9 Heis., 786 46
Britton, Kincaid v 5 Sneed, 122 431
Brown u Cannon 3 Heis., 355 ,. 90
Brown 17. Johnson 1 Hum., 261 334
Brown, Lyon 17 _ 6 Bax., 64 404
Brown, Railroad 17 96 Tenn., 559 700
Bryan 17. McGuire 2 Head, 530 318
Bucklin, Hayden 17 9 Paige, 512 436
Burg, Williams 17 9 Lea, 455 432
Burger, Eaken 17 1 Sneed, 424 404
Burke 17. Memphis 94 Tenn., 692 342
Burt, England 17 4 Hum., 400 700
Bush 17. Phillips 3 Lea, 63 406
Byrd, Riley 17 3 Head, 19 459
0.
Caldwell 17. Knott 10 Yer., 210 193
Callisi7. Cogbill 9 Lea, 137 432, 437
Campbell, Grove 17 9 Yer., 7 724
xn Cases Cited.
Cannon v. Mathes 8 HeiB., 504 126
Cantrell, Deaderick v 10 Yer., 263 392
Campbell, State, exrel. Coleman, v. 3 Shannon, 355 526, 533, 585
622, 629, 630, 634, 648
Cannon, Brown 1) 3 Head, 355 90
Cardwell, Hoggi; 4 Sneed, 151 285
Cames, Bradley t) 94 Tenn., 27 168
Carney, Field v 4 Bax., 137 367
Carter v. Taylor 3 Head, 30 449
Car Works, Crutchfield v 8 Bax., 342 498
Carter, Gibson et al., V 13 Lea, 140 286
Carter, Shepherd v 99 Tenn., 64 460
Cassady, Chapron V 3 Hum., 660 61
Castellar u Simmons 1 Tenn. Cases, 65 444
Chapron V. Cassady 3 Hum., 660 61
Chattanooga Cotton Oil Co. v.
Shamblin 101 Tenn., 263 5
Chattanooga Electric Railway Co.
V. Lawson 17 Pickle, 406 20
Citizens* Rapid Transit Co. v. Se-
grist 12 Pickle, 123 483
City of Memphis, Loague V 7 Lea, 67 280
Clack v. White 2 Swan, 540, 544, 545 ... 120, 192
Clark, Barnett v 5 Sneed, 436 431
Cloud, Wallv 3 Hum., 182 193
Cocke u Trotter 10 Yer., 213 452
Coal Creek M. & Mfg. Co. V. Ross- 12 Lea, 1 101
Cogbill, Callis v. - . - 9 Lea, 137 432, 437
Cogbill, Knights of Pythias V 15 Pickle, 28 261
Cole Mfg. Co. v. Falls 6 Pickle, 469 127
Coleman, King iJ 98 Tenn., 570 101
Coleman, State, exrel., v. Campbell 3 Shannon, 355 526, 533, 585,
622, 629, 630, 634, 648
Collins u Ins. Co 7 Pickle, 432 434
Collins, Railroad Co. v 1 Pickle, 227 254
Crumley, Cox v 5 Lea, 529 318
Cowardin, N. & C. R. R. v. 11 Hum., 548 123
Cowden, Young 1? 14 Pickle, 582 327
Cox i;. Crumley 5 Lea, 529 318
Cases Cited. xiii
Coxu Scott 9 Bax., 305 442
Cooper, Bank v 2 Yer.,622 683, 691
Cooper, Bridges V 14 Pickle, 394 61
Cooper, John son 17 2 Yer., 525 100
Craig, Kelly V 9 Hum., 215 408
Cro68 V. Mercer 16 Lea, 486, 489 571,629, 544
Crutchfield 17. Car Works 8 Baz., 242 498
CumberlandT. &T. Co. r. Poston. 10 Pickle, 696 317
Cummings, State (7 98Tenn.,667_ 545
Cummings, State t) 15 Pickle, 667 571
Card, Venablei? 2 Head, 586 569
D.
Daniels, East Tenn. Coal Co. v. . . 16 Pickle, 66, 79 5
Davidson County, Demoville v. .. 87 Tenn., 218, 222 106
Davis, Brewert' 9 Hum., 208, 213. ..570, 629, 694
Davis v. State 3 Lea, 377 109
Dawson & Campbell u Holt 11 Lea, 583 252
Dawson, Reelfoot Lake Levee
Dist. t? 97 Tenn., 151 340
Deaderick v. Armour 10 Hum., 588, 594 171, 172
Deaderick u Cantrell 10 Yer., 263 392
Deaderick, Hope 17 8 Hum., 9. 109
Demoville v. Davidson County ... 87 Tenn., 218, 222 106
Dickiufeon, Eaton 17. 3 Sneed, 396 461
Divine Grocery Co., Bank v 13 Pickle, 603 _ . 129
Dinwiddle, Admr.*, v, L. & N. R. R. 9 Lea, 309 481
Duncan, Woodward v 1 Cold., 562 459
Dush 17. Fitzhugh 2 Lea, 307 317
E.
Eaken 17. Burger 1 Sneed, 424 _ 404
East Tenn. Coal Co. 17. Daniels ... 16 Pickle, 66, 79 5
Eaton 17 Dickinson 3 Sneed, 396 461
Edwards, Morean i7 2 Tenn. Ch., 349 378
England i7. Burt .-. 4 Hum., 400 700
Epperson 17. Van Pelt 9 Bax. ,75 306
Essleman 17. Wells 8 Hum., 487.. 59
Evans, Vancill 17 4 Cold., 340 89
XIV
Cases Cited.
Ewinv. Park * 3 Head, 712 .
Ewing, Bank v 12 Lea, 601...
iSx parte Griffin 4 Pickle, 550
F.
89
101
127
Falls, Cole Mfg. Co. v 6 Pickle, 469. 127
Farrar v. Bridgres 3 Hum., 565 490
Fickle, Merrill 1) 3 Lea, 79 127
Fields V. Carney 4 Bax., 137 367
Fitzhugh, Dush 17 2 Lea, 307 317
Foster, Railway Co. v 4 Pickle, 671 406
Franklin, Joiner V 12 Lea, 422 442
Frazier V. Railroad 4 Pickle, 156 127
French, Railroad v lOOTenn., 209 505
Frey, Langford v 8 Hum., 443 408
Friedle, Hightower u 5 Sneed, 312 246
Fry u McCord Bros. 95 Tenn., 678, 679 295, 296
Fuqua, Tenn. Hospital v 1 Lea, 611 167
G.
Gaines, Halsey v.
Gaines, Railroad v
Gaines, Robinson v
Galbraith v. Lunsford
Gann v. Railroad
Gavin, Piillman P. C. Co. v
Garrett v, Belmont Land Co.
Garrett, Lassiter v
Garrett, Railroad i
Gibson et al, v. Carlin
Gilbert, Parks & Co., Railroad v.
Gill V. Lattimore
Gin Co. V. Bannon
Glenn, State, ex rel.y v
Goodlett, Harding v
Goodwin, State v
Governor v. Organ
Gordon, Bridgewater v
2 Lea, 316, 319, 322.526, 527, 539
544, 558, 625, 629, 630, 634, 645
11 Lea, 103 317, 318
2 Hum., 367 389
87 Tenn., 104 367
17 Pickle, 380 20
9 Pickle, 53 425
10 Pickle, 460 46
4 Bax., 368, 370 191
8 Lea, 439 318
13 Lea, 440 287
88 Tenn., 430 302
9 Lea, 381 366
85 Tenn., 712 364
7Heis.,472 547
3 Yer., 40 119
13Lea,238 721
5 Hum., 161 407
2 Sneed, 5 171, 172
Cases CkTSD. xy
Gray, Tatev 4 Sneed, 592 600
Griffin, Ex parU 4 Pickle, 550 127
Grove u Cam pbelK 9 Yer., 7 734
Gunteru. State 1 Lea, 129 119
Halsey 17. Gaines 2 Lea, 316, 319, 322.526, 527, 539,
544, 558, 625, 629, 630, 634, 645
Handy, Kirk man 1? 11 Hum., 407 193
Han nan, Ball V 8 Lea, 683 700
Hannum u Wallace 4 Hum., 143 448
Harding v. Goodlett 3 Yer., 40 119
Hargt>, Rodgers t; 92 Tenn., 35 466
Harris, Railroad 17 99 Tenn., 704, 685 106, 340
Harvey r. Berry 1 Bax., 252 68
Harwell v. State 10 Lea, 544 11
Hawkins u Kercheval 10 Lea, 535 522
Henley 17. State 98 Tenn., 665, 698 _ 106, 109, 550, 651
Hicks, Almony v 3 Head, 41,42,89 98, 100
Hicks, Knoxville & O. R. R. Ck>. 17. . 9 Bax., 442 109
Hightower 17. Friedle 5 Sneed, 312 246
Hogg 17. Card well 4' Sneed, 151 285
Holt, Dawson & Campbell 17 11 Lea, 583 252
Hollister, Phillips 17 2 Cold., 277 374
Hope 17. Deaderick 8 Hum., 9 109
Hopkins 17. Railroad 12 Pickle, 409 308
Home 17. M. & O. R, R. Co 1 Cold., 72. 461
Hornsby, Nighbertu 100 Tenn., 82 714
House 17. Thompson 3 Head, 512 365
Hughes, Railroad t) 94 Tenn., 450 704
Hunt, Memphis Telephone Co. 17. . 16 Lea, 456 317
Hurst, Powers 17 2 Hum., 24. 294, 545, 572
Hunter 17. Memphis 93 Tenn., 571, 573, 575.. 341, 349
I.
Insurance Co., Boyd 17 90 Tenn., 212 261, 351
Insurance Co., Cx)llins, 17 7 Pickle, 432 434
Insurance Co. i7. Lauderdale 10 Pickle, 640, 642 2fO
Insurance Co. 17. Morris 3 Lea, 101 354
XVI Cases Cited.
J.
Johnson, Brown v 1 Hum., 261 334
Johnson u Cooper 2 Yer., 535 100
Johnson V. Perry 2 Hum., 569 318
Johnson v. Planters' Bank 1 Hum., 77 _._ 403
Johnson, Ruffins V 5 Heis., 609 374
Johnson, St. L. & Iron Mountain
Railroad Co. v April Term, 1897 297
Joiner u Franklin 12 Lea, 422 442
Jones V. Perry 10 Yer., 58, 83 100
Jones, Porter u _ 6 Cold., 318 100
Jones, Smith v 95 Tenn., 342 704
K.
Kelly u Craig 9 Hum., 215 408
Kennedy v. Kennedy 16 Lea, 736 396
Kenny V. Norton 10 Heis., 388 432
Kercheval, Hawkins i; 10 Lea, 535. 522
Keys 1). Mason 2 Sneed, 6 544
Keys u Mason 3 Sneed, 7, 9 570, 629
Kincaidu Brittan 5 Sneed, 122 431
King v. Coleman 98 Tenn., 570. 101
Kirkmani;. Handy 11 Hum., 407 193
Knights of Pythias u Cogbill.... 15 Pickle, 28 261
Knights of Pythias v. Rosenfield . 8 Pickle, 510 26 1
Knott, Caldwell V 10 Yer., 210 193
Knox u. Railroad 17 Pickle, 375 20
Knoxville v. Lewis 12 Lea, 180 342
Knoxville & Ohio R. R. Co. v.
Hicks 9 Bax., 442 109
Knoxville V. Lea 10 Hum., 576 44
L.
Lane, Polkv 4 Yer., 36 704
Langford u Prey 8 Hum., 443 408
Larmon, Merri wether u. - 87 Tenn., 104 367
Larry, State v 7 Bax., 96 105
Lattimore, Gill v 9 Lea, 381 366
Lassiteru Garrett 4 Bax., 368, 370 191
Cases Cited. xvii
Law, Vaughn V. . 1 Hum., 134 192
Lawson, Chattanooga Electric
B. R. Co. V 17 Pickle, 406 20
Lauderdale, Insurance Co. t» 10 Pickle, 640, 642 260
Lea, Knuckellsv 10 Hum., 576 44
Leath, Murdock V lOHeis.,176 392
Lee, Railroad V 6 Pickle, 570 254
Leonard, State, ejcrel.,v 2 Pickle, 485.. 626, 629, 644, 693
Leonard, State, ex rel., 17 86 Tenn., 485 544, 559
Lewis, Knoxville v -... 12 Lea, 180 342
Linck u Nashville 12 Lea, 499 110
Loagne v. City of Memphis 7 Lea, 67 280
L. &N. R. R., Diwiddie, Admr.,7J. 9 Lea, 309 481
Luehrman v. Taxing District 2 Lea, 426, 438 109, 127
Lunsford, Galbraith v 87 Tenn., 104 367
Lyon u Brown 6 Bax., 64 404
M.
Maloney, Renfro 1? 8 Pickle, 68 629, 694
Manchester Mills, Railway Co. v, 88 Tenn., 653 302
Mann 17. Roberts 11 Lea, 57 435
Manning v. Wells 9 Hum., 746 423
Marley 17. Wood'folk 98 Tenn., 467 44, 493
Marshall 17. Stephens 8 Hum., 159 393
Martin 17. Bank of Tenn 2 Cold., 332 404
Martin, Naff 17 2 Shannon's CaseH, 451 193
Mathes, Cannon 17 8 Heis., 504 126
Marble Co. 17. Black ..-. 5 Pickle, 121 406
Massingill u Boyles 4 Hum., 2v/6 333
Mason, Keys 17 2 Sneed, 6 544
Mason, Keys 17. 3 Sneed, 79 570, 629
Medlin, Blount 17 2 Tenn., 199 333
Memphis 17. Bing 94 Tenn., 645 339
Memphis, Burke 17 94 Tenn., 692 342
Memphis Fair Co. , Monaghan i7. . 11 Pickle, 108 508
MemphisFreightCo. 17. Memphis. 4 Cold., 419 109
Memphis^ Hunter 17..: 93 Tenn., 571, 573, 575 339
Memphis 17! Ifemphis Waterworks 5 Heis. , 495 109
Memphis Appeal Pub. Co v. Pike. 9 Heis., 702 71
Memphis Telephone Co. 17. Hunt.. 16 Lea, 456 317
XVIII Cases Cited.
Merrill r. Frickle _ 3 Lea, 79 127
Merriman v. Polk 5 Heis., 717 99
Merce, Cross r _ 16 Lea, 486. 489 545, 571
Merrl wether v. Larmon .__ 3 Sneed, 447, 452 374
Miller, Sylvis v 96 Tenn., 94 294
Miller v. O'Bannon 4 Lea, 401 59
Monaghan v. Memphis Fair Co. . . 11 Pickle, 108 508
Monroe, Ramsey v 3 Sneed, 329 334
M. & O. R. R. Co., Horoev 1 Cold., 72. _ 461
Morean V. Edwards 2 Tenn. Chy., 349 378
Moore V. Tate 3 Pickle, 729 _ 402
Morris Claimants, Stratton Claim-
ants v 89 Tenn., 522 106
Morris, Insurance Co. f 3 Lea, 101 _._. 354
Motley, Ridley 1? 1 Lea, 468 62
Murdock u Leath 10 Heis., 176 392
Murphy -u. Portrum 95 Tenn., 605 460
Murphy u State 7 Cold., 516 143
Mc.
McBee v. Petty 3 Cold., 178 404
McCampbell v. McCampbell 2 Lea, 661 ^ 444
McCord Bros., Fry v 95 Tenn., 678, 679 295, 296
McClung u. McMillan 1 Heis., 655 171, 172
McConnell, State V 3 Lea, 332, 338 167, 548, 556
McCuUough. Allen v 2 Heis., 185 154
McGuire, Bryan i; 3 Head, 530 318
McKee, State V " 8 Lea, 24, 128 571, 629
McKinney, Austin 15 5 Lea, 499 432
McKinnie, Steele v _. 5 Yer., 449 407
McMillan, McClung v 1 Heis., 655 171, 172
N.
Naff V. Martin 2 Shannon's Tenn. Cas., 451, 1U3
Nailing 1?. Nailing 2 Sneed, 631 700
Nashville, Alloway r 88 Tenn., 5.10 138
Nashville, Linck V 12 Lea, 499 _ 110
Nashville Bank v. Ragsdale Peck, 296 69
Nashville, Stewart v 12 Pickle, 50 411
Cases Cited. xix
Nashville Trust Ck). v. Weaver... MS., Dec. Term, 1898 167
Nashville, Williams v 89 Tenn., 487. 71
N. & C. R. R. V. Cowardin. 11 Hum., 348 138
N. &C. R. R., Woodfolk v 2 Swan, 437... 138
Nighberti?. Hornsby lOOTenn., 82 714
Nelson V. Trigg 4 Lea, 706 334
Norment v. Smith 5 Yer.,270, 273.. 569, 629,653, 695
Norton, Kenny 17 10 Heis., 388 432
O.
OBannon, Miller 17 4 Lea, 401 59
Organ, Governor V 5 Hum., 161 407
Otey, Williams V 8 Hum., 563 389
P.
Park, Armstrong i; 9 Hum., 195 392
Park, Erwinu 3 Head^ 712 89
Parker 17. State 16 Lea, 476 110
Parker 17. Steed 1 Lea, 206 286
Perry, Johnson 17 2 Hum., 569 318
Perry, Jones 17 10 Yer., 59, 83 100
Petty, McBeei7 3 Cold., 178 404
Phifer, Pope 17 3 Heis., 682, 683. ..545, 621, 629
644, 693, 695
Phillips, Bush 17 3 Lea, 63 406
Phillips 17. HoUister 2 Cold., 277 374
Phillips 17. Stockett 1 Tenn., 200 193
Pike, The Memphis Appeal Pub.
Co. 17 9 Heis., 702 71
Planters' Bank, Johnson 17 1 Hum., 77 403
Polk 17. Lane 4 Yer., 36 . 704
Polk, Merri man u 5 Heis., 717 99
Popei7. Phifer 3 Heis., 683, 683... 545, 621, 629
644, 693, 695
Porter r. Jones 6 Cold., 318 100
Porter 17. Woods, Stoker & Co 3 Hum., 56 285
Porter 17. Woods 3 Hum., 56 286
Portrum, Murphy 17 95 Tenn., 605. ._ 460
Poston, Cumb. Tel. & Telegraph
Co. 17 11 Pickle, 419 254
XX Cases Cited.
Powers u. Harst 2 Hum., 24 294, 545, 572
Prebton 1?. Surgoine Peck, 80 68
Pullman Palace Car Co. v. Gavin. 9 Pickle, 53 425
Puj^h, Railroad Co. V 11 Pickle, 419 254
B.
Ragio V. State 2 Pickle, 272 129
Ragsdale, Nashville Bank V Peck, 296 69
Ragsdale u. State JO Lea, 671 143
Railroad t7. Brown 1 96 Tenn., 559 700
Railroad Co. v. Collins 1 Pickle, 227 254
Railroads. French 100 Tenn., 209 505
Railroad, Frazier tj 4 Pickle, 156... 127
Railroad V. Gaines 11 Lea, 103 317, 318
Railroad V. Garrett 1 8 Lea, 439 318
Railroad v. Gilbert, Parks & Co. . . 88 Tenn. ,430 302
Railroad D. Harris 99 Tenn., 685, 704 106. 304
Railroad V. Hopkins 12 Pickle, 409 308
Railroad V. Hughes 94 Tenn., 450 704
Railroad, Gann V 17 Pickle, 380 20
Railroad, Knox v 17Pickle,375 20
Railroad u Lea 6 Pickle, 570. 254
Railroad v. Pugh 11 Pickle, 419 254
Railroad 17. Roddy 85 Tenn., 403 700
Railway Co. v. Foster 4 Pickle, 671 406
Railway Co. , Manchester Mills u 88 Tenn. ,653 302
Railway Co. v. Sorrell 90 Tenn., 17 302
Ramsey V. Monroe 3 Sneed, 329 334
Rapid Transit Co. v. Segrist 12 Pickle, 123 . . 483
Rean, Bennett v. 4 Heis., 440 444
Renfro u Maloney 8 Pickle, 68 629. 694
Reelfoot Lake Levee District v,
Dawson 97 Tenn., 151 340
Richards, Austin v 7 Heis., 665 431
Ridley V. Motley 1 Lea, 468 62
Riley v. Byrd 3 Head, 19 459
Robinson V. Gaines 2 Hum., 367 389
Rodgers u Hargo 92 Tenn., 35 466
Rosenfield, Kn t f Pythias i?. 8 Pickle, 510 261
Cases Cited. xxi
Roberts, Mann V 11 Lea, 57 435
Roddv, Railroad v 85 Tenn., 403 700
Ross, Coal Creek M. & Mfg. Co. u 12 Lea, 1 101
Ross u Young 5 Sneed, 637 449
Ruffinv. Johnson 5 Heis., 609 374
Runnells V. State 92 Tenn., 330 69
Ruoh«»uBank 10 Pickle, 73 44
Runnells, State v 93 Tenn., 333 69, 167
Rnnnells, Woodbury v 8 Bax., 159 286
S.
Saunders u Baxter 6 Heis., 369 253
Segrist, Rapid Transit Co. v 12 Pickle, 123 483
Scoggins 17. Barnes 8 Bax., 560 460
Scott, Cox V 9 Bax., 305 442
Shamblin, Chattanooga Coal Oil
Co. V 101 Tenn., 263 5
Shepherd u Carlin 99 Tenn., 64. 460
Simmons, Castellar t; 1 Tenn. Cases, 65 444
Sinnott 17. State 11 Lea. 281 11
Smith, Jonesr 95 Tenn., 342 704
Smith, Norment v 5 Yer. , 270, 273, 284 569, 624
653, 695
Smith, York v 6 Bax., 213 437
Sorrell, Railway Co. V 90 Tenn., 17 302
Southern Life Ins. Co. v. Booker. 9 Heis., 606, 628 351, 354
South Tredegar Iron Co. , Young v. 85 Tenn. ,194 72
Spears i;. Walker 1 Head, 166 364
Spence, State V 15 Lea, 539 721
Spofford, Wilburn u 4 Sneed, 699 393
State 17. Algood 87 Tenn., 163 548, 556
State u Breyer 7 Lea, 682 , .. 465
State v. Cummings 14Pickle,667 545
State 17. Cummings 15 Lea, 667 571
State, Davis 17 « Lea, 377 109
State 17. Glenn 7 Heis., 472 547
State 17. Goodwin 13 Lea, 238r. 721
State, Gunter 17 1 Lea, 129 110
State, Harwellu: 10 Lea, 544 11
XXII Cases Cited.
state, Henley v 98 Tenn., 665, 698.106,109,550, 551
State 1?. Larry 7 Bax., 96 105
State V. Leonard 2 Pickle, 485.. 626, 629, 644, 693
State, Murphy v 7 Cold., 516 143
State V. McConnell 3 Lea, 332, 338 167, 648, 566
State u McKee 8 Lea, 24, 128 571, 629
State, Parker v 16 Lea, 476 110
State, Ragio v 2 Pickle, 272 129
State, Rajfsdale t) 10 Lea, 691 143
State u Runnells 92 Tenn., 320, 323 69, 167
State, Sinnott V 11 Lea, 281 11
State, Spence v.^ 15 Lea, 539 725
Statev. Ward 9 Heis., Ill 402
State v. Wilson 12 Lea, 259 521
State, Woods v 99 Tenn., 186 725
State V. Yardley 95 Tenn., 548, 553._127, 341, 342
St. L. & Iron Mt. R. R. Co. v.
Johnson April Term, 1897 297
Steed, Parkeri? 1 Lea, 206 286
Steele u McKinnie 5 Yer., 449 407
Stephens, Marshall V 8 Hum., 159 393
Stewart u Nashville 12 Pickle, 50 411
Stockett, Phillips v 1 Tenn., 200 193
Stratlon Claimants v. Morris
Claimants 89 Tenn., 522 106
Stipe V. Stipe 2 Head,168 432
Sullivan, Bates 1) 3 Head, 633 167
Surgoine, Preston v Peck, 80 68
Sylvis u. Miller 96 Tenn., 94 294
T.
Talbott, Anderson V 1 Heis., 407, 408 __ 98, 437
Tate V. Gray - 4 Sneed, 592 700
Tate, Moore V 3 Pickle, 729 402
Taxing District, Luehrman v, ... 2 Lea, 377, 426 109, 127
Taylor, Carter v i 3 Head, 30 _ 449
Tenn. Hospital u Fuqua 1 Lea, 611 167
The Bank, Allen r 6 Lea, 558...^ 366
Cases Cited. xxiii
The Memphis Appeal Pub. Co.
V. Pike 9 Ueis.,702 71
Thompson, House V 3 Head, 513 365
Trigg, Nelson 1? 4 Lea, 706 334
Trotter, Cocke V 10 Yer., 213 458
Turberville, Anderson v 6 Cold., 161 117
Turner V. Turner .' 85 Tenn., 389 700
V.
Vancill v. Evans 4 Cold., 340 89
VanDeman, Brew v 6 Heis., 433, 440 191, 498
Van Pelt, Epperson 17 9 Bax., 75 306
Vanzavantu Waddell 3 Yer., 270, 271 106
Vaughan V. Law 1 Hum., 134 192
Venable V. Curd 2 Head, 586 569
W.
Waddell, Vanzavant v 2 Yer., 270, 271 106
Walker, Spears t? 1 Head, 166 374
Wall V, Cloud 3 Hum., 182 193
Wallace, Han num 17 4 Hum., 143 448
Ward, State v 9 Heis., Ill 402
Waterbury V. Russell 8 Bax., 159 286
Watson, Bell v 3 Lea, 328 343
Weaver, Nashville Trust Co. v. .. MS., Dec. Term, 1898 167
Wells, Esselman i; 8 Hum., 487 _ 59
Wells, Manning iY 9 Hum., 746 423
White, Belotei) 2 Head, 703 393
Williams v. Nashville 89 Tenn., 487.. 71
White, Clack V 2 Swan, 540 192
Wilburn v. Spofford _ 4 Sneed, 699 393
Wilcox u. Blackwell 99 Tenn., 352 101
Williams V. Burg 9 Lea, 455 _ 432
Williams, Greenlaw v 2 Lea, 533_ 433
Williams v. Otey 8 Hum. 563 389
Williams tJ. Williams 11 Lea, 355 _ 435
Wilson, State v 12 Lea, 359 521
Woodfolk V. Marley 98 Tenn., 467 44, 493
Woodfolk V. N. & V. R. R _ 2 Swan, 437 138
XXIV Cases Cited.
Woods, Porter 1? 3 Hum., 56 386
Woods t7. State 99 Tenn., 186 725
Woods, Stacker & Co., Porter v. _ 3 Hum., 56 285
Woodward V. DuDcan 1 Cold., 562 459
Y.
Yardley, State 1? 95 Tenil., 548, 553...127, 341, 342
York ufimith 6 Bax.,213 437
Young V. Bransford 12 Lea, 232 311
Young v. Cowden , 14 Pickle, 582 327
Young, Ross i; 5 Sneed, 627 449
Young V. South Tredegar Iron Co. 85 Tenn. ,194 72
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF TENNESSEE
FOR THE
MIDDLE DIVISION.
NASHVILLE, DECEMBER TERM, 1898.
Fletcher v. Railroad.
[Nashville. January 14, 1899.)
1. Chabgb or CouBT. Request for special instructions limited to the
pleadings.
Requests for special instruction must be limited to tlie cfise maile
by the pleadings. Hence, in a servant's action ag^ainst his
mAster to recover for personal injuries inflicted by a fellow-
servant, the Court's refusal of plaintiff's request to charge upon
the subject of sudden emergfency is not error, in the absence of
any averment of that fact in the declaration. (Posty pp. 4, 5.)
j Cases cited and approved: Coal Co. v. Daniels, 100 Tenn., 66, 70;
Oil Co. V. Shamblin, 101 Tenn., 263.
18 p— 1
NASHVILLE :
Fletcher v. Railroad.
3. Same. PuMiTig hypothetical case.
It is not an invasion of the province of the jur^ for the Court to
instruct the jury hypothetically upon a theory or aspect of the
case presented by the evidence, leaving the jury free to deter-
mine whether the evidence supports the hypothesis. (Post,
pp. 5, 6.)
3. Same. Contributory negligence that defeats recovery for injury by
fellow-servarU.
In a servant's action against his master for personal injury in-
flicted by a fellow-servant, it is not error for the Court to charge
that the plaintiff cannot recover, even if the fellow-servant
was incompetent, if that fact was as well known to the plaintiff
as to the defendant, and the plaintiff sought or accepted service
with knowledge of that fact, without protest or objection.
[PosU p. 7.)
FROM DAVIDSON.
Appeal in error from Circuit Court of Davidson
County. J. W. Bonner, J.
Steger, Washington & Jackson for Fletcher.
Smith & Maddin for Railroad.
Wilkes, J. This is an action for damages for
personal injuries. There was a trial before a jury
in the Court below, and a verdict and judgment for
the defendant, and plaintiff has appealed and assigned
■
errors.
The plaintiff was a machine helper in the defend-
ant's employ, and was injured while removing the
head from a cylinder on the left side of engine No.
DECEMBER TERM, 1898.
Fletcher v. Railroad.
249 in the roundhouse of the defendant company.
Plaintiff was ordered to do this work by Brewing-
ton, the night foreman. Evidence is introduced to
show that he was told to do it in a hurry, as the
engine might be ordered out at any moment. On
the other hand, defendant insists that he was only
told to do the work, but was not directed to be
in any haste about it. There is some evidence tend-
ing to show that such work required two men to
do it, but the weight is that it could be, and wa&
often, done by one man. Plaintiff asked the ques-
tion, when told to do the work, who was to help
him, and the foreman replied, "OUie Rollins," and
this question and answer appears to have been re-
peated. Plaintiff made no protest or objection. It
appears that Rollins was a young man about nine-
teen years old, employed as a call boy, whose duty
it was to go after employes and notify them when
their services were desired at the roundhouse. In
removing the cylinder head a number of screws had
to be loosened and the head let down on the ground,
either by permitting it to fall a distance of about
two feet or by lowering it with a plank. It is in-
sisted that Rollins, in manipulating this plank, twisted
it to one side and caused the head, which is a heavy
piece of iron or steel, to fall on plaintiff's foot and
crush it.
The plaintiff's theory is that he was ordered
to do this work by his superior; that an in-
experienced and incompetent helper was furnished
NASHVILLE :
Fletcher v. Railroad.
him, and that there was an emergency which re-
quired the work to be hastily done, and that in
consequence of Rollins' negligence he was hurt.
The assignments are wholly to the charge of the
Court. It is said the Court stated defendant's theory
of the case, but failed and declined to state that of
plaintiff. This, we think, is only partially correct.
The Court stated plaintiff's theory, and, so far as
he went, stated it correctly, but declined to charge
that part of the case made by plaintiff which set up
the sudden emergency feature because it was not al-
leged in the declaration. The declaration does not
make any statement as to there being a sudden
emergency which necessitated hasty work, though
there is some evidence bearing on this question. As
we understand plaintiff's position on this feature, it
is that it was only necessary for him to allege neg-
ligence; that if the defendant insisted that the assist-
ant's incompetency was known to the plaintiff, that
would be matter of defense to which plaintiff might
reply that the work was done under an emergency
which did not give him the opportunity and right
to object to the assistant, and it was not necessary,
in the first instance, to allege there was an emer-
gency. We think, in the first place, that the in
competency of Rollins is not shown in this case.
The work he was required to do was not that of
an expert, but was simple. The taking off of the
head was not a work of difliculty, and could be,
and often was, done by a single person, and the
DECEMBER TERM, 1898.
Fletcher v. Railroad.
evidence is that it was done by Rollins alone soon
thereafter. It may be that he was somewhat inex-
perienced, but inexperience alone does not make a
man incompetent. If this were so, the class of ex-
perienced men being once exhausted, there could
never be another, as any new man would be incom-
petent, and could not be experienced till after a
service of incompetency. But, in addition, we are
also of opinion the Court was correct in not charg-
ing upon this feature of sudden emergency, inasmuch
as no such feature was presented in the plaintiff's
declaration, nor does the case, in our opinion, show
any emergency. We think the case most nearly in
point in this matter is jEl Tenn. Coal Co. v. Daii-
iehj 16 Pickle, 66, 79, the gist of which is that
the ground of recovery must be specifically set out
in the declaration, and its absence cannot be cured
by proof alone. See, also, Chatt, Cotton Oil Co.
V. Sfiamblin^ 101 Tenn., 263. Assignment No. 3
is to the effect that the Court erred in refusing to
charge request No. 1. This request is, no doubt,
good law abstractly, and was, in substance, charged
by the Court.
It is next said it was error not to charge that
the mere fact that plaintiff remained in the service
of defendant and did the work with knowledge of
the incompetency of this fellow-servant will not
necessarily and as a matter of law exonerate the
defendant from liability. The Court deemed this
sufficiently charged. It was important to the plaintiff
6 NASHVILLE :
Fletcher t;. Railroad.
only as carrying out the idea of being required to
act in a sudden emergency as an excuse why he
should not be held responsible for his knowledge of
Rollins' incompetency, and this view of the case was
not, as the Court held, raised by the pleadings.
It is said the Court erred in selecting various iso-
lated pieces of evidence and making the case turn
upon them and in this manner invading the province
of the jury.
The first specific objection under this head is in
substance that if Rollins placed the plank by plain-
tiff's direction in an unsafe manner which directly
caused or contributed to the accident, there then
could be no recovery. This did not assume the
facts to be as stated, but put a hypothetical case
to the jury, and was warranted by the evidence.
Again, it is objected that the Court said to the
jury that if plaintiff was warned by the foreman to
move his foot or it might be crushed, and that he
disregarded the warning and could have escaped by
heeding it, he could not recover. We think there
is no error in this. There is evidence that such
warning was given. It is not claimed it was acted
upon. It is said that he might not have been able
to move his foot or might not have understood the
order, but these criticisms are not supported by the
record.
The assignments in regard to the stud not being
in place and the use of the monkey wrench are not
well taken. We do not understand the charge to
DECEMBER TERM, 1898.
Fletcher v. Railroad.
be that these matters were to be considered alone,
but in connection with the other facts in the case,
and the liability is made to depend on the whole
record, and these features are referred to as impor-
tant in the case, and, if true, as determining the
right of the plaintiff to recover in connection with
the other facts in the record.
It is said it was error to charge that if plain-
tiff's knowledge of the competency or incompetency
of Rollins was equal to that of defendant, there
could be no recovery if he asked for or accepted
his assistance without protest or objection. This, we
think, is good law. If a servant know that he is
working with defective tools or unsafe appliances, or
with incompetent fellow-servants and have the same
knowledge as the employer, and he make no objec-
tion, but continue to work, he is not entitled to
recover because of injuries arising out of such de-
fects or incompetency. Wood's Master and Servant,
Sees. 419, 422; Bailey's Master and Servant, Sec.
422.
Upon the whole case we do not find evidence of
the incompetency of Rollins, and if in fact he was
incompetent, it was as well known to the plaintiff
as to the defendant company, and he was accepted
by plaintiff as his helper without objection. There
is evidence strongly tending to show that plaintiff
adopted a dangerous plan of taking off .the cylinder
head; that he placed his foot in ^danger and was
warned to move it by the foreman, and that he
8 NASHVILLE :
Fletcher v. Railroad.
did not do so. We think there is abundant evi-
dence to sustain the verdict. We do not find that
there was an emergency existing which required
any unusual risk and none is charged in the declara-
tion.
We are therefore of opinion the judgment is cor-
rect, and it is affirmed with costs.
DECEMBER TERM, 1898.
Sharp V. State.
Sharp v. State.
{Xashville, January 14, 1899.)
1. Pardon. For contempt.
The Governor has the right, in the lawful exercise of the pardon-
ing power, to release iudgment for'fine and imprisonment im-
posed for contempt of Court. {Poat^ pp. 10-15.)
Ck>nstitution construed: Art. III., Sec. 6.
Cases cited and approved: Garrett v. State (oral opinion); Mc-
Carthy V. State (oral opinion); 34 La. Ann., 119 (S. C, 13 Am.
Rep., 115); 4 S. & M. (Miss.), 751; 7 Blatch., 23 (17 Fed. Cases,
969).
2. Same. *^ After conviction."
A judgment imposing fine and imprisonment for contempt is a
*' conviction" within the meaning of the constitutional provis-
ion authoriziog the Governor to grant pardons and reprieves
*' after conviction." {Post, p. 11.)
Cases cited and approved: Sinnott v. State, 11 Lea, 281; Har-
well V. State, 10 Lea, 544; 20 Wall., 387; 6 Fed. Rep., 64.
FROM DAVIDSON.
Appeal in error from Second Circuit Court of
Davidson County. John W. Childress, J.
Robert Vaughn and J. A. Pitts for Sharp.
Steger, Washington & Jackson and Estes &
EsTES for State.
McAusTER, J. This record presents the single
question of the right of the Governor to exercise
10 NASHVILLE :
Sharp V. State.
the pardoning power in respect of fines and impris-
onment imposed for contempt of Court.
It appears from the record that one W. A. Cason
was under indictment in the Criminal Court of Da-
vidson County for making false and fraudulent en-
tries in the books of his employers. When the
jury was being summoned by an officer of the
Court for the trial of W. A. Cason, his father, J.
D. Cason, sought to have certain individuals, whose
names were handed the officer, summoned. This
misconduct on the part of J. D. Cason was re-
ported to the Judge, who, upon investigation of the
facts, adjudged the contemnor guilty of an attempt
to pack the jury, and fined him fifty dollars and
sentenced him to jail for a period of ten days.
It appears that the Court suspended its judgment in
the case from June 20 until July 9, 1898. On
the eighth day of July, 1898, the Governor par-
doned the said J. D. Cason of said offense.
The Judge of the Criminal Court, conceiving that
the pardoning power of the Executive did not ex-
tend to cases of contempt, refused to recognize the
pardon and ordered the prisoner into custody. There-
upon the prisoner, through his counsel, applied to
the Circuit Court for the writ of habeas cor^ptM.
Upon an investigation of the case the Circuit Judge
was of opinion the prisoner was entitled to his lib-
erty, and he was accordingly discharged. The Sheriff
appealed, and has assigned as error the action of
the Circuit Court in discharging the prisoner.
DECEMBER TERM, 1898. 11
Sharp V. State.
The precise question here presented was adjudged
by this Court, at its December Terra, 1893, in the
case of Gdrrett v. State^ in which it was held that
the pardoning power of the Governor does extend
to cases of contempt. A similar ruling had been
made by our predecessors in the case of Dennis
McCarthy v. State. Article III., Sec. 1, of the Con-
stitution provides that <*The supreme executive
power of the State shall be vested in a Governor."
Section 6 provides, viz.: '*He shall have power to
grant reprieves and pardons, after conviction, except
in cases of impeachment."
It will be observed that the only exception to the
power conferred upon the Governor to grant reprieves
and pardons is in cases of impeachment, and the
only limitation imposed is that the power cannot be
exercised until after conviction. A judgment imposing
a fine and imprisonment for contempt is a convic-
tion, within the meaning of the Constitution. Sin-
nott V. State^ 11 Lea, 281; Harwell v* State^ 10
Lea, 544; Neio Orleans v. Steamship Co.^ 20 Wall.,
387-392; Fisher v. Hayes, 6 Fed. Rep., 64; 3 Am.
& Eng. Enc. L., 796. Contempts of Court are
public offenses, and pardonable as such. 1 Bishop
on Crim. Law, 913, Subsec. 2; 1 McCIain's Crim.
Law, 9; Kn ^mrte Hickey^ 4 Smed. Sc M., 751;
Staie V. Saurenett, 13 Am. Rep., 115 (S. C, 24
La. Ann., 119); In re Mallee, 7 Blatch, 23; Bates
case, 55 N. H., 325; State v. Matthems, 37 N. H.,
12 NASHVILLE :
Sharp V. State.
450; //? re Si//h^j 54 Kan., 1; In re Manning^ 44
Fed. Rep., 275.
In the case of State v. Saurenett^ 24 La. Ann.,
119 (S. C, 13 Am. Rep., 115), Judge Taliaferro
said: '* There being no exception found in our State
Constitution precluding in such cases the exercise of
the pardoning power by the Governor of the State,
we feel no hesitancy in recognizing its existence.
That the offense arising from contempt of the au-
thority of a court is one which, from its nature,
should be summarily punished to the end that an
etficient and wholesome exercise of judicial power
may be had, no one will question. A contempt of
Court is an offense against the State and not against
the judge personally. In such a case the State is
the offended party and it belongs to the State, act-
ing through another department of its government,
to pardon or not to pardon, at its discretion, the
offender."
Again, in Ex* parte Hlckey^ 4 S. & M. Rep.
(Miss.), the Court said, viz.: ''The whole doctrine
of contempt goes to the point that the offense is a
wrong to the public, not to the person of the
functionary to whom it is offered, considered merely
as an individual. It follows, then, that contempts
of Court are either crimes or misdemeanors in pro-
portion to the aggravation of the offense, and as
such are included within the pardoning power of the
State," and the prisoner was discharged.
It appeared in that case that Hickey had been
DECEMBER TERM, 1898. 13
Sharp V. State.
sentenced to fine and imprisonment for contempt of
the Circuit Court at Vicksburg, and was pardoned
by Governor Albert Gallatin Brown. The prisoner
was released upon haheas corpits^ the Court sustain-
ing the right of the Governor to exercise the par-
doning power in such a case.
/n re Mullee, 7 Blatch., 23 S. C; 17 Fed. Cas.,
969, Judge Blatchford, district judge, said, viz.:
*'On motion for an attachment against the appli-
cant as a defendant in a suit in equity in this
Court, he was adjudged to have been guilty of a
contempt of this Court by violating an injunction
issued by this Court, and, on June 27, 1868, a fine
of $2,500 was imposed on him as a punishment for
such contempt, and it was ordered that he should
stand committed until the fine should be paid. After
having been imprisoned for some time under such
sentence, he presented a petition to this Court, pray-
ing for his discharge on the ground that he was
unable to pay the fine. The decision of the Court
thereon was that it had no jurisdiction or power to
grant the prayer of the petition, and that relief
must be sought by an application to the President
of the United States. I then said: < By the Con-
stitution (Art. 2, Sec. 2, Subsec. 1) the President
is invested with power to grant reprieves and par-
dons for offenses against the United States, except
in cases of impeachment.' No such power is con-
ferred upon any other oflScer or upon any Court.
A contempt of Court is an offense against the
14 NASHVILLE :
Sharp V. State.
United States. In the present case there is a judg-
ment judicially declaring the contempt and offense.
In the case of one Dixon a tine was imposed upon
him by the Circuit Court of the United States for
the District of Mississippi for a contempt of Court.
He applied to the President for a pardon. The
Attorney-general, Mr. Gilpin (3 Op. Attys-Gen., 622),
decided that the pardoning power extended to such
a case, and that the contempt was an offense within
the language of the provision of the Constitution.
I fully concur in this view, and it necessarily fol-
lows that if the power of relieving from the sen-
tence imposed on MuUee falls within the pardoning
power of the President, it is exclusive in the Presi-
dent, and cannot be exercised by this Court."
The inquiry made of the Attorney -general in the
case of Dixon was whether the executive authority
to pardon properly extended to that case. In his
opinion, given to the Secretary of State, in Febru-
ary, 1841, the Attorney -general says: **Jf we adopt,
as the Supreme Court of the United States has de-
cided we should do, the principles established by the
common law respecting the operation of a pardon,
there can be no doubt it may embrace such a case.
A pardon has been held to extend to a contempt
committed in AVestminster Hall, under circumstances
not materially different from those which occurred
in the case submitted to the President. I am there-
fore of opinion that, should the President consider
the facts such as to justify the exercise of his con-
DECEMBER TERM, 1898. 15
Sharp V. State.
i
stitutioDal power to grant reprieves and pardons for
offenses against the United States, there is nothing
in the character of this offense which withdraws it
from the general authority."
After a careful review of the authorities, we are
thoroughly satisfied with the former rulings of this
Court on this subject, and the judgment of the (Cir-
cuit Court is therefore afSrmed.
16 NASHVILLE :
NatioQal Fertilizer Co. v. Travis.
National Fertilizer Co. v. Travis.
{Nashville, January 14:, 1899.)
1. New Tbial. Setting aside third verdict.
The Court is not precluded from setting aside a third verdict
where there was error in the Court's charge on the second and
third trials. {Post, pp. 18, 21, 22.)
2. Master and Servant. Servant sustaining dual relation to 7ils
fellows.
A servant may sustain toward his fellows the dual relation or char-
acter of vice principal as to some duties and of fellow-servant
as to others. And, in an action claiming damages for injury
resulting from the act of such servant to his fellow or inferior
servant, it is error for the Court to omit, especially if requested
by a party, to charge fully and accurately as to the distinction,
as regards the master's liability, between the official negligence
of a vice principal and the individual negligence of a mere fel-
low servant. {Post, pp. 19-21.)
Cases cited and approved: Ganni;. Railroad, 101 Tenn., 380; Knox
V. Railroad, 101 Tenn., 375; Electric R. Co. v. Lawson, 101
Tenn., 406.
3. Same. Fellow-senmnts.
An engineer is thew fellow-servant of one who adjusts the belts
when machinery is set in motion, when both act under pre-
scribed rules, and especially where the latter controls the action
of the engineer. The fact that the engineer may, in other
matters, occupy the position of a vice principal does not affect
the question. (^Post, pp. 19-21.)
Case cited and approved: 80 Ind., 526.
4. Same. Same.
The facts being stated, the question of whether a person is a
• fellow-servant or a superior is one of law for the Court. Hence,
if upon plaintiff's theory and contention he was no more than
DECEMBER TERM, 1898. 17
NatioDal Fertilizer Co. v. Travis.
a fellow-servant, the Court should so instruct the jury and sub-
mit the case upon the other issues. (Post, pp. 2i, 22.)
5. Same. Same,
The Court finds upon the evidence that the engineer was, in op-
erating' the engine, a fellow-servant of another employe who
adjusted the belts, but that he was vice principal to the same
employe as regards the safety and tepair of the signal appli-
ance intended for the latter's protection. [PosU p. 22.)
6. Same. MoHtefn lialMUy for bijiuy caused servant deflncd.
To render a company liable for injury inflicted upon an employe
by a fellow-servant, there must be shown (1) general incompe-
tency of the fellow -servant; (2) knowledge of such incompetency
by the master and want of such knowledge in equal degree by
the complaining servant; (3) some specific negligent act by the
incompetent servant proximately causing the injury. [Post,
p. 24.)
7. Same. Inexperience not pi^oof of incompetency, when.
Mere inexperience in the performance of duties requiring no
great amount of intelligence or skill is not. necessarily, evi-
dence of incompetency. {Post, pp. 24, 25.)
FROM DAVIDSON.
Appeal in error from Second Circuit Court of
Davidson County. Jno. W. Childress, J.
E. H. East and J. S. Pilcher for National
Fertilizer Co.
Leli.yett iSi Barr and Steger, Washington &
Jackson for Travis.
Wilkes, J. This is an action for damages for
the negligent killing of John Loomis, an employe
18 P--2
18 NASHVILLE :
National Fertilizer Co. v. Travis.
of the defendant company. The deceased, at the
time of the killing, was engaged in putting belts
upon three pulleys and was killed in consequence of
his clothing being caught upon the pulley shaft and
wound around it in such manner as to bind him to
it and cause him to revolve with it, thus mangling him
and dashing: him to pieces. There were three trials
before the Court and jury, in two of which there
was a verdict for the plaintiff, which were set aside
by the trial Judge because not sustained by the
weight of the evidence. Upon the third trial there
was a verdict for $6,000, and the trial Judge, on
motion for new trial, refused to set it aside, though
dissatisfied with the evidence, believing that he had
no power to set aside the third verdict. Accord-
ingly judgment was rendered and the defendant com-
pany has appealed and assigned quite a number of
errors.
The recovery is insisted upon on the ground that
the engineer was incompetent to operate the engine
and run the machinery; that he started the engine
at full speed without giving timely warning, and
without receiving a signal from the deceased that
he might safely increase the speed; and that the
signaling appliances were defective and out of or-
der.
While there are a great number of errors as-
signed, the defense generally stated is that the de-
ceased was guilty of contributory negligence in wear-
ing: an overcoat, which made the work about the
DECEMBER TERM, 1898. 19
National Fertilizer Co. v, Travis.
machinery hazardous, and this, it is contended, was
the proximate cause of the injury; that there was
no evidence of general incompetency of the engineer,
and none whatever of any specific negligence at the
time of the killing which caused or proximately
contributed to it, and it is insisted on the whole
case that there is no evidence to support the ver-
dict.
Much discussion is had in the case upon the sub-
ject of superior and fellow-servants. Plaintiff insists
that Fain, the engineer in charge of the machinery,
was the superior of Loomis, and that the latter was
so far under his control as to be an inferior serv-
ant, with Fain not only as his superior but occu-
pying the relation of vice principal as to him. We
are of opinion the Court did not fully charge the
law applicable to the facts of this case upon this
subject of superior, inferior; and fellow-servants.
There is evidence to show that Fain was foreman,
and as such had control and supervision over Loomis;
that he employed and discharged the hands gener-
ally, and usually directed them in their work, and
there is evidence that Loomis was directed by Fain
to do the particular work in which he was engaged
when he was injured. But there is evidence also
showing that Fain was filling several positions at the
same time — that is, he was shipping clerk, foreman,
and engineer. The law is well settled that an em-
ploye may occupy the place of the principal as to
some duties, and as to others be simply a fellow-
20 NASHVILLE :
National Fertilizer Co. v. Travis.
servant. For his official negligence as vice princi-
pal, his principal would be responsible; for his in-
dividual acts of negligence as fellow-servant, the
principal would not be liable. This question has been
recently before this Court and maturely considered
in the case of Gann v. Railroad, 17 Pickle, 380,
and the rule is there attempted to be fully stated
and the authorities bearing on the subject. See,
also, Knox v. Railroad, 17 Pickle, 375, and Chat-
fanooga Electric Ry. Co, v. Lairson, 17 Pickle, 406.
In the case at bar it is evident that if the deceased
was killed by the negligence of Fain, while in dis-
charge of his duties as engineer in operating the en
gine, it was important that the relation of Fain, as
such engineer, to Loomis be fully and correctly
stated, and special instruction was asked upon this
point, but was not given by the Court in the ex-
plicit terms asked, and which were demanded by the
facts of the case.
It is evident that Fain, in this case, if negli-
gent at all, was negligent in operating the engine
and in either failing to give or to wait for the
proper signals prescribed by the rules of the com-
pany. Now, in the running of the engine he was
not in any way the superior, but was the fellow-
servant, of Loomis. According to plaintiff's theory,
that Fain was to start up the engine only upon
notice from Loomis, it is evident that he was under
the direction, as to that matter, of Loomis, and
Loomis was not under his direction. Upon defend-
DECEMBER TERM, 1898. 21
National Fertilizer Co. u. Travis.
anfs theory, then, Loomis and Fain were both
operating under rules of the company. Fain was
still under Loomis' control, for Loomis could signal
him to stop or run slow, and it was the duty of
Fain, as engineer, to obey Loomis' direction, and
thev were fellow-servants.
•r'
In the case of Boyce v. Fltzpatricl'^ 80 Ind., 526,
it api^eared that the plaintiff was injured while em-
ployed under the direction of the superintendent and
manager, who was, at the same time, in charge of
the machinery in the defendant's factory, through
the negligence of the superintendent, and it was held
that he was the fellow-servant of the employe, and
not a superior or vice principal. See, also, Bailey's
Personal Injuries, Sees. 1963, 2064.
We are of opinion that, the facts being stated,
the question of whether a person is a fellow-servant
or a superior is one of law for the Court, and
that, upon the facts as contended for by the plain-
tiff in this case, Fain, in running the engine, was
the fellow-servant of Loomis while the latter was
engaged in adjusting the machinery or belts, and the
Court should have so charged, and then rested the
case before the jury upon the other contentions
made by the plaintiff; that Fain, though a fellow -
servant, was wholly incompetent, and known to be
so for the work and place of an engineer, and that
the appliances for signaling were defective. How
far this error was instrumental in causing the ver-
dict as rendered we cannot tell. There being error
22 NASHVILLE :
National Fertilizer Co. v. Travis.
Id the charge on both the second and third trials,
the rule of the conclusiveness of two verdicts does
not apply.
Plaintiff does not, however, rest his right to re
cover upon the fact that Fain was the superior and
Loomis an inferior under him, but he insists that
the whistle appliance through the building, for giving
notice by the engineer or to him, was not in proper
condition, but was defective. Under the facts as
developed by this record, it was clearly the duty
of Fain, as foreman, to see that this appliance for
giving notice was in proper condition and not defect-
ive, and as to this feature of the case he was the
superior and vice principal of Loomis, although he
was his fellow-servant in the work of running the
engine. Upon this branch of the case there is no
definite reliable evidence that the whistling appliance
was defective, and none whatever that Fain knew
of any defect in it or had any ground to suspect
any.
It appears that if there was any defect in the
appliance, it was not in its being defective in con-
struction, but the most that a witness (not remark-
able for intelligence) could say was that he supposes
some water must have been left in it over nisrht,
which prevented its sounding promptly. It does not
appear that Loomis attempted to sound the whistle
and was unable to do so, and the witness, elames
Carter, states that when he pulled the cord the lirst
time, if the whistle sounded he did not hear it;
DECEMBER TERM, 1898. 23
National Fertilizer Co. v. Travis.
but he was excited and cannot say he pulled it
properly, but that when he pulled it the- second
time it did sound and was heard by him. We are
unable to find in the record any reliable evidence
that this appliance was out of order or defective,
and no evidence whatever, if there was any de-
fect in it, that it was known to Fain, the foreman,
or could have been known to him in the exercise
of proper diligence by him. We are of opinion,
under the proof, that it was incumbent on Fain, as
foreman, to have this appliance safe, and, if he
knowingly failed, the company would be responsible;
for, while in running the engine he was a fellow-
servant, in furnishing the appliance he stood in the
place of the master, and the master was responsible
for his acts. This distinction is fully pointed out
in the Gann case.
But plaintiff insists that if this all be true, still
the defendant is liable because Fain was totally in-
competent to run the engine in such manner as to
insure the safety of the employes about the building.
Much is said about Fain's not observing the rules
as to signals in starting the machinery. But this is
important alone upon the question as to whether or j
not he was a competent engineer. If he was a !
skilled and competent engineer, the fact that he failed
to observe the rules would be only evidence of his
individual negligence in the discharge of his duty as
a fellow-servant for which the principal would not
be liable. If Fain was incompetent to operate the
24 NASHVILLE :
NatioDal Fertilizer Co. v. Travis.
engine and this fact was known to the company and
not known to the deceased, and if they continued
him in such service and he was on this occasion
guilty of negligence which proximately caused the
death, then the company would be liable.
These things, however, must concur: general in-
competency of the engineer, knowledge by the com-
pany of such incompetency and want of such knowl-
edge by Loomis, and some specific act of negligence
on Fain's part which proximately caused the injury
and death. No matter if he was incompetent and it
was known to the company, still if there was no
act of negligence which proximately caused this par-
ticular injury, the company cannot be held liable
therefor. There is evidence that Fain was a young
man who had left school and had entered into the
service of the company first as shipping clerk, then
as foreman, and then as engineer, and he was prob-
ably filling all these places when the injury oc-
curred. There is no imputation against his general
intelligence, but only against his experience as an
engineer. Ujwn this feature of the case it does not
appear that it requires any great amount of intelli-
gence or skill to operate an engine as he was re-
quired to do. It does appear that the young man
had been running the engine for some nine months.
When he was first put in charge of it, it is shown
that he was not entirely familiar with it, and some
evidence of his want of information appears in the
record, but this all related to a period of service
DECEMBER TERM, 1898. 25
National Fertilizer Co. v. Travis.
prior to the time of this accident, and it is at best
quite indefinite in its character. Inexperience is not
conclusive and can hardly be held to be even per-
suasive of incompetency. The most thoroughly com-
l)etent machinists and experts were at one time in-
experienced, but this frequently leads to greater
care than is exercised by the party who has become
careless through continual service about the work.
It appears that the deceased had been a long
time in the employ of the company and was thor-
oughly familiar with all its departments and the de-
tails of the work, and must have well known the
capacity of Fain as engineer. On this particular oc-
casion it was his duty, or he was directed to place
the belts upon these different pulleys which were to
operate different parts of the machinery. These pul-
leys were all upon the same shaft and only a few .
feet apart. The belts could only be put on while
the machinery was in motion, and it was important
that the motion should be slow, as rapid motion
would tend to catch the person or his clothing and
draw him on to the moving: machinerv. It was a
matter which required caution and care to be safely
done.
No one saw how the accident occurred. When
first discovered, soon after the engine was started,
the deceased was fastened to the shaft by his cloth-
ing, which was fairly wrapped around it, and he
was being rapidly revolved with the shaft around
and around, his body closely pinioned to it by his
26 NASHVILLE :
National Fertilizer Co. v. Travis.
clothing and his legs and feet loose and striking
the floor with each revolution until they were broken
and dismembered. He had, it appears, succeeded in
putting on two of the three belts, but had not put
on the third one. He had made no signal to stop
the machinery or to continue to run it slowly.
There are two theories as to the manner of making
the signals. Plaintiff insists that when belting was
to be done it was the duty of the engineer not to
start the machinery into rapid motion until the sig-
nal was given that the belting was on. The defend-
ant's theory is that the machinery was started slowly,
and if, after five minutes, no signal to stop or con-
tinue slowly was given, then the machinery was to
\>Q put in rapid motion.
There is evidence to support both theories; but
grant that the one advanced by the plaintiff is cor-
rect, and that Fain should not have started the en-
gine until he received a signal from Loomis, and
that he should have waited for the signal and failed
to do so, this would at least be but the negligent
act of a fellow-servant and if that fellow-servant
were not shown to be incompetent generally there
would be no ground of recover3^ It is impossible,
from the record, to determine how the accident oc-
curred. It is evident that the deceased had on his
overcoat on the morning of the accident and had
been previously warned not to wear it about the
machinery. There is evidence that after this warn-
ing he had cut off the tail, or a part of it, and
DECEMBER TERM, 1898: 27
National Fertilizer Co. v. Travis.
8ome evidence that he had cut it twice and that it
was no more than a jacket or roundabout at the
time of the accident, but it is also evident that the
shaft did catch the clothing, and, while all his
clothes were wrapped around it, it appears that the
coat contributed largely to bind him to the shaft.
It is argued that the shirt and underclothing was
found next to the shaft and the coat on the out-
side, and that this demonstrates that he was not
caught by the coat; but it is not shown how the
shaft, which was a smooth rod of iron, could have
caught the shirt and underclothing without first hav-
ing caught the coat, nor how either could have
caught unless the deceased, by accident or incau-
tiously, had placed himself against it or leaned upon
it. In this connection it is strongly urged that the
deceased had properly put on two of the belts and
was then injured either while putting on the third
one or by incautiously exposing himself and being
caught by his clothing. It is argued that this is
conclusive that the machinery was being properly
run and slowly when the first two belts were ad-
justed, and that if the machinery was running rap-
idly when the third belt was adjusted it was neg-
ligence on the part of deceased to attempt to adjust
it, and evidence is introduced to show that the mo-
mentum of the machinery could not be suddenly ob-
tained, but would require from a half to a minute
to l>ecome effective, so that deceased must have l^een
negligent in attempting to put on the third belt
28 NASHVILLE :
National Fertilizer Co. v. Travis.
after the momentum had been acquired. This, with
the kind of coat worn, was a matter to be con-
sidered by the jury upon the question of contribu-
tory negligence.
It is incumbent on the plaintiff to show that the
accident was caused by some negligent act of the de-
fendant, which proximately caused it, and that this
negligence was not the act of a competent fellow-
servant, but of the master or some one in his place,
or an incompetent servant. We are not satisfied,
from the record, that this has been shown, and it
may be that the jury were misled into the belief
that Fain, while acting as engineer, was the supe-
rior of Loomis and gave undue weight to the fact,
and held the company responsible for his negligence,
if there was any. For these reasons we are con-
strained to reverse the judgment and remand the
cause for another trial. ♦ The appellee will pay cost
of appeal.
DECEMBER TERM, 1898. 29
P'Pool V. Bank and Trust Co.
P-PooL V. Bank and Trust Co.
{Nashville. January 18, 1899.)
PowEB OF Attorney. Revocation of.
A power of attorney authorizing a trustee to sell lands, maKe
deeds to the purchasers, and collect and distribute proceeds
after retaining commissions, cannot be revoked by the makers,
after a sale has been made, so as to prevent the execution of
deed and perfecting of the purchaser's title, especially where
the power of attorney purports, on its face, to be irrevocable,
and some of its makers approve the sale and desire its consum-
mation.
FROM DAVIDSON.
Appeal from Chancery Court of Davidson County.
H. H. Cook, Ch.
Lytton Taylor for P'Pool.
J. S. PiLCHER for Bank & Trust Co.
Wilkes, J. This is a bill to recover a lot in
the city of Nashville, sold by the Union Bank &
Trust Company, as trustee, to the defendant, Wil-
liam Litterer, under authority given by the com-
plainants and others to that company.
Complainants are the heirs at law and devisees
of E. F. P'Pool, who died at Nashville, in May,
1880, after havinor made his last will and testament.
30 NASHVILLE :
PTool V. Bank and Trust Co.
In this will he devised his property, real and per-
sonal, to his wife, Sarah G. P'Pool, for life, with
remainder to his eleven children, to be equally di-
vided between them. The widow died in June, 1895,
leaving the eleven children surviving. All of these
children, including . the husbands of the daughters
who had married, entered into a written agreement
reciting the devises and describing the property, and
stating the death of the father and mother, and
that no debts existed against the estate, and that
they were desirous of avoiding delay, annoyance,
inconvenience, and expense in selling the property
and winding up the estate.
The instrument then conveys to the defendant
trust company certain real estate in trust for the
benefit of the grantees, and directs its sale by the
trustee on such terms and conditions as will, in its
best judgment, promote the interests of the grantees.
The terms of sale were fixed with discretion in the
trust company as to credit installments, one-third,
however, to be in cash. It was further recited in
the instrument that to make sure that the execution
of the trust should in no manner be interfered with,
embarrassed, or impeded by death or transfer of
any interest, the trust should be irrevocable and
carried out. The trust company was given power
to execute deeds with general warranty, and to col-
lect the proceeds of sale, reserve a commission, and
distribute the balance among the grantors.
The trust was accepted by the trust company,
DECEMBER TERM, 1898. 31
FPool V. Bank and Trust Co.
and has been executed by selling all the property
and by accounting for the proceeds, except in the
case of one lot now in controversy. This lot was
advertised for sale, and was sold at public sale by
the trustee, September 28, 1897, and was bought
by Wm. Litterer for $1,550 cash. Up to this time
there had been no dissent by the grantors, and no
dissatisfaction on their part to anything done by the
trustee in execution of the trust.
On October 9, 1897, three of the eleven devisees
filed with the trustee a paper attempting to with-
draw the power of sale, and notitied the trust com-
pany not to proceed further with the sale to Lit-
terer. A like notice was given prior to October
17 by another one of the devisees, and soon after
two others gave the same notice. Two other grantors
claim to have given like notices, which, however,
were not received by the trust company.
On November 17, 1897, the trust company con-
veyed the lot to Wm. Litterer in pursuance of the
sale previously made. At the time he purchased,
Mr. Litterer knew of no dissent to the sale, and
one of the beneficiaries was present. He was in-
formed, however, of the dissent by the trust com-
pany before it made the deed, and that the dissent-
ers represented four-elevenths of the property.
The present bill is filed by eight of the eleven
interests. The other interests approve the sale and
desire its confirmation.
There is no allegation of bad faith or misconduct
32 NA8HVILLE :
P'Pool V. Bank and Trust Co.
on the part of the trustee, but it is claimed the
parties have the right to revoke the power })efore
it is completely executed. The Court of Chancery
Appeals report the value of the property as $1,500
or 82,000, but say there is much variance of opin-
ion on this point.
We are of opinion the parties dissenting had no
power to defeat this sale and conveyance. The in-
strument was intended to be irrevocal>le, and it was
so expressly stated on its face. This provision was
intended to provide for such a contingency as this,
and to give power to the trust company, in good
faith, to make a sale, even though some interests
were not satisfied. The sale was negotiated before
any dissent was made. It was done in good faith.
It was mutually binding on all — the trustee, the bene-
ficiaries, the purchaser. Each had an interest in its
execution. The purchaser had acquired rights which
he could enforce. The making of the deed was a
duty which the trustee was under to consummate
the sale already made and executed. If the dissent
had been filed before the sale was negotiated, it may
be that it would have had the effect to prevent it,
but that having been done in good faith, the dissent
could not prevent the making of t'.ii? deed to carry
it into eflfect.
We think there is no error in the decree of the
Court of Chancery Appeals, and it is affirmed.
DECEMBER TERM, 1898. 33
Foster v. State.
Foster v. State.
{Nashville. January 28, 1899.)
1. Verdict. Of murder in second degree not sustained by the facts,
Ihe Court finds, upon the facts set out in the opinion, that a ver-
dict for murder in the second degree is not sustained afi^ainst
a son for fatally shooting his father's assailant. {Post^ pp. 34-36. )
2. Evidence. Of facts attending previous difficulty admissible in
homUMii cases.
On the trial of a son for killing his father *s assailant, it is compe-
tent to prove, on behalf of the defendant, not only that de-
fendant had seen a previous difficulty between his father and
the deceased, but also the particular facts of the transaction —
especially the menacing language and conduct of the deceased
toward the father on the occasion. {Post^ pp. 36-38. )
3. Self DEFENSE. Son's right to defend his father.
If a son honestly believes, on reasonable grounds, that his father,
who is himself fighting in self-defense, is in danger of death or
great bodily harm, from an assault being made upon him by
an antagonist of superior strength, it is his legal right, as well
as his filial duty, to interfere and prevent the killing or maim-
ing of his father, and he is, in such case, justified in the use of
such means as are necessary, under all the circumstances, ^o
effect this end. (Post, p. 38.)
4. Same. Evidence.
And, in such case, previous acts of hostility, and demonstra-
tions, if any, made by the deceased toward the father, and
coming to the knowledge of the son, are competent as tending
to show whether the son had reasonable grounds to believe
that the deceased was making a deadly assault upon the father.
(Post, p. 38.)
FROM GILES.
Appeal in error from Circuit Court of Giles
County. E. D. Patterson, J.
18 P— 3
34 NASHVILLE :
Foster v. State.
J. T. Allen and F. Rivers for Foster.
Attorney-general Pickle and J. L. .Coffman for
State.
Wilkes, J. A. T. and Morgan Foster are fa-
ther and son. The father is a man of about fifty-
nine years of age; the son is a boy of sixteen.
They were indicted for the killing of R. W. Wood-
ard. The father was acquitted. The son was con-
victed of murder in the second deo^ree and sentenced
to ten years in the State penitentiary, and has ap-
pealed.
The deceased, Woodard, was a vigorous man about
thirty -five years old, and estimated to weigh from
150 to 180 pounds. Both Woodard and the elder
Foster were wagoners and log haulers. There had
not been good feeling between them for some time.
It appears that they, while driving their wagons and
teams in opposite directions, met in the public road,
when they, instead of passing, blocked each other
in the way. Some words ensued. Both parties left
their wagons and went back towards Marbuts, a post-
office on the road near by. In passing down the
road the deceased came up to a lot of boys, white
and black, who were having some music and danc-
ing in the road. It was Christmas times, December
27, 1897. Among these boys, and taking part in
the frolic, was Morgan Foster. Deceased, on ap-
proaching the boys, pointed to the elder Foster,
who was coming on behind him, and said, **Bovs,
DECEMBER TERM, 1898. 35
Foster v. State.
if you want to see a grand rascal, look up the
road," pointing toward the elder Foster. The son
heard the remark, and demanded to know of de-
ceased what it was he said, to which the deceased
replied: ''You are a minor, and I'll have nothing
to do with you," and passed on.
The son, it appears, caught the purport of what
the deceased had said but not the language. The
son then started towards his father's wagon to help
get it by the deceased when his father intercepted
him and told him to let the team alone. In the
meantime the deceased was returnin": alons: the road
and met the elder Foster still on his way to Mar-
but's. He accosted Foster and said: ''Did you call
me a son of a b — h at the wagon?" to which the
elder Foster replied, "I did."
Woodard then assaulted the father and had him
to his knees and was choking or attempting to choke
him, and was striking him over the head, whether
with a knife or with his fists the son says he
I could not tell. The son ran up and demanded of
i Woodard that he desist and told him twice to hold
up. Woodard persisted in the assault. It is shown
that he was physically able to handle both of the
Fosters. The elder Foster was not robust and was
besides a cripple. The son, after calling to Wood-
ard once, and according to some of the witnesses
twice, drew a pistol and fired at deceased and shot
him, the ball entering the eye and killing him. The
boy then went up the road a short distance to his
36 NASHVILLE :
Foster v. State.
father's home, at the suggestion of his father, and
was soon afterward followed by two Deputy Sheriffs.
When they entered the premises the boy ran out
the back way and tried to make his escape to some
bushes near bv, when one of the oflBcers shot him
in the neck and head, putting out his right eye.
The deceased had the character of being some-
what quarrelsome and had had several fights. Upon
this point, however, there is a conflict of testimony.
The father testified that he was entirely powerless
in the struggle with the deceased and believed he
was in danger of losing his life; that he did not
strike deceased, because the fierce assault gave him
no opportunity; that he did not see his son or
know that he was taking any part in the struggle
until he heard the pistol shot and felt the deceased
relax his hold upon him. The boy testified that he
honestly l)elieved his father was in danger . of being
killed or of receiving great bodily harm and shot
in his defense, believing it to be necessary to save
his father's life. The elder Foster was, upon these
facts, acquitted of any offense. It is evident that
if the son was guilty of any offense it was not of
murder in the second degree, but of a much less
offense, and the cause must be reversed and re-
manded for a new trial.
It appears that some time before this difficulty
there had been another difficulty between the de-
ceased and the elder Foster at Mar but' s store. De-
ceased was at the store when Foster came up. The
DECEMBER TERM, 1898. 37
Foster v. State.
latter was on horseback. He had been for some
time going on crutches in consequence of a broken
limb, but did not have his crutches with him on
this occasion. The deceased and Foster had some
words in regard to an account and settlement be-
tween them in which the deceased characterized sev-
eral items in Foster's account as lies. There was
testimony offered tending to show that the deceased
started to attack Foster and attempted to drag him
from his horse, but was prevented from doing so
by the bystanders. He made threats against him
and said he and Foster could not live in the same
county, and he would get his gun and kill him.
The son was off a short distance, and, from the
affidavits on application for new trial, it appears
saw the difficulty, but took no part in it. The
trial Judge declined to allow witnesses to prove the
actions and demonstrations of the deceased toward
Foster at this time, but permitted them alone to
prove that Foster and deceased had a difficulty on
the occasion. This, we think, is manifest error.
Every circumstance that tended to throw light upon
the state of mind and apprehension the defendant
was under when he went to his father's relief was
not only competent but vital to the crucial question
in the case, and that is whether the son was jus-
tified in believing it was necessary to interfere in
order to save his father's life. The acquittal of the
father raises a conclusive presumption that he was
guilty of no wrong in this difficulty with deceased.
38 NASHVILLE :
Foster v. State.
This being so, if the son really believed, on rea-
sonable grounds, that a deadly assault was being
made upon his father, and that owing to the supe-
rior power of his antagonist he would be killed or
receive great bodily harm as the result of the as-
sault, it was his legal right, as well as his filial
duty, to interfere and prevent the killing or maiming
of his father, and to use such means as were nec-
essary, under all the circumstances, to effect this
purpose.
Previous acts of hostility and demonstrations, if
any, made by the deceased toward the father, and
coming to the knowledge of the son, and his con-
duct and demeanor toward him, were important as
showing whether the boy had reasonable grounds to
believe the deceased was making a deadly assault
upon his father, and would kill him or do him great
bodily harm unless by some summary means he was
prevented. It was error to reject the testimony as
to who was the aggressor in this previous dilSSculty,
and what demonstrations were made on that occasion
by deceased, especially if they were seen or came
to defendant's knowledge.
We do not mean to in any way justify or excuse
the defendant for going armed contrary to law. It
was an offense to have a pistol upon this occasion,
as he did, and for that he might have been pun-
ished. But the offense of going armed is one en-
tirely different from a crime committed by using the
pistol in an assault upon another, and it is only for
DECEMBER TERM, 1898. 39
Foster v. State.
this latter oflfense the defendant is on trial before us.
The carrying of the pistol is important in this case
only as bearing upon the question of malice, but the
record fully shows that defendant was not wearing
it with any expectation of using it in committing
any assault, and none that he was wearing it with
the purpose of using it on the deceased. It was a
boyish indiscretion of which, unfortunately, too many
young men are guilty.
The judgment is reversed, and cause remanded for
new trial.
I
^
40 NASHVILLE :
The Precious Blood Society v. Elsythe.
The Precious Blood Society v. Elsythe.
{Nanhville. February 4, 1899.)
1. Rescission. Of deed for fraMd.
Rescission of a deed for fraud will not be decreed unless the com-
plaining' party disaffirmed the deed promptly on discovery of
the fraud and ever thereafter consistently adhered to that line
of action. (Po8U VV- ^» *^-)
Cases cited and approved: Knuckolls v. Lea, 10 Hum., 576; Ruohs, ^
V. Bank, 94 Tenn., 73; Wood folk v. Marley, 98 Tenn., 467.
2. Same. Same, Exnmple.
Hence, a vendee's claim to rescission for fraud will be denied,
where, after acquiring full knowledge of all the facts consti-
tuting the fraud, he elected to retain the premises and lease
them to a third party for a term of three years, making the
claim to rescission for the first time in defense of a suit for the
purchase price. (PosU PP- 4t-43.)
3. Corporations. MUnomer In deed.
Misnomer of corporation as vendor in a deed — c. g., "Precious
Blood Society*' for the true name, ** Female Society of the
Precious Blood " — does not avoid the deed, if the identity of
the corporation is unmistakable, either from the face of the
instrument or from averment and proof. {Post, pp. 44-46.)
Cases cited and approved: ION. J. Law, 323; 13 Johns., 38; 5 Ark.,
234; 19 Ala., 659.
4. Same. Objection of TnUrioiner not avaiUible.
The objection of misnomer made by the defendant in a suit
brought by the corporation to enforce a vendor's lien, is unavail-
ing when interposed for the first time in the Court of Chancery
Appeals, and it appears unmistakably what corporation was
intended and that the name objected to was the one used in
the deed and notes and in the pleadings of both parties. (Post,
pp. 44^-46.)
DECEMBER TERM, 1898. 41
The Precious Blood Society v. BIsythe.
5. Same. Deed of^ valid wUhout corpitrate setil.
The deed of a corporation orgpanized for purely charitable pur-
poses is valid without the affixing thereto of a corporate seal,
especially when it does not appear that the corporation has
a seal. {P(M<t jh 46.)
6. Sasib. Same,
The deed of a corporation is sufficient, without affixing its corpo-
rate seal, to pass an equitable but not a legal estate. {Post, p.
46.)
Cases cited and approved: Garrett v, Belmont Land Co., 94 Tenn.,
460; Brinkly v. Bethel, 9 Heis., 786.
FROM LAWRENCE.
Appeal from Chancery Court of Lawrence County.
\V. L. Grigsby, J. sitting by interchange.
H. B. SowELL and G. T. Hughes for Society.
J. D. Bunch, J. B. Bond, and W. A. Stewart
for Elsythe.
Beard, J. On November 10, 1893, the com-
plainant executed and delivered to the defendants,
Elsythe and Verge, a deed, with clauses of general
warranty, by which there was conveyed about 791
acres of land lying in Lawrence County, with all
the improvements thereon, for the recited considera-
tion of $8,500. Of this consideration, ^2,000 was
paid in cash on different days prior to the execu-
tion of the deed, and the remainder was evidenced
by five notes executed by the grantees, maturing on
42 NASHVILLE :
The Precious Blood Society v. Elsythe.
November 15, 1894, 1895, 1896, 1897, and 1898,
respectively, to secure the payment of which a lien
was retained in the face of the deed. Immediately
on receiving this deed the grantees went into pos-
session, and remained upon the property during the
year 1894. Their efforts at farming the place dis-
closed to them that they had been grossly imposed
upon by their vendor and its agents, but instead of
abandoning the contract and notifying complainant of
their purpose to repudiate it, they entered into an
agreement with a third party by which they leased
to him the property for a term of three years, and
placed their lessee in possession.
Pending this lease, and on August 23, 1895, the
present bill was filed by the vendor to enforce the
lien reserved in the deed, one of the purchase money
notes being then overdue and unpaid.
Some time thereafter Elsythe and Verge filed an
answer and cross bill, in which they set out, with
much detail, the fraudulent representations as to the
character and capabilities of this land for farming
and other purposes made by the officers and agents
of this complainant corporation, and aver that igno-
rant and unskilled as they were, and secluded from
those who would have put them on guard as to the
falsity of these representations and the real worth -
lessness of this property, they became easy victims
of the machinations of complainant and its agents.
In their cross bill they ask to be relieved from ob-
ligation to pay their outstanding notes, and that
DECEMBER TERM, 1898. 43
The Precious Blood Society v. Elsythe.
they have a decree against their vendor for the
money already paid by them, to be charged as a
lien on the land.
In due time these averments were met by a pos-
itive denial on the part of the Precious Blood So-
ciety.
The Chancellor, on the hearing, granted com-
plainant the relief sought in the original bill, and
dismissed the cross bill. On appeal the Court of
Chancery Appeals find that the cross complainants
were the victims of grossly fraudulent statements
and representations made by the officers and agents
of the complainant. They also find that after the
discovery of the fraud the cross complainants made
the three-year lease of the property already referred
to, but they held that this act was not sufficient to
debar them from relief in a Court of equity. They
therefore reverse the Chancellor, dismiss the original
bill, and grant cross complainants the full relief
prayed in the cross bill.
Can this decree be maintained? There is no doubt
a Court of equitable jurisdiction would have been
quick to grant these parties relief against the fraud
thus perpetrated upon them, if they had been dili-
gent in asking its aid, after the discovery of the
fraud. But are they entitled to such relief upon
this record ?
Promptitude in disaffirmance, after the discovery
of the fraud, has been uniformly held essential to
the maintenance of a claim for rescission. Not only
44 NASHVILLE :
The Precious Blood Society v. Elsvthe.
promptitude is required, but, once having disaffirmed,
the victim of the fraud must adhere to that line
of action. Vacillation will be fatal to his claim.
He will not be permitted to affirm to-day and dis-
affirm to-morrow. If he does any material cat,
''with full knowledore of the facts constitutinor the
fraud . . . which assumes that the transaction
is valid, '^ it will be taken as a ratification conclu-
sive upon him. 2 Pomeroy, Sec. 916.
These rules for the guidance of Courts of equity
are to be gathered from text- books as well as the
opinions of other Courts, but they are nowhere more
distinctly announced than in the cases of Kiind'ells
V. Lea^ 10 Hum., 576; Ruoli» v. Baiik\ 10 Pick.,
73, and Wiwdfolk v. Marley, 14 Pick., 467. Under
these rules we think the cross complainants were in
no condition to ask for a rescission of the contract
on the ground of fraud.
But the Court of Chancery Appeals base their
decree for rescission not only on the ground of
fraud, but on certain defects in the deed from com-
plainant to Elsythe & Verge, which they held made
it void. These defects were that the articles of in-
corporation disclosed that complainant's corporate name
was the ** Female Society of the Precious Blood,"
and not that actually used in this deed, the ''Pre-
cious Blood Society;" and again, that the corporate
seal was not affixed to the deed.
■
These objections were made for the first time in
that Court. No point was made on these defects
DECEMBER TERM, 1898. 45
The Precious Blood Society v. Elsythe.
in the answer, and no relief was predicated on them
in the cross bill. In this latter pleading, it is true,
is found the general averment ' * that the title to
this land is not good," an averment hardly sufficient
to cover these defects, unless it be that thev were
sufficient to make this grant void. This, we think,
thev did not do.
The record shows that this corporation conducted
its business under the name and style of the ''Pre-
cious Blood Society," it used that as its corporate
name in the deed which it executed to Elsythe &
Verge, and it accepted from them the purchase
money notes payable to it in the same name. By
this name it seeks to enforce, as against these par-
ties, its Hen on the land sold to them, and the
cross complainants call upon it to answer and ask
relief against it by the same name.
Under these conditions it is too late, even if the
right ever existed, and by the averment just quoted
they intended to assert it, for the cross complainants
to call in question this deed for misnomer.
But without regard to time and character of
pleading, on this record, they cannot do so. The
record leaves no doubt that the grantor io this deed
is the corporation created by the articles of incor-
poration. Its identity is put beyond question. This
being so, the general concurrence of modern author-
ity is to the effect that a misnomer or variation
from the precise name of a corporation, in a grant
or obligation by it or to it, is not material, if th
46 NASHVILLE :
The Precious Blood Society v. Els j the.
identity of the corporation is unmistakable either
from the face of the instrument or from proof and
averments. 1 Thomp. on Corp., Sec. 294; Angell
& Ames on Corp., Sec. 99; Bex v. Jloughlei/, 4
B. & Ad., 655; 1 Dill, on Mun. Corp., Sec. 179;
Inhahitants v. Stroiufy 10 N. J. Law, 323; African
Society V. Va7Hcl\ 13 Johns., 38; Bovjen v. State Bank^
5 Ark., 234; Douglas v. Branch Bank^ 19 Ala., 659.
Nor do we agree that the lack of the corporate
seal worked an effect to destroy this deed. The
record does not show that this corporation, organ-
ized for purely charitable purposes, had a seal; but
even had it one, still the omission to affix it would
only have affected the deed in so far as the legal
title was concerned; it still would be sufficient to
convey an equitable estate. Garrett v. Belmont Land
Co., 10 Pickle, 460; Brinkley v. Bethd, 9 Heis., 786.
The result is, the decree of the Court of Chan-
cery Appeals is reversed. The cross bill of defend-
ants is dismissed, and a decree will be entered on
the original bill.
DECEMBER TERM, 1898. 47
Weaver v. Smith.
Weaver v. Smith.
{NasJwllle, March 7, 1899.)
1. Judgment Lien. Strictly construed.
Judgement liens are the creatures of statute and strictly construed.
They are lost if the statutory provisions are not strictly com-
plied with. {Post, p. 61.)
Cases cited and approved: Chapron v. Cassady, 3 Hum., 660;
! Bridgfes v. Cooper, 98 Tenn., 394.
2. Same. Lost when.
The judg'ment lien upon a debtor's equitable realty, created by
registration of memorandum of judgment, to be followed by
suit within sixty days thereafter, is lost unless the suit to en-
force it is brought within thirty days after the return nulla
bowi of the original execution legally issued thereon. It will
not suffice to bring such suit within thirty days after return of
an alias execution nulla bona, if more than thirty days have
elapsed after return of the original execution. {Post, pp. 60-63.)
C^e construed: 5? 4712. 4713, 4732-34 (S.); §5 3698, 3699, 3718-20
(M. & v.); g§2984, 2985, 3002-3004 (T. & S.)
Cases cited and approved: Riddle r. Motley, 1 Lea, 468.
3. Same. ExecutU/ti properly issued, ivhen.
The Court always indulges the presumption that an execution
was legally and regularly issued, when nothing appears to the
contrary. (Post, p. 5.9.)
Cases cited and approved: Esselman v. Wells, 8 Hum., 487; Miller
x\ 0*Bannon, 4 Lea, 401.
4. Same. Same.
An execution is legally and regularly issued, so as to require pro-
ceedings against the debtor's equitable realty to be commenced
48 NASHVILLE :
Weaver v. Smith.
within thirty days after its return nulla bonUf where it was
issued during the term at which the judgment was rendered
but thirty days after its rendition. {PosU PP- 63, 64.)
Code construed: |? 4732-34 (S.); Jf 3718-3720 (M. & V.); ?p002-
3005b (T. & S.).
FROM WILLIAMSON.
Appeal froQi Chancery (3ourt of Williamson County.
F. C. Mauky, Sp. Ch.
Stokes & Stokes and J. H. Henderson for
Weaver.
Vaughan & Anderson and James C Bradford
for Bank & Trust Co.
C. D. Berry for Pritchett's Estate.
R. L. Morris for Masonic Widows and Orphans'
Home.
Wilkes, J. These cases, as to the facts and
law deemed applicable, are fully set out in the opin-
ion of the Court of Chancery appeals, as follows:
^'The contest in this case is between judgment
creditors of Baxter Smith as to which has the prior
liens upon an equitable interest in a tract of land,
to reach which the four separate hills, as stated in
the caption, are filed.
** Baxter Smith was the owner of a tract of land
in Williamson County, upon which he had placed
several mortgages. The land was worth more than
the mortgage debts upon it, and the several com-
DECEMBER TERM, 1898. 49
Weaver v. Smith.
plainants, who were judgment creditors, sought to
reach his equitable interest in this land.
"There were three separate bills filed by -the
complainant, Weaver, Clerk and Master, andjone bill
filed by the Union Bank & Trust Company. These
bills were all tiled to collect unsatisfied judgments
against Baxter Smith.
"The first bill filed by Weaver was on February
3, 1896, the second was on May 9, 1896, the third
on June 18, 1896. The Union Bank & TrustQCom-
pany's bill was filed May 7, 1896.
"A condensed and tabulated statement, showing
accurately the dates of the tiling of these bills, the
dates of the judgments sought to be collected, the
dates on which executions were issued, and the dates
of their return, taken from the exhibit to the brief
of counsel, and adopted as a part of our tindings,
is as follows:
" ^lUDGMENTS RECOVERED IN THIS CAUSE AND UPON
WHICH BILLS WERE FILED.
'*'The dates and amounts of the judgments, the
dates executions issued, when returned, and dates
bills were filed, are as follows:
• t (
Judgments of Weaver, Clerk and Master.
First BUI
Date.
Amount.
Ex. Is.
Returned.
May 3, 1895
$412 17
July 23, 1895
Aug. 2, 1895, nuWx bomi.
May 3, 1895
885 00
July 23, 1895
Sept. 27, 1895, nulla homi.
Oct. 25, 1895
117 80
Dec. 26, 1895
July 29, 1895, nulla bona.
** * Weaver filed his bill on these judgments February 3, 1896.
18 p— 4
60 NASHVILLE :
Weaver v. Smith.
Second BUI.
Date. AmouDt. Ex. Is. Returned.
Jan. 10,1896 .$696 07 Feb. 25, 1896 Feb. 29, 1896. nulla bona.
" ^Registered in Williamson County March 10, 1896. Alias exe-
cution issued May 6, 1896; returned nulla bona May 8, 1896.
'* * Bill filed on this judgment May 9, 1896.
Third Bill.
Date.
Amount.
Ex. Is.
Returned.
Nov. 15, 1895
$468 00
Jan. 6, 1896
Feb.
29.
1896, nuUa bona.
Nov. 15, 1895
404 25
Jan. 6, 1896
Feb.
29,
1896, nulla bona.
Jan. 10, 1895
696 07
Jan. 25, 1896
Feb.
29,
1896, nulla bona.
Oct. 25,1895
91 20
Dec. 26, 1895
Feb.
29,
1896, nulla bona.
'* ' Bill filed on these judgments June 18, 1896.
** * Union Bank & Trust Company's judgments, October 28, 1895,
$9,590.37; registered in Williamson County December 2, 1895; cred-
ited April 11, 1896.
** * Bill filed to collect these judgments. May 7, 1896.' "
**A statement of facts agreed upon by the parties
is also adopted as a part of our findings, and is
as follows:
'*'In the above consolidated causes the following
facts are agreed to:
'' ^ 1. That Baxter Smith is the owner of a tract
of land located in the fourth civil district of Wil-
liamson County, Tennessee, and that the boundaries
of said land are correctly set out in the various
bills in these consolidated causes.
'''2, That Baxter Smith, on June 13, 1892, mort-
gaged said tract of land to C. D. Berry, as trus-
tee, to secure certain notes owing to the estate of
Sam. C. Pritchett, deceased, as follows: One note
for $4,000, duo September 13, 1893; one note for
$163, due January 1, 1893, and one note for $186.67,
DECEMBER TERM, 1898. 51
Weaver v. Smith.
due September 13, 1893. That all of said notes are
owing, past due, and that nothing has been paid
upon them.
'' ' 3. That defendant Baxter Smith, on October
12, 1895, mortgaged the said tract of land to defend-
ant R. L. Morris, as trustee, subject, however, to the
prior mortgage thereon to secure a note for $2,000,
due at twelve months and payable to the Masonic
Widows' and Orphans' Home. That said note is
not yet due, but that nothing has been paid upon it.
" * 4r. That Thomas S. Weaver, in his character
as Clerk and Master, recovered the following judg-
ments against Baxter Smith in the Chancery Court
of Davidson County, to wit:
'"On May 3, 1895, judgment for $412.70; that
execution issued on this judgment on July 23, 1895,
and was returned on August 2, 1895, indorsed ^'No
property of defendant to be found."
"'May 3, 1895, judgment for $885, upon which
execution issued on July 23, 1895, and the same
was returned on September 29, 1895, indorsed ''No
property of defendant to be found."
'"October 25, 1895, judgment for $117.80, upon
which execution issued December 26, 1895, and was
returned January 29, 1896, indorsed "No property
of defendant to be found."
"'That to collect these various judgments Thomas
S. Weaver, in his character as Clerk and Master,
filed his bill on February 3, 1896, and the same is
of the above consolidated causes, under the style of
52 NASHVILLE :
Weaver v. Smith.
ThoinaH S, Weaver^ Clei'l^ and Mmter^ v. Baxter
Smith and others,
'*^5. That Thomas S. Weaver, in his character as
Clerk and Master, recovered, in addition to the fore-
going, the following judgments against defendant,
Baxter Smith, in the Chancery Court of Davidson
County, Tennessee:
''<0n November 15, 1895, judgment for $468,
upon which execution issued January 6, 1896, and
was returned on February 29, 1896, indorsed *'No
property to be found."
*<* November 15, 1895, judgment for $404.25,
upon which execution issued January 6, 1896, and
was returned February 29, 1896, indorsed '*No prop-
erty of the defendant to be found."
«« 'January 10, 1896, judgment for $696.07, upon
which execution issued on February 25, 1896, in-
dorsed "No property of defendant to be found."
'''October 25, 1895, judgment for $91.20, upon
which execution issued December 26, 1895, and was
returned February 29, 1896, indorsed "No property
of the defendant to be found."
"'That to collect these various judgments Com-
plainant Weaver filed his bill in this Court, on . June
18, 1896, and the same in one of the above con-
solidated causes, under the style of TliomaJi Weave?'^
Clerk and Master^ v. C. D. Berry and others.
"'6. That, in addition to the foregoing judgments,
complainant, Thomas S. Weaver, in his character as
Clerk and Master, recovered the following judgments
DECEMBER TERM, 1898. 53
Weaver v. Smith.
against Baxter Smith in the Chancery Court of Da-
vidson County:
*' 'January 10, 1896, judgment for $696.70, execu-
tion issued February 25, 1896, and returned Febru-
ary 29, ''No property of defendant to be found."
"'That a duly certified memorandum of this judg-
ment was, on March 10, 1896, registered in the
Register's oflSce of Williamson County, Tennessee,
and that on May 6, 1896, an alias execution was
issued on said judgment, and was returned on May
8, 1896, indorsed "No property of the defendant to
be found."
"'That on May 9, 1896, complainant, Thomas S.
Weaver, in his character as Clerk and Master, filed
his bill in this Court, seeking to collect said judg-
ment, and that the same is one of the above con-
solidated causes, under the style of Thomas S.
Weaver, Clerk and Master, against Sam Pritchett
and others.
"'That in all of the foregoing bills it was sought
to subject the interest of Baxter Smith in the said
property to the payment of the foregoing judgments,
subject, however, to the two mortgages mentioned
above, which were prior liens upon said land. Said
bills are made a part of this agreed statement of facts
for the purpose of showing the allegations and charges
contained in them, under which thev seek to reach
the interest of Baxter Smith in said land.
"'7. That on October 28, 1895, one F. E. Wil-
liams, for the use of his wife, Mrs. R. E. Wil-
54 NASHVILLE :
Weaver v. Smith.
Hams, recovered judgment in the Chancery Court of
Davidson County against Baxter Smith for $9,590.37;
that a duly certified copy of this judgment was reg-
istered in the Register's office of Williamson County,
on December 2, 1895, and the same is made an
exhibit to the bill of the Union Bank & Trust
Company against Baxter Smith and others; that said
judgment was a lien upon certain real estate in
Davidson County, which, by a decree of the Court,
was ordered sold to pay the same, and that said
land was sold on April 11, 1896, and after satisfy-
ing certain prior liens that were on said lands and
paying the costs of the case, there was realized
therefrom $7,316.74, which went to the credit of
the aforesaid judgment, leaving a balance owing
thereon and unpaid, as of April 11, 1896, the sum
of $2,273.63; that on April 24, 1896, said judg-
ment was transferred to the Union Bank & Trust
Company on the execution docket of the Chancery
Court in the following language: "On consideration
of $2,273.63, balance due me on opposite judgment,
I hereby transfer and assign to the Union Bank &
Trust Company all right, title, and claim to said
balance on judgment, without recourse on me in law
or equity. This April 24, 1896. F. E. Williams,
for the use of R. E. Williams, my wife."
''^That, between April 11 and 24, 1896, said F.
E. Williams directed Thomas S. Weaver, Clerk and
Master, not to issue execution on said judgment
until he ordered it done, and accordingly no exe-
DECEMBER TERM, 1898. 55
Weaver v. Smith.
cation has ever been issued thereon; that the Union
Bank & Trust Company filed its bill in the Chan-
eery Court of Williamson County on May 7, 1896,
to collect the aforesaid judgment, and the same is
one of the above consolidated causes under the style
of the Union Bank & Trust Company against Baxter
Smith et al. The allegations and charges in said
bill, upon which it is sought to reach the aforesaid
land, are made parts of this agreed statement of
facts for the purpose of showing the allegations and
charges in them.
'«'8. That the April Term, 1896, of the Chancery
Court of Davidson County began April 2, 1895, and
continued in session until July 24, 1895, when said
Court adjourned to the Court in course. The Octo-
ber Term, 1896, began October 7, 1895, arid con-
tinued in session until March 30, 1896, when the
same adjourned to the Court in course.
'''It is further agreed that the judgment debtors,
Baxter Smith and Hiram Vaughan, both had notice
of the transfer and assignment of the judgment to
the Union Bank & Trust Company in the case of
J*". E. WilUarns^ uscy etc.y v. Baxter Smith et al.,
in the Davidson County Chancery Court, at the time
of said transfer.'
"Upon these facts, the question is as to the pri-
orities acquired under these several bills. It is ad-
mitted by counsel for Weaver that the bill filed by
him on June 18, 1896, is last in right, and the
present contest is therefore reduced to the bill filed
66 NASHVILLE :
Weaver v. Smith.
on May 7, 1896, by the Union Bank & Trust Com-
pany, and the other two bills Sled by Weaver, one
on February 3, 1896, and one on May 9, 1896.
*<The Chancellor . held that the bill of the Union
Bank & Trust Company was third in point of pri-
ority, or came after the bill of February 3, 1896,
and the one of May 9, 1896. Whereas, it is in-
sisted by appellant, the Union Bank & Trust Com-
pany, that the order of priority should be as fol-
lows: (1) The debts mentioned in the bill of Weaver
of February 3, 1896, (2) the Union Bank & Trust
Company, (3) to the debts named in the bill of
May 9, 1896.
"It will be seen that the judgments in favor of
the Union Bank & Trust Company were obtained
Octol>er 28, 1895, but that no execution issued on
these judgments, and the bill was filed May 7, 1896.
"Now, we understand it to be practically conceded
that no lien was acquired, on account of failure to
issue and have return of execution until the filing
of this bill of May 7, 1896, and that therefore the
filing of the first bill by Weaver, on February 3,
1896, took priority. But the insistence is that,
inasmuch as the complainant, the Union Bank &
Trust Company, filed its bill on May 7, 1896, it ac-
quired priority to the bill of Weaver filed on May
9, 1896, and this is unquestionably true, unless
Weaver had secured and perfected a lien by reason
of his judgments, issuance of execution, and regis-
tration.
DECEMBER TERM, 1898. 67
Weaver v. Smith.
"It is to be noted that the judgment sought to
be recovered in this bill was obtained on January
10, 1896, for $696.07; that an execution was issued
on this judgment February 25, 1896, and returned
February 29, 1896, nulla bona; that the judgment
was registered in Williamson County, March 10,
1896, and that an alias execution was issued on
May 6, 1896, and returned 7iulla bona May 8,
1896.
"It is to be noted that the bill in this case was
not filed within sixty days after the issuance or re-
turn of the first execution, but was filed within two
days after the issuance and one day after the re-
turn of the alias execution. Was the judgment lien
lost by this proceeding if
"This, as we understand, is the principal question
and matter of contest in this case. The insistence
on behalf of Weaver is that, as the bill was filed
within thirty days after the issuance of the alias
execution, which was returned on May 8, 1896, the
lien was preserved.
"It is said that the execution that is contemplated
by the provisions of the statute is the mandatory
execution, and that, inasmuch as the Court did not
adjourn until March 30, 1896, no execution was re-
quired by law to be issued until after that adjourn-
ment, and that the Clerk was not compelled to is-
sue an execution except within forty days after that
adjournment.
"In our opinion the execution referred to in the
i
58 NASHVILLE :
Weaver v. Smith.
limitation imposed by the statute is the original exe-
cution whenever that may be issued. It is shown
by the agreement that the term of the Chancery
Court in which this judgment was obtained continued
for more than four weeks. The provisions of the
law in regard to the issuance of execution are sub-
stantially as follows:
** Section 4732 of the Code (Shannon) provides that
the Clerks of the several Courts shall issue execu-
tions in favor of the successful party, on all judg-
ments rendered at any term, as soon after the judg-
ment of the Court as practicable, and within the
time prescribed by this Code.
'* Section 4733: 'Clerks of the Supreme Courts shall
issue executions within sixty days after the adjourn-
ment of each term.'
'* Clerks of other courts of record within forty days
after adjournment. And it is provided in this section
(4734) that when the Court shall continue in session
for more than four weeks, the Clerk may issue exe-
cution in any case at any time after thirty days
after judgment therein.
''The first execution issued in this case, as shown
by agreement of the parties, was issued February
25, 1896, whereas the judgment was obtained Jan-
uary 10, 1896 — that is, more than thirty days after
the judgment was obtained. • This execution, there-
fore, was legally issued, although the Clerk was not
compelled to issue the same unless affidavit had
been made as provided by ^ 4737 of the Code
DECEMBER TERM, 1898. 59
Weaver v. Smith.
(Shannon). And in any event, it has been decided
that the presumption always is, when nothing to the
contrary appears, that an execution was legally and
regularly issued. See 8 Ham., 487; 4 Lea, 401.
<^Bat we think there can be no question, and, in
fact, it is not suggested, that the first execution was
not regularly and legally issued. In our opinion it
makes no difference that the Clerk was not com-
pelled to issue this execution, unless affidavit was
made as provided by law. Whether an affidavit
was made and he was compelled to issue the exe-
cution, or whether he issued it at the request of
the parties because it was lawful for him to do so,
we are not informed. The point is that it was
legally and regularly issued. As under the provis-
ions of the law, the Court having continued in ses-
sion for more than four weeks, it was lawful for
him to issue the execution after the expiration of
thirty days from the rendition of the judgment,
without any cause shown therefor. So, it seems to
be settled, beyond controversy, that the execution
issued on February 26, 1896, was legally and reg-
ularly issued, and was the first execution issued,
and it was returned riulla bona on Februarv 29,
1896, and the bill was not filed within thirty days
thereafter. In our opinion, by the express terms of
the statute, complainant in this case lost his lien.
** Sections 4712 and 4713, Shannon's Code, are
taken from Sec. 3, Ch. 11, of the Act of 1832. This
section provides that a judgment or execution at
60 NASHVILLE :
Weaver v. Smith.
law shall not bind equitable interests in real estate
or other property, or legal or equitable interests in
stock or chores in action, unless a memorandum of
said judgment, stating the amount and date thereof,
with the names of the parties, be registered in the
Register's office of the county where the real estate
is situated, in cases where real estate is to be sub-
jected, and in all other cases in the county where
the debtor resides, within sixty days from the time
of the rendition of the judgment, and the lien shall
cease unless the bill in equity to enforce said lien
is tiled within thirty days from the time of the
return of the execution unsatisfied.
*'Novv, we think the purpose of the Legislature is
clearly apparent, and it is to enforce and require
prompt action on the part of a party seeking to
assert a lien either on equitable interests in realty
by reason of the judgment, or an execution lien on
personalty, and to require him, within thirty days
after he ascertained, by a proper return of an offi-
cer on an execution legally issued, that there is no
pro|)erty subject to execution at law, to tile his bill.
So, in our opinion, it does not avail the complain-
ant, Weaver, that he might have waited for thirty-
nine days after the adjournment of the Court before
he had execution issued, and could then have had
execution issued and returned and tiled his bill within
thirty days thereafter, and thus prolong the time of
his lien. But having elected, as he did, to have
an execution issued l)efore the adjournment of the
DECEMBER TERM, 1898. 61
Weaver v. Smith.
Court, and after the expiration of thirty days from
the judgment, and it having been ascertained, in the
mode prescribed by law by the return of the offi-
cer on execution, that there was no legal estate
subject to execution by the express terms of the
statute, he lost his lien unless he filed his bill
within thirty days from this return establishing this
fact.
'^The lien given in these cases is a statutory lien,
which has always been strictly construed, and is lost
if the provisions of the statute are not complied
with. Chapron v. Casmday^ 3 Hum., 660; Bridges
V. Cooper^ 14 Pickle, 394, and cases there cited.
'*Let us suppose that in this case the Court had
adjourned on January 10, the day on which the
judgment in this case was rendered. Then, under
the theory of counsel for complainant. Weaver, at
all events, the execution within the purview of the
statute, which they say was the mandatory execu-
tion, would necessarily have had to have been issued
on February 20. Suppose it had been so issued,
and the offiqer, as he legally might have done, had
at once returned the execution iinlJa hona^ making
his return saj^ on February 21. Then certainly com-
plainant's lien would have been lost if his bill had
not been filed within thirty days thereafter, or on
March 21. Whereas, as a matter of fact, in this
case it was not filed until May 9. So, we think
it clearly apparent that there is no merit in the
contention of the counsel for the complainant that
62 NASHVILLE :
Weaver v. Smith.
the execution contemplated by the limitation of the
statute is the mandatory execution.
' ' We concur with counsel to the extent that the
complainant, claiming such a lien, could not wait,
say for ten or eleven months, and prevent the issu-
ance of an execution and thus extend his lien. As
said in the case of Stahlraan v. Watson^ 39 S. W.
Rep., 1060, ''The execution contemplated is one
which shall be issued as soon as the creditor may
legally cause the issuance." See, also, to the same
effect, the opinion by Judge Cooper in Ridley v.
Motley, 1 Lea, 468.
''We are, therefore, of the opinion that, where
an execution is held up and not issued beyond the
time in which the Clerk is required by law to is-
sue it, and certainly when thirty days thereafter
have expired, the lien would be lost. But we are
further of the opinion, in the words of Judge
Cooper, just cited, that it is the execution which
may be first legally issued, and which is legally is-
sued, the original execution.
' ' W^e think that by the express terms of the stat-
ute, when an execution is thus legally issued and
returned, the bill must be filed within thirty days
thereafter, or the lien of the judgment is lost.
This is as much a matter of necessity as it is for
him to register a memorandum of his judgment
within thirty days after its rendition. They are
separate provisions, but both absolutely necessary.
DECEMBER TERM, 1898. 63
Weaver u Smith.
And, as said above, this statute must be strictly
complied with or the lien is lost.
*'We are therefore of the opinion that, in this
case, the complainant havino; waited for more than
thirty days after the return of the execution issued
on the twenty-sixth and returned on the twenty-
ninth of February, his lien was lost. And while
he acquired a lien by the filing of his bill, it only
dated from that time, viz., the ninth of May,
when, as is conceded, the complainant Union Bank
& Trust Company had obtained a lien by the filing
of its bill on May 7.
"For the same reasons here given the complainant
Union Bank & Trust Company had lost its lien by
reason of its judgment and registration, and only
acquired a lien on May 7 by the filing of its bill.
'"It results in our opinion that the Chancellor was
in error in fixing the order of priorities, and that
they should be as follows: First in right, the bill
of complainant filed Februar}'^ 3, 1896; second, the
bill of the Union Bank & Trust Company filed May
7, 1896; third, the bill filed by Weaver May 9,
1896; fourth, the bill tiled by Weaver June 18,
1896, and a decree will accordingly l)e so entered.
The cost of the appeal will be paid by the com-
plainant Weaver, the cost below as adjudged by the
Chancellor in the several cases. All concur."
Before this Court a very able and earnest ar-
gument is made that the construction thus given
64 NASHVILLE :
Weaver u Smith.
to the Act and the rule thus laid down by the
Court of Chancery Appeals will have the effect to
curtail the sixty days' lien given by the statute
upon the registration of the judgment if an execu-
tion is issued and returned within thirty days after
the judgment is rendered, and this contention is un-
dou bted 1 v co r rect .
The Code does not say in express terms that the
right to register and acquire a lien for sixty days
shall be forfeited by the issuance and return of an
execution within the thirty days after judgment and
before the lien would expire.
It is plausibly said that the creditor ought to
have both rights — that is, to immediately issue his
execution when occasion justifies and afterwards reg-
ister his judgment and have its lien preserved for
the full sixty days, and that the sixty days is given
the creditor to see if he can make the . del)t bv
execution. The reasoning is that the statute gives
sixty days in any event as a result of registration,
whereas, by this ruling, this right is destroyed if
execution is taken out and returned before the judg-
ment is registered, and the limit of time must then
date from the return of the execution. We are of
opinion the Court of Chancery Appeals is correct,
and, construing the statute as a whole, it is in-
tended to limit the time when the bill may be filed
to the thirty days after the return of the original
execution whether it is issued in the time prescribed
by statute or previously, and whether before or af-
DECEMBER TERM, 1898. 65
Weaver u. Smith.
! ter the registration. We feel that we can add noth-
ing to the very able and lucid opinion of the Court
of Chancery Appeals, and we adopt it as the opin-
ion of the Court, with this addition: The costs of
the Court below have not been adjudged and the
costs of the appeal have been adjudged against
Weaver. We direct that the costs of both Courts
be equally divided, and to that extent the decree
of the Court of Chancery Appeals is modified; in
all other things affirmed.
18 p— 5
66 NASHVILLE :
Trust Co. V. Weaver.
Trust Co. r. Weaver.
{Nashville. March 8, 1899.)
1. Execution. Issued after debtcr^s death.
Under an execution issued after, but tested before, the debtor's
death, personalty belonging to his estate may be levied on and
sold. {Post, p. 68.)
Code construed: { 4731 (S.); § 3717 (M. & V.); { 3001 (T. & S.).
Cases cited and approved: Preston v. Surgoine, Peck. 80; Black
V. Bank, 4 Hum., 36d; Harvey v. Berry, 1 Bax., 252.
2. Same. Leviable on stock of corporatUnis.
The stock in all domestic private corporations, whether organized
under the Code provisions or under 'other valid statutes,
is, under our statutes and decisions changing the common law,
personal property and subject to levy of execution. {Post,
pp. 68-73.)
Code construed: § 2066 (S.); § 1714 (M. & V.); § 1487 (T. & S.).
Acts construed: Acts 1875, Ch. 140; Acts 1889, Ch. 267.
Cases cited and approved: Memphis, etc.. Pub. Co. v. Pike, 9 Heis.,
702; Young v. Iron Co., 85 Tenn., 194.
3. Same. Same.
Under the Code provision subjecting stock in all private corpo-
rations to levy of execution, whether formed under the Code
or created theretofore or thereafter *' by special law," the term
"special law" is not to be understood, in its application to
corporations formed since the Constitution of 1870, in the sense
forbidden by that Constitution, but as embracing all laws out-
side of the Code, of a general character, enacted for the creation
of private corporations. {Post, pp. 69-73.)
Code construed: § 2066 (S.); § 1714 (M. & V.); § 1487 (T. & S.).
Cases cited and approved: Memphis, etc.. Pub. Co. v. Pike, 9
Heis., 702; Young v. Iron Co., 85 Tenn., 194.
DECEMBER TERM, 1898. 67
Trust Co. V, Weaver.
4. Demcbrer. Bod, when.
A demurrer is bad, as a speaking* demurrer, which seeks dismissal
of an administrator's bill enjoining the sale under execution
levy of corporate stock held by his intestate as ** trustee" or
^Hreasurer," upon the assumption, not justified by the aver-
ments of the bill, that said words are to be rejected as surplus-
age, and the stocks treated as the intestate's individual prop-
erty. (PosU PP- 73, 74.)
5. Sams. Same.
A demurrer is bad to an administrator's bill enjoining sale under
execution levy of corporate stock belonging to his intestate's
estate, where there is an averment that the intestate's title is
involved in such doubt as may cause sacrifice if sale is made
before the title is cleared up. (Po8t, pp, 74, 75.)
6. Judicial Knowledge. Not taJieny when.
In passing upon a demurrer to an administrator's bill enjoining
sale under execution levy of corporate stock belonging to his in-
testate, the Court will not take judicial notice that the corpo-
ration whose stock is involved is a foreign corporation that has
not been domesticated, in order to raise the question as to the
liability of stock of a foreign corporation to levy under execu-
tion. (Post, pp. 74, 75.)
7. Injunction. Of execution sale, does not lie, when.
An administrator cannot enjoin the sale, under a lawful execu-
tion levy, of a valuable painting belonging to his intestate's
estate, upon the ground that there is no local market for the
same, and that, to prevent sacrifice, it should be sold in a
foreign market. {Post, pp. 75, 76.)
FROM DAVIDSON.
Appeal from Chancery Court of Davidson County.
H. H. Cook, Ch.
Steger, Washington & Jackson for Trust Co.
Champion, Head & Brown for Weaver.
68 NASHVILLE :
Trust Co. V. Weaver.
Caldwell, J. William T. Smith died intestate
at his residence in Davidson County, Tennessee, and
thereafter executions, issued on recent decrees in the
Chancery Court of that county and tested prior to
his death, were levied on about $14,000 of corporate
stock in the Security Homo Building & Loan Asso-
ciation, a certificate for $2,500 of stock in the Ches-
apeake & Ohio Railroad Company, and a large oil
painting, as assets of his estate. After the levy his
administrator, the Nashville Trust Company, filed this
bill to enjoin the sale. The Chancellor dismissed the
bill upon demurrer, and the Court of Chancery Ap-
peals aflSrmed his decree. Complainant appealed.
The different questions arising in the case can be
best stated and considered separately.
1. The fact that the levies in question were made
after the death does not impair their legal force.
*< Court executions are tested of the first day of the
term next before the date of issuance." Code,
§3001; M. & v., §3717; Shannon, §4731. And
when, by that rule, properly tested of a day ante-
rior to the death of the judgment debtor, as in this
instance, they may be levied upon his personalty,
and sale thereof may be had as if he were living.
Being, in fact, alive at the date of the teste, he is,
in law, assumed to be alive at the date of the lev}^
Preston v. Surgoine^ Peck, 80; Black v. Bank^ 4
Hum., 368; Harvey v. Berry^ 1 Bax., 252. This
proposition is not controverted in the bill.
2. The complainant alleges that the Security Home
DECEMBER TERM, 1898. 69
Trust Co. V, Weaver.
Building & Loan Association, in which Smith, the
decedent, held the $14,000 of stock levied on, is a
Tennessee corporation, chartered and organized under
Ch. 14:2 of the Acts of 1875, as amended by Ch.
267 of the Acts of 1889; and that said stock is,
therefore, not subject to execution. The demurrer
disputes the legal conclusion drawn by the complain-
ant from the facts alleged.
Under the common law corporate stock was not
subject to execution. Nashvilh Baiik v. Ragsdale^
Peck, 296; 23 Am. & Eng. Enc. L., 632. Hence,
authority for the levy here complained of, if it ex-
ists, must be found in some statute of the State.
Section 24 of Ch. 72 of the Acts of 1849-60
contained the provision that stock in all turnpike
companies in this State '^ shall be deemed and held
personal property," and *' shall be subject to levy
and sale as other personal property." By the Code
of 1868 (which was itself an enactment, Runnels v.
Stat€j 92 Tenn., 320), that provision was greatly
enlarged and made to read as follows: ^^The stocks
in all private corporations formed under this chap-
ter, or heretofore created, or to be hereafter created,
by special law, are personal property and subject to
levy and sale as such, the company in such case
being required to make the proper entries in its
stock or transfer book; but such sale will not re-
lieve a stockholder from liability which had attached
to him as such previous to the sale, neither will a
70 NASHVILLE :
Trust Co. V. Weaver.
voluntary s^le." Code, §1487; T. & S., U87; M.
& v., §1715.
The corporations whose stock is by this statute
declaimed to be subject to execution are of two
classes in respect of the manner of their creation —
those '* formed under this chapter" and those ** cre-
ated by special law." Manifestly the Security Home
Building & Loan Association, as to whose stock the
present inquiry is being made, is not one of the
former class, because that class includes only turn-
pike, rail, and plank roads (Code, §§ 1400-1446),
manufacturing, quarrying, and mining companies
(Code, §§ 1447-1466), and educational and religious
societies (Code, 1467-1473); and further because it
was not, in fact, formed under that chapter, but
under subsequent legislation.
Whether or not this association is of the latter
class, as one ''created by special law," is not so
readily determined. If by ''special law," as used
in the provision of the Code quoted, is meant a
particular Act passed for the single purpose of char-
tering a specific corporation, with an individal name
and certain prescribed powers and responsibilities as
was at that time allowable and not unusual, then
this association was not "created by special law;"
nor, indeed, could it have been created, lawfully, by
such an Act since the adoption of the Constitution
of 1870, for the second clause of the eighth section
of the eleventh article of that instrument declares
that "no corporation [meaning private corporation.
DECEMBER TERM, 1898. 71
Trtist Co. V. Weaver.
Williains v: Nashville^ 89 Tenn., 487] shall be cre-
ated or its powers increased or diminished by special
laws." The same clause of the Constitution declares
that '*the General Assembly shall provide, by gen-
eral laws, for the organization of all corporations
[meaning private corporations, Williams v. Nashville^
89 Tenn., 487] hereafter created."
In due observance of this prohibition and man-
date of the present organic law, the General Assem-
bly has from time to time enacted *' general laws"
(Acts 1875, Ch. 142; Acts 1889, Ch. 267, being
some of them), and thereby made ample provision
for the organization of any number of each and
every kind of private corporation permitted in this
State.
The Security Home Building & Loan Associa-
tion was chartered and organized under these laws,
and, consequently, cannot be truly said to have been
*' created by special law," as contemplated by §1487
of the Code, if the law there meant was of the
same kind as that prohibited by that clause of the
Constitution of 1870 just mentioned. It is at least
highly plausible to say, as contended by counsel for
complainant, that the same kind of law was in con-
templation in each instance; and, but for cases here-
tofore decided, we would be disposed to hold such
to be true, and, upon that holding, to adjudge the
stock of this association not subject to execution.
In the case of The Memphis Appeal Puhlishing
Co. V. Pike, 9 Heis., 702, Judge Nicholson, speak-
72 NASHVILLE :
Trust Co. V. Weaver.
ing for the Court in reference to § 1487 of the
Code, in connection with other sections (3034 and
3035), not affecting the question involved in the
present case, said: <<It is clear that they (the leg-
islators) intended to make stocks in all private cor-
porations liable to execution, as all personal prop-
erty is liable," etc. Following that case it was sub-
sequently said in Young v. South Tredegor Iron Co,^
85 Tenn., 194, that stocks in all private corpora-
tions are by statute declared to be personal prop-
erty, and subject to execution as such.
Those cases did not discuss the different parts of
the statute or analyze its phraseology, but to have
reached the conclusion broadly announced the Court
must have proceeded upon the idea that the words
*' special law," as used in §1487 of the Code, meant
any legislation for the creation of private corpora-
tions other than the general provisions set forth in
that chapter. With such a construction of those
words the conclusion there enunciated naturally fol-
lows; and the Acts under which the Security Homo
Building & Loan Association was organized are in
that sense '* special law," though in their scope and
in contemplation of the Constitution of 1870 they
are * ' general laws. ' '
Adopting the conclusion announced in those cases,
upon the interpretation just stated as its basis, we
hold that the stock of the association in question
was subject to execution, and that the demurrer to
DECEMBER TERM, 1898. 73
Trust Co. V. Weaver.
that particular part of the bill was properly sus-
tained.
Shannon, in his compilation of the statutes of the
State, has so changed the language of § 1487 of the
Code as to make it rejid as follows: <*The stock in
all private corporations is personal property, and
subject to levy and sale as such," etc. Shannon,
§ 2066. This change, though a departure from the
true province of a compiler, makes the language
employed by him conform to and express the con-
struction presented herein as the result of the two
eases cited.
3. The bill alleges that certain shares of the stock
of this association, levied on by the defendant, were
held by Smith, as treasurer, and that certain other
shares of that stock so levied on were held by him
as trustee. The demurrer to this part of the bill
was bad, and should have been overruled. Corpo-
i-ate stock held by a debtor in a fiduciary or trust
relation is not subject to execution running against
him individually.
If it be true, as suggested in behalf of the de-
fendants, that the words * ' treasurer ' ' and ' ' trustee ' '
are matters of surplusage in this instance, and that
Smith really owned the shares so designated in his
own right, that fact can be made to appear only
by answer and proof. No such fact is disclosed in
the bill, which, upon demurrer, must be tried by
its own allegations. The assignment of demurrer
that seeks to bring forward such assumed fact is
74 J^ASHVILLE :
Trust Co. V. Weaver.
bad because it is a speaking demurrer. The several
propositions of law just stated as to this branch of
the case are so unmistakable as to require no cita-
tion of authorities to sustain them.
4. The complainant alleges in the bill that the
certificate for $2,500 of stock in the Chesapeake &
Ohio Railroad Company was issued to another per-
son, and by him indorsed in blank; that comv>lain-
ant does not know to whom it belongs, but pre-
sumes that it belongs to Smith's estate, and that it
is necessary to settle the question of title before
sale to prevent a sacrifice of the stock.
In its assignment of error to the action of the
Court of Chancery Appeals in sustaining the demur-
rer to this part of the bill, the complainant asserts
that the Chesapeake & Ohio Railroad Company is a
foreign corporation, and that its stock is, therefore,
not subject to execution in this State. The fact of
nonresidence thus asserted 3annot be considered bv
the Court at this time, nor its legal effect, if true,
determined, because the bill does not allege that the
company is a nonresident. To decide that question
now the Court would be compelled, in advance, to
assume, as matters of judicial knowledge, first, that
the company was chartered in another State, and,
secondly, that it had not been domesticated under
the laws of this State. This we cannot do in whole
or in part.
The doubtful statement of the bill as to the true
ownership of this stock is sufficient to require an
DECEMBER TERM, 1898. 75
Trnst Co. v. Weaver.
answer and investigation of the facts. The demurrer
to this part of the bill, also, should have been
overruled.
5. Finally, the complainant alleges that the pict-
ure levied on is very valuable, being ''a painting
by Madame Lemaire, of Paris, France, and known
as (La Samile) "The Sleeper;" that it cost com-
plainant's intestate $2,500; that '^ there is no. mar-
ket for such property in Nashville," where it is
seized, *'and to sell it here under execution would
be a great and unnecessary sacrifice of the estate."
It is further alleged that '*the only market in this
country for such property known to complainant is
New York City." Upon these allegations, and with
a view of saving "the rights, both of the estate
and of its creditors," the complainant asks that the
sale under execution be restrained and the painting
"sold in a manner to save the rights and interests
of all parties. ' '
Though an unusual case is presented by these al-
legations, they do not justify the interposition of a
Court of equity. No ground of equitable relief is
disclosed. It may bo true that the picture will not
bring its value if sold under execution in Nashville,
but that fact alone does not call for injunctive in-
terference. The bill assio^ns no reason whv a better
price would or could be realized by a sale through
the Chancery Court. If the Master should take the
painting out of the State in search of a purchaser,
he might, perchance, ultimately secure a larger sum
76 NASHVILLE :
Trust Co. V. Weaver.
for it than the Sheriff can get here, hut we are
aware of no authority for directing such a course
as that. And besides, the Court cannot say, with
any degree of assurance, that even that plan would
result in a net gain to the estate. It might prove
to be a profitless experiment.
Enter decree in accordance with this opinion and
remaixd for further proceedings as to the stock stand-
inor in the name of Smith as treasurer and as trustee
and as to the Chesapeake & Ohio Railroad Com-
pany stock.
DECEMBER TERM, 1898. 77
Fox and Wheatley v. Fox.
Fox AND Wheatley v. Fox.
{Nashville. March 11, 1899.)
1. Wills. Bequest absolute when.
After testator had made many bequests, all absolute except one
gfiven with strict limitations to a trustee for the benefit of an
improvident son and his family, he, in a distinct and separate
clause of the will, provided that any surplus that mig'ht remain
of his estate, after payment of all said bequests, should ''be
divided between those named in my [his] will in the same pro-
portion that my [his] estate bears to their respective bequests."
There was a surplus of the estate for distribution. Held: The
improvident son takes absolutely, and without any limitation
whatever, a share of this surplus proportionate to the bequests
made to the trustee for the benefit of himself and family in
preceding^ clauses. (Post, pp, 79-85.)
2. Same. The intention that controls in construction.
The intention of a testator that controls in the construction of
his will is that intention which is expressed in the will or is
fairly inferable from its terms. The Court will not give effect
to an intention, though morally certain that it existed in the
testator's mind, unless it has found expression in his will.
{Post, pp. 84^^,)
Cases cited and approved: 34 Am. St Rep., 64; 7 Mete, 188.
3. Same. Bequests separate and independent wlien.
Several independent bequests, not grammatically connected or
united by the expression of a common purpose, must be con-
strued separately and without relation to each other, although
it may be conjectured, from similarity of relationship or other
such circumstances, that the testator had the same intention
in regard to both. There must be an apparent design to con-
nect them. {Post, pp. 86-90.)
Cases cited and approved: 25 Ch. Div., 538; 64 Md., 306.
Cases cited and distinguished: Vancil v. Evans. 4 Cold., 340;
Ewin V. Park, 3 Head, 712; Brown v. Cannon, 3 Head, 355.
78 NASHVILLE :
Fox and Wheatley u. Fox.
4. Same. Presumption against restrictions on legacy.
It is a safe canon of construction that if the lang'uage of a will
leave it doubtful whether or not the testator intended to in-
cumber a leg-acj with a trust, or in any way restrict or limit
it, the benefit of the doubt should be g'iven to the legatee.
(Post, PP' 91, 92.)
5. Same. Presumption in favor of heir.
It is an established rule of construction of wills that the law
favors the heir, and that, therefore, the property disposed of
shall, as near as may be consistent with the terms of the will,
follow the laws of descent and distribution. (Post, p. 92.)
FROM MARSHALL.
Appeal from Chancery Court of Marshall County.
W. S. Bearden, Ch.
«
Marshall & Armstrong and J. J. Vertrees for
Fox and Wheatley, Executors.
J. A. Pitts, M. H. Meeks, and H. C. Lassing
for J. L. Fox.
Wilkes, J. The orijrinal bill in this case was
filed by the executors of P. Fox, Sr., to construe
his will. To it his son, J. L. Fox, and his wife
and minor children were made defendants.
The. first item of the will provides for the payment
of debts, funeral expenses, and a suitable monument;
the second gives the widow a certain tract of land
for life and $1,500 in money absolutely; the third
provides for the children of his deceased son, Wm.
DECEMBER TERM, 1898. 79
Fox and Wheatley v. Fox.
Fox; the fourth gives to his son, Pervines Fox,
Jr., $1,200.
The fifth clause, which is one to be especially
considered, is as follows:
"I further will that Pervines Fox, Jr., as trus-
tee for J. L. Fox, have, for the use of said J. L.
Fox, the farm on which he now lives, known as
the Wiley Davis place, and that he also have the
sum of $5,000 free from any indebtedness and from
any advancements by me to him. Said J. L. Fox
is to have the use and occupancy of the land for
the benefit of himself and family, and the interest
of the $5,000 the same way, but in no event are
either to be subject to his debts or contracts, neither
the principal or interest or the proceeds of said land.
After the death of J. L. Fox, his widow, if living,
shall have the use and occupancy of the land for
herself and the children of J. L. Fox while she is
single; but if she marries, then the trustee is to let
his children have the benefit of the same, and at
his death the children of said Fox will take the land
and money absolute, subjecting the land, as above
stated, to his widow, other money to be paid to
them when they arrive at age. But in the event
that J. L. Fox shall live, for five successive years
after my death, a sober, industrious life, and tries
to save, then he himself is to have said money, to
do with it as he may wish, and his trustee will
pay the same to him when this may happen. The
County Court will take a bond from his said trus-
80 NASHVILLE :
Fox and Wheatley v. Fox.
tee, in the sum of |10,000, for the faithful per-
formance of his duty, and shall remove him when-
ever it is shown that he is in any way not doing
his duty. ' '
The sixth clause gives to J. G. Fox $10,000;
the seventh gives to W. H. Wheatly the remainder
of the land given to the widow for life; and to
said Wheatly and other children of Mary Wheatly,
deceased, pecuniary legacies as follows: Samuel P.
Wheatly, $1,500; John W. Wheatly, $1,600; Frank
Wheatley, $1,500; W. H. Wheatly, $10,000, and
to ^'W. H. Wheatly, in trust for his sister, Mrs.
Mattie Taylor, the sum of $1,500, to be invested
in a home of her own selection, for self, and, at
her death, to dispose of as she may wish, but in
no way to be liable for her husband's debts or con-
tracts."
The eighth clause is as follows: *'I further will
and desire that my executors, so soon as practicable
after my death, convert all my real and personal
estate into cash, and I here give them full power
to transfer any real estate I may own at my death
not herein conveyed by deed and make title thereto
without the aid of the Court wherever it is practi-
cable to do so, and that they pay the bequests
herein made, but if it shall be that I have not a
sufficiency to pay all the bequests in full, then that
they be paid in pro rata to the amount of each
bequest, and if there should be more than is neces-
sary to pay all these bequests, then the remainder
DECEMBER TERM, 1898. 81
Fox and Wheatley v. Fox.
will be divided between those named in my will in
the same proportion that my estate bears to their
respective bequests, except the amount given to my
wife, which is not to be increased or diminished by
the amount of my estate."
The ninth clause provides for forfeiture by any
legatee who may attempt to break the will, and the
tenth and last clause simply nominates executors and
prescribes the bond to be given by them.
There turned out to be a large surplus after
payment of the amounts named in the will, and the
question is whether the part of this surplus appor-
tionable to the share of J. L. Fox, or to Per vines
Fox, Jr., as trustee for J. L. Fox, goes to J. L.
Fox directly and absolutely or to Pervines Fox, Jr.,
as trustee for J. L. Fox under the trusts and lim-
itations of the fifth clause.
Tho will is dated April 16, 1886, and the tes-
tator died August 16, 1887. The executors soon
thereafter qualified, and, after proceeding with the
execution of the will and paying the specific lega-
cies, ascertained that there would be a large surplus
for division under the eighth item of the will. They
thereupon tiled a bill asking a construction of the
will and instructions as to whether the share ffoins:
to J. L. Fox out of this surplus should be paid
to him absolutely or to his trustee under the lim-
itations of the fifth item of the will, and asking
the Court to fix a proper basis for the distribution
and division of the surplus.
18 P— 6
82 NASHVILLE :
Fox and Wheatley v. Fox.
J. L. Fox answered the bill and insisted that
the share coming to him out of the surplus should
be paid to him absolutely and free from the restric-
tions and limitations of the fifth clause, while his
children, by guardian ad litem, insisted on the con-
trary construction, and that such interest should be
affected by the trusts and limitations of the tifth
item.
The Chancellor held with the contention of J. L.
Fox that his share in the surplus should be paid
to him and held by him free of any limitations or
restrictions. This decree was rendered June 18, 1892.
Whether the executors have paid out the fund or
not does not appear. On November 26, 1898, the
minor children of J. L. Fox, by next friend, ob-
tained a writ of error to this Court and seek to
review this decree and set it aside for error on its
face.
It is insisted that the decree improperly fixes the
basis for distribution, but it seems that this feature
has been settled satisfactorily to all parties and the
basis of distribution is not before us at this time.
The question presented to us is, did J. L. Fox take
the share of the surplus apportioned to him abso-
lutely or under the trust restrictions and limitations
of the fifth clause? The Court of Chancery Appeals
held the latter view, reversing the decree of the
Chancellor, and the cause is before us on appeal of
complainant.
It appears that J. L. Fox's share of the surplus
DECEMBER TERM, 1898. 83
Fox and Wheatley v. Fox.
will amount to about $5,000. The will is inarti-
ficially drawn, and it is evident the testator did not
fully appreciate the extent of his estate. He evi-
dently supposed that he had given away the whole
or greater part of his estate by the specific lega-
cies and bequests he had made, and he was uncer-
tain whether there would be a surplus or a deficit.
He therefore provided for an abatement of the spe-
cific lecracies in the event the estate was not sufficient
to support them, and, on the other hand, provided
for the distribution of the surplus in the event there
should be a surplus.
It is evident from the whole will that he con-
sidered this a matter of but little importance and
that the surplus or deficit, as the case might be,
would be small. If he had known that the surplus
would be so large as it has proven to be he would
have shown himself more solicitous as to the pro-
visions relating to it and would not, perhaps, have
provided for a deficit. The first idea that impresses
itself is that, believing this surplus, if any, would
be small, he was not solicitous to tie it up with
restrictions and limitations and evidently thought that
by the fifth item he had provided a fund sufficient
to protect his son's family from his extravagance,
and did not intend to tie up the small surplus that
might arise under the eighth item or any fund which
might arise under the ninth item.
The testator evidently intended to put the land
set apart for J. L. Fox in trust, and to keep it
84 NASHVILLE :
Fox and Wheatley v. Fox.
in trust continuously, but as to the |5,000 he was
not so strict, and it has to go to his son abso-
lutely if he kept sober and tried to save for live
years. How this was found to be we have no
means of knowingr.
It was not the purpose of the father to tie up any
part of the property given his son continuously and
for all time except the land, and we are of opinion
that, by not specifically directing that his share in
the residue should be impressed with the trusts and
limitations of the fifth clause, he did not intend
that it should be affected thereby.
It is probable that if the testator had known
that J. L. Fox's share in the surplus would be as
much as $5,000 — that is, equal to the specific leg-
acy he had given him, he might have been dis-
posed to hedge it around with restrictions and lim-
itations at least for the same length of time pro-
vided for the $5,000 legacy.
The question is not, however, what he would
have done with that state of facts before him, but
what did he do with evidently a different state of
facts in his mind ? Likewise, if he had anticipated
that many of his legatees and devisees would contest
his will, he might have tied up the amounts J. L.
Fox would receive on account of that state of things,
but he did not look on this as a probable result,
and hence made no provision to limit any amount
derived under these conditions.
We are of opinion that, under the residuary clause,
DECEMBER TERM, 1898. 85
Fox and Wheatlej v. Fox.
the amount going to J. L. Fox would go absolutely,
just as his share in any forfeited legacy or devise
would do under the ninth item. Both provisions are
contained in the eighth and ninth clauses of the will,
and there is no limitation expressed in either. No
limitation or restriction can be imposed except it is
done by express words or such connection between
the two provisions as reads one into the other. It
is true the intention of the testator is to prevail,
as in all cases of the construction of wills. But
this intention can only be learned from the words
used in the will. Indeed, it may appear morally
certain that the testator may have, in his mind, in-
tended a certain thing, but unless he has expressed
that intention, either by writing it into his will in
express terms or by necessary implication and con-
struction, it cannot prevail.
The question is not what ttie testator intended in
his mind, but what is the meaning of his words
and his intention as shown by them. 2 Woerner's
Am. Law, Sec. 414; Pritchard on Wills, Sec. 384;
Beech on Wills, Sec. 311: Pringel v. Voltz^ 34 Am.
St. Rep., 64. An illustration of this idea is found
in the case of Tucker v. SeammCs Socudy^ 7 Mete,
188. This will gave a legacy to the '* Seaman's
Aid Society." The Seaman's Friends Society claimed
the legacy, and offered evidence to show that the
testator did not know there was such a society as
the one named in the will, but did know of the
other, and was deeply interested in its objects, and
86 NASHVILLE :
Fox and Wheatley v. Fox.
had been accustomed to contribute to it, and bad
frequently expressed a determination to' give it a leg-
acy. But all this was held inadmissible because
there was a society like that named in the will and
the only one of that name. Thus it was that the
real intention of the testator could not prevail be-
cause he had not written it in his will, but his prop-
erty went in a direction he did not design, because
the intention expressed in the will so indicated.
It is said that the intention to dispose of the
whole estate by the first seven clauses of the will
appears by their provisions, but we think directly
the reverse; that the testator anticipated there might
be a surplus, and this was to be disposed of by
the eighth clause. No doubt the amount passing
under this item is greater than he expected, and if
he had known of the amount he might have pro-
vided diiferently, but the fact recurs that he did
not do so.
It is insisted that the amount passing under the
eighth item must be considered as a legacy added
to the one given in the fifth item — that is, in the
nature of an accretion to it, and therefore subject
to the same restrictions and conditions under the
rule laid down in the text- books and cases. Beach
on Wills, Sec. 313.
But the question arises, is this an added legacy
or an independent one? A case in point is that of
Beid v. Walbf/d\ 75 Md., 205; 8 Am. Pro. Rep.,
131. Mrs. Whelon made a will containing thirty
DECEMBER TERM, 1898. 87
Fox and Wheatley t\ Fox.
clauses and four codicils. The will and three of the
codicils gave property to trustees for Mrs. Walback,
a daughter of the testatrix, but gave it to trustees
for her life, and at her death to her children then
living. Clause twenty-eight was the residuary clause.
It gave all the residue to three daughters, Mrs.
Walback being one of them. It said, '*To my
daughter Jane Margaret (Walback) one-fourth part
thereof." One question was whether the residuary
fund went to Mrs. Walback absolutely or to be
under the limitations of the trust created bv the
previous clauses. The Court held that it passed to
her absolutely, unfettered by the trust.
The rule as laid down by Mr. Jar man in his
work on Wills, Vol. 3, p. 708, is applicable. That
rule is this: '* Several independent devises, not gram-
matically connected or united by the expression of
a common purpose, must be construed separately and
without relation to each other, although it may be
conjectured from similarity of relationship or other
such circumstances that the testator had the same
intention in regard to both. There must be an ap-
parent design to connect them." Jarman on Wills
(6th Ed.), 1657; In re Johnston, L. R., 25 Ch.
Div., 538, 545; 2 Woerner Am. Law, Ad., Sec. 416.
The cases of Btichanan v. Loyd, 64 Md., 306; 5
Am. Prob. Repts., 30, and Doc. Dem,, etc., v.
Westley, 4 Barnwell & Cresswell, 667, are also in
point.
We are cited to the case of Vancill v. Evanx,
88 NASHVILLE :
Fox and Wheatley v. Fox.
4 Cold., 340, as sustaining the contention of the
minors. The syllabus of that case is as follows:
'*The rule of construction, that the last clause of
a will must prevail over the iirst clause, applies in
cases only where the two clauses are incompatible
and contradictory, and cannot, for that reason, stand
together. But where a former legacy is given with
a limitation to other parties, a second legacy given
in general terms will go to the same parties and
be limited over in the same way; or, when one leg-
acy is given in addition to the former legacy, it
will be construed as subject to the same conditions
as the former." The Court cites for this proposi-
tion Crowder v. Olmces^ 2 Ves. Jr., 449, and Redf.
on Wills, 360, and authorities cited.
Mr. Red field, at the page just cited, lays down
the rule as follows, citing numerous authorities: ''It
seems to be well settled that where legacies are
given expressly upon the same terms as former ones,
or where one legacy is given in substitution for an-
other, or where it is given in addition to a former
legacy, it will be so construed as to be raised out
of the same fund, and subject to the same condi-
tions as the former one."
Mr. Williams, in second volume of his work on
Executors, bottom page 1084, after stating the gen-
eral rule that where there is no connection by gram-
matical construction or direct words of reference, or
by the declaration of some common purpose, between
distinct bequests in a will, aid cannot be drawn in
DECEMBER TERM, 1898. 89
Fox and Wheat! ey u Fox.
the constraction of special terms in the one from
those of another, adds: '*The tendency, however,
of modern decisions (and good sense appears to re-
quire it) is to read the different clauses in the will
referentially to each other, unless they are clearly
independent."
These text-books, as we think, lay down the cor-
rect rule, but it was misstated in the case of Van-
cil V. Evans^ 4 Cold., 340. The Court of Chan-
cery Appeals followed, and evidently were controlled
by, this case. The crucial inquiries are, whether
the legacies are given expressly on the same terms
as former ones, or in substitution for the former,
or in addition, and as an accretion to a former leg-
acy. In all these cases the added or substituted
legacy will be subject to the same conditions as the
former one, but this is not the rule where the leg-
acies are independent and not substituted or added.
The case of Crmnder v. Clowes, 2 Ves. J., 449,
was a case of additional legacy of two hundred
pounds, clearly connected by express reference with
the former legacy and an accretion to it, and it is
only in similar cases that the added legacy takes the
limitations of the former one. 1 Jar. on Wills,
183 (Bigelow, Ed. 1893).
The case of Ewin v. Park, 3 Head, 712, is cited
by counsel in support of the contention of the
minors, but it is distinguished from this in the fact
that in that case one- half of whatever amount Cath-
erine D. J. should receive under the will was to
90 NASHVILLE :
Fox and Wheatley d. Fox.
pass under the trust, whether it was that portion
directly going to her or that part contingent upon
the death of Benjamin Russ,. but no specific sum
was set apart to pass under the trust and be sub-
ject to it as in this case. Hence, the Court, in
that case, held the language to mean all and every
amount which, under the terms of the will, passed
directly or indirectly to Catherine, should be divided,
and one-half pass under the trust. Such is the evi-
dent meaning of the language used in that case,
but it is not in point in this case where the amount
limited is fixed and specially named.
The case of Brown v. Cannon^ 3 Head, 356, is
also cited, but is distinguishable upon the ground
that the second legacies were substitutes for the first,
and it was so expressly stated, in the opinion of the
Court, that such substitution would not change the
character of the title nor the trusts attached to the
property. Here there is no intention to substitute,
and the case of Brown v. Carman^ 3 Head, 355, is
not in conflict with the rules laid down in this case.
The contention for the minor is virtually that reallj'
nothing passed directly by the residuary clause, and
that it did not of itself dispose of any residue, but
that it simply served to increase the legacy given
by the fifth item and under its limitations. It would
have been easy to say so if this had been the in-
tention, and it is difficult to see whv it would not
have been so expressed if the testator intended to
limit this surplus. It cannot be the rule that all
DECEMBER TERM, 1898. 91
«
Fox and Wheatley v. Fox.
residuary clauses are mere suffixes and additions to
previous clauses to operate simply as an enlarge-
ment of specific legacies already given, when those
given are restricted and impressed with a trust, and
those contained in the residuary clause are not. In
this will the residuary clause does not in any way
refer to the legacies, but deals alone with the sur-
plus remainder.
The only connection between the fifth and eighth
items is not by an express reference, but the fifth
item may be looked to simply to ascertain who are
the parties to take under the eighth item, and the
proportions in which they are to take. But there
is no allusion in the eiofhth item to the limitations
contained in the fifth, and it would have been per-
fectly easy, and the natural thing, to have said in
the eighth item, disposing of the surplus, that it
should be held on the same terms and limitations
as the legacies already given, if such had been the
intention. The two items are separated by the sixth
and seventh items, and there is no expressed or ap-
parent design to connect them; but the eighth only
refers to prior portions of the will to ascertain who
are the beneficiaries and in what proportion they
take. Now, of course, the will must be construed
as a whole, and not in detached fragments; but this
does not mean that items must be connected together
80 as to bear upon and influence or control each
other unless an intent to make them do so can be
gathered from the will itself. We think it is a
92 NASHVILLE :
Fox and Wheatley v. Fox.
safe canon of construction that if the language of a
will leaves it doubtful whether or not the testator
intended to incumber a legacy with a trust, or in
any way restrict or limit it, the benefit of the doubt
should be given to the legatee.
It is a rule well established that in the construc-
tion of wills the law favors the heir, and that the
property shall, as near as may be consistent with
the will, follow the laws of descent and distribu-
tion, and there should be an intent manifest in the
will to effect a change.
Some stress is laid upon the language in the
eighth item that the surplus there referred to should
be divided among those named in the will, and it
is argued, and the Court of Chancery Appeals held,
that this means to the trustee of J. L. Fox, inas-
much as he is the party named to take under the
fifth item of the will, and there is no gift to J.
L. Fox separately either absolutely or otherwise.
But it is evident that this testator did not use
terms and words with strict legal precision, and it
is also evident that he meant that the parties bene-
ficially interested in his estate and named as bene-
ficiaries should take. It is evident that the testator
when he refers to those '* named in his will," in
the eighth item, had in mind the same persons
named as his heirs to take forfeited shares under
the ninth item of the will.
While we are satisfied that the testator did not
impress this surplus with the trusts and limitations
DECEMBER TERM, 1898. 93
Fox and Wheatley v. Fox.
contained in the fifth item of the will, hut it was
to go absolutely to the parties beneficially interested
in the will, a question of some apparent difficulty
arises as to who shall take the surplus absolutely
under the provisions of the eighth item. We have
already held that it was intended to be given the par-
ties who were beneficiaries under the will. It is
evident that the testator intended the wife and chil-
dren of J. L. Fox to take a beneficial interest un-
der the fifth clause as well as J. L. Fox himself,
and it was the object and purpose of the testator
that all should receive benefits from it. This being
so, the question is not whether J. L. Fox's trustee
is to take the surplus, for, not being beneficially
interested, he can, in our view, take nothing; but
whether J. L. Fox takes this surplus separately or
in common with his wife and children. They are
all named in the fifth item and each takes a bene-
ficial interest, but the beneficial interest which the
wife and children take is only by virtue of the
trusts and limitations imposed by that item, and if
the surplus does not pass under the trusts and lim-
itations, it follows that J. L. Fox separately takes
the surplus, as he alone is named in the item as
benefi^jially interested in the absence of any trust or
limitation. The conclusion is that the testator, in
his special legacies, fixed such trusts and limitations
as he desired to apply to them and the residue of
the estate he gave to the same parties beneficially
94 NASHVILLE :
Fox and Wheatley v. Fox.
interested in the special legacies, bat to take abso-
lutely and free from any trusts or limitations.
To the extent herein indicated the decree of the
Court of Chancery Appeals is reversed and modified,
but as to costs and in the order for remand is
affirmed.
DECEMBER TERM, 1898. 95
Jones V. KixoD.
Jones v. Nixon.
{Nashville. March 15, 1899.)
1. Bill Quia Timet. To prevent clmid on title.
A Tendor who has conveyed a perfect title with full covenants
of warranty and placed his vendees in possession, can main-
tain a bill quUi timet to prevent and enjoin the clouding' of that
title by confirmation of a sale of the property to a third party,
made in a chancery cause to which neither he nor his vendees,
nor other person having title thereto, were parties. {Post, pp.
96-102.)
2. Same. Same.
Bills quia timet lie to prevent, as well as to remove, clouds on ti-
tle, and the same principles are applied in both classes of cases.
{PosU PP- 97-99. )
Cases cited and approved: Merriman v. Polk, 5 Heis., 717; 5
Pai^e, 492; 63 N. Y., 489; 130 Mass., 16; 2 Cal., 588; 72 111., 606;
^ Ohio, 178.
3. Same. EnterUiined v:hcre cJuiUenyed claim in void.
Bills quia timet to prevent or remove clouds on title are enter-
tained by Courts of Equity alike, whether the instrument or
proceeding complained of is or is not void at law, and whether
it be void from matter appearing* on its face or from proof
taken in the cause. {Post, pp. 99, 100.)
Cases cited and approved: Jones v. Perry, 10 Yer., 59, 83; Al-
mony v. Hicks, 3 Head, 41; Porter v. Jones, 6 Cold., 318; 1
Johns. Ch., 517.
4. Same. Maintaiiuible by party wUlunvt title or possession, when.
Although a vendor has parted with both title and possession of
property, he has, nevertheless, such interest, by reason of the
obligation under his warranty to protect the title of his vendee,
as enables him to maintain a bill quia timet to prevent or re-
move cloud on title. {Post^ pp. 100-102.)
96 NASHVILLE :
Jones V. Nixon.
Cases cited and approved: Coal Creek, etc., Co. v. Ross, 12 Lea, 1;
26 Wis , 91; 12 Minn., 276; 3 Fed. Rep., 86.
Cases cited and distinguished: Wilcox v. Black well, 99 Tenn., 352;
King V. Coleman, 98 Tenn., 570; 110 U. S., 25; 121 U. S., 556;
18 How., 265; 155 U. S., 414; 129 Mass., 377; 54 Wis., 114.
FROM HICKMAN.
Appeal from the Chancery Court of Hickman
County. W. L. Grigsby, J.
J. A. Pitts, M. H. Meeks for Jones.
Bates & Clogitt, Nixon & Knight, and J. C.
Bradford for Nixon.
Caldwell, J. This cause comes up on bill and
demurrer. For the purposes of this opinion but
one branch of the case need be stated, and as to
that the statement will be brief and in such form
only as will be necessary to present the legal ques-
tions to be decided.
Complainant, S. G. Jones, alleges that he was
the true and unquestioned owner, in fee, of 1,600
acres of land in Hickman County; that he sold that
land in parcels to different persons yc»ars ago by
absolute deeds with full covenants of warranty and
put his vendees in possession; that they have since
been, and now are, in quiet, open, notorious, and
adverse possession of their respective portions of said
land as unconditional owners thereof, but that, re-
DECEMBER TERM, 1898. 97
Jones V. Nixon.
cently, by some mistake or oversight, without piead-
ino^, process, or jiiriatdiction in respect thereto, the
said land has been sold under decree of the Chan-
cery Court as a part of the assets of the estate of
0. A. Nixon, deceased, to whom no part of it
ever belonged; that the defendant, Henry Nixon,
became the purchaser at that sale of the whole
1,600 acres for the small sum of $130, and will
soon have his purchase confirmed by the Court and
a cloud thereby cast upon the title of complainant's
vendees unless he shall be prevented therefrom by
appropriate decree in this cause.
Demurrants deny that complainant shows such in-
terest in the land as will entitle him to the relief
sought. The Chancellor and the Court of Chancery
Appeals, successively, overruled the demurrer, and
the defendants have appealed the second time.
The bill, jn its essence, is one brought by the
rightful vendor of land and warrantor of its title
to prevent a cloud upon the title of his vendees in
possession. Can such a bill be maintained by such
a person, he being without either title or posses-
sion ?
In some important particulars a close kinship ex-
ists between what are known in the books as ''bills
of peace" and bills quia llmetj and in others there
is a wide diflference between them. The points of
similarity and dissimilarity will not be dwelt upon
here, however, since the present bill is so plainly
and exclusively of the latter kind.
18 p— 7
98 NASHVILLE :
Jones V. Nixon.
In the case of Holland v. Challen^ Mr. Justice
Miller said: **A bill quia timet^ or to remove a cloud
upon the title of real estate, differed from a bill of
peace, in that it did not seek so much to put an
end to vexatious litigation respecting the property
as to prevent future litigation by removing existing
causes of controversy as to its title. It was brought
in view of anticipated wrongs and mischiefs, and the
jurisdiction of the Court was invoked because the
party feared injury to his rights and interests."
110 U. S., 20.
Judge Story says bills quia timet ''are in the
nature of writs of prevention to accomplish the ends
of precautionary justice. They are, ordinarily, ap-
plied to prevent wrongs or anticipated mischiefs, and
not merely to redress them when done. The party
seeks the aid of a Court of Equity because he fears
[quia timet) some future probable injury to his
rights and interests, and not because an injury has
already occurred which requires any compensation or
other relief." 2 Story Eq. Jur., Sec. 826.
It is through bills of this kind, then, that clouds
are removetl from title to real estate. 3 Pomeroy
Eq. Jur., Sec. 1398; Holland v. Cftallen, 110 U. S.,
16; Hay ward v. Diin^dale, 17 Ves., Ill; Almony
V. Hicks^ 3 Head, 89; Andersoii v. Talhott^ 1 Heis.,
408.
Strictly speaking, the present bill is not brought
to remove a cloud from title, but it is intended,
rather, to prevent the consummation of a proceed-
DECEMBER TERM, 1898. 99
Jones V. Nixon.
ing that would, unhindered, result in obscuring that
title. The difference is not one of controlling im-
portance, however, for the jurisdiction of Courts of
Elquity to grant the desired relief is as well estab-
lished in the one case as in the other, and the
principles authorizing the prevention of clouds are
generally the same as those applied in removing
clouds. Pettit v. Shepherd^ 5 Paige, 492; Sandet^a
V. Yonkers, 63 N. Y., 489; Lyon v. Alley, 130 U.
S., 177; O^Uare v. Downing, 130 Mass., 16; Shat-
tuck V. Carson, 2 Cal., 588; Groves v. Webber, 72
111., 606; Norton v. Beaver, 6 Ohio, 178; Merriman
V. Polk, 5 Heis., 717.
In the last four of those cases the bill was filed,
as in this instance, to prevent the completion of a
judicial sale, which, if consummated, would cast a
cloud upon the title of the compainant.
The Courts have been wide apart in their opin-
ions and decisions in relation to the character of the
instruments that may be canceled in equity as clouds
upon title. Some have maintained the view that such
deeds, contracts, and proceedings as appear upon their
face to be void in law, are not in fact clouds, and,
hence, should not be interfered with by a Court of
Equity, but left for judgment at law; and that
equitable relief should be granted as to such instru-
ments only as appear upon their face to be valid
in law, and are shown by extrinsic evidence to be
invalid. Others have thought and hold that equita-
ble relief was warranted alike in each class of cases,
100 NASHVILLE :
Jones V. NixoD.
and that it should be granted with equal certainty
whether the basis of the challenged claim of the
adverse party was absolutely void or only voidable.
This Court is one of those that has spoken in
favor of the latter view. Joties v. Peltry ^ 10 Yer.,
59, 83; Almony v. Hicks ^ 3 Head, 41; Porter v.
Jones, 6 Cold., 318.
Chancellor Kent thought ^*the weight of authority
and the reason of the thing," both, ''in favor of
the jurisdiction of the Court, whether the instru-
ment is or is not void at law, or whether it be
void from matter appearing on its face, or from
proof taken in the cause." Ilarailton v. Cummings^
1 Johns. Ch., 517.
Professor Pomeroy also prefers the broader view,
but thinks the "majority of American decisions"
against it. 3 Pom. Eq. Jur., Sec. 1399.
Likewise there has been no little contrariety of
judicial opinion upon the question whether or not,
to entitle him to the relief sought, the party seek-
ing to remove or prevent a cloud on title must be
in possession of the land.
A discussion of this question at this time is ren-
dered unnecessary by the fact that this court long
ago decided that possession by the complainant in
such a suit was not essential to the Court's juris-
diction, and that relief would be granted him, in a
proper case, though out of possession. Johnson v.
Cooper, 2 Yer., 525; Almony v. Hicks, 3 Head,
DECEMBER TERM, 1898. 101
Jones V. Nixon.
42; Anderson v. Talbot, 1 Heis., 410; Bank v.
EtDing, 12 Lea, 601.
With respect to the matter of title the authori-
ties are almost unanimous. At least it is an un-
doubted and well settled general rule that the party
asking relief against a cloud already cast, or one
that is impending, must show himself to be the true
owner of the legal title before he can justly be
awarded that which he seeks. If he does not own
the thing obscured, or about to become so, he,
generally, has no standing in Court. The object of
the bill being protection of the true legal title, it
is, in ordinary cases, of the essence of his right to
the relief that the complainant be the owner of that
title. If he be not its owner, he is, ordinarily,
without a basis for the relief sought, and should be
repelled. Such, beyond question, is the well estab-
lished general rule. Holland v. Challen, 110 U. S.,
25; Frost v. Spiilei/, 121 U. S., 656; Orton v.
Smith, 18 How., 265; Dick v. Foraker, 155 U.
S., 414, 415; Davis v. Boston, 129 Mass., 377;
Smith V. Sheny, 54 Wis., 114; King v. CoUman,
98 Tenn., 570; ^Vilcox v. BlachreU, 99 Tenn., 352.
An exception to this rule is sometimes allowed in
favor of the owner of an equitable title when his
equity against the defendant is of such a nature
'*as to draw from him his legal title" i^Coal Creek
M, ik Mfg. Co, V. Ross, 12 Lea, 1), and when he
has no other adequate means of protection.
Another exception has been made, in some of the
102 NASHVILLE :
Jones V. Nixon.
Courts, in favor of the vendor of land with war-
ranty of title, his obligation to protect the title of
his vendee being deemed a sufficient interest in the
subject-matter to authorize his timely interposition
and warrant the aid of a Court of Equity. £!li/ v.
Wilcox, 26 Wis., 91; Chainhlin v. Sllchter, 12
Minn., 276; Remer v. Mackay^ 3 Fed. Rep., 86.
This exception covers the present case exactly,
and under it the bill should be sustained. Jones is
bound, by the covenants of his deed, to defend and
protect the title of his several vendees, and he ought
to be allowed to do so, if he chooses, by an ag-
gressive anticipatory action, rather than wait and
make defense to the prospective suit or suits of him
who is about to consummate proceedings that will
cast a dangerous cloud upon that title. He is un-
doubtedly an interested party. In reality it may
turn out that he, of all persons, is the one most
concerned in the dissipation of the impending cloud,
and, being so, a Court of Equity will not be slow
to come to his relief.
Affirmed.
DECEMBER TERM, 1898. 103
Breyer v. State.
Breykr V, State.
{Nashville. March 15, 1899.)
1. Barbering on Sunday. Declared a misdemeanor.
The Legislature has power to prohibit barbering on Sunday and
to declare the same a misdemeanor and punish'it as such. {Post,
}yp' 104-106.)
Cases cited and approved: Linck v. Nashville, 13 Lea, 499; Parker v.
State, 16 Lea, 476; Davis v. State, 3 Lea, 377; Luerhman v. Tax.
Dist., 2 Lea, 438; Railroad v. Uicks, 9 Bax., 442; Memphis v.
Memphis Waterworks, 5 Heis., 495; Hope v. Deadrick, 8 Hum., 5
9; Bell v. Bank, Peck, 269; Henley v. State, 98 Tenn., 665; 163
U. S., 299; 41 L. R. A., 854; 140 Pa., 89 (S. C, 11 L. R. A., 563);
45 Ark., 347; 149 N. Y., 195 (S. C, 31 L. R. A., 6§9); 22 L. R. A.,
721.
Cited and distinguished: State v. Lorry, 7 Bax., 96.
2. Samr. Statute prohibitinif not class legislation.
A statute denouncing barbering on Sunday as a misdemeanor
and imposing a heavier penalty upon that misdemeanor than
is imposed by the general law upon other violations of the
Sabbath is not unconstitutional as vicious class legislation.
The classification, in such case, is not arbitrary and unnatural,
and the statute is the law of the land. {Post^ pp. 105-110.)
Constitution construed: Art. I., Sec. 8.
Act construed : Acts 1891, Ch. 114.
Cases cited and approved: Vanzant v. Waddell, 2 Yer., 270; Strat-
ton Claimants v. Morris Claimants, 89 Tenn., 522; Deinoville v.
Davidson County, 87 Tenn., 218; Henley v. State, 98 Tenn., 698;
Railroad v. Harris, 99 Tenn., 704.
FROM DAVIDSON.
Appeal in error from Criminal Court of Davidson
County. J. M. Anderson, J.
NoTi.— The authorities on the constitutionality of Sunday laws are collected in
a xkoXAXoJttd^flnd v. Statt (Md.), 22 L. R. A.. 721.
104 NASHVILLE :
Breyer v. State.
Lytton Taylor for Breyer.
Attorney-general Vaughn for State.
McAlisteb, J. Plain tiflf in error was indicted in
the Criminal Court of Davidson County on a charge
of carrying on the business of a barber on Sunday.
By consent, the cause was submitted to Hon. J. M.
Anderson, Judge, without the intervention of a jury,
who, upon a consideration of the evidence, adjudged
the defendant guilty.
The evidence submitted on the trial below was
not preserved by bill of exv^eptions, and the only
question made in this Court is upon the constitu-
tionality of Ch. 114, Acts 1891. That Act is as
follows: "It shall be a misdemeanor for any person
to carry on the business of barbering on Sunday in
Tennessee, and any person found guilty of violating
this section shall be fined not less than twenty-five
nor more than fifty dollars, or imprisoned in the
county jail not less than fifteen nor more than thirty
days, or both, in the discretion of the Court."
Shannon's Code, §3030.
The general statute against Sunday violation was
passed in 1803, and was taken from the English
statute of 29 Charles II., as follows: ''If any
merchant, artificer, tradesman, farmer, or other person
shall be guilty of doing or exercising any of the
common avocations of life, or of causing or permit-
ting the same to be done by his children or serv-
ants (acts of real necessity or charity excepted) on
DECEMBER TERM, 1898. 105
Breyer v. State.
Sunday, he shall, on due conviction thereof before
any Justice of the Peace of the county, forfeit and
pay three dollars; one- half to the person who will
sue for the same, the other half for the use of the
county."
It was held by this Court in State v. Lan^y^ 7
Bax., 96, that barbering on Sunday was not in-
dictable as a misdemeanor or as a nuisance. The
Court said: *'The occupation of a barber stands on
the same platform with that of the merchant, me-
chanic, farmer, or professional man. It is an occu-
pation necessary for the comfort and convenience of
the citizens, and is in no respect a nuisance. . . .
The business of barbering is so essential to the
comfort and convenience of the inhabitants of a town
or city that it may be regarded as a necessary oc-
cupation. To hold that it becomes a nuisance when
carried on on Sunday, is a perversion of the term
nuisance. All that can be said of it is that, when
prosecuted on Sunday, it is a violation of the stat-
ute, and subject to be proceeded against as prescribed
by law, but not subject to be indicted as a nuisance."
It will be observed, however, that the Act of
1891 declares the business of barbering on Sunday
a misdemeanor, and an indictable otfense, punishable
by line and imprisonment, in the discretion of the
Court.
It is insisted by counsel for plaintiff in error that
a statute applicable to bari)ers alone is not the law
of the land, but is vicious class legislation. The
106 NASHVILLE :
Breyer v. State.
term < ^ law of the land ^ ^ is defined by our cases as
a law which embraces all persons who are or may
come into like situation and circumstances. Vama7it
V. Wadddl, 2 Yer., 270, 271.
Says Mr. Cooley, in his work on Const. Lim., p.
390, viz.: *'Laws public in their character, and other-
wise unobjectionable, may extend to all citizens or
be confined to particular classes."
As stated in Straiton Claimants v. Morris dairn-
ants, 89 Tenn., 522, '* Citizens may be classified,
under Art. I., Sec. 8, of the Constitution, when the
object of the Legislature is to subject them to the
burden of certain disabilities, duties, .or obligations
not imposed upon the community at large." The
only limitation is that the statutory classification must
be natural, and not arbitrary. Demovllle v. David-
son County, 87 Tenn., 218-222; Henley v. State, 98
Tenn., 698; Railroad v. Harri.'^, 99 Tenn., 704.
The statutes of this State, as already seen, pro-
hibit all persons from carrying on their usual and
ordinary vocations on Sunday.
Counsel for plaintiff in error cites, in support of
his contention, Eden v. People, decided by the Su-
preme Court of Illinois and reported in 32 L. R. A.,
659. In that case it appeared that the Legislature
of Illinois had passed an Act prohibiting barbering
on Sunday. There was no general law applicable
to other occupations. Under the law of that State
each and every citizen was left perfectly free to
labor and transact business on Sunday, or refrain
DECEMBER TERM, 1898. 107
Breyer v. State.
from labor and business, so long as he did not dis-
turb the peace and good order of society. The
Court said, viz.: "It is conceded in the argument
that if the Legislature had enacted a law prohibiting
all business on Sunday its validity would not be
questioned; that such a law would violate no con-
stitutional limitation. '' But because of the discrimi-
nation against the barber, the Act was adjudged class
legislation. The legislation in Tennessee on this sub-
ject is wholly different. Here all persons are pro-
hibited from carrying on business on Sunday.
It is insisted, however, that the barber is dis-
criminated against in this: that for a violation of
the Acts of 1891 he is punished by a fine of not
less than $25 nor more than $50, or imprisonment
in the county jail not less than fifteen nor more
than thirty days, or both, in the discretion of the
Court, while all other persons for a violation of
the Act of 1803 are punishable by fine not ex-
ceeding $3, to be recovered before a Justice of the
Peace. This precise question arose in the case of
People V. Bellet^ decided by the Supreme Court of
Michigan, and reported in 22 L. R. A., 697. In
that case it appeared that the Legislature of Michi-
gan passed an Act prohibiting barbering on Sunday.
The constitutionality of the Act was attacked upon
the ground that it was in the nature of class legis-
lation to prohibit this business under more severe
penalties than those provided for the conduct of
other legitimate business on Sunday. The Court
108 NASHVILLE :
Brever v. State.
cited, with approval, the following from Cooley on
Constitutional Limitations, to wit: ''If the laws be
otherwise unobjectionable, all that can be required
is that they be general in their application to the
class to which they apply, and they are then public
in character, and of their propriety and policy the
Legislature must judge." In that case the Court
remarked: "It may have been the judgment of the
Legislature that those engaged in the particular call-
ing were more likely to offend against the law of
the State providing for Sunday closing than those
engaged in other callings. If so, it becomes a
question of policy whether a more severe penalty
should not be provided for engaging in that particu-
lar business on Sunday than that inflicted upon
others. ' '
It is a notorious fact that, prior to the passage
of the Act of 1891, barber shops all over the State
were kept open on Sunday, and the former statute
was wholly ignored and disregarded. Yet it is part
of the history of this legislation that it was enacted
at the urgent solicitation of the barbers themselves,
acting: individuallv and collectively through their or-
ffanized associations. A dav of rest was needed for
this most industrious and overworked trade, and it
was admitted that without the imposition of heavier
penalties it could not be secured, for none were
willing to close their shops on Sunday unless all
were made to do so. The former law was found
wholly ineffective. We cannot know or state judi-
DECEMBER TERM, 1898. 109
Breyer v. State.
cially what reasons controlled the Legislature in the
passage of the Act, but considerations like these
would constitute sound and valid reasons for this
classification, and such classification would neither be
arbitrary nor unreasonable.
Every sovereign State possesses within itself abso-
lute and unlimited legislative power, except so far
as it is prohibited by the fundamental law. Davis
v. State^ 3 Lea, 377; Luehrman v. Taxing District^ 2
Lea, 438; Knoxville cfe Ohio li. H. v. Ilicka^ 9 Bax.,
442; Memphis v. Memphis WaterworTcs^ 5 Heis., 495;
Hope V. Deaderick^ 8 Hum., 9; Bell v. Bank^ Peck,
269; Henley v. State, 98 Tenn., 665. The fact
that the Legislature did not include other occupa-
tions in this particular statute, and the reasons for
not doing so, are things which cannot be inquired
into by the Courts. Cooley's Const. Lim. (5th Ed.),
222, 225. Of the policy or expediency of the law,
the Legislature is the sole arbiter, and the law is
valid, although a certain class (barbers) have been
selected upon whom it shall operate. Cooley's Const.
Lim. (6th Ed.), 163, 154. The business of a barber,
while it may disturb nobody, is not a work of ne-
cessity or charity. Phillips v. Innes^ 4 Clark & F.,
234; Com. v. Wallace, 140 Pa., 89 (11 L. R. A.,
563); State v. Frederick, 45 Ark., 347.
In the case of People v. Ilavnor, 149 N. Y.,
195 (S. C, 31 L. R. A., 689), it was held that
a statute prohibiting barbers from carrying on their
trade on Sunday is a constitutional exercise of the
110 NASHVILLE :
Breyer v. State.
police power to promote the public health. Judefind
V. State of Maryland^ 22 L. R. A., 721. In a
note to this case many * authorities are collected, and
the learned editor sums up the subject, viz.: '* These
cases are only a small portion in which Sunday laws
have been enforced."
It is very evident, therefore, that the judicial
sanction of Sunday laws, though they have been
attacked on many points, has been very nearly
unanimous. That such laws are not repugnant to
fundamental constitutional principles is now so uni>
versally established in every jurisdiction in which
such laws have been attacked, that it would seem
to be settled as fully as judicial decisions can settle
anything. Linck v. Nashville^ 12 Lea, 499; Gunter v.
State, 1 Lea, 129 ; Parker v. State, 16 Lea, 476 ;
State V. Pmcell, 41 L. R. A., 854; Ilennington v.
State of Georgia, 163 U. S., 299-319.
Affirmed.
DECEMBER TERM, 1898.
Ill
Ryan v. Terminal Co.
Ryan v. Terminal Co.
{Nashville. March 15, 1899.)
1. Railboad Tbbminal Company. Right of eminent domain.
A railroad terminal corporation, chartered and organized '^to
facilitate the public convenience and the safety of the trans-
mission of railroad passengers and freight, and to prevent un-
necessary expense, inconvenience, and loss to the public," and
authorized, for this purpose, to acquire all necessary real es-
tate, and to lay all necessary tracks and erect all necessary
buildings, is charged with a public use, and may be author-
ized by statute to condemn such private property as is abso-
lutely necessary to enable it to accomplish the purposes of its
organization. (Post, pp, llii-i26.)
Act construed: Acts 1893, Ch. 11.
Cases cited and approved: Railroad v. Cowardin. 11 Hum., 348;
Railroad v. Tel. Co,, 101 Tenn., 62; 153 U. S., 391; 49 Mo., 165;
47 N. Y., 150; 53 Cal., 223; 4 Ohio St., 308; 43 N. J. L., 381; 136
Mass., 75; 53 Ala., 311.
Cited and distinguished: Harding u Goodlett, 3 Yer., 40; Clack v.
White, 2 Swan, 540; Memphis Freight Co. v. Memphis, 4 Cold.,
419.
2. Eminent Domain. Right of exercise, hrtw determined.
The declaration of the Legislature that a use is public is per-
suasive, but not conclusive, with the Courts. The legislative
declaration in favor of the exercise of eminent domain in aid
of a use that is public, is conclusive. (Post, pp. 116, 117.)
Cases cited and approved: Anderson v. Turbeville, 6 Cold., 161;
21 W. Va., 534.
, 102 in'
"16 407,
na 479
1/116 481
no 483
3. PuBuc Use. WfuUis.
The term ** public use " is a flexible ooe, and not easily susceptible
of exact definition. It varies and expands with the growing
needs of a more complex social order. In general, a public use
112 NASHVILLE :
Ryan V. Terminal Co.
may be predicated of anything which will satisfy a reasonable
public demand for public facilities for travel or transmission
of intelligence or commodities, and of which the general pub-
lic, under reasonable regulations, will have a definite and fixed
use, independent of the will of the party in whom title is vested.
Hut the mere fact that an enterprise will result in some con-
venience to the public — conferring incidental benefits upon
the public by affording additional facilities for trade or manu-
facture— will not make the character of the use public. (Post,
pp. 118-t22.)
4. Sam IS. Same. Example.
That tlie charter of a railroad terminal company fixes no rates
to be charged for the use of its property does not stamp it as
a private enterprise. *' The corporation and its property being
affected by a public use will be under governmental control,
and the Legislature may at any time fix rates and make more
specific the duties clearly implied from the Act of incorpora-
tion." (Post, pp. 124, 125.)
Cases cited and approved: 94 (J. S., 113; 143 U. S., 517; 153 U. S.,
391.
5. Same. Sams.
An enterprise is not degraded from its public character by th.e
fact that the parties instituting it had private profit primarily
in view. (Post, p. 125.)
6. Constitutional Law. Railroad terminal Act.
A statute authorizing the chartering of railroad terminal cor-
porations, stamping them with a public use, and giving them
power of eminent domain, if enacted under a sufficient title
for these purposes, is not rendered unconstitutional by reason
of an incidental provision that such companies might maintain
hotels, restaurants, and news stands in their passenger sta-
tions for the public convenience. (Post, pp. 125, 126.)
Act construed: Acts 1893, Ch. 11.
7. Same. Same. Title and subject of Act.
A statute which, under the title *^An Act to amend an Act, enti-
tled an Act to provide for the organization of railroad terminal
corporations, and to define the powers, duties, and liabilities
thereof," enacts, inter alia, that railroad companies contract-
ing for use of the facilities of terminal companies, shall have
power to own stock and bonds of such terminal companies,
DECEMBER TERM, 1898. 113
Ryan v. Terminal Co.
and to guarantee their bonds and other contracts, is not un-
constitutional as grouping foreign or incongruous matters
um.er its title. (Post, PP- 126-130.)
Constitution construed: Art. II., Sec. 17.
Act conbtrued: Acts 1893, Ch. 11.
Cases cited: Cannon v, Mathes, 8 Hels., 504; Luehrman v. Tax.
Dist,, 2 Lea, 4*26; Merrill v. Fickle, 3 Lea, 79; Frazier v. Rail-
road, 88 Tenn., 156; Ex parte Griffin, 88 Tenn., 550; Cole Mfg.
Co. V. Falls, 90 Tenn., 469; State v. Yardley, 95 Tenn., 554; Ra-
gio V. State, 86 Tenn., 272; Bank v, Devine Grocery Co., 9M
Tenn., 603.
FROM DAVIDSON.
Appeal in elror from Circuit Court of Davidson
Countv. J. W. Bonner, J.
Jas. Ryan for Rvan.
Dickinson & Waller and Moore & McNally
for Terminal Co.
Beard, J. This is a proceeding instituted by the
Louisville & Nashville Terminal Company, a corpo-
ration chartered and organized under Ch. 11 of the
Acts of the General Assembly of 1893, seeking an
order of condemnation, under the laws of eminent
domain, of certain real estate, the property of plain-
tiff in error, in the city of Nashville.
The avowed purpose of this Act was to author-
ize the creation of railroad terminal corporations "to
facilitate the public convenience and the safety of
18p^8
114 NASHVILLE :
Ryan v. Terminal Co.
the transmission of railroad passengers and freight,
and to prevent unnecessary expense, inconvenience,
and loss to the public." To this end it is pro-
vided that a corporation organized under the Act had
the '* power to acquire, . . . at such pla e or
places as shall be found expedient, such real estate
as may be necessary on which to construct, operate,
and maintain passenger stations, comprising passenger
depots, office buildings, sheds, and storage yards;
and freight stations, comprising freight depots, ware-
houses, offices and freight yards, roundhouses, and
machine shops; also main and side tracks, switches,
crossovers, turnouts, and other terminal railroad fa-
cilities . . . suitable in size, location, and
manner of construction to perform promptly and effi-
ciently the w^ork of receiving, delivering, and trans-
ferring all passenger and freight traffic of railroad
companies with which it may enter into contracts
for the use of its terminal facilities." The Act con-
ferred upon the corporation, when real estate re-
quired by it could not be obtained by purchase, the
power to acquire it ''by condemnation, in pursu-
ance of the general law authorizing the condemnation
of private property for works of internal improve-
ment."
After obtaining its charter, as the record dis-
closes, the present company entered into an impor-
tant contract with the municipal authorities of Nash-
ville, by which there was conceded to it the right
to oj)erate and extend existing railroad tracks, and
DECEMBER TERM, 1898. 115
Ryan v. Terminal Co.
to construct such additional tracks as it might see
fit, and to construct and maintain a passenger sta-
tion or stations or depots for the handling of freight,
and approaches to such passenger and freight stations
and depots over, under, along, and across
the streets, alleys, and roads of the city of Nash-
ville, within prescribed limits, upon conditions which
need not be mentioned, except that the contract was
not to be operative unless the obligations assumed
by the terminal company were first guaranteed by
the Louisville & Nashville Railroad Company and the
Nashville, Chattanooga & St. Louis Company, which
guarantees, the record shows, have been made.
Acting under the authority of its charter and this
contract, the corporation began operations, and, in
carrying out its enterprise, found, by the averments
of the petition, which, not being denied, are taken
to be true, that the property of the plaintiff in
error was absolutely necessary in order to enable it
to accomplish the purpose of its organization, and
that it was situate within the limits defined by its
contract with the city. Failing in its effort to pur-
chase this property from plaintiff in error, it asked
the aid of the Court in condemning the same in
manner and form as the statutes prescribed.
Over the objections of plaintiff in error, made
by exceptions to the reports of the jury of view,
the cause progressed to a judgment of condemna-
tion, from which an appeal, in the nature of. a writ
of error, has been taken to this Court.
116 NASHVILLE:
Ryan v. Terminal Co.
While the questions made in this Court could not,
as a matter of proper practice, be raised on excep-
tions to the report of the jury of view, yet we
think they arise upon the face of the petition, so
that, upon this appeal, they may be considered and
determined by us.
No error is assigned on the ground of irregu-
larity of these proceedings. The objections lie deeper
than this; they challenge on constitutional grounds
the corporate existence of defendant in error, and,
if it have a legal existence, then its right to exer-
cise the right to condemn private property under
the doctrine of eminent domain.
While there are several assignments of error to
the action of the Court below we think they are
reducible to these two. We will deal with these
objections in the inverse order of their statement.
1. Is the use contemplated by Chapter 11 of the
Acts of 1893 a public use? If so, then the de
fendant in error, so far as this question is con-
cerned, is entitled on this record to the judgments
of condemnation pronounced in the Circuit Court.
That the Legislature regarded the use as a public
use, and, by necessary implication, so declared it,
is evident; this, however, is not conclusive. The
necessity for and the expediency of the exercise of
the right of eminent domain are questions political
in their nature, and when it has been once deter-
mined by the legislative branch of the government
that they exist, this determination is conclusive. Cooley
DECEMBER TERM, 1898. 117
Ryan v. Terminal Co.
on Cpn. Lim., 538; Anderson v. Turbevilley 6 Cold.,
161. And while the Legislature must, in the first
instance, pass on the use and fix its character, and
while its recognition of the use as a public neces-
sity is entitled everywhere to the benefit of strong
presumptions ( ^Yest Peiin. Inst. v. Edgetuood R. R. ,
p. 79, pr. 257; Vaimer v. Martin, 21 W. Va., 534),
yet the duty is devolved on the Courts, in the last
resort, of determining whether the particular use is
a public use within the legal meaning of the term.
Mills on Em. Dom., Sec. 10; Lewis on Em. Dom.,
Sec. 158; 3 Ell. on Railroads., Sec. 952.
The Constitution does not define a public use; it
simply provides that no man^s property shall be
'* taken or applied to public use . . . without
just compensation being made therefor," clearly im-
plying that it shall i\ot be taken for a private use
under any conditions. So far as we have discov-
ered, other State Constitutions in this regard are
similar to ours. The Courts have equally avoided a
definition lest it prove an embarrassment in subse-
quent cases and work mischief in practical applica-
tion. Lewis on Em. Dom., Sec. 159. They have
not sought to fix a positive standard for the meas-
nrement of a public use, and, in the nature of the
subject, possibly could not do so. Paxton v. Farm-
ers' Ins. Co., 29 L. R. A., 853.
However, even with this lack the subject **is
not at large." It has been so long and in such a va-
riety of cases a matter of judicial in(juiry there is
118 NASHVILLE:
Ryan v. Terminal Co.
now little difficulty in assigning a particular case to
its proper place and confining the right of eminent
domain withiYi natural boundaries.
/The term ** public use" is a flexible one. It
varies and expands with the growing needs of a
more complex social order. Many improvements uni-
versally recognized as impressed with a public use
were nonexistent a few years ago. The possibility
of railroads was not dreamed of in a past not very
remote, yet when they came the Courts, recognizing
the important part they were to perform in supply-
ing a public want, did not hesitate to take control
of them as quasi-governmental agents and extend to
them the right of eminent domain in order to equip
them thoroughly to discharge the duties to the com-
munity which followed their grant of franchises.
This is equally true as to othev appliances which now
form important parts of a rapidly widening system
of social and commercial intercommunication. So it
may be said at the present time that *' anything
which will satisfy a reasonable public demand for
public facilities for travel or for transmission of in-
telligence or commodities" --^J^i-re — Sio*rm4 — (Minn.j,
^^ I^ — R. A.), and of which the general public,
under reasonable regulations, will have a definite and
fixed use, independent of the will of the party in
whom title is vested, would ])e a public use./ Mills
on Em. Dom., Sec. 11.
A few cases taken from the many, serving to
illustrate this statement, will be referred to. Grain
DECEMBER TERM, 1898. 119
Ryan v. Terminal Co.
elevators, found so necessary in the handling and
shipment of grain, and in its transfer from the pro-
ducer to the consumer {Munn v. IllhwiH^ 94 U. S.,
— ; Bi'ass v. N. Z>., 153 U. S. , 391); passenger
and freight stations (Rand on Em. Dom., Sees. 170,
184; Mills on Em. Dom., Sec. 69); railroad repair
shops {Hannibal cfe St. J. R. JR. v. Meder^ 49 Mo.,
165; S. P. H. y. Raymond^ 63 Cal., 223); a spur
track to a grain elevator and to a stock elevator
(Clark v. Blachnore^ 47 N. Y., 150; Fisher v. C.
<& S. R. R.^ 104 111., — ); a depot [Geizey v. C.
W. dt Z. R. Co., 4 Ohio St., 308); the extension
of telegraph and telephone lines intended for the pub-
lic service (Turnpike v. Ainerican Ne^vs Co., 43 N.
J. L., 381; Pte^xe v. Dreio, 136 Mass., 75; K O.
i& a R. R. V. S. cfe A. Tel. Co., 53 Ala., 211;
Jttobile cfe 0. R. R. v. P. Tel., etc., Co., 17
Pick., 62, S. C, 46 S. W. R., 571), have been
held the subjects of public use.
Uj)on the authority of these cases, and many
others of a similar character which might be referred
to, we have no doubt the trial Judge was right in
holding the enterprise in question was impressed with
a public use, unless it be, as is insisted by plain-
tiff in error, our own cases have laid down a dif-
ferent rule, which, under the doctrine of stare de-
cisis^ we should adhere to.
We will now examine the cases relied on to sus
tain this assignment of error. The first of these is
that of Harding v. Goodlett, 3 Yer., 40, in which it
120 NASHVILLE :
Ryan v. Terminal Co.
was sousfht to condemn land for the erection of a
grist mill, a sawmill, and a paper mill. In dispos-
ing of the case, this Court said that, under the
cover of a statute which made a grist mill a pub-
lic mill, the property of a private citizen could not
be taken, against his will, for a joint undertaking,
when two of its parts, to wit, the sawmill and
paper mill, were purely individual enterprises, with
which the public had no concern. This was the ex-
tent of the holding in that case.
In Clack v. White^ 2 Swan, 640, the Court simpl}'
held Ch. 60- of the Acts of 1811, which conferred
upon the County Court the power to grant a pri-
vate road, where the lands of one person were sur-
rounded by the lands of another, was unconstitu-
tional and void, in that it sought to take the prop-
erty of one citizen and apply it to the private
advantage of another citizen.
It is clear to us that these cases give no sup-
port to the contention of plaintiff in error, but only
announce the uniformly accepted principle that in the
face of this constitutional provision one man^s prop-
erty cannot be taken under the forms of law and
given to another.
The case, however, most relied on as establish-
ing a rule peculiar to this State is that of the
Memphis Freight Co. v. Meiaphin^ 4 Cold., 419.
The Act incorporating the Memphis Freight Com-
pany is found in §;? 13, 14, and 16 of Chapter
79 of the Acts of 1865-66. By Section 16 it was
DECEMBER TERM, 1898. 121
Ryan v. Terminal Co.
provided "that said corporation is hereby given the
privilepjes of loading and unloading freights .
on or from stfjam boats and other water craft that
may touch at the port of Memphis, Tennessee, and,
for the purpose of carrying on said business, said
corporation is granted the right ... to erect
upon the summit of the east bank of the Missis-
sippi river, in the city of Memphis, and between
Poplar street and Beal street, such sheds, railroad
tracks, ... as may be necessary for the busi-
ness of handling freights. Said corporation shall also
have the right to lay down such railroad tracks,
from their sheds above referred to, to the margin of
the Mississippi River, upon which to operate their
cars."
We think a cursory reading of this section de-
fining the purpose of the corporation and fixing the
limits of its powers is sufiicient to characterize this
enterprise as exclusively private, lacking all color or
pretense of public utility. The Legislature evidently
so regarded it, for it conferred no power of con-
demnation in its charter. This power was claimed
by the company under § 1325 of the Code of 1858
(§1844, Shannon's Code), which provides that ''any
person or corporation authorized by law to construct
any railroad . . . may take real estate," etc.
The railway tracks which the company was era-
powered to construct were the mere incidents of its
business of handling and warehousing steamboat or
barge freight. They were only to serve the con-
122 NASHVILLE :
Ryan v. Terminal Co.
venience of the company. In them the public would
not have a shadow of interest, over them not a
pound of freight could be moved or one individual
pass, save with the consent of the corporation or at
its instance. The insistence, therefore, in that case
that the authority to lay down such tracks entitled
the corporation to the benefit of a statutory pro-
vision which was passed to encourage the develop-
ment of a great internal improvement system in this
State, including commercial railroads, was to make a
mockery of the legislative intent. Hence it is not
remarkable that this Court, finding the enterprise a
private one, of extremely limited extent, rejected
this claim as unwarranted either by public policy or
anv sound rule of statutorv construction.
But that case established no new or unique rule
in this State as is now argued. While this is true,
we entirely agree with the counsel for plaintiff in
error that the fact that an enterprise will result in
some convenience to the public — conferring incidental
benefits upon the public by affording additional facil-
ities for trade or manufacture — will not make the
character of the use public. To this extent the ar-
gument of the opinion supports their contention, but
no further. We agree the proposed improvement
must go beyond that. It must in some way en-
large the resources, increase the industrial energies,
promote the productive power of, or afford increased
facilities for, the rapid exchange of thought or trade,
or otherwise answer the growing needs of the com-
DECEMBER TERM, 1898. 123
Ryan v. Terminal Co.
munity as such, before the use becomes public, and
the agency controlling passes under governmental
control. This proposition is in no way antagonized
by that opinion.
■
After a careful examination of these authorities,
we fail to find in them any principle settled or rule
announced that constrains this Court to place itself
out of line with the well considered cases coming
from Courts of great eminence, some of which have
been referred to.
On the other hand, we think the case of the
jV. i& O. R. R. V. Cmcardin^ 11 Hum., 348, fur-
nished strong support to the judgment of the Court
below. By its charter there was conferred expressly
upon the Nashville & Chattanooga Railway power to
appropriate, by process of condemnation, the lands of
private owners for a roadbed or right of way. In
that case an effort was made to condemn land for
a depot, and the owner resisted upon the ground
that the right of eminent domain was, by its char-
ter, confined to roadway purposes, and that lands for
a depot could be secured in no other way than by
purchase. This was held to be unsound. In dis-
posing of the contention, this Court said, to effect-
uate the puriwse contemplated by its charter — that
is, '*the transportation or conveyance of persons,
goods, merchandise, and produce over ' ' the road,
there must be a place of receiving and delivering
the freight carried, or to be carried, over it, and
that land upon which to establish this place was as
124 NASHVILLE :
Ryan v. Terminal Co.
essential as the bed of the road, and, in fact, con-
stituted a part oi the road. It was therefore held
entitled to condemn land sufficient for a depot.
If it be true, then, that a depot erected by the
Nashville & Chattanooga Road was a public use, why
should a union depot, laid out and constructed for
the accommodation of all the roads now concentrated
at Nashville, where, for greater convenience, all travel
and freight will be gathered, and to be used by
these roads for no other purpose than this railroad
would use its own depot, be any the less a public
use? The rapid growth of population, the yearly
increase in volume and value of commercial inter-
ests, the pressing necessity for the speedy handling,
delivery, and transmission of freight to prevent ac-
cumulations and often ruinous delays, the vast econ-
omy of time and money to shippers and the trav-
eling community in the matter of transfers, are
among the considerations which have multiplied these
depots in cities where railroads centralize, and we
are satisfied no improvement in railway intercommu-
nication more nearly touches the public than this.
Fort Street Union Depot Co, v. Morton.^ 83 Mich.,
265.
But it is said this is a private enterprise, because
the Act on which the charter rests fixes no rates to
be charged by the corporation for the use of its
tracks, etc. This is immaterial. The corporation and
its property being affected by a public use will be
under governmental control, and the Legislature may
DECEMBER TERM, 1898. ' 125
Ryan v. Terminal Co.
at any time fix rates and make more specific the
duties clearly implied from the Act of incorporation.
Munn V. Illinois^ 94 U. S., 113; Budd v. New
Torh, 143 U. S., 617. Bra%% v. North Dakota, 153
i;. S., 391.
Again, it is argued that this is essentially a pri-
vate undertaking, because the Act shows that it is set
on foot for profit to the corporators. This also is
immaterial. The authorities concur in holding that
an enterprise organized to meet a public demand is
not reduced in its character because the parties in-
stituting it have primarily in view private profit.
Notwithstanding this it is still impressed with a pub-
lic use. Mills on Em. Dom., Sec. 13; Rand on
Em. Dom., Sec. 54; Lewis on Em. Dom., Sec. 75.
It follows that the assignments of error to the
action of the trial Judge in holding this to be a
public use must be overruled.
2. We will now consider the constitutional ob-
jections urged to this Act. #
It is insisted, in the first place, it is unconstitu-
tional because it provides that a terminal corpora-
tion may keep at its passenger station a hotel or
restaurant, or both, and also a news stand, thus
converting the use which might otherwise be a pub-
lic use into a private use. This objection is not
well taken. By its terms the corporation is organ-
ized for terminal purposes only. The power of ac-
quiring real estate by purchase or by condemnation
is confined to these purposes. Among these, neither
126 " NASHVILLE :
Ryan v. Terminal Co.
expressly nor by implication, is included that of keep-
ing a hotel, restaurant or news stand. It is only
where such a corporation has acquired property to
serve the objects of its creation that, in the con-
struction of its passenger station, if it deems best,
it may exercise the purely incidental right to pro-
vide these accommodations for the public. This nei-
ther renders the Act unconstitutional nor converts
the undertaking into a mere private enterprise.
It is next insisted the Act in question is obnoxious
to that part of Section 17 of Article 2 of the Con-
stitution, v^hich provides: **No bill shall become a
law which embraces more than one subject, that sub-
ject to be expressed in the title." This clause ap-
pears for the first time in the Constitution of 1870,
and in 1872 it underwent a critical examination in
Cannon v. Mathi'^^ 8 Heis., 504. In the opinion
in that case an extensive quotation is made from
Judge Cooley's work on Constitutional Limitations,
»and there was expressed entire concurrence with the
views of the author. This quotation is as follows:
**The general purpose of these provisions is accom-
plished when a law has but one general object, which
is fairly indicated by its title. To require every
end and means necessary or convenient for the ac-
complishment of this general object to be provided
for by a separate Act relating to that alone would
not only be unreasonable, but would actually ren-
der legislation impossible . . . The generality of
a title is no objection to it so long as it is not
DECEMBER TERM, 1898. 127
Ryan V. Terminal Co.
made a cover to legislation incongruous in itself,
and which, by no fair intendment, can be consid-
ered as having a necessary or proper connection."
This rule was applied in determining the validity of
the Act, the subject of attack in that case. That
was an Act to raise revenue for the State and was
entitled ''An Act to fix the State tax on property,"
but, by one of its provisions, increased largely the
tax on privileges. The constitutional attack was made
in regard to this last provision as being outside and
beyond the title. But on the authority of Judge
Cooley's text it was held that there was no incon-
gruity in this legislation, and it was announced ''that
the true rule of construction as fully established by
the authorities is, that any provision of the Act di-
rectly or indirectly relating to the subject expressed
in the title and having a natural connection there-
with, and not foreign thereto, should be held to
be embraced in it." This case has since been
frequently cited and approved by this Court. Luehr-
man v. Taxing District^ 2 Lea, 426; Merrill v.
Fickle^ 3 Lea, 79; Frazier v. Railroad^ 4 Pick.,
156; Ke parte Griffin^ 4 Pick., 550; Cole Manu-
facturing Co. V. Falln^ 6 Pick., 469; State v. Yard-
ley, 11 Pick., 554.
Measured by this rule, does the caption or title
of this Act cover incongruous legislation ? This cap-
tion is as follows: "An Act to amend an Act en-
titled an Act to provide for the organization of rail-
128 NASHVILLE :
Ryan v. Terminal Co.
road terminal corporations, and to define the powers,
duties, and liabilities thereof."
The provisions in the Act which it is urged vio-
late the clause of the Constitution in question are
found in the third section, and are those which em-
power railroad companies, which enter into contracts
with a terminal company, to guarantee the principal
and interest of bonds issued by such company, as
well as other contracts made by it in regard to its
corporate business, and also to subscribe for, hold,
and dispose of the capital stock or bonds which may
be issued by the terminal corporation.
The title gives clear notice to the Legislature and
the public that the object of the Act is to provide
for the organization of railroad terminal corporations,
which shall be clothed with pow'ers necessary to ef-
fectuate the purpose of their creation. There could
be no mistake, even at a glance, that a company
so organized was designed to, and, from the nature
of the case, must, be identified with the operation
of railroads having terminal points at the place
where such corporation is instituted. Without this
a terminal company would have no excuse for exist-
ence, and, if organized, would serve only as a mon-
ument to the folly of its corporators. As might
be anticipated, from the reading of the title, the
body of the Act manifests the intimate relation which
was contemplated between these terminal companies
and such railroads.
The plan thus devised for the increased accom-
DECEMBER TERM, 1898. 129
Ryan v. Terminal Co.
I
modation of the public could not, as might well be
assumed, be accomplished without the raising and
expenditure of large sums of money. The Legisla-
ture recognized this and therefore authorized the com-
pany which organized under the Act to borrow money
as its necessities required, and to that end to issue
its bonds secured by mortgage on its property. But
realizing, even when so secured, these bonds might
not find ready sale, and desiring, in view of the
possible magnitude and the certain importance of the
enterprise, to give the highest credit to these cor-
porate securities in the money markets of the world,
the Act empowered the railroads- interested in it to
add the weight of their guaranty to them, and also
to give aid by subscribing to and holding shares of
its capital stock and bonds.
What was more natural than such a corporation,
created to give increased facilities to these railroads,
should look to them for aid in such an undertaking
and that these roads should be willing to furnish
this aid. It was in view of this condition of mu-
tual interest and interdependence these provisions were
embodied in the Act.
In support of their contention the learned counsel
for plaintiff in error have pressed upon us a num-
ber of cases, including Bagio v. State^ 2 Pick., 272,
and Bank v. Divine Grocery Co,^ 13 Pick., 603.
All of these cases have been carefully examined and
we are unable to find in them anything to shake
our confidence in the conclusion we have reached.
18 p— 9
130 NASHVILLE :
Ryan v. Terminal Co.
Each one has features peculiar to itself that were
controlling in its determination. No one of them,
adopting the language used in Fi^azier v. Raihoay
Co,^ ' * contain any rule or principle for the con-
struction * of the constitutional clause in question in
any way antagonistic to the well settled doctrine
heretofore frequently announced by this Court."
In addition to what was said in the Frazier case
may well be repeated here, ^'The subjects of legis-
lation are infinite. The determination as to whether
the several provisions of an Act are congruous and
germane becomes largely a question of fact. Par-
ticular decisions cannot often be controlling in de-
termination of subsequent cases arising out of this
constitutional provision." As each case is presented
the Courts are bound to examine the Act in ques-
tion as a whole, and applying to it the sound rule
of construction announced in Cannon v. Mathes^
supra^ and their «'own knowledge of affairs" {Fra-
zier V. Railway Co.^ sxipra) determine whether its
provisions are congruous or not.
After a careful review of the case at bar, we
are satisfied with the conclusion reached in the Court
below. The judgment is therefore affirmed.
DECEMBER TEEM, 1898. 131
McEinney i;. Nashville.
McKiNNEY V. Nashville.
(NasKviUe. March 16, 1899.)
1. Measure of Damaoes. For property taken for pvblic use.
In estimating the value of property taken for a public use, the
fair market value is the one to be ascertained. In ascertain-
ing this value, all the capabilities of the property and all the
legitimate uses of which it is susceptible should be taken into
consideration. The particular use for which the property is
most valuable or to which it is at the time adapted and ap-
plied, though proper matters for consideration, is not controll-
ing as to this value. (Post, pp. 132-138.)
Cases cited and approved: Woodfolk v. Railroad, 2 Swan, 437;
AUoway v. Nashville, 88 Tenn., 510; 58 Mo., 491.
2. Same. Same,
If, in a proceeding to condemn property for public use, it is
shown that its rental value has been inflated by an unlawful
use of the property — e, (/., for gaming purposes — the jury
should be instructed to discard rental value, to the extent of
the inflation, as evidence of value of the property. (Post, pp.
13^140.)
FROM DAVIDSON.
Appeal in error from the Circuit Court of Davidson
County. J. W. Bonner, J.
E. H. East, for McKinney.
Price & McConnico, for city.
Bbard, J. This is a condemnation proceeding in-
stitnted by the municipal authorities of Nashville.
102 131
fll7 2321
132 NASHVILLE :
Mc Kinney v. Nashville.
The right to condemn the property in question is
conceded by its owner, the plaintiff in error; the
controversy is as to the rule for ascertaining value
submitted by the trial Judge. In his charge to the
jury he said: ''In considering the uses for which
the property was adapted, you must consider all le
gitimate purposes for which it may be used and
must not confine yourselves to any one special or
particular use as going to indicate its value." And
again: "You will consider its location and publicity,
its situation with reference to the Public Square and
Deaderick street, and its vicinity to other property
used for business or other purposes. You will also
consider the adaptability of the property to any and
all legitimate purposes to which it might be applied
and its rental value for any and all such legitimate
purposes, as well as other elements of value devel-
oped by the proof" in fixing the compensation to
which the owner of the property was entitled upon
its appropriation to a public use.
The record disclosed that this property was more
valuable, by reason of location, for saloon purposes
than any other, and that at the time of the insti-
tution of the present proceedings it was under lease
for a term of five years for a good annual rental,
and was then used to carry on a saloon business.
In view of this condition, the contention of plaintiff
in error is best stated in the words of his counsel,
taken from his brief and argument, which are as
follows: ''If a saloon keeper, because of the location
DECEMBER TERM, 1898. 133
McKinney u. Nashville.
of property, its adaptability to his intended uses,
will give more for it than another whose occupation
is different can afford or will give, looking to his
intended use for it, why should the owner not re-
ceive the highest value which anyone would give for
the property ? I do not mean this highest value for
one use should be considered in connection with its
value for other uses in order to diminish its value,
but that it constitutes its value — is its value in the
market/' And again: "Instead of saying to the
jury you must consider all legitimate purposes for
which it might be used, he should either have said
to the jury the owner has a right to its value for
the use for which it would bring the most in the
market, or that they should value the property on
the basis of its most valuable use."
These paragraphs, taken from the instructions of
the trial Judge and the argument of the counsel
criticizing them, present sharply the issue on this
point which is presented for our determination. On
this issue we do not hesitate to approve the charge
of the trial Judge.
Lewis, in his work on Eminent Domain, Sec. 478,
says: '*ln estimating the value of property taken
for public use, it is the market value of the prop-
ertv which is to be considered. The market value
of property is the price which it will bring when
it is offered for sale by one who desires but is
not obliged to t^ell it and is bought by one who is
under no necessity of having it. In estimating its
134 NASHVILLE :
McKinney v. Nashville.
value all the capabilities of the property and all
the uses to which it may be applied or for which
it is adapted are to be considered, and not Tn©pely
the condition it is in at the time and the use to
which it is applied by the owner." To this text
many cases are cited by the author. One of these
cases is Mississippi Bindge Co. v. Ring^ 58 Mo.,
491, in which the Court sav: *'The correct rule to
be applied relates to the value of the land to be
appropriated, which is to be assessed with reference
to what it is worth for sale in view of the uses
to which it may be put, and not simply in refer-
ence to its productiveness to the owner in the con-
dition in which he has seen fit to have it."
Nor do we find the authorities relied upon by
plaintiff in error to support his contention out of
line with the rule thus announced, with one possible
exception. We will now examine these authorities.
In Chicago^ etc.^ R. R. Co, v. Jacobs, 110 111.,
414, the trial Court had said to the jury, as is in-
sisted should have been done in this case, 'Hhat the
owner of property to be condemned is entitled to
its actual value for its highest or best use to which
the property could be put, and in case" it *«has
an actual value for a specified use, and that such
property is devoted and adapted to such use, then
the owner is entitled to such value." On appeal
this was held to be error, and the Supreme Court
said: ''The jury should have been instructed in such
a way that they would look to the market value
DECEMBER TERM, 1898. 135
McKinney v. 19 ash vi He.
of the property. But the instruction opens up a
wider field of investigation. It was a fair invitation
to the jury to enter into another field of inquiry
as to the value of the lots — to ignore the market
value and determine the actual value for a specified
use." The case was, therefore, reversed for this
error of the trial Judge.
We think this statement of that case shows it to
be in the face of the insistence of plaintiff in error
and places it in line with the text of Mr. Lewis.
The case of Gai'dner v. Inhabitants of Brookline^
127 Mass., 358, so far as we can see, does not
shed any light on this question; but the case of
Johnson v. F. i& M. Ry. Co.^ Ill 111., 414r, seems
to furnish authority for the contention of plaintiff
in error. In that • case, upon the trial below, the
Court had excluded evidence offered by the owner
of the property which it was sought to have con-
demned, that it had a special value for railroad
pur))ose8 — and it was for these purposes condemna
tion was sought — beyond its general market value.
The Supreme Court held this ruling to be error,
and say: -^If property has a special value, from
whatever cause, that value belongs to the owner,
and he is entitled to be paid for it by the party
seeking compensation."
The opinion in this case was delivered at the
November term, 1884, by the Court composed of
the same Judges which announced the opinion in
the case of Chicago^ etc,^ R. R, v. Jacobs, sujyra,
136 NASHVILLE :
McKiDnev v. Nashville.
at the immediately preceding spring term. It is
hardly to be supposed this latter case was overlooked,
and yet it is not mentioned in that opinion. Nor
do we believe it was intended to overrule it sul>
silent 10^ and establish a new general rule. On the
contrary, we are satisfied, from the description of
the property found in the opinion, that it was a>
strip of groimd valuable largely, if not exclusively,
for railroad purposes, and therefore without any gen-
eral market value, and that the Court simply in-
tended to protect this exceptional property to the
owner by applying a measure of compensation which
gave to the owner the full equivalent of this excep-
tional use. If this be the interpretation, then it is
in harmony with a number of other cases, and it
does not conflict with the general rule as to market
value.
Plaintiff in error relies also upon the statement
of Mr. Randolph, in his law of Eminent Domain,
that '*the property must be valued at its most
profitable use." Sec. 249. To this text the author
cites alone the case of Goodln v. Cm,^ etc., cfe W.
Canal Co,^ 18 Ohio St., 169. The opinion in that
case does not support the author's text, at least as
it is interpreted by the plaintiff in error. The
Court say there: *'The true value of anything is
what it is worth when applied to its natural and
legitimate uses — its best and most valuable uses.
The estimate should have been of its value gener-
ally for any and all uses, and not for any partic-
DECEMBER TERM, 1898. 137
McKinney v. Nashville.
ular, and especially not for any inferior or inappro-
priate use." Thus stated, we see no divergence
from the rule as stated by Mr. Lewis.
Plaintiff in error also relies on a statement taken
from the text of Mills on Eminent Domain, p. 168,
to the effect that '*the owner has a right to its
[property's] value for the use for which it would
bring the most in the market." While this is em-
bodied in the text, yet it is taken literally from
the opinion in Kuig v. 2fu}7ieaj>olis Co,^ 32 Minn.,
224, the case which the author cites in support.
In that case the property sought for condemna-
tion had upon it a manufacturing establishment
which was in operation, and the error alleged was
that the trial Court had improperly let in evidence
of that fact. The Court held that this was not
error, and say that the owner Vis entitled to the
value of his property for any use to which it may
be applied and for which it would ordinarily sell in
the market. It is, we think, equally true that any
evidence is competent and any fact is proper to be
cons>idered which legitimately bears upon the ques-
tion of the marketable value of the property. In
this case evidence was introduced tending to prove
that the fact of a business having been established
and carried on on the premises for so long a time,
materially increased the market value of the prop-
erty." It is in this connection the sentence already
quoted occurred, and the Court further along, as
well as in the paragraph just given, show clearly
138 NASHVILLE :
Mc Kinney v. Nashville.
that their only meaning in the use of this sentence
is that evidence of this special valuable use is com-
petent to go to the jury, in order to enable them
to estimate the fair market value of the property.
This case is clearly in line with the rule as hereto-
fore taken from Lewis on Eminent Domain.
We have devoted this much time to the exam-
ination of the authorities relied on by the counsel
for the plaintiff in error, out of deference for the
ability and earnestness with which they have been
pressed upon us, notwithstanding the fact that the
rule has been established in this State against the
contention of plaintiff in error, at least since the
case of Woodfolk v. iV; cfe C. B. B., 2 Swan, 437,
and was reannounced in AUmi^ay v. Nashville^ 88
Tenn., 510, in which latter case, in adopting the
language of the trial Judge in his instruction to the
jury, it was said by the Court that, in cases like
the present, ''the cash market value of the land"
is the measure of compensation.
In addition to the constraining authority of stare
decisis^ the rule commends itself as an eminently
just one; and, as the trial Judge gave the plain-
tiff in error the full benefit of it in the admission
of testimony and in his charge to the jury, the as-
assignment of error on this point is overruled.
In the progress of the trial of the case, evidence
was permitted to go to the jury that tended to
show that gambling was frequently, if not habitu-
ally, carried on in one or m9re of the rooms of
DECEMBER TERM, 1898. 139
McKinney v. Nashville.
the property, and that this fact inflated the rental
value of the property. In regard to this, the trial
Judge said to the jury if they found that gaming
was carried on there, and that it did inflate the
rental value, then, to the extent of such inflation,
the rent received cannot be considered as indicating
either the rental or the market value. We think
there is no error in this. Gambling is an offense
against the law, and the use of any portion of this
property for gambling purposes was in violation of
the law. And if it was true that such illegitimate
use did inflate the rental value of this property, then
the jury were properly told that a rent inflated by
this use, to the extent of the inflation, could not
be taken into consideration as constituting a part of
the rental value. It is true that it might be a
matter of difficulty to determine where the rental
value from a legitimate use ended and that from
the illegitimate use began, yet that is the misfor-
tune of the owner, for which the city is not re-
sponsible.
In this case, however, we think that there is
sufficient evidence to guide the jury, at least ap-
proximately, in determining the value of this infla-
tion. It is true it is found largely in the opinion
of witnesses, which is necessarily somewhat specula-
tive, but not more so than is ordinarily found as
to questions of value.
We are satisfied, in examining this record, that,
taking into consideration all the elements that make
140 NASHVILLE :
McKinDey u. Nashville.
up market value — the eligibility of the location of
the lot, its front and depth, its rental income, and
especially the old and dilapidated condition of the
house on the lot — that the jury fixed a valuation of
this property which affords just compensation to the
plaintiff in error.
The judgment is aflirmed.
DECEMBER TERM, 1898. 141
Fitts V. State.
FiTTS V. State.
{^\(s/tville. March 16, 1899.)
1. Criminal Practice. Effect of void t^erdict
A verdict fixing a puDishment in excess of the maximum pre-
scribed \}j statute, and for that reason set aside as a nullity,
cannot be successfully interposed to prevent another trial and
further prosecution of the case. (Po8U PP- t42, 143.)
Cases cited and approved: Ragsdale v. State, 10 Lea, 671; Mur-
phy V. State, 7 Cold., 516.
2. Evidence. Of defendant's statements after homicide admissible^
wTien,
Declarations by defendant twenty or thirty minutes after the
homicide, warning* the witness not to go to his store, at which
was located a telephone, affording the only method of commu-
nicating with the county seat, informing him that he must be
careful what he testified to, and deriding the wife and daughter
of deceased, who came along crying and moaning, are admis-
sible against him, as tending to show an effort to suppress
evidence, intimidate a witness, and to cut off communication
with the county seat, and also for the purpose of showing
malice. {Post, pp. 146, 147.)
FROM SUMNER.
Appeal in error from Criminal Court of Sumner
County. A. H. Munford, J.
142 NASHVILLE :
Fitts V. State.
J. J. Turner for Fitts.
Attorney-general Pickle and W. C. Dismukes for
State.
McAlister, J. The plaintiff in error, Sam Fitts,
was convicted by a jury in the Circuit Court of
Sumner County of the murder of one John Perry,
and sentenced to the State prison for a term of
fifteen years. The prisoner has appealed in error.
It appears from the record that on a former
trial the prisoner was convicted of murder in the
second degree, and his term of imprisonment fixed
at twenty-one years in the penitentiary. The maxi-
mum punishment for murder in the second degree
being fixed by statute at twenty years imprisonment,
the verdict of the jury fixing the punishment at
twenty-one years was a nullity, and a new trial
was therefore granted.
It is conceded that the jury was led into the
error by an inadvertence on the part of the trial
Judge in defining the punishment for murder in the
second degree. Counsel for the prisoner then inter-
posed a plea of autre foi% convict^ relying upon, the
former prosecution and verdict in bar of a second
trial. On motion of the District Attorney this plea
was stricken from the files, to which action, of the
Court counsel for the prisoner excepted.
The former verdict was unwarranted, and, being
a nullity, no valid judgment could be pronounced
upon it. It was therefore no bar to a second pros-
DECEMBER TERM, 1898. 143
Fitts V. State.
eculion. Ragsdale v. State^ 10 Lea; Murphy v:
State, 7 Cold.
The killing occurred in the village of Westmore-
land, in Sumner County, on Christmas day, 1897.
The prisoner lived about a mile from the village.
He testified that on the morning of that day he
had been informed that his nephew, one Charles
Tyree, had been assaulted in Westmoreland by the
Perrys, and that he was advised to go there and
look after him; that he immediately repaired to the
village, where he found his nephew engaged in a
fight, and that when he endeavored to take his
nephew out of town, he was assaulted with a stick
by one Bob Aiken, a friend and relative of the
Perrys.
The prisoner states that he repelled this assault,
and took his nephew home. Prisoner further testi-
fied that during the afternoon of the same day,
while at home, he was notified that his brother.
Matt Fitts, was about to be killed in the village,
and that he had better go and look after him. On
reaching the village he claims to have found his
brother in a fight with the Perrvs, and that one
of the Perrys was after him with a brick. Defend-
ant claims that he started to take his brother h<»me,
and when near the depot he met Sam Perry, a son
of John Perry, the deceased, with a double-barreled
shotgun, who inquired of defendant what he was
doing there. Defendant replied that he was taking
his brother home. Thereupon Sam Perry passed
144 NASHVILLE :
Fitts V. State.
Into the sitting room of the depot, and, as he did
so, his father, John Perry, the deceased, walked
rapidly out of the door towards the defendant and
rolled up his sleeves. Defendant said: '* Don't come
any further, don't hit me!" But at that moment
deceased drew a knife, and still advanced towards
him. Defendant states that he backed across the
platform of the depot and against the train that had
just passed into the depot. The deceased, says the
defendant, still advanced towards him, and when
within three or four feet raised his hand to strike
him with his knife, and thereupon the prisoner says
he drew his pistol and shot deceased. This is the
substance of defendant's testimony, and, if it is to
be credited, it makes out a case of self-defense in
the fullest and most technical sense. But, unfortu-
nately for the defendant, he is not corroborated in
his account of the tragedy by a single witness. On
the contrary, nine witnesses introduced by the State
make out a case of the most unprovoked and un-
justifiable homicide.
According to these witnesses, about four o'clock
in the afternoon of Christmas day, Matt Fitts, a
brother of the prisoner, and the Aiken boys became
involved in a difficulty, but John Perry, the de-
ceased, had no connection with it whatever.
The prisoner, Sam Fitts, was first seen coming
down the railroad, and, meeting Bob Aiken, cursed
him, and asked him ''what he had to do with it."
Aiken replied, ''I have nothing to do with it,"
DECEMBER TERM, 1S98. 145
Fitts V. State.
whereupon Fitts snapped his pistol at him, and Aiken
ran. Defendant next accosted West Perry, address-
ing the same remark to him, and, receiving the same
response, pushed Perry out of the way, cursing him.
Defendant then started towards the depot, when he
met Sam Perrj'^ with a double - barreled shotgun.
Defendant asked, with an oath, <*What have you
got to do with it? ' ' and * ' What are you doing
with that gun?" Sam Perry replied, '*I have noth-
ing to do with it. Uncle Sam, and the gun is not
loaded," and showed defendant the gun was un-
loaded. Sam Perry turned and walked back to the
depot, and, going in, shut the door behind him.
About this time, John Perry, the deceased, came out
of the depot, and defendant immediately accosted
him with the query, '* What in the hell have you
got to do with it, you son of a bitch?" and, ad-
dressing bis brother, Matt, who had a stick in his
hand, said, <'Hit him, God damn him!" John
Perr^' remarked, ' ' 1 had nothing to do with it, and
don't you call me a son of a bitch," at same time
raising his hand. Defendant said, "You are a
damned liar," pulled his pistol, and, holding it in
his hands, shot John Perry in the breast, killing
him almost instantly. The witnesses for the State
testify that deceased had nothing in his hands at
the time he was shot, and made no attempt to strike
defendant. Five or six witnesses swear to this fact.
Another witness for the State testifies that when de-
fendant asked deceased what he had to do with it,
18 P— 10
146 NASHVILLE :
FittB V. State.
he replied, '*I had nothing to do with it; I am for
peace." These facts amply support a conviction
for murder in the second degree.
Error is assigned upon the action of the trial
Judge in not excluding the testimony of the wit-
ness, C. A. Whiteside. This witness testified that
about twenty or thirty minutes after the killing he
had started home with his wife; that defendant fol-
lowed them into the house of witness, and said, viz. :
'*I have had it in my mind to kill you for some
time, and if you take any interest in Perry I will
kill you." Defendant warned witness to stay in his
house, and not go to his store, where the telephone
was located, the only method of communicjiting with
Gallatin. *^ Defendant also said I must be mighty
particular what I testified, ' that he was a bad man,
and expected to be sent up six or seven years for
killing old man Perry, and when he got out he
would settle with me.' About this time the wife
and daughter of deceased came along crying and
moaning. Defendant saw and heard them, and said,
'Go on moaning, God damn you! I have killed
old John Perry, and 1 intend to kill Sam Perry,
too.'"
It is earnestly insisted by learned counsel that
these alleged statements, made by the prisoner twenty
or thirty minutes after the killing, are clearly in-
competent. We do not think so. They are plainly
admissible to show an effort on the part of prisoner
to suppress evidence and to intimidate a witness, as
• DECEMBER TERM, 1898. 147
Fitts V. State.
well as to cat off communication with Gallatin, the
county seat. They are also competent as illustrat-
ing the malice of defendant.
Several requests were submitted on behalf of the
prisoner, which were refused by the Circuit Judge.
We find no error in the action of the Court, and
the judgment is affirmed.
148 NASHVILLE :
Moore v. Moore.
Moore v, Moore.
{Nashville, March 16, 1899.)
1. Evidence. Of marr-lage.
No presumption of marriage arises from conduct otherwise af-
fording" plenary proof of marriage, when one of the parties
is shown to have heen ohligated at the time by a prior legal
and subsisting marriage. {Post, pp. 150-154.)
Cases cited: Allen i?. McCuUough, 2 Heis., 185; 48 Md.,. 391.
2. Husband and Wipe. Divorce for illegal second rruirrUige.
The provisions of Shannon's Code, J 4301. subsec. 2, that if either
party has knowingly entered into a second marriage in viola-
tion of a previous marriage still subsisting, *' this shall be a
sufficient cause for divorce from the bonds of matrimony," are
intended for the relief of one who has innocently entered into
an apparent second marriage rather than for the protection of
the other spouse of the existing marriage, since the latter is
adequately protected by subsec. 3, making adultery a ground
of divorce. {Post, pp. 154-156.)
Code construed: i 4201, subsecs. 2, 3 (S.); i 3306, subsecs. 2. 3 (M.
ife v.); i 2448, subsecs. 2, 3 (T. & S.)..
Cases cited and approved: 5 Ohio St., 32.
Cited and disapproved: 15 Pa., 597.
3. Same. Adulterer denied divorce.
A husband cannot obtain a divorce on the ground of adultery
where the record convicts him of a violation of his own mar-
riage vows. {Post, p. 156.)
Code construed: §4213 (S.); §3318 (M. & V.); §2460 (T. & S.).
FROM ROBERTSON.
Appeal from Circuit Court of Robertson Countj'.
A. H. MUNFORD, J.
DECEMBER TERM, 1898. 149
Moore v. Moore.
RuHM & Son, A. E. Garner, A. J. Caldwell,
and H. C. Carter for Complainant.
L. T. CoBBS and Furlong, White & O'Connell
for Defendant.
Beard, J. This bill was filed by the complain-
ant asking a decree of divorce from the defendant,
his wife, upon two grounds, first, that she had
Gonimitted adultery, and, second, that she had con-
tracted a second marriage with one Frank Edwards,
knowing at the time that her previous marriage with
complainant was valid and subsisting.
The wife answered this bill, and, with other aver-
ments, stated that she had been abandoned bv com-
plainant when in an enceinte condition, resulting from
her short association with him as his wife, and that
after this, and when sick, penniless, and in the midst
of strangers, her co-respondent, Edwards, befriended
her, and that for several years thereafter they had
lived together and she had borne him children; but
she denied that she had contracted marriage with
hira, averring that their relations had alwavs been
meretricious.
In a cross bill filed by her she charged com-
plainant with adultery, with abandonment, and a
failure to support, and asked a decree of divorce
from him as well as for alimony.
Upon the trial of the case, the Court below, de-
clining to pass on the question of adultery upon the
part of the defendant, granted to complainant a di-
150 NASHVILLE :
Moore v. Moore.
vorce upon the ground that the defendant had know-
ingly entered into a second marriage after her mar-
riage with complainant, and dismissed the cross bill
of defendant. From this decree Mrs. Moore has
appealed.
It is unnecessary for us to go into the details
of the evidence found in the large record. In the
view we have taken of the case it is sufficient to
summarize it.
The complainant, while attending, as a student,
a medical school in Nashville, became acquainted
with the defendant, and, according to the testimony
of Mrs. Moore, this acquaintance soon ripened into
an engagement to marry at an indefinite day in the
future. After a time complainant went to New York
for the purpose of finishing, in one of the schools
of that city, his professional studies. While there
the defendant, who, in the meantime, had removed
to Chicago, joined him, as she alleges, upon his
earnest invitation, but, as he states, without sugges-
tion from him and most unexpectedly, when, after
a hasty interview, they were married. This mar-
riage is characterized by complainant in his bill as
a piece of youthful folly on his part.
He admits, however, that though he parted com-
pany with the defendant immediately after the
marriage took place, yet he joined her in Chi-
cago a few months subsequently, and there, for sev-
eral days, cohabited with her at her father ^s home,
as his wife, and then, separating from her once
DECEMBER TERM, 1898. 161
Moore v. Moore.
more, he joined her again in Chattanooga, where she
had found employment, and there resumed marital
relations, living with and openly claiming her as his
wife. This lasted, however, but a little while, when
he finally abandoned her, as we are satisfied this
record clearly indicates, enceiyite as the result of this
last cohabitation.
As to the story of her own life from that time
forward the defendant seems to make no conceal-
ment, but offers in extenuation for it the extreme
suffering to which she avers she was soon reduced
bv the abandonment of her husband at a time when
she most needed his aid and comfort. She states
in her deposition, as she had already done in her an-
swer, that she was left without means by him, and
that in a little while her physical condition rendered
her helpless, and while thus situated in a strange
land, she attracted the notice and sympathy of Ed-
wards, who obtained a home for her, and with his
means aided her through her period of confinement.
Out of this, she confesses, there grew gratitude,
affection on her part, followed by an illicit relation
between herself and Edwards, which extended over
a period of several years. During this relationship
at least two children were born to these parties.
The record clearly shows that the defendant and
Edwards traveled widely, and were domesticated at
several places, and always claimed and were under-
stood to be husband and wife. At the hotels they
so registered themselves, and at a lying-in hospital
152 NASHVILLE:
Moore v. Moore.
in the city of Philadelphia where, in anticipation of
the prospective * birth of one of their children, Ed-
wards desired she should gain admission in order
that she might receive such attention as her condition
required, both of these parties assured the matron in
charge that they were married, and made exhibit of
a paper which they said was a marriage certificate,
it being necessary to admission that the woman
should be married. While admitting all these thinsfs to
be true, yet she and Edwards, in their depositions
deny with great emphasis that they were ever married.
No proof of an actual marriage between them
was attempted. The fact that such a marriage had
taken place was rested alone upon the presumption
of marriage arising from the facts just stated. It
is true, as has been heretofore set out, that these
two parties did state, when seeking admission for
Mrs. Moore to the hospital in Philadelphia, that
they were married, and much emphasis is laid on
this statement, but, as is said by the Lord Chan-
cellor in Cayviigani v. Cunnlga/ii^ 2 Dow, the value
of such statements depends on the circumstances under
which they were made, and we attach, in view of
the purpose and surroundings of these parties no
more importance to this claim of theirs than to the
fact that during the continuance of their relationship
they uniformly held themselves out to the world as
man and wife. And there is no doubt, if there had
been no proof of the previous legal marriage of
complainant and the defendant, that, as an independ-
DECEMBER TERM, 1898. 153
Moore v. Moore.
ent fact, the evidence adduced in this cause would
be ample upon which to rest a presumption of mar-
riage between Mrs. Moore and Edwards. But will
such evidence be sufficient where there is existing all
the time a previous legal marriage?
We think certainly not.. Mr. Bishop, in his work
on Marriage, Divorce and Separation, Vol. 1, Sec. 956,
very clearly states the principle on which the pre-
sumption of marriage from such facts rests, in these
words: *' Every intendment of the law leans to mat-
rimony, ... it being for the highest good of
the parties, of the children, and of the community,
that all intercourse between the sexes in form mat-
rimonial should be such in fact. The law seizes
u{X)n all probabilities, and presses into its service all
things else which can help it in each particular case
to sustain the marriage and repel the conclusion of
unlawful commerce." And again, in Section 959 the
same author says: "Persons dwelling together in ap-
parent matrimony are presumed, in the absence of
any counter presumption or evidence special to the
case, to be in fact married. The reason is that
such is the common order of society, and that if
the parties are not what they hold themselves out to
be they would be living in constant violation of de-
cency and law."
This being the philosophy of the law in indulg-
ing this presumption, why permit it in such a case
as the present, where to do so will not repel the
conclusion of "unlawful conmerce," or relieve the
154 NASHVILLE:
Moore v. Moore.
parties from the stigma of living in violation of law
and decency? On the contrary, the indulgence of
the presumption, in the face of the fact of her pre-
vious and still subsisting marriage to complainant,
would be to make her guilty of the crime of bigamy.
In such case there is no ground for a presumption
of marriage; the second or last relation is simply
illicit and nothing more. Id., Vol. 1, Sec. 1029;
Joties V. JoneSj 48 Md., 391; Allen v. McCidloughj
2 Heis., 185.
Not only in thi^ was the trial Judge in error,
but he also erred in his interpretation of the Sub-
sec. 2 of the Sec. 4201 of the (Shannon's) Code,
upon the authority of which he rested his decree.
This subsection provides that if either party has
knowingly entered into a second marriage in viola-
tion of a previous marriage still subsisting, ''this
shall be a cause for divorce from the bonds of mat-
rimony." The trial Judge held that the purpose of
this section was to give the party to the first mar-
riage who is outraged by this second marriage,
a new and independent ground for divorce. In
the first place, it may be asked why give the
aggrieved party to the first marriage this as a ground
for divorce, when no ceremony, however solemn, can
give the sanction of law to this new undertaking,
but the parties to it begin and will continue to live
in an illicit relation? The second marriage is void
ipso Jucto, and the party to the first marriage who
has entered into it is guilty of adultery no less than
DECEMBER TERM, 1898. 156
Moore v. Moore.
if the relation had been confessedly meretricious from
the beginning. This being so, the question naturally
arises, when adultery is provided in the immediately
succeeding subsection as a special ground for divorce,
why should the Legislature also have made provision
for it under the subsection we are now considering?
We are satisfied that it has not done so, but that
these subsections are intended to furnish grounds for
divorce to two distinct classes of persons.
Adultery is an oflfense committed by one who is
a party to a legal, subsisting marriage, and there-
fore is committed after the marriasre relation is es-
tablished. Subsection 3 provides this as a ground
for divorce to the innocent party to this relation,
who is aggrieved by the adulterous conduct of the
other party, while Subsection 2 is intended for the
relief of one who has innocently been unfortunate
enough to have become entangled in an apparent mar-
riage relation with another who has entered into the
apparent second marriage knowing that his or her
act was in violation of a previous marriage still sub-
sisting. It is true this second marriage is void «J
initio^ yet it is of practical importance to the in-
jured party that it should be judicially declared so;
as a public record gives evidence of the marriage, it
is desirable that one equally as public should con-
tain the decree pronouncing its invalidity.
We have no doubt that this was the sole pur-
pose of the Legislature in enacting this clause of the
divorce law. In support of the contrary view our
156 NASHVILLE :
Moore v. Moore.
attention has been called to the ease of Ralston v.
RaUton^ 15 Pa. (Court Rep.), 597. In that case
the Court 'had occasion to consider a statute of Penn-
sylvania somewhat similar in terms to ours on this
point, and, largely as a matter of grammatical con-
struction, reached a conclusion like that of the trial
Judge in this case. The opinion in that case con-
cedes, however, that the opposite view had widely ob-
tained and had been '*at least generally acquiesced in."
However it may be with the Pennsylvania statute,
there are at least no terms in ours which involve
any rule of interpretation which can serve to drive
us away from what we believe is its natural and
proper meaning. Outside of the case of Ralston v.
Ralsto?i, supra^ we have found only one other where
such a statutory provision as we are now consider-
ing has been the subject of judicial construction, and
that is in the case of Sviith v. Smithy 5 Ohio St.,
32. In that case the Supreme Court of Ohio adopt
the view we have undertaken to express.
This leaves complainant, then, resting his applica-
tion for divorce alone on the ground of the adultery
of his wife. On this ground he must fail. We
think the record convicts him of a violation of his
marriaije vows. This is enousfh to bar him from
relief on that ground. Code (S.), §4:213.
The cross bill of Mrs. Moore was proj)erly dis-
missed; in all other respects the judgment of the
Court below is reversed, and the bill of complainant
is dismissed with costs of both Courts.
DECEMBER TERM, 1898. 167
Brien v. Robinson.
Brien V. Robinson.
{Nashville. March 16, 1899.)
1. County Court. Has Jurisdiction to remove trustees.
County Court has jut-iudiction to remove trustees appointed by
deed or will. {Posty pp, 166-167.)
Code construed: ? 5414 (S.); J 4393 (M. & V.); i 3647 (T. & S.).
2. Code. Rules of construction.
The presumption that the Code was not intended to change but
only to compile the old statutes, which prevails in cases of
doubtful construction, has no application or force where the
Code provision is new, and its meaning- perfectly plain and un-
ambiguous. {Post, p. 167.)
Cases cited and approved: Bates v. Sullivan, 3 Head, 633; Ten-
nessee Hospital V. Fuqua, 1 Lea, 611; State v. McConnell, 3
Lea, 338; State v. Runnels, 92 Tenn., 323; Trust Co. v. Weaver,
ante. p. 66.
3. Dked. Ineffectual to create a remaliuler, when.
The general rule for the construction of deeds and wills under-
taking to create remainders is this: If the first taker is given
an estate in fee or for life, coupled with an unlimited power
of disposition, the fee or absolute estate vests in him, and the
limitation over is void. If the power is dependent upon a con-
tingency, or is definitely qualified, the estate of the first taker
is limited to life, and the remainder over takes effect. In
order to constitute a valid remainder or executory devise, the
first taker must not be given power to defeat and extinguish
it, by sale or otherwise, at his will and pleasure. (Post. pp.
m, 169.)
Case cited and approved: Bradley v. Games, 94 Tenn., 27.
158 NASHVILLE :
Brien v. Robinson.
4. Same. Same. Example.
A deed gives an absolute estate to the wife and nothing to the
gran tor *s children, which conveys land to a trustee, in terms
for the use of the wife for life with remainder to the children,
but directs the trustee to permit her to occupy and cultivate it
or rent it out, and use the usufruct or rents for any purpose
she may choose, and authorizes her to give any of the property
she may choose to the children, to be charged as an advance-
ment, and further makes it the duty of the trustee, upon her
written request duly witnessed, to convey the property and
place its proceeds at her disposal, to be reinvested or used by
her at her discretion. (Po8U pp. 160, 16t, 168-170.)
Cases cited and distinguished: Deadrick v. Armour, 10 Hum.,
588; Bridgewater v. Gordon, 3 Sneed, 5; McClung v. McMillan,
1 Heis., 655.
5. Trustee. Authority co)i8tnied. as direction,
A trustee has no discretion, but must execute conveyance when
requested under a deed authorizing him to convey upon the
written request of the beneficiary and to place the proceeds of
the sale at the latter's disposal. (Po«t, pp. 171, 172. )
6. Same. Parties to removal proceedings.
Though named as remaindermen in the deed, the grantor's chil-
dren are not necessary parties to a proceeding for the removal
of a trustee appointed by the deed, where it is construed as
giving the absolute estate to his wife and nothing to his chil-
dren. (Post, p. 172.)
7. Res Adjupicata. Against ancesU/r, binds heir.
An adjudication against the ancestor is conclusive upon the heir.
(Post, pp. 173, 174.)
8. Sheriff's Deed. Void, when.
A Sheriff's deed is void which is based upon a levy and sale in
bulk of two adjoining town lots, divided by a fence, and bear-
ing distinct numbers, and occupied by separate houses and
tenants. (Post, pp. 174-176.)
9. Same. Same.
A Sheriff's deed will not be enforced in equity under which the
execution creditor acquires, through a levy and sale made at
DECEMBER TERM, 1898. 169
Brien v. Robinson.
his special instance and direction, ^3,000 to $4,000 worth of his
debtor's property, under a judgment for only $750. {Pcst^ pp.
175, 176.)
FROM DAVIDSON.
Appeal from Chancery Court of Davidson County.
H. H. Cook, Ch.
Gkanbery & Marks for Brien.
Smith & Maddin, Wade & Sparkman, and Jno.
B. Robinson & Son for Robinson.
MgAlister, J. This is an ejectment bill, brought
bv the heirs of M. M. and Mrs. Pollv Brien against
Jno. B. Robinson, B. M. Webb, the heirs of M.
M. Brien, Jr., and T. A. Kercheval, to establish
title to a certain house and lot in the city of Nash-
ville. Complainants claim title as remaindermen
vmder a certain deed executed by M. M. Brien, Sr.,
on September 8, 1862, to M. M. Brien, Jr., as
trustee. The claim of Jno. B. Robinson is based on
a deed executed to him on the — day of ,
1883, by M. M. Brien, Polly Brien, and T. A.
Kercheral, trustee. B. M. Webb claims title by
virtue of an alleged purchase of same at a Sheriff's
sale, as the property of John B. Robinson. The
fight presented upon the record is thus a triangular
one, and the contest has been waged with great ear-
160 NASHVILLE :
Brien v. Robinson.
Destness and ability. We proceed at once to a
consideration of the controlling questions arising upon
the record. The facts necessary to be stated, as
found by the Court of Chancery Appeals, are as
follows, to wit:
On September S, 1862, M. M. Brien, Sr., con-
veyed to his son, M. M. Brien, Jr., among other
property, the house and lot in controversy, situated
on South Summer Street, in the city of Nashville.
After describing the property, the deed recites, viz. :
"This conveyance is made, however, for the follow-
ing uses and trusts, and for no other purpose — that
is to say, as life and the reverses of this world are
uncertain, and as I desire a comfortable and decent
support for my wife, Polly Brien, and our children,
especially our minor children, and to guarantee to
them an education, I therefore make the above con-
veyance and settlement, and direct my said trustee
to allow my said wife to take possession and con-
trol of the same, to live upon the farm, and cul-
tivate the same, or have it done, or to live upon
either lot in the city of Nashville as above conveyed
and described, and to rent out the other, or, if
thought advisable, to rent out the farm, and that she
be allowed to use any or all of the proceeds of the
farm or rent, etc., as she may see proper, for the
support and comfort of herself, the education of the
children, or other use. And, if she may so desire,
may give to any of the children aforesaid any of
said property, and, in case of a gift, it is to be
DECEMBER TERM, 1898. 161
Brien v. Robinson.
received as an advancement, as of my estate. I de-
sire my said son to act as trustee, as aforesaid, free
of charge, to take all notes, as trustee, for the use,
etc., of Mrs. Polly Brien. In the meantime to
look after and see to everything: by himself or
agents, but not to be responsible for neorlect or
waste, unless in case of gross neglect or fraud,
neither of which do I fear from my said son. This
use and trust to continue during the natural life of
my said wife. It is further understood that my
said wife may, at any time, in writing witnessed by
two witnesses, authorize my said son to sell any or
all of the real estate or slaves above conveyed, and
his deed or bill of sale, made in due form as trus-
tee, shall and is to be good and convey a legal
title, the proceeds of sale, if any there be, to be
held and used by my said wife, or reinvested as
she niav direct, and to be and bear the same rela-
tion, and to take the same course, as the above-
nam^d conveyed pro|)erty. At the death of ray said
wife, the remainder of said property to vest in my
said children then surviving, or their representatives,
according to the laws of descent, and to be equally
divided among them. This September 8, 1862.
« « [SEAL. ] M ANSON M. BrIEN. " '
It appears that in 1883 M. M. Brien, Sr., be-
cime financially embarrassed. As guardian of the
Schurer heirs a judgment had been pronounced against
him, the defendant, John B. Robinson, W. B. Stokes,
18 p— 11
162 NASHVILLE :
Brien v. Robinson.
and other sureties on his bond, for an amount ex-
ceeding seven thousand dollars, due his wards' estate.
With a view of settling this liability, Brien under-
took to procure a conveyance of the Summer Street
property to Robinson. It was agreed between Brien
and Robinson that the latter should take the prop-
erty at a valuation of 910,000, settle the Schurer
judgment, and pay the balance t-o Mrs. Brien. Mr.
Brien then procured his wife, Mrs. Polly Brien, to
execute a formal written request to the trustee, M.
M. Brien, Jr., to ccmvey the Summer Street prop-
erty to Robinson. The trustee positively declined to
execute the conveyance. Thereupon proceedings were
commenced in the County Court of Davidson County
to remove him, which was accordingly done, and
Thos. A. Kercheval was appointed in his stead. Mrs.
Polly Brien then joined her husband, M. M. Brien,
in a written request to Thos. A. Kercheval, trustee,
who accordingly executed the deed. It appears that
M. M. Brien also joined in this deed, and therein
conveyed to Mrs. Polly Brien various lots in the
city of Nashville and County of Davidson, which
Mrs. Brien agreed to receive in exchange for the
Summer Street property therein conveyed to Jno. B.
Robinson. It appears that a second deed was exe-
cuted by Thos. A. Kercheval, trustee, designed to
supply certain omissions in the first deed. These
deeds were duly acknowledged and registered. It
appears that Robinson went into possession of the
Summer Street property, and some time in 1883 ad-
DECEMBER TERM, 1898. 163
Brien v. Robinson.
vertised it for sale, whereupon an original bill was
filed in the Chancery Court at Nashville by Thos.
A. Kercheval, as trustee of Mrs. Polly Brien, and
Mrs. Polly Brien by her next friend, Thos. A.
Kercheval, against Jno. B. Robinson and M. M.
Brien. This bill recited the execution of the trust
deed to M. M. Brien, Jr., September 8, 1862, his
refusal to execute the deed to Jno. B. Robinson, in
accordance with the written request of Mrs. Polly
Brien, his removal as trustee by the County Court,
the appointment of Thos. A. Kercheval, as trustee
in his stead, and the sale of the Summer Street
property to Jno. B. Robinson, but the hill alleged
that Robinson had not paid the Schurer judgment
for *7,000. It was alleged that Mrs. Polly Brion
had been unduly influenced and coerced into signing
the request to the trustee to convey the Summer
Street property, and that she had signed it under
duress and because of threats. It was alleged that
the trustee, Kercheval, had signed the deed because
he supposed he had no other alternative under the
written request of Mrs. Polly Brien. It was also
alleged that the deed was executed under the prom-
ise of Robinson that he would make imme<liate pay-
ment of $3,000 into the hands of Mrs. Brien, with
which she might purchase a home, which had not
been done. It was further alleged that the prop-
erty which M. M. Brien had conveyed to Mrs. Polly
Brien, in substitution of the Summer Street property,
was not owned by him, but that the title was in
164 NASHVILLE :
Brien r. Robinson.
third parties; that she had thereby been deceived,
and her signature to the deed procured by misrep-
resentation, duress, and fraud. Jt was further al-
leged that Robinson had not paid the purchase money,
and had not complied with his part of the contract.
The bill prayed that the contract of sale to Robin-
son be rescinded upon the ground of fraud; but if
that could not be done, that a specific performance
of said contract be enforced, and that Robinson be
required to pay the Schurer judgment of Jf7,00(),
and the balance, $3,000, to Mrs. Brien.
Robinson, in his answ^er to this bill, denied all
its material allegations, but admitted he had not paid
all the purchase money, averring that he was pro-
ceeding to sell- this property to raise funds with
which to pay off the Schurer judgment, when he
was stopped by the injunction. He averred that part
of his own property had already gone in satisfaction
of the Schurer debt, and other pieces had been
levied on. The cause went to proof, and, on final
hearing, the Chancellor granted complainants full re-
lief. This Court, however, at its December term,
1887, reversed the decree of the Chancellor, and de-
creed in favor of defendant, Robinson, holding his
title valid, and that he was an innocent purchaser
of the property, and remanded the cause for an ac-
count as to rents, etc. On October 29, 1889, a
decree was entered in the Chancery Court settling
all the questions then involved, and reciting the pa\'-
DECEMBER TERM, 1898. 165
Urien v. RobiDson.
ment of $100 as being balance in full due from
fiobinson.
The present bill was tiled on the third of April,
1897, by the heirs of Mrs. Polly Brien, claiming
the property in question under the provisions of the
trust deed to M. M. Brien, Jr., executed in 1862.
The bill attacks the decree of the County Court
removing M. M. Brien, Jr., as trustee, and ap-
pointing Thos. A. Kercheval in his stead, for the
reason that none of the beneficiaries under the deed
of trust were made parties defendant or had notice
of the proceedings, hence the Court was without
jurisdiction and the decree was void.
It was further alleged that Mrs. Brien was in-
duced to sign the deed under duress and threats,
and that the consideration had never been paid. It
was further alleged that the sale of the Summer
Street property from the trustee, Kercheval, to Rob-
inson, was without consideration, and was a viola-
tion of the trust. It appeared from the bill that
Mrs. Polly Brien had died in 1892, and that com-
plainants were her children.
Defendants, in their answer, denied all the equi-
ties of complainants^ bill, and relied upon the regu-
larity of the removal proceedings of the County
Court. Robinson further averred that he purchased
without notice of any equities; that he had paid the
Schurer debt, and also the balance due on said
purchase money. The proceedings under the bill
brought by Kercheval, trustee, and Mrs. Polly Brien,
166 NASHVILLE :
Brien v. Robinson.
which have already been recited, are pleaded by
Robinson and relied on as res adjudicata of the
questions herein.
The cause went to proof, and, upon final hear-
ing. Chancellor Cook dismissed the bill. The Court
of Chancery Appeals reversed the decree of the
Chancellor and granted complainants full relief. It
is urged on behalf of complainant that the County
Court had no jurisdiction to remove or appoint a
trustee under a will or deed, but that its jurisdic-
tion is restricted to the removal and appointment of
trustees under assignments to secure creditors. Sec-
tion 5414, Shannon^s Code, provides, viz.: "The
Chancery Court and County Courts have concurrent
jurisdiction to accept the resignation of trustees, or
to remove and appoint trustees, under the provisions
of this chapter.". This section is brought forward
from the Code of 1868, which was adopted and en-
acted into a law.
It is suggested in argument that the Act simply
recites that the several Courts have — that is, at the
time of the enactment of the Code into law — al-
ready the jurisdiction which the section recites they
have. It is said no statement is made that the ex-
isting law is changed, but there is simply a recital
of the existing law on the subject. The argument
is then made that, as a matter of fact, no statute
was then in existence conferring upon the County
Court jurisciiction to remove and appoint trustees,
and that it is a general rule of construction that in
DECEMBER TERM, 1898. 167
Brien v, Robinson.
doubtful cases it would be presumed that the Code
was not intended to change, but only to compile,
the old statutes. Bates v. Sullivan^ 3 Head, 633;
Tennessee Hospital v. Fuqua^ 1 Lea, 611; State v.
McOmiixell^ 3 Lea, 338.
We think the rule announced in those cases
wholly inapplicable in the present instance. We
have here no statute of doubtful construction. The
Act itself is perfectly plain and unambiguous. It
is found in the Code of 1858, and it is wholly
immaterial whether it had any existence prior to
that time or not. In State v. Runnelhy 92 Tenn.,
323, in speaking of the Code of 1858, this Court
said, viz.: ^<This book was adopted by the Legis-
lature as a whole, the title and the enacting clause
of the act of adoption being, viz.: 'An Act to re-
vise the statutes of the State of Tennessee. Be it
enacted by the General Assembly of the State of
Tennessee: Section 1. That the general statutes of
the State of Tennessee shall be as follows, to wit,' "
etc. Nashville Trust Co, v. Weaver^ MS., Nashville,
December Term, 1898. The section of the Code in
question is to be treated as if enacted at the adop-
tion of the Code of 1858, and, in our opinion, the
jurisdiction of the County Court to appoint and re-
move trustees is undoubted and unquestioned.
Second. — The Court of Chancery Appeals further
held that the heirs of M. M. and Polly Brien took
a vested interest in remainder in the property con-
veyed by the deed of trust, and were necessary
168 NASHVILLE:
Brien v. RobiDson.
parties to any proceeding seeking to remove the
trustee and appoint his successor, and, since the
heirs were not parties to the proceeding, the order
of the County Court removing M. M. Brien, Jr., as
trustee, and substituting T. A. Kercheval, was void.
This ^holding of the Court of Chancery Appeals is as-
siorned as error. It is insisted on behalf of defendants
that, by virtue of the deed from M. M. Brien, Sr. , to
M. M..^ Brien, Jr., trustee, an unlimited jx>wer of dis-
position was given to Mrs. Polly Brien, the first
taker, acting through the trustee, and that as the
entire estate passed to her, she and her trustee only
were necessary parties in the matter of the removal
of the trustee. The rule announced bv this Court
is viz. : If the first taker is given an estate in fee,
or for life, coupled with an unlimited power of dis-
position, the fee or absolute estate vests in the first
taker, '"(and the limitation over is void. If the power
is dependent upon a contingency, or if the power
be definitely qualified, the estate of the first taker
is hmited to life, and the remainder over takes ef-
fect. ~'^^ Bradley v. Carfies, 10 Pickle, citing many cases.
''The -principle underlying these cases," said the
Court, ''is that in order to constitute a valid re-
mainder or executory devise, the first taker must
not be given power to defeat and extinguish it, by
sale or otherwise, at his will and pleasure." The
question, then, to be determined, is whether Mrs.
Brien' s power of disposition over this trust estate
was unlimited. It is argued, in the first place,
DECEMBER TERM, 1898. 169
Brien v. Robinson.
that the intention of the grantor to create a trust
is very manifest from this language, to wit: *^This
conveyance is made, however, for the following uses
and trusts, and for no other purpose — that is to say,
as life and the reverses of this world are uncertain,
and as I desire a comfortable and decent support
for my wife, Polly Brien, and our children, es-
pecially our minor children, and to guarantee to
them an education, I therefore make the following
conveyance and settlement." This purpose is mani-
fest from this language: "This use and trust to
continue during the natural life of my said wife.
. . . . At the death of my said wife the re-
mainder of my property to vest in my said children
then surviving, or their representatives, according to
the laws of descent, and to be equally divided
amono: them."
The power of disposition conferred upon the wife
is found in the following provisions of the deed, to
wit: "I direct my said trustee to allow my said
wife to take possession and control the same, and
to live upon the farm and cultivate the same, or
have it done, or to live upon the lot in the city
of Nashville and to rent out the other, oi*, if
thought advisable, to rent out the farm, and that
she may be allowed to use any or all the proceeds
of the farm or rent, etc., as she may see proper
for the support and comfort of herself, the educa-
tion of her children, or other use."
It will be observed, the grantor does not limit
170 NASHVILLE :
Brien v. Robinson.
his wife^s disposition of the usufruct of the trust
estate to the support and comfort of herself and the
education of her children, but expressly authorizes
her to apply it to any *' other use." Again, the
deed provides: '*And, if she may so desire, may
give to any of the children aforesaid any of said
property, and, in case of a gift, it is to be received
as an advancement as of my estate." But the clause
in the deed most relied on as conferring upon the wife
an unlimited power of disposition, is the following:
'^It is further understood that my said wife may,
at any time, in writing witnessed by two witnesses,
authorize my said son to sell any or all of the real
estate or slaves above conveyed, and his deed or bill
of sale, made in due form as trustee, shall and is to
be good and convey legal title; the proceeds of sale,
if any there be, to be held and used by my said
wife, or reinvested as she may direct, and to be and
to bear the same relation and to take the same
course as the above named conveyed property. At
the death of my said wife, the remainder of said
property to vest in my children then surviving, or
their representatives, according to the law of descent,
and to be equally divided among them."
The Court of Chancery Appeals was of opinion
*'that the power to convey must be exercised by the
trustee on the authority of the wife, in pursuance of
the purposes of the trust. It could not be said that
a power was here given to authorize her to dispose
of the property so that the purpose of the trust
DECEMBER TERM, 1898. 171
Brien v. Robin sod.
might be wholly defeated and the property removed
from its operations. In any event," said that Court,
*'her power of disposition was limited by the action
and assent of the trustee. ... As we construe
the paper, the trustee was authorized, . but not com-
pelled, "to convey on the written request of Mrs.
Pollv Brien.
"The case of Deadrick v. Armour^ 10 Hum., 588-
694, is cited by counsel, in which it appeared that
the conveyance was to a trustee for a married woman
and the power given was to sell, use, and dispose
of it as she may think fit, but by and with the
consent of the trustee. The Court held that the
power was limited and special, requiring the consent
of the trustee, which was discretionary, and such as
a Court of Equity would have no power to control,
and consequently that the wife did not take an estate
in fee but only a life estate. Counsel also rely
upon the cases of Bridgeimter v. Gordon^ 2 Sneed,
5, and McChing v. McMillan^ 1 Heis., 655."
We cannot concur with the Court of Chancery
Appeals in its construction of this instrument. It
seems to us quite clear that by the terms of the
deed an unlimited power of disposition is conferred
upon Mrs. Brien, and the limitation over is thereby
defeated. In our opinion the trustee under the deed
of M. M. Brien, Sr., executed in 1862, had no dis-
cretion, but was compelled to execute a conveyance
of any or all of the property whenever requested
172 NASHVILLE :
Brien v. Robinson.
by Mrs. Brien — provided her request was in writing
and attested by two witnesses.
• In our opinion the term ''authorize my said son
to sell any or all the real estate," etc., was equiv-
alent to the use of the term ''require" or direct,
for in the immediate context it is stated t4iat the
proceeds of sale may be used by her or reinvested
as she may "direct." The trustee had no power
to withhold his consent, and, in this respect, the
present case is wholly unlike Dtadrlck v. Annour^
10 Hum., 588. Nor do we think this case falls
within the rule announced in Bridijewater v. Gordon^
2 Sneed, 6, and Mr (-lung v. MeMIUan^ 1 Heis.,
665.
In our opinion there was neither vested nor con
tingent remainder in the heirs of Mrs. Polly Brien
in the property under the terms of the deed of
trust, but Mrs. Pollv Brien took the whole estate.
It follows that in no view of the case were the
heirs of Mrs. Polly Brien necessary parties to the
proceeding for the removal of the trustee. Section
5422 (Shannon) provides, viz.: "The application may
be made by any one of the beneficiaries." Section
54:23 provides that live days' notice of the petition
shall be given to the trustee. In the removal pro-
ceeding in the County Court, Mrs. Brien, the sole
beneficiary, and her trustee were both parties, and
and thus the requirements of the statute were fully
satisfied.
The Court of Chancery Api:)eals found as a fact
DECEMBER TERM, 1898. 173
Brien v. Robinson.
that Robinson was no party to such duress as was
exercised by M. M. Brien over his wife, Polly Brien,
in procuring the execution of the deed, and that
the duress was not of such a character as to threaten
Mrs. Brien with personal danger, but was of such
a character as to make it unpleasant and to induce
her, in order to obtain peace, to execute the deeds.
The Court of Chancery Appeals also found, as a
matter of fact, that Robinson knew, at the tirae the
conveyance was executed to him, that Mrs. Brien
and the trustee were getting nothing in return for
the property conv^eyed to him, unless it should be
the two thousand dollars over and above the Schurer
debt. It ap{)ears that the claim for the two thou-
sand dollars was settled by the payment of })ack
taxes on the property and by the rents that were
received pending the litigation in the Kercheval case.
That Court further finds there was an al)solute mis-
appropriation of the trust property by this sale and
conveyance to Robinson, and that he necessarily
knew of it, participating in the fraud practiced on
the trust in order to secure the payment of his
debt, or the liability for which he and his co-sureties
were responsible, and for these reasons, said that
Court, the sale to Robinson was illegal and void,
certainlv as to all the beneficiaries of the trust, ex-
cepting Mrs. Polly Brien, who joined in the deed.
All these questions were made, or were necessa-
ril>^ involved, in the former litigation between Ker-
cheval, trustee, anfl John B. Robinson. Mrs. Polly
174 NASHVILLE :
Brien v. Robinson.
Brien was a party to that litigation, wherein the
Court decided that Robinson was an innocent pur-
chaser of the property and acquired a good title.
It is true these heirs were not parties to that pro-
ceeding, but since we hold they take neither a vested
nor contingent remainder in the property, they are
necessarily bound by the adjudication against their
ancestor.
This disposes of all the questions at issue be-
tween complainants and John B. Robinson, and re
suits in a decree in favor of the latter, unless the
claim of Judge B. M. Webb, presented by cross
bill, shall be held superior to that of Robinson. As
already stated, Webb claims the property as pur-
chaser at an execution sale and by virtue of a
Sheriff^s deed. The proceedings under which Webb
claims title are attacked on various grounds.
On February 20, 1891, defendant, B. M. Webb,
together with certain other parties, recovered a judg-
ment in the Chancery Court of DeE^alb County
against defendant John B. Robinson, and on June
29, 1894, an execution was issued upon this judg-
ment to the Sheriff of Davidson County, and it was
levied upon the house and lot on Summer Street as
the property of John B. Robinson.
In this answer and cross bill Webb sets up the
fact that the firm of Gribble, Webb & Avant ob-
tained judgment against defendant, Robinson, in the
case of Gribble, WM cfe Avant V. G. B. West et
al.y for about t600, in the Chancery Court at
DECEMBER TERM, 1898. 175
Brien v. Robinson.
Smithville, to which John B. Robinson was a party
defendant; and that in June, 1894, execution was
issued on this judgment and levied upon the prop-
erty in South Nashville as the property of John B.
Robinson; that it was sold on the eleventh day of
August, 1894, and was bid off by cross complainant,
Webb, at the Sheriff's sale, for about $750; that
this property was never redeemed by Robinson, and
that he (Webb) held a Sheriff's deed therefor, which
bad been tiled for registration on the seventeenth
day of December, 1896.
To this cross bill tiled by B. M. Webb all the
parties to the suit, complainants and defendants, made
defense, denying the validity of the proceedings under
which Webb claims title to the property.
I>efendant John B. Robinson tiled an elaborate an-
swer to this cross bill, attacking in many ways the
proceedings in the Chancery Court of DeKalb County.
The fourth assignment of error is that Webb ac-
quired no title to the property in question, for the
reason that his execution was levied on two town
lots and they were sold in bulk and not separately.
It is shown there was a house on each of the two
lots worth largely more than the amount of the
jadgment. The return of the Sheriff was, viz.: "Ex-
ecuted by levying this Ji. fa. upon all the right,
title, claim, and interest that J. B. Robinson has
in and to the following described property, to wit:
Two lots or parcels of land in the city of Nashville,
Davidson County, Tennessee, described as follows, to
176 NASHVILLE :
Brien v. Robinson.
wit: Frontinor 67 feet on the east side of South
Summer Street and ninnin<r back between parallel
lines 178 feet to an allev, and heino: lots Nos. 86
and 37 of Barrow (Irove phin, and beinor the same
lots conveyed to J. B. Robinson bv deeds from M.
M. Brien et if/,, recorded in Book 81, pp. 6 and
10, R. O. D. C, and being levied on as the property
of J. B. Robinson." The Court of Chancery Appeals
finds that prior to the sale to Robinson the prop-
erty was treated as one lot and occupied ])y the
Briens as such, and that while the Sheriff refers to
the property as made up of two lots, giving their
numbers, he levied on it substantially as one tract.
That Court further finds that the property con-
sisted of two lots; that there are two houses sepa-
rately numbered, and occupied by different tenants,
with the lots divided in the front and rear by a
fence, and that this was the condition of the prop-
erty at the time it was levied on; that there is a
frame house with six rooms, four halls, and a porch,
and a brick house with nine rooms, four halls, and
four porches. We understand the Court of Chan-
cery Appeals to find these facts from the testimony
m
of Jno. B. Robinson, and they are undisputed. That
Court says: ^'It is true it would have been com-
petent and proper for the Sheriff to have levied on
a part of this property. He might have levied on
the south 38^ feet, but did not do so." We think
it would have been not only proper and competent
for the Sneriff to have so levied, but that it was
DECEMBER TERM, 1898. 177
Brien v, Robinson.
his duty to do so, and the sale in bulk of the two
lots, and not separately, rendered sale void, and
communicated no title to the . purchaser.
Again, aside from this, we think the levy was
excessive. The judgment was for only $750, and
the property levied on was worth $3,000 or $4:, 000;
and while ordinarily the title of an outside purchaser,
under the authorities, would not be affected by the
fact of an excessive levy, yet we think when it is
shown, as in this case, that the property was pur-
chased by the judgment creditor, and the excessive
levy was made at his especial instance and direction,
then his title is affected by this act, and a Court
of Equity will refuse to enforce his purchase. There
are other irregularities in the proceedings which also
probably invalidate Webb's title, but we prefer to
rest the case upon the two grounds mentioned.
The decree of the Chancery Court of Appeals is
reversed, and the original bill of complainant, as well
as the cross bill of Webb, will be dismissed and
the costs divided between said original and cross
complainants.
18 P— 12
178 NASHVILLE :
Weaklej v. Page.
Weakley v. Page.
{Nashville. March 16, 1899.)
1. Nuisance. Jurisdiction to ei^oi/ii,
A Court of Equity has jurisdiction to enjoin the owner of prop-
erty from keeping or permitting a house of ill fame to be kept
therein, at the suit of owners of adjacent or contiguous prop-
erties adapted and used for business and residence purposes,
where, by reason of the boisterous and vulgar conversation
and the public, immoral, and indecent conduct and exposure
of person of the inmates of the house and their visitors, it has
become a nuisance to the entire neighborhood, and has se-
riously affected and impaired the value and rental productive-
ness of the complainant^s property. {Post, pp. 191-206.)
Cases cited and approved: Brew v. Van Deman, 6 Heis., 433;
Lassiter u Garrett, 4 Bax., 368; 11 Md., 138.'
2. Same. Same.
The jurisdiction of Courts of Equity to enjoin and abate nui-
sances is not affected by the statute giving the power to Courts
of Law to abate a nuisance where the fact of nuisance is found
in a civil action. {Post. p. 192.)
3. Same. Same.
A Court of Equity will enjoin and abate a nuisance, without a
judgment at law establishing its existence, where the fact of
nuisance is made manifest by certain and reliable proof, and
the resulting injury is of a character that cannot be compen-
sated adequately by damages. {Post, pp. 192, 193.)
Cases cited and approved: Vaughn v. Law, 1 Hum., 134; Clack
V. White, 2 Swan, 540; Phillips t). Stocket, 1 Tenn., 200; Wall
V. Cloud, 3 Hum., 182; Kirkman v. Handy, 11 Hum., 407; Naff
V. Martin, 2 Shan., 451; Caldwell v. Knott, 10 Yer., 210.
DECEMBER TERM, 1898. 179
Weakley v, Pftg'e.
4. Same. Same.
That a nuisance is the subject of criminal prosecution does not
deprive the Court of the power to enjoin and abate it at the
suit of a citizen who has suffered special injury from it. {Posty
pp. 195, 196.)
Cases cited: 27 N. H., 503; 63 N. H., 12; 28 Kan., 726; 65 Iowa,
488; 149 Mass., 550 (S. C, 5 L. R. A., 193); 1 Dev. Eq., 12; 10
111., 351; 26 Iowa, 377; 87 ill., 450.
*
5. Same. Same.
The Court will not enjoin and abate a public nuisance unless
the complainant avers and proves some injury special and
peculiar to himself which is not shared by the general public.
{PoaU p. i94,)
Cases cited: 14 Conn., 565; 2 C. E. Green, 75; 3 Neb., 179; 2
Beas., 68.
6. Same. Same.
If otherwise entitled to an injunction against a nuisance, the
complainant will not be repelled because he does noi himself
occupy the property involved. {Post, pp. 203, 204.)
7. Same. Same.
Both residence and business properties will be protected by in-
junction against nuisances specially affecting their values,
bat relief will be granted more readily in favor of residence
than of business properties. (Post, pp. 204-206.)
FROM DAVIDSON.
Appeal from Chancery Court of Davidson County
H. H. Cook, Ch.
Lellyett & Barr for Weakley.
N. D. Malone and M. W. Allen for Page.
180 NASHVILLE :
Weakley v. Page.
Caldwell, J. This cause comes to this Court
on the appeal of the defendants from the decree of
the Court of Chancery Appeals. The controlling
questions presented in the assignment of errors and
argument before us are the same as those consid-
ered by that Court in an elaborate and able opinion
delivered by Judge Neil. We refer to that opinion
for a statement and discussion of those questions.
It is as follows: ''This bill was originally filed by
R. L. Weakley and Mrs. Sarah C. Paige. As to
the latter, the suit was dismissed below on her own
motion, and subsequently proceeded in the name of
Mr. Weakley alone. We shall, therefore, set forth
such allegations as were made by Mr. Weakley,
ignoring those especially referring to Mrs. Paige.
The purpose of the bill is to abate, as a nuisance,
a house of ill fame, existing in close proximity to
complainant's property, on the ground of special in-
jury to the complainant. The bill alleges that W.
W. Page owned and controlled a block of buildings
on the corner of Line and College Streets in the
city of Nashville; that the first floor is divided into
three store rooms; that the second story is divided
into rooms and halls, and is suitable for residence
purposes.
*'It is further alleged that complainant Weakley
owns a block adjoining the property of Page, on
College Street, immediately north of said Page build-
ing, and running back west with that building about
174 feet; that said Weakley's building fronts on
DECEMBER TERM, 1898. 181
Weakley v. Page.
College street and contains two stories, the first con-
sisting of three business houses or store rooms and
the second cut into halls, corridors, rooms, etc., with
the necessary stairways for ingress and egress, suit-
able and intended for residence purposes; that com-
plainant, Weakley, also owns a block of three two-
story buildings on the east side of College Street,
and fronting the said W. W. Page property; that
this property also contains three store rooms on the
first floor and residence rooms in the second story.
"It is further alleged that the rental value of
complainant, R. L. Weakley's, said block of two-
story brick buildings is about $110 per month. It
is further alleged that the defendant, W. W. Page,
a short time before the filing of the bill, had put
the defendant, Mattie Vaughn, in possession of the
second story of his block of buildings, and that she
and those residing with her had occupied this prop-
erty for one or more months prior to the filing of
the bill; that Mattie Vaughn was and is an aban-
doned and disreputable woman, and her character as
such was well known to the defendant, Page; that
the defendant, Mattie Vaughn, has had and still has
with her, in said second story of said building, ten
or twelve abandoned women, and is there conduct-
ing a bagnio, which is publicly and notoriously fre-
quented day and night by numbers of men and boys
for immoral purposes; that the defendant, Mattie
Vaughn, and the women with her are engaged in
the illegal sale of intoxicating liquors on the prem-
182 NASHVILLE :
Weakley v. Page.
ises, and that drunkenness is added to their other
disturbing practices; that this conduct and these
practices are open, public, and notorious, and the
reputation of the place is widely known, and that
residents in the locality and passers-by are offended
and disturbed, and the rental and money value of
complainant^s property in that locality is greatly re-
duced thereby; that many of the houses in the im-
mediate neighborhood, and especially the three two-
story brick buildings on the west side of College
Street, complainant's buildings, were, at the time the
bill . was filed, vacant, and that respectable tenants
could not be procured on account of the proximity
of the bagnio; that complainant is being greatly
damaged by the loss of rents and depreciation in
the value of his property on account of this nui-
sance, and is subjected to further loss, and can only
be protected against irreparable injury by the in-
junctive aid of the Court.
<^lt is further charged that it is unlawful to let
premises for such purposes; that keeping a house of
ill fame is a nuisance under the laws of this State;
that defendant, Page, is well apprised of the uses
being made of said premises, and knew that they
would be so used before he made the arrangement
with his co-defendant, and connived, and continues
to connive, at the same.
*^ It is further charged that *the public and com-
munity are shocked and offended at the existence of
said resort, and said premises and their uses are
DECEMBER TERM, 1898. 183
Weakley v. Page.
both a private and public nuisance.' There is also
an allegation that the sounds and sights attendant
upon the occupation of the Page premises by defend-
ant, Vaughn, and the women with her, are offensive,
disturbing, and humiliating.
^'The substance of the bill as to the nuisance is,
that the defendant, Mattie Vaughn, with the con-
nivance of Page, the owner of the premises, is
conducting a house of ill fame with several lewd
and abandoned women under her charge; that the
house is publicly and notoriously frequented, by day
and by night, by numbers of men and boys for
indulgence in lewd and immoral practices; that added
to these practices in the place referred to, is that
of drunkenness, fostered by the illegal sale of liquor
on the premises; that the place is widely known;
that the conduct and practices of the house are
open, public, and notorious; that there are attendant
sights and sounds which are disturbing, offensive,
and humiliating to the residents in the neighborhood
and to passers-by; that, as a consequence, complain-
ant's property adjoining and near by has been very
greatly damaged in its rental and money value, and
is being very greatly damaged thereby, and that
complainant is being subjected to further loss, and
can only be protected from irreparable injury by
the injunctive aid of the Court; that by reason of
such nuisance he has lost valuable tenants and his
houses are empty, and that respectable tenants can-
184 NASHVILLE :
Weakley v. Page.
not be procured for complainant's buildino;s on ac-
count of the bagnio.
<'The facts as stated in the bill are substantially
true with . a few exceptions, which will now be
stated. These exceptions are, that at the time the
bill was filed, while complainant's houses on the west
side of College Street were vacant those on the east
side were occupied, but at a greatly reduced rent;
and, further, it should be stated that pending the
suit most of complainant's houses (all but one) on
the west side of College Street were occupied by
tenants, but at greatly reduced rents. These tenants
went in some time after the suit was begun. An-
other exception that must be made is, that while
defendant, Vaughn, did not occupy the front of the
Page building until about one month before the bill
was filed, she, or some other woman similarly em-
ployed, had occupied the back portion of that build-
ing for some years.
*'The facts with regard to the nuisance appear in
the proof with more detail than is stated above, and
it is proper to refer to this testimony, which we
shall now do.
*'The witness, Klymon, says that the women leave
the blinds on the front windows open, and can be
se^n from the outside naked in their rooms with
men, and that conduct of this kind continues from
about 3 or 4 o'clock in the afternoons until far
into the night; that men come and go in crowds;
that sometimes there are as many as ten or twelve
DECEMBER TERM, 1898. 185
Weakley v. Pape.
backs there. Continuing, he says: * There is a good
deal of noise, big noise, cursing and obscene lan-
guage. The whole Page block upstairs is now oc-
cupied by them. They disturb the neighborhood so
that respectable people cannot sleep and rest in the
neighborhood, and the families and children are dis-
turbed by them.' He further says that al)Out two
or three weeks before his deposition was taken,
* women, about 2 or 3 o'clock in the morning,
threw a great many beer bottles, making a noise,
cursing and calling vulgar names that could be heard
blocks away. It attracted crowds of people, and
caused much disturbance to the neighbors.'
"J. R. Whiteley, a policeman, says: * We went
to this house twice about the first or middle of
1896 for the purpose of quieting boisterous conduct;'
that when he got there he found men and women
dancing and singing, also they were drinking and
talking loud and hallooing, and he threatened to ar-
rest the * whole crowd ' if they did not stop.
**S. Rosenfield says: 'They cut up, laughing,
singing, and hallooing, making vulgar music, cursing;
have seen them through the windows, partly un-
dressed, and crowds of men going there day and
night. '
**Mr8. Jennie Murray says: *I have seen the
women who occupy this building sitting on the porch
which runs along the north side of the Page build-
ing exposing their persons, smoking cigars, playing
cards with men, laughing and shouting, and using
186 NASHVILLE :
Weakley v. Page.
vulgar and obscene language, calling to all men
they see, attracting passing men, and generally con-
ducting themselves indecently. '
*'F. M. Shuster says; 'They are very noisy at
night. I have frequently heard them scream, and
have gotten up at night to learn what the matter
was. I have heard loud sounds, sometimes like the
slapping of bare skin, with loud laughing, etc., and
have seen them pass the window naked in view of
the street; have seen a great many men going in
and out there. Those disturbances sometimes oc-
curred as late as 2 o'clock in the morning.'
*'Mrs. Clara Loubelsky says: 'They can be seen
in the hallways in slight garments, smoking cigars,
and cursing, pulling and hauling men, trying to get
men in. I have seen them . naked in the same room
with men. I have seen men embrace them when in
this condition. Men come to the place at all times
at night, driving up in hacks, singing and using
vulgar language, which is heard and repeated and
used back at them by the women. I have seen the
porter going into the building with drinks and
lunches. I have seen drunken men go up there
often.' She further says: 'I am disturbed all night.
You would think the whole building would come
down. '
'*Mrs. F. Levy, who lives in Mr. Weakley's
building that adjoins the Page property, with her
family of four boys, aged respectively five, ten,
thirteen, and sixteen, and two girls, aged eighteen
DECEMBER TERM, 1898. 187
Weakley v. Page.
and eleven respectively, says of the women in the
Page building: 'They are up all night singing, drink-
ing, cursing, fighting, throwing bottles, going
undressed, acting indecently with men, and generally
debauching the neighborhood, making the whole
neighborhood bad.' This witness testifies that she
first lived in complainant's building in the year 1894,
beginning on the eighteenth of September, and re-
maining four months, but moved away because of
the inmates of the Page building — in the back part
of it upstairs; that she then lived in the upstairs
portion of complainant's building, but since she re-
turned occupies a room in the front part and down-
stairs; that when she returned none of these aban
doned women were in the front part of the Page
building, but moved in a month or two afterwards.
''The weight of the proof is that the presence
of this house, with conduct such as we have de-
tailed, very materially injures the rental value of
property in the neighborhood, though there is testi-
mony to the effect that these poor creatures pay
higher rent than anybody else, and that their prox-
imity furnishes trade to the small dealers who oc-
cupy that locality. However, the testimony of the
best informed shows that it inflicts serious injury
upon the value of adjoining property and property
near by. As to Mr. Weakley's property, while it is
now partially occupied (one room downstairs by
Mrs. Levy as a grocery store, and , three rooms up-
stairs by Mrs. Cohen for residence purposes, and
188 NASHVILLE :
Weakley v. Paj^e.
also one room downstairs by her as a grocery
store, only one store being still vacant), yet the
complainant has suffered seriously in the value of
his property in the way of depreciation of rents.
He says in his deposition: *A great many people
have refused to rent from me because my property
adjoins Page's property. I take people down there
to see the property, and as soon as they see how
the upper part of this (Page) property is occupied,
they won't rent. I took a gentleman down there
on one occasion to inspect my houses, he desiring
to rent one of them, and after going through he
observed some women in scant clothing, undressed,
in these apartments, and he immediately declined to
rent on the ground that he could not live near such
people. This same thing has happened on other oc-
casions, all of which I cannot recall. Q. Has this
fact affected the rental of your property? A, Put
it down to nothing. When this property, where the
women now are (Page's property), was occupied by
the Louisville & Nashville Railroad Company's office,
several years ago, I got f900 a year for the large
brick on the west side. Now, since these women
have come in there, J get $16 per month for the
big brick and $12 per month for the other two
houses, one of which is not rented. Q. What
about the property on the other side of the street ?
A, It has been affected some, too. I got $900
for the corner of Locust and College and $25
a month for the middle house, and $25 for the
DECEMBER TERM, 1898. 189
Weakley v. Page.
house just adjoining Link's. I now, and since
the railroad moved out and this occupation began,
only get $600 a year for the corner, and less for
the other two buildings.'
"Some effort is made to show that Mr. Weakley
himself rented his buildings to disreputable charac-
ters. It is proven that some five years before the
bill was filed, when this property was owned by a
brother of the complainant, since deceased, such
characters were allowed in these buildings or some
of them. Since the complainant has owned the
property he has steadily refused to rent to such
people. It is true, that soon after this suit was be-
gun, a Madame Breeson, a dissolute French woman,
rented one of the two rooms, under pretext of open-
ing a cigar stand, but really used it for immoral pur-
poses. As soon as the complainant discovered it he
had her ejected from the building by legal process.
It is also true that, for a time, one Tom Payne,
who seems, from the proof, to have a very bad
reputation, ran a saloon in complainant's property on
the opposite side of the street — that is, on the east
side of College Street — but complainant also refused to
rent to him when he discovered the character of the
house. The proof fails to attach any blame to the
complainant in the particulars referred to.
"It is also insisted by the defendant, an impor-
tant point, that the whole neighborhood is bad, and
that for that reason complainant's property could not
be injured by the character of the occupants in the
190 NASHVILLE :
Weakley v. Pag^e.
upper story of the Page building. The proof shows
pretty clearly that Locust Street, which runs into
College nearly opposite the Page building, is occu-
pied principally by people of disreputable character,
also that Gay Street, the next street to Line, is
occupied by people of the same reputation, and also
the alley leading from Gay to Line. But the proof
fails to show such a character for College Street
from Line to the railroad. Northward the character
of the street is very bad. As to Line Street, from
College to Cherry, the proof is conflicting to such
an extent that we are unable to determine how the
fact is beyond the Page house, except that there
are two houses of this character on the street be-
sides the Page house. Take it altogether, the
neighborhood is unsavory. This, however, does not
apply to College Street from Line to the railroad
crossing. It should be noted that the rear part of
the Page building, fronting north, overlooks the rear
yard of the Weakley property, used by families
living over the Weakley stores, and that running
along this Page building on that side is a porch
upstairs, and numerous windows opening on to the
porch. It should also be noted that on the south-
ern and eastern side of the Page building upstairs
there are numerous windows opening on the street.
''In resrard to the statement in the bill that Mr.
Page was aware of the character of the use to
which his building was put, we think it proper to
say that we base our finding that the charge is
DECEMBER TERM, 1898. 191
Weakley v, Pag«.
true on the ground that he must be presumed to
know the use to which his building is put, and
also on the proof, which shows that he gave his
personal check for $1,028 to a furniture establish-
ment in the city to fit up this house, as shown by
the testimony of C. G. Finney, and further, on the
fact that he has not deposed as a witness in this
case to deny the grave charges made in the bill or
the testimony of Mr. Finney.
"We shall now consider the legal rules that gov-
ern the controversy.
*' 1. The jurisdiction of a Court of Equity to
abate nuisances is clear in Tennessee. In Brew v.
Va7i Demauj 6 Heis., 433, 440, it is said that a
Court of Equity has jurisdiction^ upon the ground
of its ability to give d more complete and perfect
remedy than is attainable at law, to prevent by in-
junction such nuisances as are threatened, as well as
to abate those already existing. *The grounds of
jurisdiction,' says the Court, *are the restraining of
irreparable mischief, suppressing oppressive and in-
terminable litigation, or preventing multiplicity of
suits, or where the mischief, from its continuance
or permanent character, must occasion a constantly
recurring . grievance, which cannot be prevented other-
wise than by injunction.' In the case of L(h^i<lter v.
GarMt^ 4 Bax., 368, 370, after quoting the above
language, the Court says (in that case the question
under consideration was whether a milldam was a
nuisance): 'It is clear that if the dam in question
192 NASHVILLE :
Weakley v. Page.
has permanently destroyed the health of the com-
plainants, or persons occupying their premises, this
would be a constantly recurring grievance and in-
jury, not to be compensated in damages, and a
proper case for a Court of Chancery to interpose
and compel an abatement of the nuisance, and we
are of the opinion that the Act of 1851-52 (Code,
§ 3403), which authorizes Courts of law to abate
nuisances, where the fact of nuisance is found in a
civil action, does not take away the jurisdiction of
a Court of Chancery. The question is, in what
cases and under what circumstances is the jurisdic-
tion exercised? Judge Story laid down the rule
that, in all cases of this sort, if the right be doubt-
ful, the Court will direct it to be tried at law, and
will, in the meantime, restrain all injurious proceed-
ings, and when the right is fully established a per-
petual injunction will be decreed.' In Vaughn v.
Latc^ 1 Hum., 134, it is said: 'In a case where
the right is clear, and the existence of the nuisance
manifest, and the injury is of a character that can-
not be compensated in damages, a Court of Chan-
cery interposes to prevent the mischief. In such a
case a trial at law is not necessary in order to
give the Court jurisdiction.' In Clack v. White^ 2
Swan, 540, 544, 545, the Court says: 'The rule is
well and truly stated in Vaughn v. Laxo, If the
fact of nuisance manifestly appears from certain and
reliable proof, we see no reason why it should be
first established in a Court of Law, if that be the
DECEMBER TERM, 1898. 193
Weakley v. Pag^e.
only objection.' To the same effect see Phillips v.
Stocket, 1 Tenn., 200; ^yall v. Ckmd, 3 Hum.,
182; Kirkmaii v. Handy ^ 11 Hum., 407; Naf v.
Martin^ 2 Sbann. Tenn. Cases, 451; Caldwell v.
KruM, 10 Yer., 210.
''2. The facts stated make out a case of nuisance
clearly. It is declared in the Code: ^Houses of ill
fame kept for the purpose of prostitution and lewd-
ness, gambling houses, or houses where drunkenness,
quarreling, or fighting or breaches of the peace are
carried on, or permitted, to the disturbance of
others, are nuisances also.' Shannon's Code, §6870.
So, under the general law, the keeping of a house
of ill fame is such a nuisance as may be relieved
against in equity, at the suit of adjacent property
owners who are injured thereby. The following
citations of authority are in point: High on Injunc-
tions (2d Ed., Vol. 2, Sees. 772, 773, 779, 780,
782). In the last section it is said: 'The general
principles of equity with regard to nuisances and
their restraint, apply to houses of ill fame, and the
continuance of such houses may be restrained upon
a bill filed by private persons, alleging that the
close proximity of such nuisance to their private
residence deprives them of the comfortable enjoyment
of their property, and greatly diminishes its value.'
The section just quoted refers for authority to Ham-
iUoji V. Whit}*idge^ 11 Md., 128. Counsel for com-
plainant also refer to the case of AiiderHon v. Boty^
33 Hun, 160. and Crawford v. Tyrell, 128 N. Y.,
18p— 13
194 NASHVILLE :
Weakley v. Pag'e.
341, as suBtaining the same view. We shall have
occasion to refer to these cases later on.
''3. Of course, a house of ill fame is a public
nuisance. This being true, it is insisted by the de-
fendants that no private citizen can bring a bill to
restrain such a nuisance, or any other public
nuisance, unless the complainant can show some in-
jury of a serious nature to himself different and
apart from the general injury to the public, and, to
support this proposition, the defendants cite the fol-
lowing authorities, which sustain the point: BigeUno
V. Hartford Bridge Co.y 14 Conn., 566; Ilinchraan
V. Patterson H. R. Co.^ 2 C. E. Green, 75; Shed
V. HawtJwm^ 3 Neb., 179; Alle7i v. Beard^ 2 Beas.,
68; also High on Injunctions, 762, 769.
*<4. It remains to be settled whether the facts
stated make such a case of special and peculiar in-
jury to the complainant as will entitle him to main-
tain the bill. In the case of Ilamilton v. Whitridge^
supra^ an injunction was granted upon a bill stating
that the appellees were owners of property in the
city of Baltimore, in the immediate vicinity of a
house which the appellant had purchased, and to
which she intended to move, for the purpose of
keeping a house of ill fame, in which business she
had been for a long time, and was then engaged.
The bill charged, also, that in addition to the wrong
and injury inflicted upon them, in common with other
citizens of that city, by the occupants of the prem-
ises, for the unlawful and immoral purposes com-
DECEMBER TERM, 1898. 195
Weakley v. Page.
plained of, ' the complainants will be especially
wronged and injured, inasmuch as they will be de-
prived of the comfortable enjoyment of their prop-
erty, and that it will be greatly depreciated and
lessened in value, by the close proximity of their
said property to the premises in which it is charged
that the defendant is about to open a bawdy house.'
The Court found that it was true that the appellant
was about to open .such a house on the property
in question, and said : ' We are constrained, there-
fore, to consider the appellant as a person about
to open the premises as a house of ill fame, and
the prominent question for decision is whether the
jurisdiction of Courts of Equity embraces a prohibi-
tion of such public nuisances, where the complaint
is that they will, by reason of their close prox-
imity, deprive other persons of the comfortable en-
joyment of their property and greatly depreciate and
lessen its value.' The question was decided in the
affirmative. After referring to the general principle
that the complainant must show some special injury
to himself, and to cases where the physical senses
were offended, as, for instance, where the ringing
of church bells was enjoined, when the noise thereby
created disturbed the plaintiff and his family, the
Court said: * But the appellant's counc^el suggested
that a distinction should be taken between the cases
relied on in support of their position and the pres-
ent, because here the object is to prevent what is
offensive to the moral sense. We need not inquire
196 NASHVILLE :
Weakley v. Page.
how far this jarisdiction can be founded on grounds
of morality, and to preserve the decencies of life
from gross violation. The case does not re-
quire this. But it would be strange, indeed, if,
when the Court's powers are invoked for the pro-
tection and enjoyment of property, and may be
rightfully exercised for that purpose, its arm should
be paralyzed by the mere circumstance that, in the
exercise of this jurisdiction, it might incidentally per-
form the functions of a moral censor, by suppress-
ing a shocking vice denounced by the law, and
amenable to its penalties from the earliest times.
And if, as the authorities show, the Court may in-
terfere where the physical senses are offended, the
comfort of life destroyed, or health impaired, these
alone being the basis of the jurisdiction, the present
complainants, presenting, as they do, a case other-
wise entitling them to the relief, should not be dis-
appointed merely because the effect of the process
will be to protect their families from the moral
taint of such an establishment as the appellant pro-
poses to open in their immediate vicinity.' This
case was decided in 1857, and, as will be observed,
the establishment of a nuisance was restrained be-
cause it threatened injury to adjacent property
owners. In the case of Anderson v. Doti/^ decided
by the Supreme Court of New York in 1884 (33
Hun, 160), it was said that Hamilton v. ^Vhitrid^e
might possibly be sustained as an exercise of the
power of a Court of Equity to prevent the erection
DECEMBER TERM, 1898. 197
Weakley v. Page.
of a nuisance, but not to abate a nuisance, which
could only be abated by a judgment of the Crimi-
nal Court. In Anderson v. Doty the nuisance was
said to consist merely in the . fact that the defend-
ant's house was a house of ill fame, kept as a
dwelling, place for prostitutes, and a resort for lewd
men and women, for lewd purposes, and as a bawdy
house. The Court said there was no allegation of
any noise or of any physical discomfort or tangible
injury to the persons of the occupants of plaintiff's
house, or to the property, but the injury complained
of was entirely consequential in its nature, arising
from the fact that decent people will avoid such
places, however quietly conducted, because of the
consequences they apprehend may occur, although
such apprehension may never be realized. The de-
fendant's counsel based his motion to vacate the
injunction upon the grounds that a private action
would not lie to restrain a public nuisance, unless
the plaintiff should suffer an injury by it to his
person or property different in character from that
common to all citizens, and, further, that the par-
ticular injury must be some physical discomfort or
physical injury to the property. The Court sus-
tained this view of the matter, saying: 'In this
case there are alleged no offensive sights or sounds
from defendant's house, but the injury is caused be-
cause the existence of the nuisance gives the neigh-
borhood a bad name. I do not think this is a
sufficient injury to plaintiff to enable him to main-
198 NASHVILLE :
Weakley v. Pag-e.
tain this action." The Court also said that it was
of opinion that Courts of Equity were not proper
tribunals to deal with the matter, but that it should
be left to the Criminal Courts. There was a strong
dissenting opinion by one of the judges. In the
later case of Crawford v. Tyrell^ 128 N. Y., 341,
decided by the Court of Appeals of that State in
1891, a different view was taken so far as the las
point mentioned in Anderson v. Doty^ is concerned,
and the proposition established that an injunction
will lie to restrain a defendant from keeping a house
of ill fame and from using his premises for such
a purpose, where the persons occupying such prem-
ises act in a noisy and boisterous manner and make
indecent exposures of their persons. In that case
the action was brought to prevent the defendant
from keeping a house of ill fame, and from using
the premises for such purpose, and to recover dam-
ages for injuries sustained. The trial Court found
the facts to be that the house, as maintained by
defendant, was a resort for prostitutes and licentious
men, and that the persons occupying the rooms acted
in a boisterous and noisy manner, and indecently
exposed their persons at the windows, ' whereby the
use and occupation of the plaintiff's premises have
been interfered with and rendered uncomfortable, and
whereby the occupants of plaintiff's premises have
been annoyed and seriously disturbed.' The Court
held that this mado out a sufScient case for
interference by injunction at the suit of a
DECEMBER TERM, 1898. 199
Weaklej v. Pftge.
property owner. In discussing the question, the
Court said that the mere fact of a business
being carried on wljich may be shown to be
immoral, and, therefore, prejudicial to the character
of the neighborhood, furnishes, of itself, no ground
for equitable interference at the suit of a private
person; and though the use of the property might
be unlawful or unreasonable, unless special damage
should be claimed, a neighboring property owner
could not base thereupon any private right of action;
that it would be for the public authorities, acting
in the common interest, to interfere for the sup-
pression of the common nuisance; but that if com-
plainant in such private action could show a special
damage, by which the legitimate use of the adjoin-
ing property was interfered with, or its occupation
rendered unfit or uncomfortable, the action would lie,
and the fact that the perpetrator of the nuisance
would be amenable to the criminal law would be no
answer to an action against him by a private person
to recover for the injury sustained, and for an in-
junction against the continued use of his property
or premises in such a manner. In closing the
opinion the Court said: ^In the present case the
indecent coaduct of the occupants of the defendant's
house, and the noise therefrom, inasmuch as they
rendered the plaintiff's house unfit for comfortable or
respectable occupation, and unfit for the purpose it
was intended for, were facts which constituted a
nuisance and were sufiicient grounds for the main-
200 NASHVILLE :
We9.kley v. Page.
tenance of the action. If it was a nuisance which
affected the general neighborhood, and was the sub-
ject of an indictment for its. unlawful and immoral
features, the plaintiffs were none the less entitled to
their action for any injuries sustained, and to their
equitable right to have its continuance restrained/
This opinion being later than Anderson v. jDoty^ and
by a Court of higher authority, and supported by
stronger reasons, discredits that case in so far as it
was based on the ground that a Court of Equity
could not properly dispose of such a matter because
the nuisance might be made the subject of an indict-
ment in a Criminal Court. In fact, the authorities
are overwhelmingly against Aj^derson v. Doty on this
point. * In regard to public nuisances, ' says Judge
Story, < the jurisdiction of Courts of Equity seems
to be of a very ancient date, and has been dis-
tinctly traced back to the reign of Queen Elizabeth.
In case of public nuisances ... an
indictment lies to abate them and to punish the
offender. But an information also lies in equity to
redress the grievance by way of injunction.' Eq.
Jur., Sees. 921, 923.
*'And aofain: 'In modern times Courts of Law
frequently interfered and granted a remedy under
circumstances in which it certainly would have been
denied in earlier periods. And sometimes the Legis-
lature, by express enactments, has conferred on Courts
of Law the same remedial faculty which belongs to
Courts of Equity. In neither case, if the Courts of
DECEMBER TERM, 1898. 201
Weakley v. Pajre.
Equity origiDally obtained and exercised jurisdiction,
is that jurisdiction overturned or impaired by this
change of the authority at law by legislative enact-
ments, for, unless there are prohibitory or restrictive
words used, the uniform interpretation is that they
confer concurrent and not exclusive remedial author-
ity.' Story Eq. Jur., Sees. 64, 80. So, where the
wrongful flowage of a meadow by a mill pond is
made a criminal offense, punishable, on indictment,
by fine and imprisonment, this does not take away
the specific relief by a bill in equity by injunction.
Wells V. Pearce, 27 N. H., 603, 612, 513; Allen
V. Gibson^ 63 N. H., 12. So, in State v. Craw-
ford, 28 Kan., 726, and 42 Am. Rep., 182 (an
action to abate a liquor saloon, declared by a stat-
ute to be a common nuisance), the Court said (pages
735, 736): 'While it is unquestionably true that the
keeping of the saloon in question is a criminal offense,
and its operation involves the commission of many
criminal offenses, yet we cannot think that these
facts can possibly take away any of the jurisdiction
which Courts of Equity might otherwise exercise.
It would seem to us that all sound reason and the
great weight of authority is against the objection
. . At common law all public nuisances were pub-
lic offenses, and, if the proposition is sound that no
nuisance can be enjoined except such as are not public
offenses, then, where the common law has full force,
no public nuisance could ever be enjoined.' In the
case of Littleton v. Fritz, 65 Iowa, 488 (64 Am.
202 NASHVILLE :
Weaklej v. Page.
Bep., 19), the Supreme Court of that State used
the following language on the general subject: 'One
maintaining a nuisance may not only be punished in
a criminal proceeding, but a civil action at law to
recover damages in a proper case, and an action in
equity to restrain the nuisance may be prosecuted
against him. The defendant, in order to succeed in
the defense that the proceeding by injunction is an
attempt to enforce a criminal law by civil process,
demands, in effect, that the Court must establish the
principle that, because the nuisance complained of
is a crime, it is entitled to favor and protection in
a Court of Equity. There are many adjudged cases
which expressly hold that the fact that a nuisance
is a crime, and punishable as such, does not deprive
equity of its jurisdiction to restrain and abate it by
injunction. See, also, Carleton v. Rv^gg^ 149 Mass.,
650 (6 L. R. A., 193); Attoimey-geTieral v. Hunter^
1 Dev. Eq., 12; People v. St. Louis, 10 III., 351,
367; Ewell v. Qreenwood, 26 Iowa, 377; Minke v.
Hopeman, 87 111., 450, 453, 454. Of course, as
already stated, before a private person can proceed,
he must show some special injury to his person or
property, and, further, it is true, that where the
proceeding in equity is based merely on the ground
that the nuisance is a public one, the proper pro-
ceeding is by information by the Attorney-general.
Ne^o Aqybeduct Board v. Passaic^ 45 N. J. Eq., 393;
Georgetown v. ALexiindria Canal Co., 12 Peters, 91,
98. As to the limits of this latter power we are
DECEMBER TERM, 1898. 203
Weakley v. Page.
not now concerned, but cite the last two cases
merely upon the point that equity is not deprived
of its jurisdiction to abate nuisances, either public or
private, by the fact that the perpetrators of such
nuisance are also amenable to the Criminal Court.
''Applying the above principles to the case in
hand, we are of the opinion that the Chancery Court
had jurisdiction to abate this nuisance, and should
have done so. That it is a nuisance by statute
(Shannon's Code, § 6870) and at Common Law (Ba-
con's Ab., title Nuisance, A) is undoubted; that the
inmates of this house were very noisy and boister-
ous, and were constantly guilty of the exposure of
their persons at the windows of the house and out-
side porches, within view of the adjoining houses,
including that of the complainant, is established by
the facts above found; that complainant has also
suffered injury special to himself in the great dete-
rioration of his rents on account of this nuisance,
and that his buildings, fitted up not only for busi-
ness houses, but also for the occupation of families
m the upper stories of them, have also been very
greatly impaired for comfortable enjoyment and occu-
pation by decent people, and that the complainant
is thereby especially and particularly injured in the
use of his property by the existence and mainte-
nance of this nuisance, is also shown by the facts
found. It is urged in behalf of the defendants that
the complainant does not himself live in either one
of his houses on College Street, but in a distant
204 NASHVILLE :
Weakley v. Pajre.
part of the city. This is true, but immaterial.
The complainant had not only the right to use the
the lower floor of his buildings for stores, but an
equal right to use the upper floors or stories as
dwellings for those who might occupy the store-
rooms, or for others. The defendants, by maintain-
ing this nuisance, had no right to impair the com-
plainant's use of his property for either of these
lawful purposes.
''We think there is no force whatever in the point
that the complainant himself must dwell in the ad-
jacent property. There seems to us to l)e no rea-
son in the distinction. If he has the right to pro-
tect his own dwelling, he has also the right to
protect that of his tenants, and hence his property
intended for tenants. If this were not true, while
the tenants could always protect themselves by mov-
ing away, the landlord would be compelled to see
his property go to ruin, while the Court of Equity
would be powerless to help him. We have already
shown that, with regard to both public and private
nuisances, where an individual is affected seriously
thereby, the jurisdiction of the Court of Equity
is ample to afford him relief by injunction. To
recur, then, to the thought we were consider-
ing a moment ago, we say there is no sound dis-
tinction, in applying the relief which equity affords,
to say that it will be given for the protection of
a man's individual dwelling, but not for a house
which he intends as a dwellino; for his tenants and
DECEMBER TERM, 1898. . 205
Weakley v. Page.
which is devoted to that purpose. Nor indeed do
we think that the relief should be confined merely
to dwellings. While it may be true, as stated in
Section 769 of Hiojh ' on Injunctions, that 'an in-
junction will be denied against the perpetration [of
a nuisance] prohibited by public statute, the only
ground urofed for the relief beins: diminution of the
profits of a trade or business pursued by complain-
ant in common with others,' it is not true that
equity would deny relief to one who is deprived of
the comfortable enjoyment of his property, and which
proj^erty is greatly diminished in value by reason of
a nuisance maintained on neighboring propert}^ even
though the property injured is used only for busi-
ness purposes. Of course a Court of Equity would
find an injury to exist and grant relief under much
slic:hter circumstances in favor of a dwellinor than
in favor of a business house. The distinction is dic-
tated by the different uses to which the property is
put. We think, however, such noise and such inde-
cent exhibitions as this proof shows would be intol-
erable even to the owners and occupiers of business
houses, special injury being the true ground of re-
lief, and that being shown in this case as to both
stores and dwelling rooms.
*'0n the grounds stated, we are of opinion that
the Chancellor was in error in dismissing the bill.
A decree should have been entered by the Chancellor
ordering the nuisance to be abated, and the injunc-
tion against its maintenance should be made perpetual.
206 NASHVILLE.
Weakley v. Pag^e.
The cause will be remanded to the Chancery CSourt,
to the end that the proper decrees may be entered
abating the nuisance and making the injunction per-
petual.
"The defendants will pay the costs of this Court
and of the Court below accrued up to the present
time. Further costs in the Court below will be
paid as may be decreed by the Chancellor.
"All the Judges concur.
"M. M. Neil, Judge.''
Upon the grounds and for the reasons so well
stated by the Court of Chancery Appeals, we ap-
prove its conclusion and adopt its opinion as our
own. Let the decree be affirmed.
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF TENNESSEE
FOR THE
WESTERN DIVISION.
JACKSON, APRIL TERM, 1899.
Persica v. Maydwell.
{Jackson. April 8, 1899.)
1. Landlobd and Tenant. Wife becomes tenant, wJieiu
The wife becomes tenant, and liable for the rent of a storehouse
iD which her husband had conducted a mercantile business,
where, after expiration of the husband^s lease of the house, she
purchased his business and continued to occupy the house on
her own account, and made some payments on the rent.
2. CovBBTUTiE. Not available as a plea^ when.
Since the enactment of Ch. 82, Acts 1897, a married woman can-
not successfully plead her coverture to defeat judgment for
a debt contracted by her in the conduct of a mercantile or
[207]
208 JACKSON :
Persica v. Maydwell.
manufacturing business — e. g.^ a debt for the rent of a store-
house in which to carry on a mercantile business.
Act construed: Acts 1897, Ch. 83.
FROM SHELBY.
Appeal from the Circuit Court of Shelby County.
J. S. Galloway, J.
J. W. Durham for Persica.
R. Lee Bartels and Jas. H. Malone for Mayd-
well.
McFarland, Sp. J. The plaintiff in error, John
Persica, leased two storehouses from Mrs. Sopha
Maydwell — Nos. 66 and 68 Hernando Street —under
written lease from November 1, 1893, to October
31, 1894:, at a rental of $112.66 per month. At
expiration of this lease, Persica still remained in the
houses, ' but refused to execute a new lease. The
rent was reduced to $100 per month. In August,
1897, Persica turned the store and business over to
his wife, and she took out license from the city in
her own name, and continued this business in these
houses until May 8, 1898, when they moved out.
After Mrs. Persica took possession they continued to
pay the rent, Mrs. Persica generally paying, and
APRIL TERM, 1899. 209
Persica v. Maydwell.
Mrs. Maydwell testified that at one time she, Mrs.
Persica, paid this rent by her own check on the
Continental National Bank. This is denied bv Per-
sica and wife, who say the wife had no bank ac-
count. Mrs. Maydwell would make out these rent
receipts before going to stores, and the four which
were not paid were to John Persica.
Mrs. Maydwell further testified that in February,
1898, she told Mrs. Persica she, Mrs. Maydwell,
would look to her, Mrs. Persica, for the rent after
that. This is denied by Mrs. Persica. No rent
was paid for the months of April or May, 1898,
and upon this, Persica moving out on May 8, 1898,
this suit was brought against both Persica and wife
for two months' rent. The wife filed a plea of
coverture. Judgment for plaintiff before the Justice,
appealed to Circuit Court, trial by jury, with ver-
dict and judgment for the plaintiff.
Mrs. Persica assigns as error the action of the
Court in not sustaining her plea of coverture.
There is no question in this case but that the hus-
band transferred these stores and his business to his
wife; that she carried on this business in her own
name in these stores, after the expiration of the
two years' lease made to her husband, paying rent
therefor several months, and then left the house,
leaving two months unpaid. These facts are suffi-
cient for this Court to afiirra a verdict and judg-
ment which compels the payment of this debt, unless
prevented by some clear legal rule or principle.
18 P— 14
210 JACKSON :
Persica v, MaydwelL
The Act of 1897, Chapter 82, was passed to
enable Courts to compel the payment of just such
debts. It is in these words: ''Section 1. Be it
enacted, etc, That when married women are engaged
in the mercantile or manufacturing business, in their
own names, or by an agent, or as partner, they
shall be liable for the debts incurred in the conduct
of such business as if they were feme sole, and no
plea of coverture shall avail in such cases."
Aside from an express leasing, or even promise
to pay, we think the occupation by one person of
another's property carries with it an implied promise
to pay rent. Besides, here the plaintiff testifies that
Mrs. Persica, the actual tenant, paid several months'
rent, and was notified, in substance, that she would
be looked to, as tenant, to pay the rent. She re-
mained in possession of the premises and paid rent
after this. This was sufficient, if believed by the
jury, to justify a verdict for plaintiff. The jury
found a verdict for the plaintiff, which the Court
sustained, and this Court will not disturb it. Let
it be affirmed, with costs.
APRIL TERM, 1899. 211
Cooper V. Overton.
Cooper v. Overton.
{Jackmn. April 12, 1899.)
1. Negligence. DromjiiJig of brty in pond,
A pond on an unfenced city lot, not being dangerously near a
street, the premises of adjoialng lot owner, nor possessing any
other peculiar features attractive to children than a plank or
small raft floating on its surface, and formed, only occasion-
ally, by surface water dammed up by the obstruction of a nat-
ural drain by the city authorities, without the agency or knowl-
edge of the owner, who was ignorant of the existence of the
pond, although his agents inspected the premises with sufii-
cient frequency, does not constitute negligence, although the
pond is situated near numerously attended schools and within
a few blocks of a thickly populated district of the city, that
will render the owner liable for the drowning of a ten-year-
old boy while playing with the plank or raft on the pond. {Post,
pp. 212-240.)
2. Same. Liatdllty of owner of dcingeroiis premises to trespassers
defined.
The liability of the owner of dangerous premises to trespassers
does not exist even in the case of children, unless they are
induced to enter on the land by something unusual and at-
tractive placed on it by the owner, or with his knowledge per-
mitted to remain thereon. {P(tsU p. 231. )
3. Evidence. Opinions.
Opinions of witnesses as to what attracts children to water, or
as to whether or not boys like to ride on a plank in the water,
are not admissible. {Post, pp. 2,39, 240.)
FROM SHELBY.
Appeal in error from Circuit Court of Shelby
County. L. H. Estes, J.
212 JACKSON :
Cooper V. OvertoD.
GiLLHAM & GiLLHAM for Cooper.
TuRLEY & Wright for Overton.
Wilkes, J. This is an action for damages for
the drowning of Oscar Cooper, the son of plaintiff,
Wm. H. Cooper, the father being the administrator
of the son. It is conceded that there is no cause
of action against Jno. Overton, trustee, and as to
him the action is dismissed. There was a verdict
and judgment for defendant, and an appeal by plain-
tiff, as administrator, and he has assigned errors.
The facts, so far as necessary to be stated, are
that Oscar Cooper, a boy about ten years of age,
was drowned by falling from a plank upon which
he was attempting to float upon a pond of water
upon a lot owned by defendant, Jesse M. Overton,'
in Memphis, Tenn. Overton is a resident of Nash-
ville, Tenn., and is the owner and in possession of
lots Nos. 48 to 53 of block 24, in the tenth ward
of Memphis. These lots front about 148|^ feet on
the east line, and about 400 feet on the north line
of Clay Street. They had descended to him from
his grandfather. They were unimproved, unfenced,
and uninclosed. The property had no other than
natural drainage. The lot adjoining these lots is
separated from them by a fence, and on it there is
a house, about 150 feet from the line of the lots.
There are no other houses in the immediate vicinity
of these lots, but they are located within a few
blocks of a somewhat thickly populated part of the
APRIL TERM, 1899. 213
Cooper V. Overton.
citv. About 450 feet northwest of these lots is a
public school building, usually attended by about 370
papils, and there is a Catholic parish school a few
blocks south. This property was looked after by
Overton & Overton, real estate agents, for the owner,
Jesse M., who rarely visited Memphis. Surface water
from contiguous property flowed across these lots,
and gradually cut a gully of several feet deep,
through which it found vent. The city, it appears
without the knowledge of the owner or his agent,
filled up the lower end of this drain by dumping
trash and dirt into it, so as to form a dam and
cause a pond of water to form or accumulate on the
lot. The edge of this pond was about 50 feet from
a sidewalk . on Lee Street, and 150 feet from the
sidewalk on Clay Street. It appears from the state-
ments in the record that Overton & Overton, agents,
were in the habit of inspecting the premises about
twice a month, and when last inspected there was no
pond upon them, and it is further stated that they
had no knowledge there was a pond upon the lot
until after the drowning, which occurred January 10,
1899.
It further appears that the pond would form
after a heavy rain, and in a short time would dry
up and disappear, and at this time there had been
a heavy rain for two days. When notified of the
accident, Mr. Overton went to the city authorities
and complained of their action in stopping the drain,
and the city at once removed the dam and filled
214 JACKSON :
Cooper V. Overton.
up the pond. On both sides of this property de-
fendant, Overton, had caused sidewalks to be laid,
and the pond was about fifty feet from the nearest
point of the sidewalk. There appears also to have
been a path or walkway across the lot, which was
used by a few persons as a cut-off instead of going
around the sidewalks, but the public was not in the
habit of using it. Its nearest point to the pond
was about twenty-five feet. It does not appear that
the owner or his agent had ever given any permis-
sion to the public to use a pathway across their
lots or that they knew of such use.
The deceased was a pupil in the public school,
and is shown to have been a boy of average intel-
ligence. It appears that the school children had
been playing in a bayou which crossed these lots.
They had been forbidden (and the intestate with the
others) from going on these lots by the principal,
and, as a rule, these instructions had been obeyed.
The deceased, however, with another boy, John Ap-
pling, aged about eleven . years, and a younger
brother of the latter, went over this lot from the
sidewalk, about fifty feet to the edge of the pond.
A piece of the plank sidewalk had been torn up
and thrown on the water of the pond, by whom
does not appear, and appears to have been the only
one on the surface of the water. Oscar Cooper
got upon this plank and attempted to propel it
around the pond over the water with a stick. He
lost his balance and fell off the plank into deep
APRIL TERM, 1899. 215
Cooper V, Overton.
water and was drowned. It appears that the two
Appling boys declined to get on the plank (deeming
it dangerous), though invited to do so by young
Cooper. It appears that other children had been
playing at or in this pond, sometimes bathing and
swimming, but whether school children or not does
not appear. It is not shown that the pond had any
special attraction for boys, but some testimonj' tend-
ing in that direction was excluded, and forms the
basis of a part of the assignments.
There was no danger to anyone on or using the
sidewalks. There is testimony tending to show that
there was no pond there in the summer, and that
it was only formed by heavy rainfalls and would
soon dry up. When the pond was full it would
extend up to and under the sidewalk of Clay Street,
but was shallow at that point and generally around
the margin of the pond.
Various assignments of error are made, principally
to the failure of the trial Judge to give certain re-
quests asked by plaintiff's counsel and to the charge
as given by him. The first and second assignments
will be treated together, and are refusals to charge
as follows:
**1. The Court instructs you that it is the duty
of all owners of property situated in the city, or
where many people live or travel, to take such
reasonable care of the same as will render it reason-
ably safe to the public.
'*3. It is the duty of all such property owners
216 JACKSON :
Cooper 1). Overton.
to abate any dangerous nuisance which may arise on
their premises, and it is his duty to look after his
property, and if a nuisance has existed for a con-
siderable time he is in law presumed to know it,
and then it becomes his duty to abate it."
Without stopping to comment on these requests,
which we think are too general and meager in terms,
we think the trial Judge in his general charge more
correctly stated the law applicable to the facts of
this case and in much better language, as follows:
'*An actionable nuisance is anything wrongfully done
or permitted which injures or annoys another in the
enjoyment of his legal right. This necessarily carries
you to determining what Oscar Cooper's legal rights
were. He had a legal right to pass over and along
either Clay or Lea Street in safety. These were
the streets that bounded the lots upon which it is
claimed the pond was. Defendant, Overton, had no
right to construct, maintain, or permit a pond upon
his lots so near to the streets which bounded the
.lots as to make it dangerous to persons who were
using the streets. So, if you find from the evidence
that the pond was so near to the streets which
bounded the lots as to endanger anyone who was
using the streets, and, as a consequence thereof, Oscar
Cooper was drowned, then the plaintiff can recover."
The third assignment is that the trial Judge re-
fused to charge a request, as follows: ''If a pond
should form upon the vacant property of the owner,
situated in the populous districts of a city, and' near
APRIL TERM, 1899. 217
Cooper V. Overton.
streets or public schools where many children at-
tend, and which pond is deep enough to drown a
child, it is the duty of the owner to abate the
nuisance, to drain or fill up the pond." This as-
signment will be considered with the fourth and
fifth, which raise the question of the correctness of
the trial Judge's charge, as a whole, upon the du-
ties of the landowner and the rights of the public.
The Judge charged as follows: ''The pleading of
defendant, Overton, puts upon plaintiff. Cooper, the
burden of making out his case upon every material
p^int by a preponderance of the evidence. The
material points upon which the evidence must pre-
ponderate before it authorizes the jury to give plain-
tiff a verdict are the following: (1) he must estab-
lish the fact that a pond was maintained or per-
mitted to exist upon defendant's lots; (2) that the
manner or condition in which it was maintained or
permitted to exist was negligence in itself; (3) that
it was because of its condition, or the negligent
manner in which it was maintained or permitted, that
Oscar Cooper was attracted to it and was drowned.
Unless these three points are established by k pre-
ponderance of the evidence there can be no recovery.
An actionable nuisance is anything wrongfully done
or permitted which injures or annoys another in the
enjoyment of his legal rights. This necessarily car-
ries you to determining what Oscar Cooper's legal
rights were. He had a legal right to pass over
and along either Lea or Clay Streets in safety.
218 JACKSON :
Cooper V. Overton.
These were the streets that bounded the lots upoQ
which it is claimed the pond was. Defendant, Over-
ton, had no right to construct, maintain, or permit
a pond upon his lots so near to the streets which
bounded the lots as to make it dangerous to per-
sons who were using the streets. So that, if you
6nd, from the evidence, that the pond was so near
to the street that it endangered anyone who might
be using the street, and, as a consequence thereof,
Oscar Cooper was drowned, the plaintiif can recover.
On the other hand, if you find from the evidence
that Oscar Cooper had to leave the sidewalk and go
over on the private property of Overton, thirty feet
or -more, before he came to a place of dan-
ger in the pond, then there can be no recovery
in this case from the bare fact of maintaining or
permitting a pond to remain on the lot, for
the reason that every owner of real estate has the
right to use his property just as he pleases, so long
as the use which he makes of it does not endanger
anyone else in the enjoyment of their legal rights;
and if any owner of real estate has a right to use
his property just as he pleases, you can see that
such owner has the right, if he so desires, to dig
a pond on his lot. The only restriction which the
law imposes upon this right is this, that the owner,
in digging the pond, must see to it that he does
not put it near enough to an adjoining lot owner
to endanger the use of his property, and that he
does not dig it near enough to a public street to
APRIL TERM, 1899. 219
Cooper V. Overton.
make it dangerous to persons using the street.
When the lot owner has observed these precautions
in digging or maintaining a pond on his lot, be has
complied with the law, and no one can legally com-
plain; if he has not observed the precautions just
mentioned, and injury results to anyone as a conse-
quence of the owner's failing to observe them, the
injured person can recover."
It will be noted that neither in the charge nor
the requests is the idea prominently presented that
this pond was or might be a place attractive to
children, but the requests are based upon the idea
that there is an obligation resting on the landowner
to keep his premises near a public school 'or high-
way free from dangers which arise from natural or
artificial causes. This feature of attractiveness of
the pond was made prominent in the declaration,
and some proof was attempted to be introduced
upon it, but was rejected so far as based on opin-
ion. It is, however, pressed in argument, and will be
considered along with the other features of the case.
As to this feature of attractiveness, the record
presents the following state of facts: Miss Conway,
the principal of the school, testifies that some boys
had been reported to her as having skated on ice
over Overton's lots, and she had forbidden the lit-
tle boys from going to the bayou to play, because
they would get their feet muddy. She had never
known that the children of the school had been in
the habit of playing on it.
220 JACKSON :
Cooper V, Overton.
Wall, the janitor, says he has seen children come
into school and had to strip them; that they had
fallen in and come oat, but that he did not know
of any of the school children playing there except
from hearsay; that he had to run some children
out who were swimming there, but not at the time
of the year (February) when this drowning occurred.
He had seen some children playing on some planks
in the pond, but when this was is not stated. His
evidence is largely, if not altogether, hearsay, and
is not at all definite.
The case has been very elaborately and ably ar-
gued by learned counsel, and we have been fur-
nished with exhaustive printed briefs on each side,
and very full citation of authorities. The plaintiff
insists that the merits of the controversy are embod-
ied in his third request, and he specially relies upon
several cases which we will notice.
The first is the case of Pekin v. McMahon^ 154
111., 141 (S. C, 27 L. R. A., 206; 39 N. E. Rep.,
484, and 45 Am. St. Rep., 114). In that case the
Court says: ''There is a conflict in the decisions
upon this subject, some Courts holding in favor of
the liability of the owner, and others ruling against-
it." It then proceeds to lay down the rule as fol-
lows: "When the land of a private owner is in a
thickly settled portion of the city, adjacent to a
public street or alley, and he has upon it, or suf-
fers to be upon it, dangerous machinery or a dan-
gerous pit or pond of water, or any other dangerous
APRIL TERM, 1899. 221
Cooper V. Overton.
agency, at a point thereon near such public street
or alley, of such a character as to be attractive to
children of tender years incapable of exercising ordi-
nary care, and he is aware or has notice of its
attractions for children of that class, we think that
he is under obligations to use reasonable care to
protect them from injury when coming upon such
premises, even though they may be technical tres-'
passers."
And, again, the case quotes with approval the
statement made in Shearman & Redfield on Negli-
gence, as follows: '*The owner of land where chil-
dren are allowed or accustomed to play, particularly
if it is unfenced, must use ordinary care to keep
it in safe condition, for they, being without judg-
ment, and likely to be drawn by childish curiosity
into places of danger, are not to be classed with
trespassers, idlers, and mere licensees.'* Citing 2
Shearman & Rediield on Negligence, 4th Ed., Sec.
705; 4r Am. & Eng. Enc. L., p. 63 and notes.
In such case the owner would reasonably anticipate
the injury which had happened. 1 Thompson on
Negligence, 304.
In the Pekin case there was a pond or pit of
water, five to fourteen feet deep, in a populous city,
on lots belonging to the city and filled with logs and
timber floating therein, on which children were in the
habit of playing, near a driveway across vacant lots,
but partially inclosed, and the city had been notified
that it was dangerous, and requested to remove it.
222 JACKSON :
Cooper V. Overton.
but had allowed it to remain a year until a boy
eight and one-half years of age went through an
opening on the causeway, stepped on a log in the
water, which rolled and threw him into the water.
The case of Price v. Atchison Water Co.^ 68
Kan., 551 (S. C, 62 Am. St. Rep., 625), is also
relied on by plaintiff. In that case a landlord main-
tained on his premises a reservoir filled with water,
to Avhich children were attracted for fishing and other
sports, which was well known to the landlord, and
who took no means to warn them or exclude them,
and a child eleven vears of ao^e was attracted to the
place and fell in and was drowned, and it was held
the landlord was liable. The case turned upon the
allurement and enticement held out to children, and
the knowledge of the owner of its danger, and that
children did frequent it habitually. To the same
effect are cited Brinliy Car Co. v. Cooper^ 60 Ark.,
545 (S. C, 46 Am. St. Rep., 216), and a number
of other cases, more or less in point, and holding
the same general doctrine.
On the other hand, counsel for defendants call
the attention of the Court to a number of well-
considered cases, more or less in conflict with the
cases cited for plaintiff, only a few of which we
refer to as illustrating defendants' contention.
The case of Richards v. Conwell^ 45 Neb., 467,
is >vhere a demurrer was sustained to a petition
which set out facts almost identical with the facts
in the present case. The statements in the petition
APRIL TERM, 1899. 223
Cooper V. Overton.
were that '*on the twenty-ninth day of June, 1891,
and for a long time prior thereto, the defendant
was the owner of lots 40 and 41 in the city of
Omaha, and the plaintiff's father was, during said
time, the owner of the adjoining premises, described
as lot 69; that defendants had, for a long time
prior to the date named, negligently permitted the
surface water to accumulate on said lots, thereby
creating a deep and dangerous pond; that they had
failed ancj neglected to fence said lot, or to erect
barriers of any kind to prevent children, lawfully
in the vicinity thereof, from falling into said pond;
that said lots are situated in the vicinity of one of
the public schools of said city, and the pond is not
only dangerous to persons passing along South Street
adjacent thereto, but is situated in a public and
much frequented place, and attractive to children of
tender age, many of whom are accustomed to play
about and upon the water; that on June 29, 1891,
plaintiff's intestate, a boy ten years of age, yielding
to the natural impulses of childhood, went on said
pond upon a section of wooden sidewalk floating
thereon, from which he fell into said pond and was
drowned. ' '
The Court, in passing on the demurrer, said:
**The petition, we think, fails to state a cause of
action against the defendant; the demurrer was,
therefore, rightly sustained. The single question
presented by the record is whether the owner of a
vacant lot, upon which is situated a pond of water
224 JACKSON :
Cooper V. Overton.
or dangerous excavation, is required to fence it, or
otherwise insure the safety of strangers, old or
young, who may go upon said premises, not by his
invitation, expressed or implied, but for purposes of
amusement or from motives of curiosity. The au-
thorities we find to be in substantial accord, and
sustain the proposition that, independent of statute, no
such duty exists. ' '
The case of K licks v. Nienian^ ^S Wis., 273, is
very similar to the one at bar. That case was also
decided on demurrer, and the Court said: ''We think
the demurrer in this case was properly sustained, for
the reason that the complaint shows no actionable
negligence on the part of the defendant. The com-
plainant states that the defendant was the owner of
and in the possession of a lot in the city of Mil-
waukee, situated on the northeast corner of Hubbard
and Loyd Streets; that the lot was in a thickly
populated part of the city, and was not inclosed by
a fence between it and Hubbard Street or on the
side between it and Loyd Street, but that the lot
was vacant and open, so that the public had free
and unrestricted access thereto from both Hubbard
and Loyd Streets; that for a long time prior to Sep-
tember 5, 1885, there had been upon the lot a deep
and dangerous hole or excavation, partially filled with
water, making a pond which covered about the en-
tire surface; that the water of the pond was oily,
so that its depth could not be ascertained only by
measurement, but that in places it was of the depth
APRIL TERM, 1899. 225
Cooper V. Overton.
of nine feet, so that the pond was dangerous to the
lives of children who might be attracted thereto for
amusement or otherwise; that the defendant, well
knowing the pond was dangerous to the lives of
children residing in the vicinity of the same, wrong-
fully, negligently, and carelessly permitted it to re-
main unguarded by fence or barricade, and the plain-
tiff's son, a lad of nine years of age, while play-
ing upon or about said pond of water, being in-
duced thereto by reason of the unguarded and un-
protected condition of said pond, fell, or was pre-
cipitated, into the same, and was drowned. It will
be observed," says the Court, "that it was not
alleged that the pond was so near the highway as
to make it unsafe for persons going along the street
or sidewalk, and no averment that the boy, when
he fell into the pond, was passing along the street
or sidewalk. On the contrary, it is stated that the
boy was playing upon and around the pond when
he was precipitated into the water and drowned.
So, the single question presented is, was it the duty
of the defendant to fence or guard this hole or ex-
cavation on his lot, which it does not appear he
made or caused to be made, where surface water
collected, in order to secure the safety of strangers,
young or old, who might go upon it or about the
pond for play or curiosity ? If the defendant was
bound to fence or guard the pond, upon what prin-
ciple or ground does this obligation exist? There
can be no liability unless it was his duty to fence
18 P— 15
226 JACKSON :
Cooper V. Overton.
the pond. It surely is not the duty of an owner
to guard or fence every dangerous hole or pond or
stream of water on his premises for the protection
of persons going upon his land who have no
right to go there. No such rule of law is laid
down in the books, and it would be most unreason-
able to so hold. A learned authority states the
doctrine in these words: 'An owner of land is under
no obligation to fence an excavation on his land
unless it is so near the highway as to amount to
a public nuisance, and if persons or animals are
killed or injured in consequence of his failure to do
BO, no damages can be recovered.'
"The qualification of this rule is that when the
owner of land, expressly or by implication, invites
a person to come upon it, he will be liable for
damages if he permit anything in the nature of a
snare to exist thereon which results in injury to
such person, the latter being at the time in the
exercise of ordinary care. If, however, he gives a
bare license or permission to cross his premises, the
licensee takes the risk of accident in using the
w
premises in the condition in w^hich they are. Quot-
ing from 1 Thompson on Negligence, 361 : ^Among
other authorities cited by the administrator to sus-
tain this doctrine, is /lardcastie v. Railroad^ 4 Hurl.
& Nor., 67, where Pollock, C. B., uses .this lan-
guage: ''When an excavation is made adjoining a
public highway, so that a person walking upon it
might, by making a false step, or being affected
APRIL TERM, 1899. 227
m
Cooper V. Overton.
with sudden giddiness, or in the case of a horse or
carriage that might, by a sadden starting of the
horse, be thrown into the excavation, it is reasonable
that the person making such excavation should be
liable for the consequences. But when the excava-
tion is made at some distance from the highway,
and the person falling into it would be a trespasser
upon the defendant's land before he reached it, the
case seems to be different. We do not see where
the liability is to stop. A man getting off the road
on a dark night and losing his way may wander to
any extent. And if the question be for the jury,
no one could tell whether he was liable for the con-
sequences of his act upon his own land or not.'"
In Shearman & Redfield on Negligence (6th Ed.),
sec. 705, it is said: **The owner of land where
children are allowed or accustomed to play, must use
ordinary care to keep it in a safe condition. And,
yet, merely allowing children to play upon a vacant
lot is held not to amount to an invitation which
creates liability for its condition." Citing a large
number of cases, and among them Mornn v. Pall-
man Co., 134 Mo., 641 (S. C, 33 L. R. A., 755).
In the syllabus of this case this language is used:
'*The owner of a lot in a city who failed to fence
the same is not liable in damages for the death of
a boy who entered upon the premises without invi-
tation or permission, and was drowned while bathing
in a pond on the lot." There was a judgment in
favor of the defendant in this case, just as in the case
228 JACKSON :
Cooper V. Overton.
at bar, and the same argument was made by counsel
for appellants in that case as is made here. Thus,
on page 642 we find appellant's counsel making this
contention: First, the owner of the property having
thereon any dangerous agency which is attractive to
children, or where he has knowledge that they resort
to it for amusement or otherwise, and fails to use
ordinary care, under the circumstances, to guard the
same against injury, must respond in damages for
such neglect, irrespective of the fact that the dan-
ger is not adjacent to the highway. Quoting Pekin
V. McMalion^ 15 111., 141; McKie v. Vickjihurg^ 64
Miss., 777; also 81 Ky., 638, and a long list of
authorities cited by opposing counsel in case at bar.
The opinion in the late Missouri case, however,
after stating the facts, which are much more favor-
able to the plaintiff than the facts in the case at
bar, since the pond is shown to have been only
twenty feet away from a public street and in a
populous part of the city, uses this language: ''The
views expressed in Overholt v. Bieths are applicable
to the case at bar, and are not rendered inapplicable
by the fact that the child entered on the premises
where he was drowned through adjoining private
property. The same principle applies, whether the
unauthorized entry be made on private grounds as
where a public street is used for the like purpose."
Overholt' s case has been recently and approvingly
cited and followed in the quite recent cases of Witte
V. Siifely 126 Mo., 295, and Barney v. Railroad^
APRIL TERM, 1899. 229
Cooper V. Overton.
126 Mo., 372; 26 L. R. A., 847. Having fully
discussed in these cases the subject here involved, it
is needless to go over the same ground again.
Abundant authorities, in addition to those just men-
tioned, have been collected by the industry of coun-
sel, which as fully maintain these views as those
already mentioned.
The case of Ricliavds v. Connell was decided last
year by the Supreme Court of Nebraska. The facts
in that case are almost identical with those in this
case. The action there, as here, was against the city
of Omaha and the owners of certain uninclosed lots
of ground. The petition there alleged that defend-
ants had, for a long time prior to the death by
drowning of a boy of about ten years of age, per-
mitted the surface water to accumulate on the lots,
thereby creating a deep and dangerous pond, and
that defendants had failed and neglected to fence
the lots or erect any barrier to prevent children,
lawfully in the vicinity, from falling into the pond;
that the lots were in the vicinity of a public
school, and adjacent to a street, and in a place
much frequented and attractive to children of tender
years, who were accustomed to play about and upon
the water. The boy was playing upon a raft float-
ing upon the water, and fell in and was drowned.
The case also approvingly cites and follows the
Overholt case, 93 Mo., and distinguishes the facts
treated in that case from what is commonlv known
as the turntable cases. To the like effect see Ratte
230 JACKSON :
Cooper V. Overton.
V. Daxmmi, 62 N. W. Rep., 665; 91 Mich., 69;
Murpky V. Brooklyn^ 118 N. Y., 676; Clark v.
Mancliester^ 62 N. H., 677; l^rost v. Railroad^ 9
Atl. Rep., 790; O^ Connor v. Railroad^ 44 La. Ann.,
339; Benson v. Railroad, 26 Atl. Rep., 973; Clark
V. Richmond, 83 Va., 366, and other cases.
The case of Wltte v. Stifel, 126 Mo., 296, holds
as follows: ^'The owner of a building in process
of construction in a city is not liable for injuries
to a child playing thereat without his knowledge,
and without any inducement or invitation, implied
or otherwise, on his part to a child to go upon the
premises. Plaintiff's son, seven years of age, went
to one of the cellar windows of a buildinor in
process of construction in the city of St. Louis,
which was about three feet from the street line,
and sought to draw himself up by taking hold of
a stone placed across the top of the window frame.
The stone was not fastened, and fell and killed him.
It did not appear that the owner of the building,
a contractor, knew of the dangerous position of the
stone, or that children were in the habit of play-
ing around the building. Held, that deceased was a
trespasser, and that no inducement or invitation, im-
plied or otherwise, having been held out to him to
enter upon the premises, there could be no recovery
for his death."
In the case of Murpky v. City of Brooklyn, 118
N. Y., 575, this language is used: ''This action
was brought to recover damages for the death of
APRIL TERM, 1899. 231
Cooper V. Overton.
plaintiff's intestate, a boy six years old, who was
found drowned in a hole alongside a sewer con-
structed by defendant through private property and
then into the street, with the consent of the owner.
It appeared that the sewer emptied into the bay.
At high tide the sewerage was driven back up the
sewer, causing the cavity in question. This was
about fifty feet from one of defendant's streets, along
which, forming the boundary of the adjoining prem-
ises, was an embankment faced by a wall, and on
the top of this a fence or railing of posts and cross-
bars. At a point where it was supposed the plain-
tiff's intestate went upon the premises a crossbar
was down — the wall had given way. People going
to the bay had occasionally crossed there, and the
ground for ten or twelve feet from the fence had
the appearance of a path. It did npt appear that
any objection had been made by any person to the
construction and maintenance of the sewer. Held,
that no violation of any duty which the defendant
owed to the deceased had been shown, and so it
was not liable. The construction of the sewer was
not wrongful, nor was its maintenance a nuisance;
the defendant owed to him no duty of care to pro-
tect him while upon the premises, or to guard the
hole, as it was not so close to the street as to
make the latter unsafe; it seems that the owner of
the premises could not have been charged with neg-
ligence in permitting the hole to remain, distin-
guishing Beck V. Carter^ 68 N. Y., 283; quoting
232 JAjOKSON :
Cooper 17. Overton.
with approval Hargraves v. Deacon^ Blythe v. Top-
ham^ Hardcdfitle v. Railroad^ and many other au-
thorities."
In the case of Hargraves v. Deacon^ 25 Mich., 1,
the rule is laid down as follows: *< Owners of. pri-
vate property are not responsible for injuries caused
by leaving a dangerous place unguarded, when the
person injured was not on the premises by permis-
sion or on business or other lawfu occasion, and
had no right to be there. Where an injury arises
to a person from the neglect of one doing his law-
ful business in a lawful way, to provide against ac-
cident, the question arises at once whether he was
under any obligation to look out for the protection
of that particular person under the particular cir-
cumstances of the case, for the law does not re-
quire vigilance in all cases, or in behalf of all per-
sons. If on the sidewalk, the duty of protection
extends to all persons who have a legal right to go
there; or, in other words, to the whole public, and
it depends upon that right. On private property,
not open of right to the public, it applies less gen-
erally, and only to those who have a legal right to
go there and claim the care of the occupant for
their security while on the premises against negli-
gence, or to those who are directly injured by some
positive act involving more than passive negligence.
We have found no cases which hold that an acci-
dent from negligence on private premises can 1)e
made a ground of damages, unless the party injured
APRIL TERM, 1899. 233
Cooper V, Overton.
had been induced to come by invitation, or by em-
ployment which brings them there, or by resorting
there as to a place of business, or a general resort
held out as open to customers or others, when law-
ful occasion may lead them to visit there. We
have found no support for any rule which would
protect those who go where they are not invited,
but merely from motives of convenience in no way
connected with business or other relations with the
occupant." In that case a little child of tender
yeai*s had strayed upon the property of defendants,
and had fallen into a pond which was open and
unguarded.
In Ratte v. Dawson^ 50 Minn., 450, this language
is used: *' Where a child of tender years was taken
by an older sister, to whose care it was intrusted,
to a vacant lot in a city for recreation and pleasure,
and was accidentally knocked down and killed by the
caving in of an embankment caused by excavations
for sand, and which had been left unfenced, it was
held that the landowner was not liable in damages,
and that he owed no duty to persons coming upon
the premises without his invitation to protect them
from danger from excavations therein." The Court
uses this language: <* There is nothing to take the
case out of the general rule that where the owner
of land, in the exercise of his lawful dominion over
it, makes an excavation therein so far from the
street that a person coming on to the land without
his invitation, and falling into it, would be a tres-
234 JACKSON :
Cooper u Overton.
passer before reaching it, such owner is not liable
in an action for injuries sustained. There was noth-
ing in the nature of the excavation, or anything kept
or used there, which can be said to have been
specially inviting or attractive to children, or calcu-
lated to entrap them into danger, so as to bring
the case under the rule established in the turntable
cases. The maxim '^sic utere tuo'* has no applica-
tion to such a case; it refers to acts the effect of
which extend beyond the limits of the property,
and to neighbors who do not interfere with or enter
upon it. If the rule were otherwise, the landowner
could not sink a well, or dig a ditch, or open • a
stone quarry on his land, except at risk of being
made liable for the consequential damages, which
would unreasonably restrict its enjoyment. ^^
In Peters v. Bowman^ 115 Cal., 345 (S. C, 56
Am. St. Rep., 106), we have a case very similar
to the one at bar: ^^ Plaintiff brought an action for
damages for the death of his infant son drowned in
a pond of water upon a lot owned by the defend-
ant. The water used to run over the lot until the
street was graded by the city of San Francisco on
the side towards which the land sloped, since which
time the water accumulated in the rainy seasons,
forming a pond which disappeared during the dry
season. The boy was drowned while playing on a
raft that was floating in the pond, and was eleven
years of age. The general rule is that the owner
of land is under no obligation to keep his premises
APRIL TERM, 1899. 235
Cooper V, Overton.
safe for trespassers, whether children or adults, and
governs this case. ' '
The rale of turntable cases is not applicable.
That rule is approved in that State (see 91 Cal.,
296), but should not be carried beyond the class of
oases to which it has been applied. It has been
repeatedly held that damages cannot be recovered
for the death of a child drowned in a pond on
private premises who had gone there without invi-
tation, quoting KlicJca v. Nieman^ 68 Wis., 271;
Over holt V. Bieths^ 93 Mo., 422; Ilargraves v. Dea-
con^ 25 Mich., 1; Gillespie v. McGowan^ 100 Pa.
St, 144; Richards v. Conndl^ 45 Neb., 467.
In response to a petition to rehear, the Court
entered very fully into the distinction between the
case and the turntable cases, and showed to what
absurdities the doctrine that the landowner is liable
for injuries to children who are attracted on to his
premises, by instancing the case of the death of a
child who, attracted by the tempting fruit, climbs
into a tree and falls and is killed.
The Court says: '^With respect to danger es-
pecially created by the act of the owner, novel in
character, attractive and dangerous to children, easily
guarded and rendered safe, the rule is, as it ought
to be, different from where the danger exists natu-
rallv and arises from natural causes. It distinoruishes
the Illinois case of Pekia v. McMahon^ supra^ by
showincr that it was one where the citv had made
the dangerous excavation in a thickly peopled quarter,
236 JACKSON :
Cooper V. Overton.
while in the case under consideration the pond on
the owner's land [as in this case] was created by
the city without any fault on his part [and in this
case without defendant's knowledge]."
There is a late case decided by the Supreme
Court of Minnesota, in July, 1898, which is directly
in point. This is the case of Dehanetz v. City of
St. Paul^ quoted in 4 Am. Neg. Repts., 655. The
syllabus .is as follows: *' Within the limits of the
city of St. Paul, and between the banks of the
Mississippi, is a slough more than a quarter of a
mile in length, which, during high water, fills with
water, and has no outlet. In this slough is an
open basin from sixty to seventy feet across, which
is contiguous to James Street. For a long time the
city of St. Paul has used this hollow basin as a
place for dumping garbage, and during high water
it floats upon the water, and forms a crust, upon
which grows vegetation similar to that upon the sur-
rounding land. The plaintiff's intestate, a girl ten
years old, left James Street, upon which she had
been traveling, and, either for convenience or pleas-
ure, attempted to cross over this crust. From the
facts, it did not appear that the public had ever
traveled over this dumping ground or used it as an
open common. Held, that the city owed no duty
of protection or warning to those going over this
dumping ground or crust, and, hence, was not lia-
ble for her death."
The opinion in this case concludes as follows:
APRIL TERM, 1899. 237
CJooper 17. Overton.
*' However sad may be the untimely death of this
young girl, yet, under the facts and well -settled
rules of law, the order denying the defendant's mo-
tion for a new trial must be overruled. We have
not deemed it necessary to discuss the authorities
cited by either counsel, as the facts clearly demand
a reversal of the order. It is suflScient to say that
the rule laid down in the well-known turntable cases
has no application to the case at bar.^'
It will be seen that the authorities cited are in
direct conflict upon what may be said to be the
real issue in this case, but we hold, upon reason
and weight of authority, that liability does not exist
even in the case of children, unless they are induced
to enter upon the land by something unusual and
attractive placed upon it by the owner, or with his
knowledge, permitted to remain there, and this is
the doctrine of the turntable cases. Further than
this the facts in this case do not warrant us in going.
In the case at bar the proof wholly fails to show
that the owner of this property caused the water to
stand upon this lot in a pond, but this was done
by the city. It wholly fails to show that the owner,
or his agents, did anything to render the pond at-
tractive, or that they placed any planks upon it,
and the proof does show affirmatively that the owner
did not know* of the existence of the pond, or its
dangerous character, and that he also, through his
agents, looked after the property with as much dili-
gence as should be required. It is impossible, there-
238 JACKSON :
Cooper 17. Overton.
fore, upon any theory of the case, to find a ground
of liability of the defendant. The leading cases re-
lied on by plaintiff, cited above, have, as an im-
portant and essential feature fixing liability, the cre-
ation of the danger or actual knowledge of it by
the owner, neither of which features exist in this case.
In LaGinll v. Cla-pp^ decided at the present
term, it was held that if the premises were ren-
dered dangerous by the acts of a third person, and
the owner had no knowledge of it and could not
have known it by proper diligence, the owner would
not be liable for injuries from the defects.
We have treated the case as though the special
requests were made as the rule requires, but the
record shows they were made before the main charge
was delivered, and hence, under our rule, they c6uld
not be held as properly made. Still, the entire
question is raised by objection to the charge as
given, and we have used the requests the more
plainly to define the plaintiff's contention.
There are various errors assigned in the record,
but not argued before the Court, which we dispose
of briefly. The testimony of Miss Conway was ob-
jected to so far as it sought to have her state the
age of the children in school under her charge. The
exception to this testimony is not properly made.
The record fails to show how much of her examina-
tion, made in the absence of the jury, was read to
them after they returned, and it fails to show that
any exception was taken to the action of the trial
APRIL TERM, 1899. 239
Cooper V. Overton.
Judge upon the final disposition of this matter, and
as to this feature the record is confused. In the
view we have taken of the ease, the evidence is
immaterial.
It was not error to exclude the testimony of the
same witness as to her opinion of what attracted the
children to the water, nor Jno. Appling's opinion as
to whether boys like to ride on . a plank in the
water. The Court rejected the testimony because it
called for opinions merely, and there was no excep-
tion to the ruling, and what the answer would have
been does not appear. Mr. Wall was asked if 'he
found in his experience that this pond, with planks
in it, was an attractive place for children. This
was objected to by counsel for defendant, and there
was no answer nor rulino: bv the Court. It was,
moreover, but an expression of opinion. As the
eleventh assignment, it called for a statement which
the witness showed could only be given from hear-
say, and it was properly excluded.
It is said the Court excluded all the evidence
tending to show that the pond was attractive to
children. This is too general. It does not point
out specific questions asked and answers given, and
does not attempt to do so. We have already re-
ferred to several questions, and the action of the
Court thereon, bearing upon the question generally,
but we cannot, on this general objection, look through
the record to find what is referred to. But upon
an examination of the whole record, we are satisfied
240 JACKSON :
Cooper I). Over ton.
that nothing material to tlie real issue in the case
was excluded. The ground of liability, if any ex-
isted at all, was that the pond was an attractive
place for children. Witnesses were not allowed to
give their opinions as to this feature, but they were
aHowed to state the situation of the pond, its size,
character and appearance, and what was on it to
make it attractive and different from any other sheet
or collection of water, and any facts from which
the jury might have inferred and concluded that it
was or was not attractive. The Cburt did not spe-
cifically charge, upon this feature, whether the pond
was attractive or not, and was not asked to do '^
so, probably because the proof did not call for it,
as the only evidence of attractiveness was that a
plank was floating on the surface of the water; but
how long it had been there, or by whom it was
placed there, did not appear, and it was affirmatively
shown that the defendant had no knowledge of the
plank or the pond itself.
We find no reversible error in the record, and
the judgment of the Court below is aflirmed with
costs.
APRIL TERM, 1899. 241
Marley v. Foster.
Mabley v. Foster.
{Jack807i. April 12, 1899.)
1. Title to Land. Not proved, when.
The complainant fails to show title to land that supports a bill
to remove a cloud and recover for timber taken therefrom, by
proof of a tax sale that would have g>iven his ancestor a su-
perior title but for the fact that it veas never perfected by
deed, and by proof of a subsequent deed from the orig'tnal
owner to his ancestor, made upon conditions never complied
with and withholden from rej^istration for over twenty years,
neither the complainant nor his ancestor ever having* been in
possession of the land or paid taxes thereon. {Post, pp. 242-244. )
2. Tax Title. Invalid, when.
A tax deed is insufficient to support ejectment where it does not
recite that the land was **duly reported" as required by the
statute under which the tax sale was made. (Post, pp. 246, 247.)
Act construed: Acts 1844, Ch. 93.
Case cited and approved: Hightower v. Freedle, 5 Sneed, 312.
FROM LAUDERDALE.
Appeal from Chancery Court of Lauderdale County.
Jno. S. Cooper, Ch.
C. P. McKinkey for Marley.
C. B. SiMONTON, Thos. Steele, and W. G. Lynn
for Foster.
18p— 16
242 JACKSON :
Marley v. Foster.
McFarland, Sp. J. The original bill in this
case was filed by Jo. C. Marley against W. H.
Foster and wife, to enjoin a suit then pending in
the Circuit Court of Lauderdale County, of Foster
and wife for $57.19 against complainant, this being
Mrs. Foster's share of proceeds of some timber sold
by Marley from a tract of land known as the
Blackwell land, owned jointly by Marley and Mrs.
Foster. The ground of this application for an in-
junction was that he, Marley, and Mrs. Foster owned
jointly another tract of land of some 416 acres, also
in Tipton County, Tennessee, known as the Ammon
land; that Mrs. Foster owed him, Marley, an amount
greater than this $57.19 judgment — his share of tim-
ber sold by her from the Ammon tract. Her bill
also sought to cancel, as a cloud upon his title to
a half interest in this Ammon tract, a certain grant
which was given by the State to Mrs. Foster, on
March 6, 1895, to 1,175 acres, covering this Am-
mon tract in so far as this grant affected this tract,
and also to have the land partitioned.
Foster and wife filed separate answers and cross
bill. Mrs. Foster's answer denies that Marley had
any interest in the Ammon tract, alleges she owns
the entire interest in the tract, and her cross bill
seeks an accounting with Marley for timber he had
sold from this land. Foster, the husband, answers,
saying that the Ammon tract is the separate estate
of his wife, and he leaves the litigation as to this
land between complainant and his (Foster's) wife.
APRIL TERM, 1899. 243
Marley v, Foster.
Foster's cross bill, however, set up that Marley has
cut timber from two other and different tracts
owned • by him, Foster, and seeks an accounting for
this timber.
By agreement of counsel, the Circuit Court suit
was transferred to this Court for determination, and
thus, by this bill and these cross bills, all these
separate and diverse matters are combined into one
suit. Many entries and grants and plats and deeds
are filed, and much proof taken, all dumped, as
it were, in this record, and the Court is asked to
settle, as best it can, these separate and conflicting
claims.
The Chancellor denied the relief prayed for in
the original bill, except to cancel the grant for the
1,175 acres as to a tract known as the Ball tract,
and decrees in favor of Mrs. Foster as to the
Ammons tract, also as to the suit for $57«.19, and
in favor of Foster, the husband, for an accounting
by Marley for timber sold from the other two tracts
owned by Foster. The complainant appeals and as-
signs errors.
Notwithstanding the number of grants and deeds
and volume of proof, the titles to all the lands in
controversy are very unsatisfactorily deraigned, and
the facts are not very clearly proven. The main
issue raised by the pleadings was as .to the owner-
ship of the Ammon tract of 416 acres, in which
Marley claimed half interest. This tract is over-
flowed land in Mississippi bottom, and valuable prin-
244 JACKSON :
Marley v, Foster.
oipally for its timber. It was granted by the State
of Tennessee to Peter Ammon in year 1837. In
1845 it was sold for taxes of 1844, and bought by
L. S. Maclin, the father of Mrs. Foster. In 1846
it was again sold for taxes, and bought by D. M.
Henning. A stipulation in the record concedes the
regularity of the proceedings in both these tax sales.
Maclin, the purchaser in the first sale, did not take
tax deed from the Sheriff until 1854, when he took
deed from the successor of the Sheriff who sold.
This Sheriff's deed was registered in 1854, soon af-
ter it was executed.
It does not appear that any tax deed was ever
taken by Henning. However, on the fourteenth day
of April, 1854, Peter Ammon, the original owner,
conveyed to Henning an undivided interest in this
tract, the deed reciting that it was for the consid-
eration ^f his tax right to this tract of land, and
in consideration of his, Henning, paying all the
costs that had accrued legally on this tract of land
up to this date. This deed was not recorded until
November 9, 1875, more than twenty-one years af-
ter its execution, and Henning seems not to have
complied with conditions of deed to same, or to have
paid any taxes, or to have exercised any act of
ownership over same until, on November 20, 1875,
he quitclaims this half interest to Marley, and from
this time, up to filing his bill in 1897, Marley seems
to have claimed to have owned this one-half interest,
APRIL TERM, 1899. 246
Marley v. Foster.
and sold some timber from it, but does not appear
to have paid any taxes on it.
As to Maclin, it appears farther that in April,
1887, he took quitclaim deed from a Mrs. Seay, a
daughter of Peter Ammons, for an undivided half
interest in this tract. This transaction, however, is
sought to be explained by Foster, who knew the cir-
cumstances of this conveyance, and who says Mrs,
Seay was one of two children left by Ammons, and
that this explains why she conveyed only a half in-
terest. He says, further, that she was a handsome .
widow; that Maclin was a gallant old gentleman some-
what smitten with the widow's charms, and he paid
her the fifty dollars for this land as a means of
making an inoffensive contribution to the widow, who,
it appears, was then needing assistance.
These are the many facts as to the title and
ownership of this Ammons tract, and the question
is whether Marley owns a half interest, or whether
Mrs. Foster, the only heir of Maclin, owns and is
entitled to recover this whole tract; or whether either
have shown sufficient for recovery in ejectment. As
to Marley, it seems clear he had no such title to
the half interest claimed by him as entitles him to
recover in this cause. It is true the tax sale to
Henning in 1846, if regular, gave a superior title —
being for subsequent taxes — to tax sale of 1845 to
Maclin. But it has been shown Henning never per-
fected his title by deed. It is true that in 1854
Ammons quitclaims to Henning a half interest, but
246 JACKSON :
Marley v, Foster.
this deed was upon conditions which it is not shown
were ever complied with by Henning, though this is
not very material. He did not even record his deed
for over twenty-one years — in November, 1875, just
before he sold to Marley. He paid no taxes for all
these years nor exercised any acts of ownership. He
knew all that time that Maclin claimed title to the
land, that he was claiming all of it. He was pay-
ing taxes on it, and Marley also knew the plain
facts as to title and claim of ownership. He did
not testify in his own behalf in this cause.
As to the title of Maclin, it is contended by Marley
that his, Maclin' s, tax deed, procured from Sheriff in
1854 on the tax sale of 1845, was void, because it
did not recite that said land was '*duly reported."
Citing IJtghtmcer v. Friedle^ 5 Sneed, 312.
This case of Ilightmoer v. Freedle holds that under
the Act of 1844, Ch. 92, it must appear in the pro-
ceedings of condemnation and sale of land for un-
paid taxes, ' ^ that the land so sold lies in the county
in which it has been reported for nonpayment of
the taxes thereon, and that it has been duly re-
ported," etc., and that these recitals must appear in
the Sheriff's deed, executed upon proceedings of con-
denmation and sale. This fact not appearing .in this
Sheriff's deed, upon which cross complainant, Mrs.
Foster, relies to maintain this action of ejectment,
she must fail upon this point. Neither is it shown
in this record that Mrs. Foster or her father (Maclin)
have had such adverse possession by actual occu-
APRIL TERM, 1899. 247
Marley v, Foster.
pancy of any portion of this land claimed under
this Sheriff's deed, as color of title, as will entitle
her to recover in this ejectment suit. The result
of these conclusions is that complainant, J. C. Mar-
ley, is entitled to no relief as to this 416 acres,
the Ammons tract, and that Mrs. Lula Foster is
entitled to no relief as to this Amnions tract on her
cross bill, neither party having shown clear legal
title, and both the original bill of Marley and the
cross bill of Mrs. Foster, as to this 416 acre Am-
mons tract, must be dismissed, but without prejudice
to either party. With these modifications the decree
of the Chancellor is affirmed and the cause is re-
manded to the Chancery Court for the taking of
the accounts ordered in the decree below upon the
matters of said decree herein affirmed.
The costs of the Court below, and. of this Court
to this date, will be paid one-half each by com-
plainant and defendants.
248 JACKSON :
Russell V. ITarrell.
Russell v. Fabrell.
{Jackson. April 12, 1899.)
1. EviDBNCE. Practice of admUtlng incompetent reprobcUed,
The practice of permitting incompetent testimony, in this in-
stance an alleged newspaper interview, without authentica-
tion, under a promise of subsequently ruling it out if it is not
made competent, is of doubtful propriety at best, and should
be permitted only in exceptional cases for expediting trials,
when the probability is great of supplying evidence of com-
petency. {Posty pp. 252, 253.)
Case cited and approved: Dawson v. Holt, 11 Lea, 583.
2. Libel. Defendant's post litem statement not admissible, ivhen.
A publication made by defendant concerning the plaintiff, pend>
ing an action for libel, is inadmissible when it is neither a con-
fessioi^ or explanation of the libel sued on nor an admission
of malicious intent in writing and publishing it. (Post, pp. 251-
253.)
Case cited and approved: Saunders v. Baxter, 6 Heis., 369.
3. Same. Erroneous charge as to justljlcatlon.
In an action of libel, where there is no plea of justification, and
no effort made to prove the trath of the libelous language, it
is reversible error for the Court to charge that proof of the
truth of the language used was a complete defense and that
the burden was upon the defendant to make such proof. {Post,
pp. 253, 254.)
Cases cited and approved: Railroad v. Collins, 85 Tenn., 227;
Railroad v. Lee, 90 Tenn., 570; Railroad v. Pugh, 95 Tenn.,
419.
FROM SHELBY.
Appeal in error from Circuit Court of Shelby
County. L. H. Estes, J.
APRIL TERM, 1899. 249
Russell V. Farrell.
FiNi^Y & FiNLAY and J. R. Boyle for Russell.
Jas. M. Greer for Farrell.
McFarland, Sp. J. This is an action of dam-
ages for libel, brought in the Circuit Court of Shelby
County. The declaration alleges that J. H. Farrell,
the plaintiff below, had been Deputy Sheriff of Shelby
County prior to September 1, 1896, at which time
W. W. Carnes had been elected a Sheriff; that de-
fendant, V. C. Russell, ''published in writing to
said Sheriff and divers others the following state-
ment, viz.: That plaintiff, while acting Deputy Sheriff
of Shelby County, Tennessee, did collect costs in an
action wherein this defendant was a party twice,"
and that the inevitable result of such publication
was to injure plaintiff in his said office, and that
this the defendant knew and intended such result.
To this the defendant plead not guilty.
Subsequently, by leave of Court, the plaintiff filed
an amended declaration, in which he repeats substan-
tially "the allegations of. the first declaration, and
added, as new^ matter, that since the bringing of
this action, the defendant, Russell, had caused to be
printed a libelous, scurrilous, false, and malicious
statement in a certain newspaper, the Ei^eimig
Herald^ printed in Memphis, the substance of which
was a statement of the controversy between himself
and Farrell leading up to the libel suit. In this
publication in the Evening lleraldy purporting to be
an interview with Russell, the statement nowhere
250 JACKSON :
Russell V. Farrell.
appears that Russell charged Farrell with collecting
costs twice, but that Farrell had said to him, Rus-
sell, that <<I had paid to him his costs and those
due the Justice also, showing him my books. Far-
rell did not deny the amount, which needed only
five dollars to balance accounts;" that subsequently
Esq. Haynes had demanded his costs, and Russell
refusing to pay same, Haynes had sued the plain-
tiffs in the original suits — patrons of Russell, who
was a real estate agent — and had collected these
costs.
The article also describes a personal difficulty be-
tween Farrell and Russell in Haynes' office, in which
Farrell had abused Russell, and threatened him with
a pistol, and concludes: " When Sheriff Carnes was
preparing to appoint deputies, I stated the above
occurrence to him, and added that we desired better
government; I did not approve of John Farrell be-
ing reappointed. Now, because Farrell could not
get a reappointment, he wants to sue somebody."
The article added, ''Farrell has lately figiu'ed in
several unfortunate cases," and this last statement is
also charged to Russell in this amended declaration.
To this amended declaration there was a plea of not
guilty.
When the cause came on for trial, Farrell testi-
fied first, and offered to read this newspaper article,
when its reading was objected to, and the Court
finally permitted it to be read, saying, "1 admit
this solely upon the question of the state of Rus-
APRIL TERM, 1899. 251
. Russell V. Farrell.
sell's mind toward Farrell to show malice; no recovery
can be based upon it. I have decided that it can-
not be pleaded in this suit by adding a new count.
It being published since the summons was issued, it
should have been made the subject of a new suit."
The newspaper article was then read to the jury,
over the objections of the defendant.
The cause then proceeded to final judgment upon
the charges made in the general declaration, the sub-
stance of which was that Russell had written Carnes
that Farrell, as an officer, collects costs twice. There
was a verdict and judgment for $2,500, and, on
motion for new trial, the Court directed a remitti-
tur of $1,500, which was done, and motion for new
trial overruled.
The first assignment of error is that the Court
erred in admitting the newspaper article published
after the institution of this suit, to be read to the
jury. The objections urged to the reading of this
article are: (1) That it was not sufficiently proven;
(2) because it was published after the suit was
brought, and was not an admission of the former
libel or explanatory of same. The record shows,
upon this first proposition, that the article was of-
fered without any proof whatever of its authenticity,
or even of its publication. The newspaper with this
article was offered by plaintiff in connection with his
testimony, confessedly knowing nothing about its
origin, and the Court permitted it to be read, say-
ing that unless there is some proof connecting the
252 JACKSON :
Russell V. Farrell.
defendant with it it must go out. After plaintiff's
testimony was all in, and defendant, Russell, was on
the stand, he was asked by plaintiff's counsel as to
this interview, and he said he had not written it;
had nothing to do with the paper. *'A young man
came to me the next day after Farrell sued me,
and asked me to tell him what the facts were about
the case. 1 told him just like anybody else would
do. I may have told him what you have read to
me out of the paper, but I am positive I did not
say to him that Farrell had figured in several un-
fortunate cases lately. I may have told him the
balance, I cannot say now."
Here is neither an admission nor denial, except
as to a part of this interview, and leaves its authen-
ticity and publication to rest alone upon itself. The
Court erred, therefore, in permitting this evidence to
be read at all, and especially permitting this paper
to be read to the jury in the first instance, without
connecting defendant in any way with it, or first
proving its authenticity. Dawson da Campbell v. Ilolty
11 Lea, 583. This practice of permitting incompe-
tent testimony to go to the jury, under promise of
subsequently ruling same out if it is not made com-
petent, is of doubtful propriety at best, and has
been frequently condemned by this Court. It is
often hurtful to opposing litigants, even though rule<f
out, and should be permitted only in exceptional
cases, for expediting trials, when the probability is
great of supplying evidence of competency.
APRIL TERM, 1&99. 263
Roasell v. Farrell.
This evidenoe was inadmLBsible upon the second
gi'ound of the exoeption, because it was a publica-
tion subsequent to that sued on, and was neither an
explanation of the letter written to Carnes nor an
admission of malice in writing the first. The rule
is thus laid down in Saunders v. Baxter^ 6 Heis.,
369, in which this subject was extensively discussed
and the authorities reviewed. Says the Court, p.
392: ''In view, therefore, of this great conflict and
confusion of authority upon this question, and of the
reasons of the law, we feel a sense of safety in
adhering to our own rulings upon this subject, that
a plaintiff in an action of libel cannot introduce in
evidence for any purpose a publication of the de-
fendant made subsequent to that sued on, unless the
subsequent one be an explanation or confession of
the former, or contain an express admission of the
malicious intent in the first publication."
There is no admission in this newspaper interview
that Russell had any malice in writing a letter to
Carnes, nor is there any explanation in this of the
particular libel complained of, to wit: ''That Farrell
had collected costs twice." The explanations, if such
they may be called, are as to the facts leading up
to the writing the letter and not of the letter. It
was, therefore, incompetent, and it is reversible error
'because of its probable damaging effect upon the
defendant before the jury.
It is also assigned as error, that the Court charged
that if the jury found the facts alleged to be libelous
264 JACKSON :
Russell V, Farrell.
were true, then this was a complete defense, but
that the burden of proving that the charge was true
was upon the defendant. It is insisted that inasmuch
as there was no plea of justification, nor effort to
prove the truth of charges made, this charge was
hurtful, and, being totally inapplicable, was error.
We think this was error. Railroad Co. v. Collins^
1 Pickle, 227; Railroad Co. v. Lee, 6 Pickle, 670;
Railroad Co. v. Pugh, 11 Pickle, 419.
For these reasons the judgment is reversed and the
cause remanded with costs.
APRIL TERM, 1899. 255
Knig^hts of Honor v. Dickson.
Knights of Honor v. Dickson.
(Jackson. April 14, 1899.)
1. Evidence. Not hearsay^ when.
It is a well established proposition that when the question is
whether a party acted prudently, wisely, or in good faith, the
information on which he acted, whether true or false, is origfi-
nal and material evidence. (Post, W' ^^i ^^O
2. Same. Introduction of.
Time and manner of introduction of evidence are matters within
the discretion of the trial Judge. {Post, PP- 258, 259.)
3. Witness. Interest.
The interest of a witness goes to the credibility of his testimony
and not to its competency or admissibility. (Post, p. 259.)
4. Life Insurance. Effect of misrepresentations.
Under a life policy conditioned upon the truth of the assured's
answers and representations contained in his application and
in the report of the medical examiner, the policy will be vitiated
alike by any misstatement of fact, whether made willfully and
with knowledge of the falsity or in good faith through igno-
rance of the truth, but as to matters of opinion, it is sufficient
if the statement was made in good faith and on the best in-
formation had or obtainable. (Post, pp. 259-263. )
Cases cited: Insurance Co. v. Lauderdale, 94 Tenn., 640; K. of P>
V. Bosenfeld, 93 Tenn., 510; K. of P. v. Cogbill, 99 Tenn., 28;
Boyd V. Insurance Co., 90 Tenn., 312; 16 Wash., 155 (S. C, 58
Am. St. Rep., 38); 119 Ind. (S. C, 12 Am. St. Rep., 393, note).
FROM SHELBY.
Appeal in error from Circuit Court of Shelby
County. L. H. Estes, J.
256 JACKSON :
Knights of Honor v. Dickson.
Carroll & MgEellar for Knights of Honor.
J. C. Myers, J. M. Greer, and S. J. Shep-
herd for Dickson.
Wilkes, J. This is an action by the widow and
mother of the deceased upon a policy of life insur-
ance in the order of Knights of Honor upon the
life of Paul S. Riley. There was a trial before
the Court and a jury, and a verdict and judgment
for the amount of the policy and interest, in all,
the sum of $2,145.54, and the lodge has appealed
and assigned errors. In the application for mem-
bership in the order, in this case the applicant stated,
<^I further agree and contract that the answers I
shall make to the questions propounded to me by
the medical examiner, as shown by the medical ex-
aminer's blank, hereto attached, are true, and I agree
that they shall form the basis of my contract with
the Supreme Lodge Knights of Honor." In the
certificate of membership of policy of insurance the
agreement upon the part of the order is ' ' to pay
upon condition that the statements made by said
member in his petition for membership, and the
statements made by him to the medical examiner,
are true; and it is agreed that these statements be
made a part of the contract, and they are warranted
to be true."
In the medical examiner's blank, insured was
asked, ''Have you ever hf\d any of the following
diseases?" Among others, disease of the lungs.
APRIL TERM, 1899. 257
Knig-hts of Honor v. Dickson.
Answer, ''No." Question, ''How many brothers
have you had?" Answer, "Two; one living, at the
age of seventeen; one dead, at the age of twenty-
two." Question, "Cause of death of the one dead?"
Answer, ' ' Malarial fever. ' '
It is claimed that these answers were false as to
the physical condition of the insured and as to the
cause of the death of the brother; that they must
be treated as warranties, and that as a result, the
policy is not collectible. The medical examination
for insurance was made June 6, 1897; the insured
was examined by a physician, and was told he had
galloping consumption, and could live but a short
time, and he died Nov. 28, 1897, or about five
months and twenty-two days after the examination for
insurance was made. It also appears that one of
the complainants, Mrs. Margaret A. Dickson, who
was the mother of insured, was present when the
medical examination was made, and helped to answer
the questions propounded to him.
It is claimed, by way of defense, that the brother
did not die of malarial fever, but of consumption.
It appears that he was in bad health, and went to
San Antonio, Texas. Before his return the insured
also went to Texas, but not to the same locality.
While the latter was still in Texas, the brother re-
turned to Tennessee and died, and the insured was
not present at the time of his death, but learned
of it from his mother afterward.
The first assignment of error is to the admission,
18 p— 17
258 JACKSON :
Knightb of Honor v. Dickson.
in rebuttal, of certain statements of the mother,
Mrs. Margaret A. Dickson, as to what information,
or means of information, Paul Riley, the insured,
had of the cause of the death of his brother, Willie
Riley. She had already been examined and cross-
examined, and proved the death of her son, and
that the doctor said that he died of acute consump-
tion, and that his brother, Willie, had previously
died, and that his physician said to her and to him
that he had catarrh of the stomach and malarial
fever, and that she had told her son, Paul, what
the physician stated was the cause of Willie's death —
that he died with catarrh of the stomach and mala-
rial fever, and that Dr. Jones had so told her, and
that he, Paul, had no opportunity to know the
cause of Willie's death except what she 'told him.
This evidence, the record shows, was objected to
when offered, and the objection overruled and excep-
tion taken; but the record does not show upon what
ground the objection was based. In argument here
it is said the statement could onlv be a self-servintj:
declaration not brought out in examination or cross-
examination, but on a recall of the witness by way
of rebuttal.
We are not able to see why this evidence was
not admissible. The truth of the answers made
upon the medical examination was in issue, as was
also the good faith and means of knowled^re of the
applicant, and, upon plaintiff's theory of the case,
APRIL TERM, 1899. 259
Knights of Honor v. Dickson.
the questions of good •faith and means of informa-
tion were material.
It is a well - established proposition that when
the question is whether a party acted prudently,
wisely, or in good faith, the information on which
he acted, whether true or false, is original and
material evidence. Greenleaf on Evidence, Sec. 101.
The interest of the mother in making the state-
ment is a matter which went to the credit to be
given her testimony, and not to the competency and
admissibility of it. The time and manner of its in-
troduction on the trial of the case was within the
discretion of the trial Judge.
Without taking up the other assignments seriatim,
it may be stated that they relate to the charge of
the Court and the question of law as to whether the
statements made in the application and medical exam-
ination are to be treated as warranties or representa-
tions, and whether their falsity or . incorrectness will
defeat recovery if made in good faith.
It is insisted the question asked as to the cause
of the brother's death was material, that the answer
was incorrect and misleading, and that it was, in
fact and legal effect, a warranty. The insistence is
that the Court, in effect, charged the jury that if
the answer was made in good faith, and from the
best of the applicant's information, it would not de-
feat recovery if it was untrue, and it is urged that
the correct rule is that such statements will defeat
the policy, whether willfully and intentionally false,
260 JACKSON :
Knights of Honor v. Dickson.
and known to be bo or not,' citing, to sustain this
proposition, the case of Insurance Co. v. Lauderdale^
10 Pickle, 640.
It is also insisted that the Court did not cor-
rectly charge that the applicant must, in his exami-
nation, make known every fact material to the risk
known to him, or that, in all reasonable probability,
ought to have been known to him, as to his own
health, and, on failure to do so, the policy would
be avoided; and if any misstatement was made ma-
terial to the risk it would invalidate the policy,
whether the misstatement was willful and intentional
or made through inadvertence or in good faith.
We are of opinion the criticisms made upon the
charge are not well made. It is true that any state-
ment made of a material fact which forms the basis
of the contract must be considered as a warranty,
and if false will vitiate the contract whether made
in good faith though ignorantly, or willfully and with
knowledge of the falsity. But there is a difference
between statements of fact as such and statements of
opinion on matters where only opinion can be ex-
pressed. Falsehood may be predicated of a misstate-
ment of fact but not of a mistaken opinion as to
whether a man has a disease when it is latent and
it can only be a matter of opinion. As to what a
person may have died of may be largely, if not
altogether, a matter of opinion, about which attend-
ing physicians often disagree, and as to such matters
their statement made can only be treated as repre-
APRIL TERM, 1899. 261
Knights of Honor v. Dickson.
sentations and not as warranties, and if made in good
faith and on the best information bad or obtainable,
they will not vitiate a policy if incorrect and not
willfully untrue. Bacon Benefit Societies, Sec. 203;
11 Am. & Eng. Enc. L., p. 30-1, Sec. 5, note 3.
This is the doctrine laid down in Knights of
Pythias V. Rosenfield^ 8 Pickle, 510, and Knights of
Pythias V. Coghill^ 15 Pickle, 28 — see, also, May on
Insurance, Sec. 166; Dooley v. Hanover Fire Ins, Co.y
16 Wash., 155 (S. C, 58 Am. St. Rep., 28);
Ph(Bnix Ins. Co. v. Pickle^ 119 Ind. (S. C, 12 Am.
St. Rep., 393, and note) — and is not in conflict with
Boyd V. Insurance Co.y 90 Tenn, 212, and Insurance
Co. V. Lavderdale^ 10 Pickle, 642.
The former was a case of insurance against fire,
and the representation or statement was that the
property was a dwelling occupied by a tenant. This
was a statement of fact material to the risk on which
the insurer relied, and the truth of which the
assured must have known, or by the slightest dili-
gence could have known. It was not in any sense
an expression of opinion, but a positive statement of
fact resting upon knowledge and not upon opinion.
The Lauderdale case was a case of accident insur-
ance, and the statement in that case was of a material
fact peculiarly within the knowledge of the applicant —
"That his habits of life were correct and temperate."
It was a fact about which he could not have
made an innocent mistake, and it was in no way
an expression of opinion. It was untrue in fact
262 JACKSON :
Kaigbts of Honor v. DicksoD.
in that case, and the insured was burned up in a
dwelling while intoxicated. It was stated in that
case that whether the statement be treated as a rep-
resentation or warranty, if untrue, it would avoid the
policy.
The Court, in response to special requests by the
defendant's counsel, said that if Mrs. Dickson, the
mother of the insured, and one of the joint bene'
ficiaries in the policy, was present when the appli-
cation was made, and stated, or caused her son to
state, that his brother died of malarial fever, when,
as a matter of fact, he died of consumption, then,
if such statement was adopted by the insured, and
relied on by the company, it was material to the
risk, and, the son soon thereafter dying of consump-
tion, it would avoid the policy, whether the incorrect
statements were made intentionally, or through .mis-
take and in good faith, and there could be no
recovery. And, again, that if she helped her son
to make the answers, it was her duty, as well as
his, in the utmost good faith, to disclose fully and
truthfully, in answer to questions, all that either of
them knew ' about the health of the applicant, his
exposure to a contagious or infectious disease, and
what his brother died of, and if they, or either of
them, misstated or concealed the fact that the brother,
some time before, died of consumption, and the in-
sured, a short time after being insured, died of
consumption, then the Court charges that such mis-
statement or concealment was a fact material to the
APRIL TERM, 1899. 263
Knights of Honor v. Dickson.
risk and avoided the policy, whether intentionally
made or made through mistake, and the verdict
must be for defendant.
This was stating the case as contended for by
defendant, and, as we think, too strongly, specially
as to matters about which the statements must nec-
essarily be mere opinions, but there is certainly
nothing of which defendant can complain, as it was
putting the case on his theory. It is said that
inasmuch as the Court charged this rule as to the
mother particularly and directly, there is no evidence
on which a verdict in her favor could rest, unless
the jury disregarded the charge.
We think this assignment is not well taken, as
there is some evidence that the brother did die of
malarial fever, and not of consumption, and this
was the statement of the attending physician, accord-
ing to the testimony of the mother. The weight
of testimony is that the insured was not aflfected
with any disease when he was examined, but it
manifested itself soon afterwards, and rapidly pro-
ceeded to his death. We think the plaintiffs are
entitled to recover the policies, and interest thereon.
The judgment is affirmed with costs.
264 JACKSON :
Royal Ins. Co. v. Vanderbllt Ins. Co.
Royal Ins. Co. v. Vanderbilt Ins. Co.
(Jachson, April 16, 1899.)
1. FiRE lN8Utf ANCB. Contract lUnit(itU)n does not apply, when,
G A printed stipulation in a policy of reinsurance, drawn up on the
printed form ordinarily used for property insurance, limiting^
the time for commencement of. a suit on the policy to twelve
months next after the loss, is not a part of the policy where
there is attached a written slip stating that the Insurance
provided is a pro rata part of each and every item insured by
the policy of the reinsured company. {Post, pp, 265-272,)
Cases cited: 145 Mass., 419; 153 Mass., 63; 99 N. Y., 124.
2. Same. Contract limitation begins to run, when.
The loss contemplated by a printed provision of a policy of re-
insurance drawn up on the ordinary blank used for prop-
erty insurance, limiting the time for the commencement of
an action upon the policy to twelve months after loss, does
not accrue, if the provision applies at all to such policy, until
the reinsured company has paid the loss under the original
policy issued by it. (Post, pp. 270, 271.)
3. Same. Policy, how construed.
The conflicting or doubtful provisions of an insurance policy are
construed most strongly against the company issuing the
policy. (Post, pp. 269, 270,)
Cases cited: 95 U. 8., 678; 111 U. S., 341; 127 U. S., 666.
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
Jno. L. T. Sneed, Ch.
APRIL TERM, 1899. 266
Royal Ins. Co. v. Vanderbilt Ins. Co.
Carroll & McKellar for Royal Ins. Co.
Smith & Trezevant for Vanderbilt Ins. Co.
Beard, J. This is a suit on a policy of insur-
ance. The complainant company carrying a risk on
cotton in a compress at Greenville, Texas, secured
from the defendant a policy of insurance by which
it undertook to underwrite the complainant to the
extent of one-half its risk. The cotton covered by the
original policy was destroyed by fire on November 14,
1887, and proofs of loss were immediately furnished
to the Royal Insurance Company, which company
also notified the Vanderbilt Insurance Company.
Controversy as to liability having arisen, litigation
between the assured and the Royal Insurance Com-
pany ensued, and a final settlement with the owners
of the cotton — the assured in the original policy —
was not made until the year 1895. After the set-
tlement the reinsured was called upon by the com-
plainant to make good its contract of indemnity by
paying the j/ro rata of the loss sustained, and, de-
clining to do so, the present bill was filed. Recov-
ery was in the Court below, and is now, resisted
upon three grounds, first, the statute of limitations
of six years; second, the contract limitation of twelve
months, and, third, that proof of loss had not been
furnished in time. The Chancellor, upon the hear-
ing of the cause, dismissed the bill, and complainant
has appealed.
The original policy of insurance, issued by the
266 JACKSOJS :
Royal Ins. Co. v. Vanderbilt Ins. Co.
reinsurer, was lost or mislaid, but a copy of it was
properly proven, and constitutes a part of the rec-
ord. The form used for the purpose of this insur-
ance was one that was primarily intended for the
insurance of property, and an inspection of the in-
strument shows that none of the printed stipulations
or conditions, save one, could apply to a contract
of reinsurance. In order to give it application to
such a contract, and to give the complainant the in-
demnity it sought, as is shown by the testimony of
the secretary of the defendant, a slip was pasted
upon the face of the policy, on which it was pro-
vided that the intention was to cover the complain-
ant company's liability in its policy already issued
on the cotton in question, followed by this clause:
"It being hereby understood and agreed that such
insurance is a j>7'o rata part of each and every item
insured by the policy of the reinsured company, and
subject to the same risks, valuations, conditions, and
mode of settlement as may be taken or assumed by
said company, it being expressly agreed, however,
that notice of any change in the risk, or additional
privileges granted, shall be at once given to this
company. Loss, if any, payable at the same time,
in the same manner, and pro rata with the amount
paid by said company."
The stipulation in the policy, on which the de-
fendant relies for defense as a contract limitation, is
as follows: "13. It is furthermore hereby expressly
provided that no suit for the recovery of any claim,
APRIL TERM, 1899. 267
Rcyal Ins. Co. v. Vanderbilt Ins. Co.
by virtue of this policy, shall be sustainable unless
such suit shall be commenced within twelve months
next after the loss shall occur."
A contract of reinsurance is peculiar in its char-
acter, and differs from the ordinary policy of insu-
rance. It creates no privity between the reinsurer
and the party originally insured {Gantt v. Ame7\
Ins. Co,^ 68 Mo., 533); it is simply an agreement
to indemnify the assured, partially or altogether,
against a risk assumed by the latter in a policy
issued to a third party [Commercial Mnt. Lis. Co.
V. Detroit F. ik M. Ins. Co., 38 Ohio St., 16).
In such a case ''the assured is not the owner of
the property at risk," and has ''no relation to it
except as insurer under the original policy." But
in that relation the party issuing the original policy
has an insurable interest which will support a con-
tract intended to indemnify him against the hazard
he has assumed. "But manifestly," as is said in
the Manufacturers^ Lis. Co. v. Western Lis. Co.^
145 Mass., 419, "many provisions appropriate to an
ordinary agreement with the owner of property, for
the insurance of it could have no proper application
to a contract," such as the one in question. In
the course of the opinion in that case, it is further
said: "Whenever words are found in a contract
which can have no proper application to the subject
to which it relates, they cannot be regarded; and
not infrequently the careless use of printed blanks
compels recognition of this rule."
268 JACKSON :
Royal Ins. Co. v. Vanderbilt Ins. Ck>.
The policy sued on in that case was one of re-
insurance, to a cenipany which had issued its policy
on mortgaged property. It contained a stipulation
making void the policy, if, without the written con-
sent of the company, the property insured should be
sold or transferred, or there should be any change
of title. The mortgage or trust deed was foreclosed,
and the property was bought by a third party, to
whom, by the consent of the insurer, the original
policy was transferred. Soon thereafter the prop-
erty was injured by fire, and the original insurer
having paid the loss, sued the reinsurer for his pro
rata of this loss, when the latter set up as a de-
fense the stipulation in his contract above referred
to. In the face of that policy was written the
same contract of indemnity as is found in the policy
here sued on, and it was held that <Hhis agreement
rendered nugatory many printed portions of the pol-
icy in which it was inserted. This was special and
peculiar, pertaining directly to the subject-matter of
the contract, and it controlled those parts of the
policy which were inconsistent with it," and among
others, the stipulation relied on to defeat recovery.
This principal was again announced and applied to
a different state of facts by the same Court, in
Fanvel Hall In^, Co. v. Liverpool Ins, Co,^ 163
Mass., 63.
In the case of Jackson v. St, Paul Ins, Co,j 99
N. Y., 124, the distinct question here involved was
raised. One of the contentions of the reinsuring
APRIL TERM, 1899. 269
Royal Ins. Co. v. Vanderbilt Ins. Ck>.
company was that the action was barred by the
limitation clause in the contract of reinsurance. The
opinion of the Court of Appeals of New York was
given by Danforth, J. Disposing of the contention,
he said: "The other objection rests upon a clause
in the policy which provides that no action ^for
recovery of any claim by virtue of this policy shall
be sustainable in any court of law or chancery until
after an award shall have been obtained, fixing the
amount of such claim in the manner above pro-
vided, nor unless such suit or action shall be com-
menced within twelve months next ensuing after the
loss shall occur.' This clause formed a part of a
blank form intended as an ordinary contract of in-
surance, where the assured had an interest in the
property, was required to make proof of the loss
by fire, and submit his claims to arbitrators if re-
quired, and fulfill many other conditions in no re-
spect applicable to a case where the perils of a
contract of primitive insurance only are involved,
and where the loss or damage is the amount of
liability under it. Such is the contract under which
the plaintiff claims, and his right to recover is un-
affected by the stipulation." (Page 130.) May on
Insurance, Sec. 12 (b).
But should we concede that the principle an-
nounced by those authorities is unsound, there is an-
other ground upon which this particular defense must
fail. It is well settled that when a policy of in-
sarance contains contradictory provisions or has been
270 JACKSON :
Royal Ins. Co. v. Vanderbilt Ins. Co.
SO framed as to make necessary a judicial construc-
tion, its own words will be taken most strongly
against it. I^irst JVationul Bank v. Hartford Ins.
Co.^ 95 U. S. , 678; Moulen v. Am, L. Im, Co.^
Ill U. S., 341; Traveler Ins. Co. v. McConkey^
127 U. S., 666.
Applying this rule to this policy of reinsurance,
the Vanderbilt Company must fail on this point of
its defense. Its contention is that the loss it in-
sured against was a loss by fire. This is a mistake.
It indemnified, to a limited extent, against the lia-
bility which the first insurer assumed by his con-
tract, and, accepting this thirteenth clause or stipu-
lation as a part of the contract, the loss which it
I refers to must be taken to be that which accrued
^ to the party indemnified when it made payment to
discharge its liability. This is the only construc-
tion which can be given to this stipulation to save
the conditions of the policy from irreconcilable con-
tradiction. For not only the slip already quoted,
but the seventh clause or stipulation (this being the
only one in the policy which in its original form
refers to reinsurance) provides as follows: "Rein-
surance to be on the basis that in no event will
this company be liable for a sum greater than such
portion hereby reinsured bears to the whole sum in-
sured l)y the company reinsured, and in case of loss
this company to pay pro rata at the same time and
in the same manner as paid by the company rein-
sured."
APRIL TERM, 1899. 271
Royal Ins. Co. v. Vanderbilt Ins. Co.
If it be, as is now contended bv the defendant
company, that the loss which its policy covers was
the loss by fire in 1887, and that was the begin-
ning of the contract period of limitation, then this
renders nugatory the obligation of the reinsurer to
pay '*at the same time and in the same manner"
as does the reinsured. Such a construction would
be to reverse the rule and interpret the contract
most strongly against the assured.
Again, this was not the construction \that either
of these companies, during their dealings, put upon
this contract. While the complainant notified defend-
ant, immediately after the fire, of the loss, yet no
formal proofs of loss or demand for reimbursement
were then made. They were not made until after
the complainant settled with the railroads in 1895.
But complainant did give notice to the Vanderbilt
Company of the resistance made by it to the pay-
ment of the loss, and that company clearly acqui-
esced in this resistance of its assured, bc^cause, as
is said by its then secretary, Mr. Jones, it thought
the position taken by the Royal Insurance Company
was '*a proper one to take."
In addition this witness said: "We granted rein-
suring policies often to the Royal Insurance Com-
pany on its various risks, and my recollection is
that, by the terms of these policies, we were sub-
ject to the same liabilities as that company was
under its original policy, and we would settle our
portion of the loss as they [it] settled under their
'^
272 JACKSON :
Royal Ins. Co. v. Vanderbilt Ins. Co.
[its] policies, at the same time and in the same
manner, and we were subject to the same adjust-
ment, settlements, and agreements which it made.
In short, we accepted, as a rule, one-half of their
risks and assumed one-half of the obligations im-
posed, and our risks were to be settled as theirs,
and when they finally settled their risks they made
the adjustment and called upon us to pay our pro
rata. ' '
Again, in 1890, Mr. Parker, who was at the time
secretary of the defendant company, addressed a letter
to the agents of the complainant company, in which
he assured them that though his company was then in
process of liquidation, yet the claim of complainant
was being provided for. Thus it will be seen that
the construction put by us on this policy is that
which these companies all the time placed upon it,
and the one which regulated their dealings with one
another. We think this construction was sound, and
it is evident in adopting it, as we do, we reach
the merits of this case. It follows, as this bill
was filed within three months of the payment of
the loss by the complainant company, the defense of
limitation is in no particular well taken. As to
proofs of loss, it is sufficient to say that those fur-
nished were sufficiently full, were such as it was
the custom of the two companies to supply and re-
ceive, and were accepted by defendant company, so
far as this record shows, without objection. There
is, therefore, nothing in this contention.
APRIL TERM, 1899. 273
Royal Ins. Co. v. Vanderbilt Ins. Go.
The decree of the Chancellor is reversed, and a
decree will be entered here for $968. 18, this being
the aggregate of the amount due, and interest from
dates of payment by com})any, and costs.
18p— 18
274 JACKSON :
Memphis v, Waite.
Memphis v. Waite.
(Jackson. April 16, 1899.)
1. Deed. Construed by Court
The question whether the calls of a deed extend to, or stop short
of, a river is one of law for the Court, and should not be left to
the jury. (Post, p. 277.)
2. LiMiTATioirs, Statute of. Not applicable, when.
The statutory requirement that suit must be brought by the
owner within twelve months, where private property is taken
possession of for some work of internal improvement, has no
application to an action against a city for its use and occupa-
tion of certain property as a dumping ground, without any
intention of acquiring the property for permanent public use.
(PosU pp. 278, 279.)
Code construed: { 1867 (S.); { 1572 (M. & V.); { 1348 (T. & S.).
3. Action. Joint, by co-tenants maintainable, when.
The several owners of lots composing a block may join in an ac-
tion to recover compensation for the use and occupation from
a third person who has occupied the whole block. [Post, p.
279.)
4. License. Not implied, wlien.
A city cannot escape liability for the use and occupation of prem-
ises for a dumping ground, at least for the period subsequent
to the commencement of a suit against it for the previous use
and occupation of the land, upon the ground that the use of
the land by the city, without objection from the plaintiff, cre-
ated an implied gratuitous license from him. (Post, pp. 279, 280.)
Case cited: Loague v. Memphis, 7 Lea, 67.
FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. L. H. Estes, J.
APRIL TERM, 1899. 275
Memphis v, Waite.
Pekcy & Watkins for Memphis.
Henry Ckaft for Waite.
McFarland, Sp. J. This suit was commenced in
April, 1898, by Charlotte Waite and Forshay and
wife and Floretta Siglar, to recover of the city of
Memphis compensation for the use and occupancy of
certain preqierty in the city of Memphis known as
lots 1, 2, 3, 4, block 1. The legal title to lots
1 and 2 was in the heirs of Frank Waite, deceased,
subject to the homestead of Mrs. Waite, his widow;
lot 3 in Charlotte Waite, co-plaintiflf herein; lot 4
in Charlotte Waite. These lots compose one block,
having a front of 240 feet on Tennessee Street on
the east, and running back to the Mississippi river
on the west some 200 feet, and having for its
northern boundary Linden Street projected, and on
the south Talbot Street projected, neither of these
being open abutting this block. About half way
between Tennessee Street on the east and the river
on the west there is a precipitous bluflf some 75
feet in height, and that part of this block between
the bluff and the river is but a few feet above the
river. The city of Memphis owns the block north
of this Waite block, extending from Linden to Beal
Street on the north, Beal Street being open to the
river. On the southern line of the Waite block
the bluff approaches near the river, and there is no
access to this low poirt of the Waite lot except
from the north, over the city lot.
276 JACKSON :
Memphis v, Waite.
In 1882, Mrs. Waite, acting for herself and the
other plaintiffs, who were living on the bluff portion
of the block, leased the block to one Alley at $75,
per month, for several years, and then to O'Neal
& Co. for several years at the same rental. Subse-
quently— and there is considerable discrepancy in the
dates given by the witnesses — the ground between
the bluff and the river was washed entirely away
by the river.
About 1891 the city of Memphis began to use
the lower part of the lot for a dumping plaae, and
gradually extended the made land south on the water
front. The public also used the same place as a
dumping ground. Then the government built a dike
at the foot of Talbot Street, extending it out into
the river; and thus, through all these agencies, this
made land was extended down the whole river front
of the Waite property. About 1891 the city es-
tablished its dump foot near the southwest corner of
the lot, and since then, up to the bringing of this
suit, has occupied the whole river front of this prop-
erty, its roadway being about double the width of an
ordinary road, and over this road, from the city's
lot on the north to the southern line, the dump
carts passed constantly. In March, 1895, Mrs.
Waite and the other complainants brought their first
suit against the city for use and occupation of this
block up to that date, and on April 16, 1898,
brought this suit for use and occupation for the
time between March, 1895, and April, 1898. Both
APRIL TERM, 1899. 277
Memphis v. Waite.
suits were tried together, and there was a verdict
and judgment in the first suit for $21, and in this
the second suit for $2,000, and appeal to this Court
in the last case.
The first assignment of error is as to this part
of the charge of the Court below, as follows: '*The
Court charges you that the conveyances presented in
evidence make plaintiffs the beneficial owners of the
property, and as such they were entitled to its rea-
sonable rental value.''
Two grounds are alleged why this charge was er-
roneous. First, that the Court by this charge de-
termined that the plaintiffs did own to the river
bank, the defendants claiming that the plaintiffs owned
back a certain number of feet, which did not carry
this title to the bank of the river, and urged that
the Court should have left to the jury to determine
whether or not plaintiffs owned to the bank of the
river. We do not think this contention sound. It
is the duty of the Court, and not the jury, to in-
terpret the muniments of title, and whether, under
the deeds to these lots, the title ran to the river
or not was a question of law, to be determined by
the Court upon its construction of the deeds, and
not a matter of fact left with the jury.
The other contention of defendant was that, under
the latter clause of this charge, when the Court,
after interpreting the deed to the effect that the
plaintiffs owned to the river, adds, '^and as such
owners they were entitled to its reasonable value,"
278 JACKSON :
Memphis v. Waite.
the Court decides for the jury the question whether
plaintiffs were entitled to the rent. This contention
would have some force if this was all of the charge
of the Court as to whether plaintiff was entitled to
recover rent or not. The Court had already spe-
cially charged the jury what facts were necessary to
be proven by the plaintiffs in order to charge the
city with payment of rent. The first charge given
on this point is, ''They [the plaintiffs] should satisfy
you that they are the owners, and as such are en-
titled to the rent of the property." There was no
request by the defendant for the Court to explain
more fully what would entitle plaintiffs to collect
rents. The charges asked by the defendant on this
point were as to what would prevent them from col-
lecting rents, and these were in themselves erroneous.
The next assignment necessary to be noticed is
that ''the Court erred in not charging that if the
public had been using this roadway for a number
of years — say, ten years — the plaintiff could not re-
cover in a suit for rent and occupancy against
the city, and section 1867 (Shannon's Code), pro-
viding that where property is taken possession of
for some work of internal improvement, suit must
be brought in twelve months, is relied on. This ob-
jection is answered by the facts and condition of
the record. There was no pretense that the city
had taken possession of any portion of this lot as
a public highway, or intended it as such, and this
APRIL TERM, 1899. 2T9
Memphis u. Waite.
statute, as to taking private property for public
uses, has no application.
The next assignment is that the Court refused to
direct the jury that, if they found for the plaintiff,
they must find what amount was due each plaintiff.
No principle of law or authority is cited in support
of this contention. The pleadings treated this block
of land as a whole. There was no proof of any differ-
ence of time or manner of occupancy or rental value
of the separate parts. The judgment concludes each
and all the plaintiffs from further recovery against
the city by any of them for this same cause of
action. It is immaterial to the city how the plain-
tiffs apportion the recovery. There is no reason
why several owners of lots composing a block may
not join in a lease for a joint rental. If the de-
fendant has, by its occupation and use of the whole
block, made an implied contract of joint renting,
we know of no legal reasons for drawing distinc-
tions between this implied contract and a written lease
with same joint obligation, especially where, as here,
no sufficient pleas raising the question were filed. This
assignment is not well taken.
The next assignment is that the Court refused to
charge the jury that if the city built a roadway,
and used it for a great number of years without
objection from the plaintiffs, and without any de-
mand for rent, then there would be an implied
gratuitous license, and the plaintiffs could not recover
for use and occupancy. In support of this assign-
280 JACKSON :
Memphis v. Waite.
ment the case of Loague v. City of Memphu^ 7
Lea, 67, is cited. Under this 7th Lea case the
charge asked for by the city on this point would
have been error. It would have been the Court
determining that merely because the city built the
road the defendant had demanded no rent. These
facts would in themselves have constituted an implied
contract, because, without right to claim rent, says
the Court, in the 7th Lea case, page 69, it was
for the jury to say whether there was assent or
license without intent to charge. The facts of this
case take it clearly out of the principles contended
for by defendant. In this last suit, the period for
which plaintiffs seek to charge the city was from
March, 1896, to April, 1898.
In March, 1895, plaintiffs brought this first suit
against the city for the previous use and occupation
of this land. This was notice that they expected
to be paid for its use, and, in the face of
this suit, the city continued to occupy, and it is
for this occupancy since the plaintiffs sued defendant
the iirst time, this second action was begun. It
does not appear reasonable that the city could, after
this first suit, demand for rent, and suit therefor,
contend that it had a gratuitous license for occu-
pancy without rent.
The next assignments, the eighth and ninth, are,
first, that the verdict was excessive, and, second,
that there was no evidence to sustain the verdict.
It would be sufficient answer to both of these as-
APRIL TERM, 1899. 281
Memphis v. Waite.
signments to say we differ from learned counsel for
defendant, and that there was some evidence upon
which the jury might have found to the full extent
of this verdict.
Mrs. Waite testifies *'that the property is well
worth seventy-five dollars per month rental," and
that she had rented it for previous years to two
other tenants for the same, and two reputable wit-
nesses of the city testify to the latter fact. • This
verdict of the jury was only at the rate of fifty-
four dollars per month.
There were several other reasons ingeniously sug-
gested by plaintiffs' attorney why this was cheap
rental for this property, among others that, by rea-
son of the location, surroundings, and physical condi-
tion of this property, this was the only dumping
point the city had; that the water had, as it were,
"cornered" the dumping privilege. Without passing
upon these suggestions, it is suflBcient to say that
there was evidence submitted to the jury upon which,
and the fair inferences therefrom, they could have
found the verdict they did, and, under the rules of
this Court, this verdict cannot be disturbed upon
the grounds of these last two assignments of error.
We add that if the city has been made to pay high
for what it got, it took, without license, the prop-
erty of the citizen, and held with knowledge that
it would have to account, and municipal corporations
may not do this any more than private citizens.
The judgment will be affirmed with costs.
282 JACKSON :
Scatchard v. Bar^re.
SCATGHABD V. BaROE.
(Jackson. April 15, 1899.)
Recoupment. Mvst he specially pleaded.
Matter in recoupment, as well as set-off, must be specially
pleaded, and cannot be proved under the general issue.
Code construed: {4^39 (S-); 23628 (M. <& V.); {2918 (T. & S.).
Gases cited: Hogg v. Card well, 4 Sneed, 151; Waterbary v. Rus-
sell, 8 Baz., 159; Parker v. Steed, 1 Lea, 206; Gibson v. Carlln,
13 Lea, 440; Porter v. Woods, 3 Hum., 56; Sample v, Looney,
1 Overton, 87.
FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. L. H. Estes, J.
W. H. Phelan and Geo. Gillham for Scatchard.
H. C. Warinner for Barge & Derrick Co.
McAlister, J. The defendant in error recovered
a verdict and judgment in the Circuit Court of
Shelby County against Scatchard & Son for the sum
of $1,659.48 for the towage of certain logs from
Westover and Lake Jefferson, Arkansas, to Memphis,
Tenn. Scatchard & Son appealed and have assigned
errors.
APRIL TERM, 1899. 283
Scatchard v. Bargee.
The declaration contained two counts, viz., one
for breach of contract, and the other the common
count. Scatchard & Son pleaded the general issue.
The defendant introduced evidence tending to show
that the logs in question originally belonged to one
John Blackwell, who sold them to the Williams Saw-
mill & Lumber Co., at Memphis. Scatchard & Son
contracted with the Williams company to pay for the
logs so purchased or make advances on them to
Blackwell, which was accordingly done by Scatchard
& Son to an amount in excess of plaintiff's towing
charges. Defendant's contention is that they agreed
with plaintiffs that if they would properly tow to
Memphis all the logs (Blackwell logs) then at West-
over or near Lake Jefferson, the defendant would
pay the towing charges; but that plaintiff towed only
a part of said logs, and by their fault and negli-
gence lost the remainder, on which defendant had
made said advances; that some were lost at West-
over by the high water carrying them away, and
that others at or near Lake Jefferson were lost by
the sinking of one of the plaintiff's barges. De-
fendants claim that, owing to the loss of said logs,
they had no funds in their hands sufficient to pay
the said towing charges; that defendant had advanced
on the logs lost $1,4:00, which was in excess of
proper charges for logs actually towed. Defendants
introduced evidence tendings to show that whatever
advances Scatchard & Son may have made on those
logs had been fully repaid out of the proceeds of
284 JACKSON :
Scatchard v. Barg>e.
the logs actually received by them, and that at the
time this suit was brought they had reimbursed
themselves for all such advances, and had a surplus
in their hands. It appears, however, that on the
trial below defendants sought, under the general is-
sue, to recoup the plaintiff's claim for towage by
the value of the logs lost, at least to the extent
that defendants had made advances on them, but the
Court excluded such proof upon the ground that re-
coupment must be specially pleaded, and could not
be made available under the general issue.
The principal assignment of error is upon the
action of the trial Court in refusing to allow Scatch-
ard & Son to prove damages by way of recoup-
ment under the issues presented by the pleadings.
In Martin's Edition Caruthers' History of a Law-
suit it is said, viz.: '* Set-off and recoupment are
defenses that must be specially pleaded. They are
in effect cross actions, and are allowed primarily to
prevent circuity of action. The distinction between
the two is this: Set-off consists of a demand not
connected with, or arising out of, plaintiff's demand,
existing: at the commencement of the action in favor
of the defendant against the plaintiff, while recoup-
ment relates only to cross demands inseparably con-
nected with, and necessarily arising out of, the con-
tract upon which plaintiff sues." Sec. 128. This
statement of the law is attacked as erroneous.
In Sainjyle v. Looney^ 1 Overton, 87, it was held
APRIL TERM, 1899. 285
Scatchard v. Bargee.
that evidence in recoupment was admissible << either
by plea or proof under the general issue."
In Pointer v. Woods^ Stacker d; Co., S Hum., 56, the
judgment was reversed because recoupment of dam-
ages had not been allowed, and the only plea was
the general issue.
In Hogg v. Cardwell, 4 Sneed, 151, Judge Caruth-
ere said, viz.: '*It does not seem to be very well
settled whether the defense can be relied on under
the general issue without special plea, or at least
notice, but it is doubtless better practice to plead
it to avoid surprise to the other party."
While the authorities were in this apparent con-
flict the Act of 1855 was passed (Shannon's Code,
§4639), viz.: ''The defendant may plead, by way
of set-oflf or cross action, (1) mutual demands held
by the defendant against the plaintiff at the time of
■
action brought and matured when offered in set-off
(Acts 1756, Ch. 4, Sec. 7); (2) any matter arising
out of plaintiff's demand, and for which the plain-
tiff would be entitled to recover in a cross action
(Acts 1855-56, Ch. 71, Sec. 1). Code of 1858,
§2918.
The Act of 1855-56 clearly refers to matter of
recoupment, which, at common law, was the right
of defendant, in the same action, to claim dam-
ages from the plaintiff, either because he has not
complied with some cross obligation of the contract
upon which he sues, or because he has violated some
duty which the law imposed upon him in the mak-
286 JACKSON :
Scatchard v. Barge.
ing or performance of that contract. Bouvier's Law
Dictionary. We are aware of no case decided since
the Act of 1855-56 which holds that recoupment
may be relied on under the general issue. In the
case of JToggr v. CarduyeLL^ 4 Sneed, 151, decided in
1856, it was held, viz.: ''Any false represmtatioii
by the bargainor, made at or before the time of
the execution of a written contract of sale, as to
the value of the property sold, intended as an in-
ducement to the bargainor, and having that effect,
by which the bargainee is injured, whether innocently
or fraudulently made, constitutes good ground for
recoupment of damages, upon special plea by de-
fendant, in a suit upon such contract." In Waterhury
V. Russell^ 8 Bax., 159, plaintiff sued defendant for
balance due on price of corn sold in sacks and de-
livered to him. Defendant filed a special plea for
recoupment, upon the ground that the corn was
found to be badly damaged by heating, mould, and
rust; that, in sending said corn to market, it was
sold at a loss, which defendant sought to have re-
couped or set off against the plaintiff^ s claim. In
that case the plea was special. The case of Parker
V. Steed^ 1 Lea, 206, was an action at law to re-
cover the price of a brick dwelling house. The
declaration contained two counts — one on the special
contract and the other on a quantum valebant. The
pleas were (1) the general issue; (2) a claim of
damages by way of recoupment, by reason of the
gross negligence and want of skill of plaintiff in
APRIL TERM, 1899. 28T
Scatehard v. Barg'e.
erecting said house, whereby it was wholly useless
to defendant, etc.- In that case there was a special
plea of recoupment.
The case of Gibson et aL v. Carlin^ 13 Lea, 440,
was a bill in equity, and the answer specifically set
up the damages claimed. Counsel for plaintiff in
error cite in support of their contention Moore v.
McGaha, 3 Cooper's Chy. Rep., 416. The bill in
hat case was filed to enjoin a judgment at law, and
the demurrer was sustained upon the principle that
a party will not be aided by a Court of Equity
after a trial at law unless he can impeach the jus-
tice tof the verdict on grounds of which he could
Dot have availed himself at law or of which he was
prevented availing himself by fraud or accident
or the act of the opposite party, unmixed with neg-
ligence or fault on his part. In that case it ap-
peared that the complainant had been sued and a
judgment recovered against him at law for balance
duo on a building contract, in which suit complain-
ant failed to plead set-otf, cross action, or recoup-
ment for damages sustained in consequence of the
builder's failure to do his job in a workmanlike
manner and with good material, as he contracted to
do. The Chancellor held that the defenses now re-
lied on (set-off and recoupment) were necessarily in-
volved in the action at law, and that the complain-
ant, having had full opportunity to make them in
that suit, was clearly precluded from coming into
equity upon them.
288 JACKSON :
Scatchard v. Barge.
The Chancellor remarked <^ arguendo,'^ that the
damages claimed could have been shown in the ac-
tion at law, under the general issue, without special
pleading, citing Porter v. Wbodn^ 3 Hum., 66.
The Chancellor did not notice the Act of 1855-56,
which we hold changed the rule on this subject and
made it imperative on the pleader to rely by spe-
cial plea on his claim of recoupment. This has al-
ways been the rule where the party desired to rely,
by way of set-off, upon some demand disconnected
with the subject-matter of the plaintiff's claim, and
we see no reason for two different rules in respect
of matters so nearly cognate as set-off and recoup-
ment.
It results that there was no error in the action
of the Circuit Judge in excluding this evidence, and
the judgment is affirmed.
APRIL TERM, 1899. 289
Railroad v. Delaney.
Railroad v. Delaney.
{Jackson. April 15, 1899.)
1. Libel. Wortis not actionable per se.
A statement in a recommendatioD of a former employe that,
"like many others, he left our service during the strike," is
not libelous or actionable per se, so as to constitute a cause of
action without special damages. (Post, p. 295.)
Cases cited and approved: Bowdre v. Bank, 93 Tenn., 723; B'ry r.
McCord Bros., 95 Tenn., 679; 91 U. S., 227.
2. Same. Publication.
The delivery of a letter of recommendation for a former employe
to a person who, by his authority, requested it, is not a pub-
lishing of any libel contained in it. {Post, P- 294.)
Cases cited: Sylvis v. Miller, 96 Tenn., 04; 24 Atl. Rep., 244,
3. Same. Inmifflcient averment of specUtl dama{feft.
An averment of special damages in a libel case is insufficient in
these words, to wit: "That plaintiff has been greatly injured
in his business; he has been unable to obtain employment; he
has been- deprived of the right to follow the vocation of his
choice, to his great damage, 310,000." {Post, pp. 29,^-297.)
Cases cited: Fry v. McCord Bros., 95 Tenn., 678; 91 U. S., 225,
FROM SHELBY.
Appeal in error from Circuit Court of Shelby
County. L. H. Estes, J.
Adams & Trimble for Railroad.
Bell & Horne for Delaney.
18 P— 19
290 JACKSON :
Railroad v. Delaney.
McAlister, J. Delanev commenced this suit in
the Circuit Court of Shelby County against defend-
ant company to recover damages for an alleged
libel contained in the following letter:
** Kansas City, Memphis & Birmingham R. R. Co.
*'J. H. Sullivan, Supt.
*^ Memphis, Tenn., May 16, 1896.
**7J> Whom it May Concern — The bearer, J. P. De-
laney, worked for the company as foreman of black-
smith shop, and was considered very competent.
Like many others he left our service during the
strike. But I think he is thoroughly convinced that
he got on the wrong track, and that no trouble
from this source need be apprehended from him
again. For his family's sake I hope he may ob-
tain employment, and I believe he will prove a
faithful man hereafter.
*^J. H. Sullivan, Supt.'*^
After setting out the letter, the declaration pro-
ceeded: "The aforesaid writing was known by the
defendant to be false when it made and published
the same. The plaintiff did not leave the service
of the defendant during the strike, and this fact
was well known to the defendant. The plaintiff
took no part in said strike, and this fact was well
known to the defendant. The aforesaid written and
published false statement was made willfully and ma-
liciously for the purpose of injuring plaintiff in his
trade and calling."
There was a demurrer to the declaration upon
APRIL TERM, 1899. 291
Railroad v. Delaney.
the ground that it did not make any sufficient
averment of special damages suffered by the plaintiff
in consequence of the libelous words spoken of and
concerning him. The point of the demurrer was
that, the words not being libelous per se, the action
could not be maintained without an averment of
special damages. The demurrer was overruled. The
defendant pleaded not guilty and justification. The
latter plea, in full, is as follows: ''It says that at
the special instance and request of the plaintiff, one
R. A. Speed, acting as the plaintiff's friend and
agent, went to J. H. Sullivan, who was employed
by defendant company as superintendent of operating
department of its railroad, and asked him to give
him, Speed, a letter addressed 'To whom it may
concern,' recommending plaintiff, as well as the facts
would justify, for employment, at the same time
stating that he knew that said Sullivan could not
give him a letter addressed to any railroad, because
belaney had been connected in some way with the
strike. He further stated to said Sullivan that if
he would give him a letter of recommendation, ad-
dressed as above, he thought Delaney could get em-
ployment with the Louisville & Nashville Railroad,
at Memphis. Accordingly, said Sullivan, with intent
to aid and assist plaintiff, and without malice, wrote
the letter, dated May 16, 1896, declared upon, and
delivered the same to said Speed, to be delivered
by said Speed to said Delaney. The contents of
said letter were made known by said Sullivan to
292 JACKSON :
Railroad v. Delaney.
said Speed at the time said letter was delivered,
and at his urgent request, but were made known
by defendant's or said Sullivan's acts to no other
person. Defendant avers that the contents of said
letter are true in substance and in fact."
On the trial below it was not controverted that
the letter was written, but it was insisted that it
was written at the request of plaintiff, and delivered
to his agent, Mr. Speed. The latter went to Sul-
livan, superintendent of the Kansas City, Memphis
<& Birmingham Railroad, to get a letter recommend-
ing Delaney to Captain Slusser, of the Louisville &
Nashville Railroad, for employment. Sullivan refused
to give a letter to Slussen. Thereupon Speed rep-
resented to Sullivan that Delaney was a poor man,
had a large family, and would like a letter from
him "To whom it might concern;" that it might
do him some good. After some hesitation Sullivan
finally agreed to give such a letter, saying he felt
sorry for Delaney, and would like to see him get
something to do. Speed testified that he showed
the letter to no one, and had not communicated its
contents to anyone excepting Delaney.
The record fails to show that this letter ever
came to the knowledge of any persons other than
Speed and Delaney. It does show that Delaney him-
self showed it to Captain Slusser, master mechanic
of the Louisville & Nashville Railroad at Memphis,
for the purpose of securing employment. There was
evidence tending to show that on July 3, 1894, a
APRIL TERM, 1899. 293
Railroad v. Delaoey.
time long anterior, Delaney was working in the shops
of defendant company, at Memphis, in the capacity
of railroad blacksmith. On that day what was known
as the Debs strike was begun, and the shops of
defendant company were immediately closed. Delaney,
it appears, was a member of the American Railway
Union, and, after the shops were closed, attended a
meeting of that organization at the courthouse in
Memphis, and, in a public speech, stated that, as the
Kansas City Railroad Company had acceded to the
demands of the strikers not to haul Pullman cars,
be would have nothing to do with the strike.
Delaney testified that he told Briggs, the master
mechanic of defendant company, under whom he had
worked, that he was ready and willing to work at
any time; that Briggs asked him if he was a mem-
ber of the American Railway Union, and, on his
admitting that he was, Briggs discharged him. This
was denied by Briggs. Evidence was introduced by
the company tending to show that on the fifth or
sixth of July, while the shops were still closed, it
became necessary to have the rigging of a passen-
ger coach repaired, and Briggs sent for Delaney to
do the work. Delaney came, and, on being told
what was wanted, said he would have to consult
the Blacksmiths' Union, whereupon Briggs discharged
him. Sullivan, the superintendent, was afterwards
told that Delaney had been discharged for refusing
to do the work required. It is claimed by Sullivan
that he was acting on this information when he
294 JACKSON :
Railroad v. Delaney.
stated in the letter that Delaney, 'Mike many others,
left our service during the strike."
It will be observed that this suit is not to re-
cover damages for the breach of a contract or for
discharging Delaney from the service of the com-
pany, but is for the publication of a libel based
upon the following language in the letter, namely:
*'like many others, he left our service during the
strike." It will be remembered that this letter was
written at the urgent solicitation of Mr. Speed, act-
ing as the friend of Mr. Delaney. Neither Delaney
nor Speed expressed any dissatisfaction with it at
the time it was written, but received it and at-
tempted to make use of it. The only publication of
the letter was in making its contents known to
Speed. No witness was produced who had refused
to employ Delaney- on account of the letter, nor
were any special damages alleged or proved.
There is no evidence of publication in this record.
The proof is undisputed that this letter was written
by Sullivan at the request of Mr. Speed, who was
acting by authority of plaintiff. Speed accepted it
and delivered it to plaintiff, who used it in seeking
employment. Under the authorities the companj'- is
not liable for any of the consequences of the act
of Delaney in making publication of the letter after
it reached his hands. If a person receives a letter
containing libelous matter, he will not be justified in
publishing it. Si/lnM v. jWfler, 96 Tenn., 94; Wil-
cox v. Jloofi, 24 Atlantic Reporter, 244.
\
APRIL TERM, 1899. 295
Railroad v, Delaney.
In view of the facts of this case, was the de-
livery of the letter by Sullivan to Speed a publica-
tion? Unquestionably not. It was precisely the
kind of letter that Speed expected to get, and he
accepted it without objection or complaint.
The Court instructed the jury that the letter was
not libelous or actionable per se, which we hold to
be correct. But when words are not libelous in
themselves, it is necessary to allege in the declara-
tion and prove special damages as a condition of
recovery. Bowdre v. Bank^ 92 Tenn. ; Fry v.
McCord Bro8.^ 95 Tenn., 679. The objectionable
words are, **Like many others, he left our service
during the strike." The Court correctly instructed
the jury that these words are not libelous or action-
able per se^ because they are not of such a nature
that "necessarily must or presumably will, as their
natural or proximate consequence, occasion pecuniary
loss without any allegation or evidence of damage
other than that which is implied or presumed from
the fact of publication." Pdlard v. Lyon^ 91 U.
S., 227; Bank v. Bowdre, 92 Tenn., 736.
I
The letter does not contain a charfje which must
! necessarily occasion injury, and the law reipiires
proof, and will not presume damages. It was
therefore necessary to allege and prove special dam-
ages. The allegation of damage is "that plaintiff
has been greatly injured in his business; he has
been unable to obtain employment; he has been de-
prived of the right to follow the vocation of his
/
296 JACKSON :
Railroad u Delaney.
choice, to his great damage $10,000." This allega-
tion is not suflScient. In Lijon v. Pollard^ 91 U.
S., 225, the words were not actionable j>er se. The
allegation of damage was that the plaintiff had been
damaged and injured in her fame and name. The
Court said that, in such cases, the declaration must
set forth precisely in what way the special damage re-
sulted from the speaking of the words. The judgment
in that case, in favor of the plaintiff, was arrested.
In J^ry v. Mcihrd^ 95 Tenn., 678, the words were
not actionable per ne. The declaration in that case
alleged that plaintiff was greatly injured in his good
name and credit, brought into public scandal, in-
famy, and disgrace, and that he was prevented from
getting any of the necessaries of life, goods, wares,
and merchandise; that he has suffered great anxiety
and pain of mind, and become incapacitated for busi-
ness, and hence is damaged $5,000. The Court said,
viz.: '*But there is no statement of any instance in
which his credit was impaired or credit refused him,
or in which he failed to procure any of the .neces-
saries of life or any other particulars, nor are the
names of any persons given, nor any reasons given
for the failure to give names or identify persons."
Citing Newell on Defamation, p. 867, Sec. 41. The
Court held that, for want of proper allegation of
special damage, the declaration was bad in substance,
and reversed the ruling or demurrer and dismissed
the case.
The present case is not at all analogous to the
\
APRIL TERM, 1899. 297
Railroad w Delaney.
case of St, Loui^ c6 Iron 3tountain R. R. Co, v.
Johnson^ decided by this Court at its April term,
1897. In that case the libel charged was "that
plaintiff had been discharged for insubordination, as
well as being at the head of a disreputable mob
not hesitating to do anything to the injury of the
corapany^s property," etc. The Court held this lan-
guage libelous per se, and that it was ifnnecessary
to allege or prove special damages, since the
charge was necessai'ily hurtful, and that, if false,
plaintiff might recover general damages. In that
case this Court affirmed a judgment in favor of
the plaintiff for $1,600.
This case does not present such language as con-
stitutes a libel per se, and, there being no special
damages alleged, the action cannot be sustained.
The judgment of the Circuit Court is reversed, the
demurrer sustained, and the suit dismissed.
Judge McFarland being disqualified, did not par-
ticipate in the decision of this case.
2d8 JACKSON :
Railroad v. Craig.
* Railroad v. Craig.
{Jackson. April 16, 1899.)
1. Common Cabbibb. lAmiting common law lictbtlity.
The common law liability of a carrier is not affected by the issu-
ing and delivery to the shipper of a bill of lading limiting the
carrier^s liability after the shipment has commenced. {PosU
pp. 300, 301.)
2. Same. Same.
A common carrier may, by stipulation in its bill of lading, limit
its common law liability for loss or damage of freight not
caused by its own negligence, but it cannot do so unless it
gives the shipper, at the time, the opportunity to elect, upon
just and reasonable terms, between the limited and the full
liability of the carrier. (Post, pp. 301, 302.)
Cases cited: Railroad v, Gilbert, 88 Tenn., 430; Railroad v. Man-
chester Mills, 88 Tenn., 653; Railroad v. Sowell, 90 Tenn., 17;
57 Ark., 112 (S. C, 18 L. R. A., 527); 39 Ga., 117 (S. C, 99 Am.
Dec, 474).
FROM DYER.
Appeal in error from the Circuit Court of Dyer
County. Thos. J. Flippin, J.
Draper & Rice for Railroad.
W. W. Craig for Craig.
*The authorities on the ri^ht of a coinmoQ carrier to limit comraon law liability
by contract in the absence of nei^ligence are collected in a note to Little Rock eft Ft.
8. R. Co. V. Cravens (Ark.). 18 L. R. A.. 527.— Repokteb.
APRIL TERM, 1899. 299
Railroad v. Craig.
Caldwell, J. J. R. Craig obtained a verdict
and judgment against the Illinois Central Railroad Co.
for the sum of $260, as damages for injury to his
soda fountain while being transported over the de-
fendant's line of road from Dyersburg to Obion
Station. The injury to the soda fountain consisted
in the breaking of its valuable and indispensable
marble parts into numerous small and worthless
pieces. At the trial below the company sought to
introduce before the jury a bill of lading under
which it claimed the shipment was made, and which
recited upon its face, in explicit terms that the com-
pany would not, in any event, be liable for loss or
damage resulting from the breakage of marble. The
refusal of the trial Judge to permit the introduction
of that instrument is the principle ground on which
the company asks a review and reversal of the lower
Court's action. The proposed evidence was rightly
rejected and withheld from the jury. The goods
were, in fact, shipped without a bill of lading of
any kind, and the paper in question did not contain
the real contract of shipment or shed any true light
upon it. This paper was issued after the transit
had been completed and the damage done, and that,
too, without any knowledge on the part of the ship-
per of a purpose or desire on the part of the com-
pany, at any time, to limit its common law liabil-
ity in any manner whatever.
When the goods were delivered to the company
at Dyersburg, and by it there accepted for trans-
300 JACKSON :
Railroad v. Craig-.
portation, its agent at that place was engaged in the
£ale of tickets for a passenger train soon to go by,
and, for that reason, he could not then issue a bill
of lading. He told Craig, who, with others, took
passage on that train, that the goods would be prop-
erly shipped, and a bill of lading forwarded to him.
Nothing was said by either party about the form or
terms of the instrument to be issued, nor did Craig
know of the company's custom to limit its liability
in the transportation of that class of freight. He,
in fact, thought that a bill of lading was a mere
receipt for the goods to be shipped, and that such
would be the instrument agreed to be forwarded.
After the soda fountain reached its destination
and was discovered by Craig to be in a dilapidated
and ruined condition, he procured a friend at Dyers-
burg to call on the company's agent there for the
promised bill of lading or receipt, and, on the re-
quest of that friend, the paper here in question
was made out and delivered to him, and by him
sent to Craig. Soon thereafter, and without in any
manner ratifying the terms of the bill of lading so
furnished him, Craig notified the company of his
damage and demanded full and unconditional indem-
nity therefor, and upon the company's failure to
make payment he brought this action.
From this brief statement of the attendant facts
it is entirely manifest that the present shipment was
made without a bill of lading of anv kind and
without a contract limiting the company's responsi-
APRIL TERM, 1899. 301
Railroad v. Craig.
•
oility, and consequently that the trial Judge ruled
correctly when he excluded from the consideration
of the jury the instrument subsequently issued as a
bill of lading and sought to be introduced by the
company as a contract for limited responsibility.
Moreover, though it were conceded that this paper
was in fact issued before the transportation of the
goods as a bill of lading therefor, it would, never-
theless, be invalid in so far as it provides for lim-
ited liability. This would be so, because the ship-
per was not offered, and could not have obtained,
a reasonable and brma fide alternative between con-
ditional and unconditional liability on the part of
the company for injury that might happen to his
goods, but must have accepted the bill of lading in
its present form and terms or not been allowed to
make the shipment at all. The agent who issued
this paper, while testifying before the jury on be-
half of the company,, said that it was ''the usual
and only bill of lading issued to shippers of the
kind of freight that the plaintiff shipped on that
occasion," and that ''he would not have shipped
the fountain for the plaintiff' if he had refused to
accept a bill of lading in that form and in the
terms of that one."
It is well settled that a common carrier may,
by a stipulation in its bill of lading, limit its com-
mon law liabilitv for loss or damaofe of freight
not caused by its own negligence. But this cannot
be validly done unless the carrier, at the time, holds
302 JACKSON :
Railroad v. Craig*.
itself in readiness to transport the freight with or
without such limitation and allows the shipper a rea-
sonable and bona fide alternative between the two
modes of shipment. Railroad v. Gilbert^ Parkes cfe
Cb., 88 Tenn.j 430; Railway Co, v. Manchester
Milh^ Ib,^ 653; Railway Co. v. Sowell, 90 Tenn.,
17; L. R, cfe Ft. S. Ry. Co. v. Cravens, 57 Ark.,
112 (S. C, 20 S. W. Rep., 803, and 18 L. R. A.,
527): Wallace v. Mathews, 39 Ga., 117 (S. C, 99
Am. Dec, 474; 4 Elliot Railroads, Sec. 1504; Ray's
Neg. Imp. Dut., 45, 48, 181; Redman's Law Ry.
Carriers (2d Ed.), Q^.
The company sued in the present case does not
bring itself within the imperative requirement of
this rule. On the contrary, it affirmatively shows
by the testimony of its agent, just quoted, that it
used but one bill of lading for this class of freight,
submitted no alternative to the plaintiflF, and would
not have shipped his goods at all if he had re-
fused to accept its bill of lading providing for lim-
ited liability. Such a provision, so obtained, was
necessarily invalid, and, being so, it was not com-
petent evidence for any purpose.
The several other matters urged against the judg-
ment of the Court below have been thoroughly con-
sidered and will be treated orally from the bench
without si^cific mention in this opinion. None of
them are of such nature as to stand in the way of
an affirmance, which is ordered.
APRIL TERM, 1899. 303
1
Dor nan Bros. v. Benham Furniture Ck>.
DoBNAN Bros. v. Benham Furniture Co.
(JacA*so7i. April 15, 1899.)
1. Replevin. Jvdgjnent In, not impeached, when.
A judg'ment for defendant in replevin, allowing him interest
upon the value of the property seized during detention, can-
not be impeached by a motion to quash an execution issued
thereon; but, if it could, the impeachment would be vain, as
such judgment conforms strictly to the law. {Post, pp, 304, 305.)
Code construed: §5144 (S.); J 4126 (M. & V.); J 3390 (T. & S.).
2. Same. Execution quashed.
Where a judgment for the defendant in replevin is in the alter-
native for th^ return of the goods seized, or their value in a
sum specified, an execution issued thereon against the plain-
tiff's property for the value of the goods, without providing
for satisfaction by return of the property, is fatally variant
from the judgment, and will be qna&hed on motion. (Post, pp.
305, 306.)
Case cited and distinguished: Epperson v. Van Pelt, 9 Bax., 75.
FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. L. H. EsTES, J.
T. W. Brown for Dor nan Bros.
I. H. Perez for Furniture Co.
Caldwell, J. Dornan Bros, brought this action
^^ replevin against the Benham Furniture Company
304 JACKSON :
Dornan Bros. v. Benham Furniture Co.
to recover the possession of a large lot of carpet-
ing. The jury returned a verdict in favor of the
defendant, fixed the value of the goods delivered to
the plaintiffs under the writ at $595, and assessed
no damages. Upon this verdict judgment was en-
tered in favor of the defendant and against the
plaintiffs and the sureties on the replevin bond for
$595, the value of the goods, and $148.75 interest
thereon from the service of the writ, making in all
$743.75. The judgment recited upon its face that
the recovery of $743.75 might be fully satisfied by
a return of the property involved.
Subsequently an execution was issued to the Sher-
iff, commanding liim unconditionally to collect the
$743.75, and making no allowance whatever for the
return of the property. Thereupon the plaintiffs
moved the Court to quash the execution for several
reasons assigned. Onlv two of these reasons need
here be stated. They are (1) that the execution
includes interest on the value of the goods when
none was allowed in the verdict on which the judg-
ment was entered, and (2) that the execution did
not permit satisfaction by a return of the property.
The motion to quash was overruled, and the plain-
tiffs have appealed in error.
1. In the inclusion of interest, the execution
rightly followed the judgment. It could not have
been regular and valid otherwise. The insistence of
counsel that the judgment itself was bad because it
included interest when none was allowed by the jury,
APRIL TERM, 1899. 305
Dornan Bros. v. Benham Furniture Co.
can be of no avail in this proceeding. A judgment
cannot properly be impeached for such a reason on
a mere motion to quash an execution {//all v. Clag-
gettj 63 Md., 57), and if it could, the impeach-
ment would be a vain one in this case, because this
judgment is in strict accordance with the law.
By the terms of the statute (Shannon, {^ 5144:)
the defendant, being successful in the suit, was en
titled to recover the value of* the goods, with in
terest thereon, and damages for their detention, the
value of the goods and the damages to be found
by the jury, and the interest to be added as a
matter of law.
2. The execution was fatally defective and should
have been quashed because its mandate was for the
unconditional collection of money and did not per-
mit a satisfaction by a return of the goods. The
judgment pursued the statute (Shannon, § 514:4) in
providing that the money recovery might be satis-
fied ]»y a return of the property. The execution
s'jould have followed the judgment and included that
provision.
The general rule that an execution must follow
^"^ judgment in all material particulars is applicable
^^ this case as to both the interest on the value of
»
"^ cjroods and the permission for their return. Both
Parties recognize the soundness of this rule, but they
Hot agree as to the extent of its application in
tnis <;ase. The plaintiffs would avoid it as to the
Item of interest and apply it as to the right to re-
18 p— 20
306 JACKSON :
Doman Bros. v. Benham Furniture Co.
turn the property, while the defendant would apply
it in the former instance and avoid it in the latter.
It is equally applicable in each particular, and can
be avoided in neither.
Counsel for defendant says that the goods were
disposed of by the plaintiffs before the trial, and
that for that reason it would be an idle and use-
less form to include permission for their return in
the execution. But it is too late now to make that
contention. It may be that unmistakable proof that
the goods could not be returned would have justi-
fied the trial Judge in omitting from the judgment
the provision in reference to. their return {Eiyperson
V. Van Pelt^ 9 Bax., 76), but he did not do so,
and both parties are alike bound by the terms of
the judgment as entered. Let the execution be
quashed for the reason that it does not follow the
judgment as to the permission to return the prop-
erty.
APRIL TERM, 1899. 307
Thane v. Douglass.
Thane v. Douglass.
(Jackson. April 19, 1899.)
1. Demubrer to Evidence. Rule stated.
The demurrer to evidence admits not only the truth of all the
evidence adduced, but also admits all the inferences that may
be logically and reasonably drawn from the evidence. (Posty
pp. 308, 309.)
Case cited and approved: Hopkins v. Railroad, 96 Tenn., 409.
2. NseLiGE^cE. In handling runaway fwrse.
Negligence in connection with the running away of a horse may
be inferred, in the absence of explanatory circumstances, from
the fact that it was the third time that the horse had run away.
(Post, pp. 311, 312.)
Cases cited: Young w. Bransford, 12 Lea, 232; 13 Minn., 522; 21
Am. Law. Reg., 522.
FROM SHELBY.
-A^ppeal in error from the Second Circuit Court of
^Qol\)y County. J. S. Galloway, J.
l^uBosE & Laughlin for Thane.
ArV. B. Edgington for Douojiass.
McFarland, Sp. J. This is a suit for damages
*^^' injuries to the person of Mrs. Margaret Thane,
^^te of William Thane. Trial before Justice of the
308 JACKSON :
Thane v. Douglass.
Peace, appeal, and new trial in the Circuit Court,
and a verdict for $300, which was set aside, and
a new trial awarded. On the second trial the plain-
tiff introduced his evidence, showing that Mrs. Thane
was walking west upon Madison Street, in Memphis,
Tenn., with her daughter, when they were suddenly
and unexpectedly run into by a runaway horse, with
a part of a wagon attached to him, which knocked
them down, inflicting serious injuries. After plain-
tiff's proof had been introduced, defendant declined
to introduce any evidence, and filed a formal de-
murrer to evidence, a practice already commended
in proper cases by this Court. Ilophlns v. Railroad^
12 Pickle, 409. The plaintiff joined on this de-
murrer, and, thereupon, the Court dismissed the
plaintiff's case. The error assigned is this action of
the Circuit Judo:e on this demurrer. It is contended
by counsel for plaintiff that, under the proof in this
case, and under the rules as to admission by de-
murrer to evidence of all facts proven and all
prof^r inference therefrom, there should have been
a judgment for plaintiff.
In IlopJcms V. Railroad^ 12 Pickle, 409, at page
422, this Court says: '*The Court will also, on the
argument of the demurrer, make every inference of
fact in favor of the party offering the evidence,
which the evidence warrants, and which the jury,
with the least degree of propriety, might have in-
ferred, but thev ouo:ht not to make forced infer-
ences." 1 Trouhat & Haley's Practice, 509; 2 Tidd's
APRIL TERM, 1899. 309
ThaDe v, Doug'lass.
Practice, 865; 3 Starkie on Evidence, 435; Elliott's
General Practice, Sees. 855-858.
^^The demurrer not only admits the truth of all
the evidence adduced by the party against whose
evidence the demurrer is directed, but it also admits
all the inferences that may be legally and reason-
ably drawn from the evidence. The probative force
of the evidence is not confined to the direct effect
of the evidence, but extends to the results reason-
ably deducible from it by logical and legitimate in-
ference. It follows, therefore, that the facts which
the evidence directly or indirectly tends to prove
must be taken as admitted." 2 Elliott's General
Practice, 858.
These being the rules applicable to demurrers to
evidence, what are the facts proven? The plaintiff,
Mrs. Thane, proved that the horse and wagon ran
over her; that they came from behind, and she did
not see the horse before the accident, nor at all, as
she was rendered insensible. Her daughter, Miss
Thane, who was with her, did see the horse, and
that it was a gray horse attached to two wheels of
a wagon. Other witnesses proved that defendant,
Douglass, was a billposter, posting bills for the
Grand Opera House; that he owned this horse; that
it was seen twice before to break loose and run
away. Douglass admitted he owned the horse. There
were no facts or circumstances proven as to this
runaway except that he was seen to run over these
women. It is not proven where he started from.
310 JACKSON :
Thane \\ Douglass.
except from east on Madison Street, though the in-
ference is he started from a billboard of defendant
near the scene of accident, from which he was seen
to run away before. There was no proof who had
charge of the horse at the time of the accident.
The legal question thus presented is, Do these
facts, together with all the logical inferences deduci-
ble therefrom, make out such a case as will throw
upon defendant the burden of proving there was no
negligence upon his part? The general rule is that
every person having charge of an animal is bound
to use due care under the circumstances which sur-
round him, and if, in securing or driving or other-
wise using or tending such animal he does not use
such care, and another is injured, he is liable to
damages. Where there is no want of care, and a
person's horses break away and do damage, he is
not liable. Lawson on Rights and Remedies, 1389;
Dolfinger v. Flshhac1i\ 12 Bush, 477; Meredith v.
Reed^ 26 Ind., 834; Hughes v. McNamon^ 106 Mass.,
284; Brown v. ColUm, 53 N. H., 442.
In Rose v. Tram^portation Co.^ 21 Am. Law Reg.,
622, which was an action in the Circuit Court of
the United States by a passenger on a steamboat
for injuries caused by an explosion of the l)oiler,
Wallace, D. J., instructed the jury **that from
the mere fact of an explosion it is competent for
you to infer, as a proposition of fact, that there was
some negligence in the management of the boiler or
APRIL TERM, 1899. 311
, Thane v. Douglass.
some defect in its condition, for otherwise a casu-
alty would not have occurred."
In Jifay v. Davidson^ 18 Minn., 522, which was
an action by a passenger on one steamboat for in-
jury caused by the explosion of the boiler of another
steamboat, the learned Judge who delivered the
opinion, by way of obiter, it is true, says: ''But,
irrespective of the Act of Congress on this subject,
and speaking for myself alone, I am inclined to the
opinion that, under the undisputed facts of this case,
the explosion is prima facie evidence of negligence.''
In Young v. Brannford^ 12 Lea, 232, this Court
held that, in an action for damages caused by the
explosion of a steam boiler used for running a saw-
mill, it was error for the Court to charge that,
when the injury is proved to have been done by the
explosion, the burden is then thrown upon the de-
fendant that he was guilty of no negligence." But,
says the Court, further: "At the same time, the
fact that there was an explosion, which is not an
ordinary incident of the use of a steam boiler, ought
to have some weight, inasmuch as it may be out of
the power of the aggrieved party, in some instances,
to prove any more. The reasonable rule would seem
to be that laid down by Judge Wallace, as above,
that, from the mere fact of an explosion it is com-
petent for the jury to infer, as a proposition of
fact, that there was some negligence in the manage-
ment of the boiler or some defect in its condition."
We add that, doubtless, had this boiler been in the
312 JACKSON :
Thane v, Douglass.
habit of exploding, the Court would have held that
proof of third explosion would have been such prima
facie evidence of negligence as would have thrown
burden upon defendant of showing want of negligence.
2 Thompson on Negligence, p. 389, says: **The
mere fact that a horse runs away upon a highway
is not conclusive evidence of negligence on the part
of its owner or custodian, but it is a circumstance
from which negligence will be presumed, in the ab-
sence of explanatory testimony." Hummel v. Wester^
Bright, 133; Kennedy v. IFay, Bright, 186. Here,
the proof was that this was the third time this
horse had run away, and we are of opinion that
from this circumstance alone, in the absence of ex-
planatory circumstances, the Court should have in-
ferred negligence, and overruled the demurrer, and
submitted to the jury the question of damages.
This case and No. 17, heard at the same time
with this, are reversed, and remanded to the Circuit
Court for submission to a jury to assess the damages.
APRIL TERM, 1899.
313
Telephone & Telegraph Co. v. Shaw.
*Telephone & Telegraph Co. v. Shaw.
{Jackson. April 19, 1899.)
1. CfiABGB OF CouBT. Refusol to give special requests.
Refusal to give requested instructions to the jury will not be re-
viewed by this Court where the request was made before, and
not renewed after, the general charge was delivered. (Post,
pp. 314, 315.)
2. Dauaors. Punitive allowed^ when.
Punitive damages for trespass by a telephone and telegraph
company in cutting a tree may be recovered where the owner
on the same day of and before the trespass warned the
company's employes not to cut any trees on his premises, and
they cut the tree in his absence and over the protest of his
wife. (Post, pp. 316-319.)
Cases cited and approved: Tel. Co. v. Hunt, 16 Lea, 456; Tel. Co.
V. Poston, 94 Tenn., 696.
lOe 818
110 479
3. Same. Same, General nil€.
Punitive damages are allowed where fraud, malice, gross neg-
ligence, or oppression intervenes. It is not essential that
these facts shall appear by direct proof, but they may be in-
ferred by the jury from the facts of the transaction. (Post^ p.
319.)
Cases cited and approved: Cox v. Crumly, 5 Lea, 539; Railroad
V. Garrett, 8 Lea, 439; Railroad v. Gaines, 11 Lea, 103; Johnson
V. Perry, 8 Hum., 569; Bryan v. McGuire, 3 Head, 530.
4. Evidence. Of pecuniary ability admissible^ when.
When there is any ground or reason for punitive damages, the
*The measure of damsfres for injury to or destruction of trees is the subject of
annotation to 5ai^ V. Chicago, M. cfe St. P. R. R. Co. (S. D.), 19 L. R. A., 653.—
Rkpobteb.
314 JACKSON :
Telephone «fe Telegraph Co. v. Shaw.
pecuniary ability of the wrongdoer may be given in evidence.
{Post, VV' 317, 318.)
Cases cited and approved: Dush v. Fitzhugh, 2 Lea, 307; Rail-
road V. Gaines, 11 Lea, 103.
FROM SHELBY.
Appeal in error from Circuit Court of Shelby
County. J. S. Galloway, J.
Wm. M. Farrington for Telephone & Telegraph
Co.
TuRLEY & Wright for Shaw.
McFarland, Sp. J. This is a suit for the
wrongful cutting, by the Cumberland Telephone &
Telegraph Company, of a tree belonging to plaintiff
in error, B. A. Shaw. The action was begun before
a Justice of the Peace to answer B. A. Shaw in
a plea of damages under $500. There was judg-
ment before the Justice for $5; appeal to Circuit
Court, trial before jury, and verdict for J7.50; ap-
peal to this Court, and assignment of errors. These
assignments of error are five in number. Four of
these are as to errors in the refusal of the trial
Judge to give specific instructions as requested. As
to these the record shows that the request for these
specific instructions was made before the Judge had
given his charge to the jury, and the request was
not resumed after the Judge had charged the jury.
APRIL TERM, 1899. 315
Telephone & Telegraph Co. v. Shaw.
Under the established rule of this Court it will not
reverse in such cases, even though the special charges
asked were in themselves proper to have been given,
for, if the attorney does not, after hearing the charge
so given, renew his request for special instructions,
he is presumed to have considered the general charge
as sufficient, and deemed it unimportant to his cli-
ent's interest that the special charges previously
asked be given. For this reason these four assign-
ments of error must be overruled.
The first assignment of error is this: ''The Judge
erred in sustaining objections to questions propounded
to Mr. Foster Hume, superintendent of the Mem-
phis department of defendant in error's company,
tending to show its ability to pay punitive damages."
Upon this point the record shows that while Mr.
Hame was being examined by plaintiff's attorney he
asked his questions as to capital, business, etc., of
the defendant company, ''tending to show their abil-
ity to pay punitive damages," all of which were
ruled out by the Court, whereupon plaintiff's counsel
excepted upon the grounds that he was entitled to
prove such facts to enable the jury to estimate pu-
nitive or exemplary damages, if they thought such
were proper. The special charges requested by
plaintiff and refused by the Court were mainly upon
the question of punitive damages, but as we have de-
cided these cannot be now considered, the onlv
remaining question, therefore, is, Were sufficient facts
316 JACKSON :
Telephone & Telegraph C5o. v. Shaw.
proved by the plaintiff to allow these questions of
punitive or exemplary damages to go to the jury?
The facts of the case upon this point were these:
The plaintiff, Dr. B. A. Shaw, an old gentleman,
eighty years of age, lives, with his wife, on Her-
nando Road, some ten miles from Memphis. As he
was driving out of his yard on February 9, 1898,
on his way to Memphis, he noticed a gang of four
or live linemen at work stringing wires on the tele-
phone poles of defendant company; that the same
gang of men had worked the day before on part of
his premises, and had cut several limbs and branches
off of his trees, and on passing them he stopped
and said to them that he did not want them to cut
any more of his trees. They said they would not,
and he continued on his way to Memphis. On his
return in the evening he learned, and upon exami-
nation saw, that a large, healthy gum tree had been
cut down, which tree was upon his property, and
near by was a newly-erected telephone pole of de-
fendant, which could not have been erected as it
then was had the tree been left standing. Another
witness testified that Mr. Hume, superintendent, ad-
mitted that his men had cut the tree.
There was other evidence tending to show that
during the plaintiff's absence these employes of de-
fendant company had begun to cut the tree, and
were forbidden to do so by Mrs. Shaw, through a
servant, but they paid no heed to the command.
We cannot distinguish this case, in its material
APRIL TERM, 1899. 317
Telephone & Telegraph Co. u Shaw.
facts of trespass without permission and under pos-
itive prohibition, with some actual damage, from the
case of Memphis Telephone Co, v. Ilunt^ 16 Lea,
456, and Cumberland Tel. cfe Tel, Co, v. Poston^ 10
Pickle, 696. In the first of these cases, under sup-
posed license from the city, the telephone company
went upon the land of Mrs. Hunt at night, after
being prohibited from doing so by her, and cut
some limbs from a shade tree, and there was a ver-
dict for $250. Though the record in that case does
not show whether any part of this $250 was given
as punitive damages, the verdict was permitted to
stand for this amount, while it does not appear the
actual damage amounted to this sum. In the Pos-
ton case some limbs were cut from ornamental shade
trees in Poston's yard without permission, though
the superintendent thought he had permission. There
was evidence admitted in this case in regard to the
pecuniary ability of the defendant company. The
jury was charged that if the cutting was done fraud-
ulently, oppressively, or with gross negligence, they
might, in their discretion, give punitive damages.
This Court says: ^'We think there was sufficient proof
of gross negligence and wantonness to justify the ad-
mission of evidence with a view to punitive damages,
if the jury should decide it to be a proper case
for damages. . . . When there is anv ofround
or reason for punitive damages, the pecuniary ability
of the wrongdoer may be given in evidence." I)u}<h
v. Fitzhurjh^ 2 Lea, 307; Railroad v. Gaines, 11
318 JACKSON :
Telephone & Telegraph Co. v. Shaw.
Lea, 103; Sedgwick on Damages, Sec. 386; Suth-
erland on Damages, Sec. 744.
Other authorities hold that where fraud, malice,
gross negligence, or oppression, intervenes, the law
blends the interest of society and of the aggrieved in-
dividual and gives damages such as will operate as
an example or warning to the parties or others to
deter them from similar transactions. Cox v. Crumly^
5 Lea, 529; Railroad v. Garrett^ 8 Lea, 439; Rail-
road V. Gaines, 11 Lea, 103.
There need not be positive proof of malice or
oppression if the transactions or the facts shown in
connection therewith fairly imply its existence, and
it is left to the jury to look at all the circum-
stances in order to see whether there was anything
in the conduct of the defendant to aggravate the
damages. Johnmn v. Perry, 2 Hum., 569; Bryan
V. McGuire, 3 Head, 530.
A{)plying these principles to the facts of the
case now under consideration, we find that all the
essential facts of both the Hunt and Poston case,^
upon which liability was predicated, are found in
this case. Here there was prohibition against the
trespass and the commission of the trespass in the
absence of the owner. Here the employes knew
that the owner was absent, and this absence was
taken advantage oi just as in the Hunt case, the
only difference being that in the last case the tres-
pass was committed in the night. Here there was
positive prohibition against doing the act, while in
APRIL TERM, 1899. 319
Telephone & Telegraph Co. v. Shaw.
the Poston case there was only gross negligence in
not getting permission from the true owner. While
this is not a case . for more than small punitive
damages, if any are given in their discretion, by the
jury, we are of opinion that it was a case where
. the Court should have permitted evidence to go to
the jury as to the pecuniary ability of the defend-
ant.
It is suggested, however, that this is a small
case, with only $7.60 verdict and judgment; that
it is the policy of the law that there should be an
end to litigation, with even the doctrine of ^'de
minimis non curat lex'''^ invoked. It is suflScient re-
ply to these suggestions to say that it is the boast
of the common law that the lowest shall have its
benefits as well as the highest feel its power, and
that consistency must characterize the administration
of the law lest error creep into the State. The
case is reversed and remanded for new trial under
proper mstructions.
320 JACKSON :
Street Railway Co. v» Dan.
Street Railway Co. v, Dan.
{Jackmn, April 19, 1899.)
1. Street Railkoad. Duty of moUfrmnn.
In an action against a street railway company for neg'lig'ently
crushing' and killing a child with one of its cars, an instruc-
tion which states, in substance, that it is the duty of a motor-
man to keep a vigilant lookout for children on the street, and
upon the first appearance of danger, or probable collision with
any one of them, to stop his car in the shortest time and space
possible, is not subject to the criticism that it makes no allow-
ance for a sudden emergency, where it is apparent from the
context that the Judge simply meant that the motorman must
do all in his power under the emergencies then surrounding
him to save the child. {Post, pp. 321-32!}.)
2. CuAKGE OF CouBT. As to symputfty of Jury.
A statement of the trial Judge, in his charge to the jury in an
action for the negligent killing of a child, that it was natural
for them to have^ their sympathies aroused in behalf of the
suffering, while not altogether proper, is. not cause for re-
versal, although he did not state in that immediate connection
that they must not allow their sympathies to enter into the
consideration of the case, when he was not asked to so charge,
- but did in fact so charge in another connection. (Po8f, pp.
32f}, 327.)
FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. L. H. Estes, J.
APRIL TERM, 1899. 321
street Railway Co. v. Dan.
TuRLEY & Wright for Street Railway Co.
Gantt & Patterson for Dan.
Wilkes, J. This is an action for the killing of
Mary Dan, a child four years of age, by the street
railroad company. It is brought by her father as
administrator. It was tried before the Court and a
jury, and a verdict and judgment rendered for two
thousand five hundred dollars, and the street car
company has appealed.
The child was run over at the intersection of
Second and Jackson Streets on a day when Mardi
Gras was being celebrated, and the streets were
crowded with men, women, and children. The child
ran upon the tracks and was run over by the car.
There is a diflFerence of statement as to how fast
the car was going, and how far it ran after pass-
ing over the child. It is not necessary to state the
evidence fully, as it is apparent it is abundantly
sufficient to support the verdict and judgment, and
it must be affirmed, unless there is error in the
action of the Court either in the admission of the
evidence or in the charge of the Court.
It is assigned as error that the trial Judge erred
in permitting an ordinance of the city to be intro-
duced in evidence, which was intended to regulate
the running of street cars and to inflict a fine for
its violation. So far as the objection goes to the
admission of this ordinance as evidence, it cannot
avail in this Court, as no objection appears in the
18 P— 21
322 JACKSON :
Street Railway Co. v. Dan.
record to have been made to its introduction in the
Court below. It is said, however, that it was error
in the trial Judge to give it in charge to the jury.
This assignment cannot be sustained, as made, inas-
much as it was not charged, and the trial Judge
did not in his charge refer to it, or instruct the
jury that they could base any finding on its pro-
visions. He did charge the measure of duty of the
street car company in terms somewhat the same as
that prescribed by the ordinance, but he did not
refer to the ordinance as creating, fixing, or enlarg-
ing the duty of the company, so that the question
resolves itself, at last, into whether the duty and
liability of the street car company was properly
charged, without reference to the ordinance.
The ordinance is in this language: ''Conductors
and drivers of each car shall keep a vigilant look-
out for all trains, carriages, and persons on foot,
and especially children, either on the track or run-
ning towards it, and, on the first appearance of
danger to such trains or persons or other obstruc-
tions, the car shall be stopped in the shortest time
and space possible." And then follows a clause pro-
viding a penalty of from ?1 to ^50 for a violation
of the ordinance.
The charge of the Court is as follows: '*lt was
the duty of the motorman operating defendant's car
No. 110 to keep a vigilant lookout for children in,
upon, or using the streets, and, upon the first ap-
pearance of danger or probable collision with any
APRIL TERM, 1899. 323
Street Railway Co. v. Dan.
one of them, to stop his car in the shortest time
and space possible.''
It will be seen that the charge is more directly
applicable to the facts of the case than the ordi-
nance, and also added the feature of a probable
collision, which is a very important one to the other
features in the case, and presented a case of more
immediate peril than that set out in the ordinance.
In the same connection, and immediately after-
wards, the trial Judge said substantially: ''If the
motorman saw, or^ by vigilant lookout could have
seen, the child going into a place of danger in time
to have stopped his car and prevented the collision^
and he failed to do so, then this would be negli-
gence on the part of the motorman and would make
the company liable for the collision and injury; and
again, if the time elapsing between the time when
the motorman could have first seen the child going
into a place of danger and the time when the col-
lision occurred was not enough for him, acting as a
careful, prudent motorman, to have done what was
necessary to be done in order to stop the car be-
fore striking the child, then the railroad company
would not be negligent for not stopping the car."
And again, "The motorman should exercise ordinary
care, in view of the danger to be apprehended, and
have his car under such control as to be able to
stop it at a reasonable distance at all times." And
again, he charged that if the child left a place of
safety on the street which was in plain view of the
324 JACKSON :
Street Railway Co. v. Dan.
raotorman, if he was maintaining a proper lookout,
and went directly or diagonally in the direction of
the street car track ahead of a moving car, the
necessity for action at once arose on the part of
the motorman, and it became his duty to take such
steps or adopt such measures as, m the judgment
of a man of ordinary care and prudence engaged
in that business, it would most likely take to stop
the car and prevent a collision. He said further
that if the jury found that the failure to reverse
was due to excitement caused by the child suddenly
hurrying in front of the car and imperiling her life,
and this caused him to do the wrong thing and the
one that caused her death, the fact of not reversing
would not of itself be negligence, nor would doing
the wrong thing under the excitement caused by her
act make the road liable, and if reversing the car
would not have prevented the collision, the failure
to reverse cannot be the producing cause of the in-
jury, and the company would not be negligent for
not reversing.
This exposition of the law was, as a whole, fair
to the street car company, and some features of it
are more favorable to it than could be sustained
under a close and critical analysis of it. The prin-
cipal objection to the charge as raised by criticisms
upon the charge itself, and brought out by the spe-
cial requests, are that too high a degree of care
was required of the motorman, and that the doc-
trine of proximate cause was not correctly and point-
APRIL TERM, 1899. 325
Street Railway Co. v. Dan.
ediy stated. It is said it is requiring too high a
degree of diligence to say that a car must be
stopped in the shortest time and space possible, inas-
much as that would require a car with the best ap-
pliances in existence, a motorman of iron nerves and
the coolest judgment, and that all that should be
required is that ordinary care and eflfort, under the
circumstances, should be required. The language
must be taken in its connection, and in the connec-
tion used it is not, as we think, too strong, nor
does it exact too high a degree of diligence. The
charge as given is substantially that it is the duty
of the motorman to keep a vigilant lookout for
children in, upon, or using the street, and upon the
first appearance of danger or probable collision with
any one of them, to stop his car in the shortest
time and space possible. To slop his car in the
shortest time and space possible would be but the
^^ereise of ordinary or reasonable diligence under the
e/nergencies mentioned by the trial Judge, and this
^iGans simply that the motorman must do all in his
power under the emergencies surrounding him to
*^^'® human life. It must also bo read in connec-
Uoa with the other portions of the charge to which
^ has referred, which states conditions and circum-
staacefts which would excuse the motorman and ren-
^^ the company free from liability.
*^he statute fixes the degree of diligence required
ot railroad companies, to wit: That in certain con-
*'^^8^ncies, in order to prevent accidents, every pos-
326 JACKSON :
Street Railway Go. v. Dan.
sible means shall be employed to stop the train and
prevent an accident. Shannon, § 1574, Subsec. 4.
The doctrine of proximate cause, we think, was
clearly stated by the learned trial Judge, though
not in the exact language of counsel, which it was
not error to decline, so long as the proper rule was
intelligently stated to the jury. We think the charge
is not susceptible of the construction counsel puts
upon it, that it charges the doctrine of comparative
negligence, but the use of the term ** rather than,"
taken from the language of this Court upon a for-
mer hearing of this case, lays down the rule, not
of comparative negligence, but of proximate and re-
mote cause.
It is objected that the trial Judge improperly
said to the jury, that it was natural for them
to have their sympathies aroused in behalf of
the suffering. This was followed immediately by
the further statement, as follows: *<This is entirely
proper, still, as jurors, you must never lose sight
of your duty and obligations under your oaths, which
is to try the case and a true verdict render, accord-
ing to the law and evidence." And the argument
is that he should have said they must not allow
their sympathies to enter into the consideration of
the case. He was not asked to so charge, and no
further charge was asked on this feature of the
case. In another part of his charge, the trial
Judge cautioned the jury not to allow their sym-
pathy to prejudice or affect their verdict. There is
APRIL TERM, 1899. 327
Street Railway Go. v. Dan.
no reversible error in this. We do not mean, how-
ever, to approve the use of the expression by the
trial Judge, that their sympathy was entirely proper.
Young v. Cmvden, 14 Pickle, 682.
Other assignments are made which, in view of
what we have already said, need not be specially
commented on. They refer to special requests to
make specific charges. We have examined them,
and think all that should have been given were
properly embodied in the main charge; that it was
no error to decline to give them, in the language
of counsel, the second time. We see no reversible
error in the case, and the judgment is a£Srmed with
costs.
102 328'
117 7321
328 JACKSON :
Turnage v. Kenton.
TuRNAGE V. Kenton.
(Jackson, April 19, 1899.)
1. Boundary. Calls,
A call to run with a creek controls a call for course, where the
line has not been marked. {PosU VP- '^^t •^^•)
Cases cited and aproved: Blount v. Medlin, 2 Tenn., 109; Hebart
V. Scott, 95 Tenn., 467; Massengill v. Bojles, 4 Hum., 206.
2. Limitations, Statute of. Adverse posscssUni under cfjlor of title.
Adverse possession for the requisite period of seven years, within
the boundaries of a deed describing the land as a sing'le
tract, operates to perfect title in the possessor to the entire
tract, notwithstanding* the lands had been originally granted
by the State to different persons and in several tracts. (Post,
pj). 3.3.3, .3.34.)
Code construed: § 4456 (S.); § 3459 (M. & V.); § 2763 (T. & S.)
Cases cited and approved: Brown v. Johnson, 1 Hum., 261; Ram-
sey V. Monroe, 3 Sneed, 329; Nelson v. Trigg, 4 Lea, 706.
FROM TIPTON.
Appeal from the Chancery Court of Tipton County.
Jno. S. Cooper, Ch.
Sanford & Young for Turnage.
Chas. B. Simonton & Son for Kenton.
McFarland, Sp. J. This bill was filed on the
third of October, 1893, by H. M. Turnage against
APRIL TERxM, 1899. 329
Turnage v. Kenton.
T. R. Kenton and N. B. McCormick to recover
possession of a tract of ninety-four acres of land,
part of an 1,878-acre tract, and to remove cloud
from title. The main facts as shown on the record
are that on the first of September, 1845, grant No.
1345 was issued from the State of Tennessee to
Thomas P. Shelton and Constantine Paine for 300
acres of land in Mississippi bottom, Tipton County,
Tennessee, lying northerly and westerly of what was
known as Bear Creek and between Old River on the
west and Black Branch Lake on the east.
On the ninetQ^nth of November, 1849, A. C.
McDonald and wife conveyed to Constantine Paine
1,878 acres of land, which, complainants claim, in-
cludes this Shelton and Paine tract and the ninety-
four acres in controversy. On the fifteenth of March,
1882, James Paine conveyed to H. M. Turnage this
1,878 acres and Turnage went into immediate posses-
sion of same. There was at the time Turnage took
possession some 150 to 200 acres cleared of this
1,878 acres, and Turnage cleared up several hundred
more acres and having in cultivation between 500
and 600 acres and held continuous possession to
the bringing of this suit. .
In 1891, defendants, Thos. R. Kenton and N. B.
McCormick, made an entrv and survev of the 94
acres in controversy, and on June 3, 1893, pro-
cured a grant from the State of Tennessee, and this
is the cloud complainant set^ks to remove. There is
no deraignment. of title of this 94 acres by com-
330 JACKSON :
Turnage u Kenton.
plainant, except by showing the grant to Sheldon
and Paine to the 300 acres, and the deed from
James Paine to complainant of 1,878 acres, includ-
ing this 300 acres, in 1882. The contention of the
complainant is that this 94 acres is part of the
grant of 1,345 acres to Sheldon and Paine, and a
part of the 1,878 acres included in the deed from
Paine to complainant; that having shown grant to
the tract in controversy, and then shown deed to
him of same, the other lands to the aggregate
amount of 1,878 acres is included, recorded in 1882,
and then shown actual inclosure,^ occupation, and
cultivation of a part of the 1,878 acre tract, from
1882, to filing bill in 1893, more than seven years,
he sufficiently deraigns his title. The contention of
the defendant is that the possession and occupancy
of a part of the 1,878 acres, which lay outside the
300-acre grant, cannot be coupled with the grant so
as to "perfect his title to that part of the grant,
though both are included in the deed to 1,878 acres.
•
In other words, that complainants must not only
show a grant to the 300 acres, but must also show
actual occupancy and possession of a part of this
300 acres so granted under color of title to himself,
in order to claim benefit of seven years' statute,
which, under the authorities, gives title to the whole
land described in muniment of title, where only a
part is occupied for the seven years. The first
contention of defendant is that this 94 acres is not
APRIL TERM, 1899. 331
Tumage v. Kenton.
incladed in either the p;rant to the 300 acres or the
deed from Paine to Turnage of the 1,878 acres.
This is a question of fact, to be determined by
the proof, and necessitated the reading and study
of this voluminous record of over 400 pages.
The grant to this 300 acres, beginning on the
bank of Old River, runs east to a defined point,
thence south 60 poles to a stake, thence in a south-
westerly direction with the meanderings of said lake
to Bear Creek, thence west with thd meanders of
said creek to Old River, etc.
The two deeds from McDonald to Constantino
Paine in 1849, and from James Paine to Turnage
in 1882 of the 1,878 acres, have for their southern
boandaries this 300 acres, being the southern part
of the 1,878 acres, substantially the same calls.
Kecent surveys of this southern portion of these
tracts, especially the survey made by J. A. Green,
comity surveyor, made in 1887, seems to show that
from the point 60 poles from the cottonwood the
meanderings of the lake are first in a southwesterly
direction around the foot of the lake, thence for
some distance in a southeasterly direction to what
is now known as Bear Creek, and that this Bear
Creek runs in a southern slightly eastern direction
to Old River.
The defendants claim that when this grant of the
300 acres was made, in 1845, there was a creek
called Bear Creek which did run westerly from the
lake to Old River, as called for in the grant, and
332 JACKSON :
TuFDage V. Kenton.
that between this, the northern creek, and the one
now called Bear Creek, on the south, lay the 9i
acres they entered. They claim that by many years
of overflow and other natural causes this northern
creek has been filled up, until it is now a mere de-
pression though plainly visible.
There was much proof taken on both sides, and
there was some contradictions of fact. It is suflB-
cient to say of this proof that it clearly appears
that the whole of this 300 acres to the present
Bear Creek, including the 94 acres in controversy,
has always been known as the Paine and then Turn-
age land; that Turnage so claimed to Kenton before
Kenton's entry, and that the present Bear Creek
has always been known as such, and this testified
to by the most reliable, by reason of better ac-
quaintance with facts, of defendant's witnesses as
well as complainant's.
It also, we think, satisfactorily appears that what
is now claimed to be the old bed of Bear Creek,
and which defendants claim was the southern bound-
ary of 800-acre grant, was never the Bear Creek
called for in this entry and grant, but was a mere
slough, through which the water ran from the lake
to Old River during: hiffh water.
If the creek now known as Bear Creek is the
one referred to in the entry and grant, the lines
then run with the creek, though in different direc-
tions from those given in ' entry, grant, and deeds.
Calls for natural objects, such as bank of stream,
APRIL TERM, 1899. 333
Turnage v. Kenton.
will control over calls for direction. Washburn Real
Prop., Sec. 631; Bloimt v. Medlin, 2 Tenn., 199;
Ilebart v. Scott^ 11 Pickle, 467; ^lnHshgiJl v. lioyles^
4 Hum., 206.
In this last case it was held that where a call
for course would deviate from a creek called for,
parol evidence will not be admitted to set up the
line that would be followed bv the course unless it
was at the time of the grant actually surveyed and
marked.
We conclude, then, upon this question of fact
that this 94 acres was included in the grant to the
300 acres and in the deeds to the 1,878 acres.
The second contention of defendant is that be-
cause the land actually inclosed and occupied for
seven years continuously by the complainant was
not a part of this 94 acres in controversy, the
complainant cannot recover^ although the land so
occupied, and also the 94 acres, was a part of the
1,878 acres included in complainant's deed from
Paine to Turnage. This contention of defendant is,
we think, unsound.
The prerequisites to recovery in ejectment are to
show that the land in controversy has been granted,
and, having shown that the State is no longer inter-
ested and that the statute of limitations are opera-
tive upon the land by reason of the grant, then
show either a continuous title or color of title in
complainant with seven years' actual occupancy of
some part of the land under color of this title.
334 JACKSON :
Turnage v, Kenton.
The grant and the color of title need not be iden-
tical in boundaries. It is sufficient if both cover
the land in controversy. Nor is it necessary that
the occupancy shall be of a part of the ^rant. The
grant, if not to complainant, merely puts title so
that statutes of limitation may begin to operate.
The occupancy is coupled only with the color of
title. Seven years' adverse possession under color of
title vests in the holder absolute title in fee, not
only to the land actually, but the extent of the
boundaries set out in the assurance of title. Code
(Shannon), 4456; Brmon v. Johnson^ 1 Hum., 261;
Ramsey v. Monroe^ 3 Sneed, 329; Nelson v. THgg^
4 Lea, 706.
To hold that the clearing or inclosure must be
on every separate grant composing a large tract em-
bracing several grants conveyed in one deed, would
be contrary to the holding of former decisions and
to the express words of the statute (Code, § 3459),
which says: * 'Anyone holding land, by himself or
is vested with a good and indefeasible title
in fee to the land described in his assurance of
title." It is sufficient if complainant has shown grant
to the land in controversy and a color of title with
seven years' adverse possession of a part of land
covered by his deed, whether that actually occupied
is a part of the grant or not.
We do not think the case of Carter v. Ruddyy
166 U. S. Rep., 493, holds contrary to this ruling.
In that case the conveyance was of a block of land
APRIL TERM, 1899. 336
Turnagfe v. Kenton.
divided into lots and so described. These lots were
laid oflf and so marked on the ground. There was
adverse holdinor of some of these lots so marked
and designated, and it was held that this holding did
not cover the other lots. Here the deed was to an
1,878-acre tract, the whole tract being described by
metes and bounds. The decree of the Chancellor is
affirmed with costs.
336
JACKSON :
Memphis u American Express Co.
102
116
336
514
Memphis v. American Express Co.
{Jackson. April 19, 1899.)
1. Taxation. Repeiil of power of munlcipnUty to Uix a privilege.
A provision in a general revenue law imposing on a business or
occupation — e. g., express companies — a specific privilege tax
for State purposes, to be paid to the Comptroller **in lieu of
all other taxes except ad v<Uorem tax," has the effect to ex-
empt such business or occupation from taxation as a privileg'e
by municipal corporations, and to repeal any existing provi-
sion by statute or ordinance imposing such tax on behalf of the
municipality. {PohI, pp. 339-:J4L)
Acts construed: Acts 1897, Ch. 2, Sec. 6; Acts 1879, Ch. 84, Sec. 7;
Acts 1893, Ch. 84, Sees. 4, 5.
Cases cited: Hunter v. Memphis, 93 Tenn., 573; Memphis v. Bing,
94 Tenn., 645; Railroad v. Harris, 99 Tenn., 685; Reelfoot Lake,
etc., Dist. V. Dawson, 97 Tenn., 151.
2. Statutes. Repeal.
The general and usual clause repealing all laws in conflict with
the particular statute has no eifect whatever. (Post, p. 34t.)
Constitution construed: Art. II., Sec. 17.
Act construed: Acts 1897, Ch. 2.
Case cited: State v. Yardley, 95 Tenn., 548.
3. Same. S(tnie.
Under the title **An Act to provide revenue for the State of Ten-
nessee and the counties thereof," it is competent for the Leg-
islature to enact that privilege taxes on certain occupations
shall be laid for State purposes only, and thereby repeal, by
implication, existing laws or ordinances imposing privilege
taxes on the same occupations for municipal purposes. {Pont,
pp. 341, 342.)
Constitution construed: Art. II., Sec. 17.
Act construed: Acts 1897, Ch. 3.
Case cited and approved: State v. Yardley, 95 Tenn., 553.
Cited and distinguished: Knoxville v. Lewis, 12 Lea, 180; Burke
V. Memphis, 94 Tenn., 692.
APRIL TERM, 1899. 337
Memphis v. American Express Co.
4. Same. Same,
A statate purporting to be, and manifestly intended as, a rev-
enae measure will not be treated as an exercise of police power
to rescue it from implied repeal by a gfeneral revenue Act, even
if it does incidentally accomplish the ends of a police measure.
(Post, p. 343.)
5. Express Company. TaaxUion of Ui^ir wagons.
An express company that pays a privilegfe tax on its business as
a unit will not be held liable, in the abseuce of a clearly ex-
pressed legislative intent to impose further burden, for a tax
on vehicles imposed by another clause of the same statute.
(Post, pp. 343,344.)
Case cited: Bell v. Watson, 3 Lea, 328.
! FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. L. H. Estes, J.
Jno. H. Watkins for Memphis.
Francis Fentress for Express Co.
Caldwell, J. The American Express Company
brought this suit against the city of Memphis to
recover the sum of t57, paid under protest by the
company to the city as a license tax for the year
1898 on the company's eight wagons run over the
streets of the city in gathering up and delivering
express packages. The Circuit Judge, who tried the
case without the intervention of a jury, rendered
judgment for the company, and the city appealed in
error.
18 p— 33
338 JACKSON :
Memphis D. American Express Co.
The contention of the company was and is that
the legislation under which the license tax was im-
posed had been repealed by the general revenue bill
passed in the year 1897, but the city denied below,
and denies here, that such was the effect of this
subsequent legislation. The solution of this disputed
question will decide the case.
By Chapter 10 of the Acts of. 1879 the charter
of the city of Memphis was abolished, and under
the provisions of Chapter 11 of the Acts of the
same year a taxing district was established for the
same territory. The city of Memphis, like other
municipalities in the State, had been accustomed to
levy its own taxes under the authority of general
State laws, but the Legislature of the State, by
bills framed and passed for that purpose, levied
taxes for the taxing district.
Section 7 of Chap. 84 of the Acts of 1879,
enumerated, in as many subsections, fifty-eight ''tax-
able privileges" in the taxing district, and "fixed"
the amount of the tax on each. Subsections 20,
21, and 22 related to carts, wagons, drays, and
certain other vehicles, and prescribed the exact tax to
be paid for the privilege of using the same in the
taxing district. These three subsections of that
Act were amended by Sec. 1, Chap. 104, of the
Acts of 1889, so as to provide that the tax to be
annually paid for the use of such vehicles in the
taxing district, should be $1, $2, or $3 (accord-
ing to prescribed classes), if the tire should be as
APRIL TERM, 1899. 339
Memphis v. American Express Co.
much as 3^ inches in width, and $5, $7.50, or,
$10 each for the same classes, respectively, if the
tire should be less than 3^ inches in width. It
was under and by virtue of this provision that the
tax involved in this case was demanded and re-
ceived by the city.
In 1893 the Legislature of the State conferred
upon the city of Memphis, as successor to the tax-
ing district, ample taxing power, including the
benefit of all laws imposing privilege taxes in favor
of the taxing district. .Acts 1893, Chap. 84,
Sees. 4 and 5; Hunter v. Memphis^ 93 Tenn., 573.
By that Act '*the city was rehabilitated with
corporate autonomy, and authorized to exercise the
taxing power, as an arm of the State government."
Memphis v. Bing^ 94 Tenn., 645. Thus the city
became authorized to collect such privilege taxes
under the Act of 1889 as the taxing district would
have been authorized to collect if its existence had
been continued; and, as a consequence, the city was
entitled to collect the tax here in question, unless
the aforesaid provision of that Act was repealed be-
fore the accrual of the tax.
Section 6 of the general revenue law of 1897 is
in these words: '<The following corporations shall
pay directly to the Comptroller of the State the
following taxes on the following privileges: Express
companies (in lieu of all other taxes except ad va-
lorem tax), if the lines are less than 100 miles,
. . . per annum, $500; if lines are more than
340 JACKSON :
Memphis v. American Express Co.
100 miles, ... per annum, $2,000." Acts 1897,
Chap. 2, Sec. 6, pp. 74, 75.
By this provision a privilege tax is laid in favor
of the State on all express companies, and that tax
is declared to be "in lieu of all other" privilege
taxes. The words "in lieu of all other" privilege
taxes show an indisputable purpose on the part of
the Legislature to exclude the right of any county
or municipality to levy a privilege tax on express
companies. The tax so laid in favor of the State
^'covers the whole domain of privilege taxation that
the Legislature intends shall be occupied, and ex-
cludes every other privilege tax" on express com-
panies until further legislation with respect thereto
shall be had. Hunter v. Memphis^ 93 Tenn., 676.
To make this construction doubly sure, the thir-
teenth section of the Act was inserted. That sec-
tion is as follows: "That whenever the words *in
lieu of all other taxes,' occur in this Act, it is hereby
declared to be the legislative intention that county
and municipal taxes are excluded." Acts 1897, Ch.
2, p. 80.
Having full power upon this subject {Railroad v.
Harris^ 99 Tenn., 685; Reelfoot Lake Levee Dis-
trict V. Daw807ij 97 Tenn., 151), it was entirely
competent for the Legislature, in its discretion, to
provide that the whole of the revenue thus raised
should go to the State and that no county or mu-
nicipality should have any part thereof.
This enactment is in irreconcilable conflict with that
APRIL TERM, 1899. 341
Memphis u American Express Co.
UDder and by virtue of which the city collected the tax
here under consideration. There is such repugnance be-
tween the two provisions that they cannot co-exist or
stand together. It results, therefore, that the later
enactment repealed the earlier one by implication.
Hunter v. Memphis^ 93 Tenn., 671. It was suggested
in argument that an express repeal was accomplished
by the concluding section of the later Act, which
is in this language: ''That all laws and parts of
laws in conflict with this Act be, and the same are
hereby, repealed." Acts 1897, Ch. 2, Sec. 18, p.
81. This provision cannot operate as an express
repeal, because the Act does not meet the constitu-
tional requirement (Const., Art. IL, Sec. 17), that
the title or substance of all laws repealed shall be
recited in the caption or body of the repealing act.
The presence of this repealing clause in the Act is
of no force whatever. State v. Yardley^ 95 Tenn.,
' 548.
It is no answer to the conclusion that there was
an implied repeal, to say that the subject of munici-
pal taxation was not mentioned in the title of the
Act of 1897. The title of that Act is as follows:
*'An Act to provide revenue for the State of Ten-
nessee and the counties thereof." Confessedly, this
title is broad enough to cover any provision that
might be made to raise revenue for the State, and
the declaration in the body of the Act, that any
specific privilege tax laid for the State should be in
lieu of all other privilege taxation on the same
342 JACKSON :
Memphis i;. American Express Co.
business or occupation, is obviously within the scope
of that title. It is clearly germane to the subject
presented in the title, and that is all that the Con-
stitution (Art. II., Sec. 17, cl. 2) requires. It is
sufficient compliance with the constitutional require-
ment that the title disclose the general object of
the bill. Recitation of details as to the mode and
manner of accomplishing that object need not be
made in the title. The details are for the body of
the bill, and, so long as they are germane to the
subject expressed in the title, the legislation is in
accord with the mandate of the organic law. State
V. Yardley^ 95 Tenn., 663, 664; Black's Const.
Law, Sec. 107; Cooley's Const. Lim. (6th Ed.), p.
174.
The decisions made in the case of Ktioxville v.
Leiohy 12 Lea, 180, and Burke v. Memphis^ 94
Tenn., 692, are not in conflict with this well-estab-
lished rule. In the former of these cases it was
held that a provision for the collection of municipal
taxes could not be incorporated in the body of a
bill whose title related alone to State and county
revenue; and in the latter it was held that a bill
with a like title, did not, by the mere failure to
mention the business of architects as a taxable priv-
ilege, impliedly repeal former laws authorizing the
taxing district, to whose right the city succeeded,
to collect a privilege tax from persons following that
business. Neither of those cases is like the present
one.
APRIL TERM, 1899. 343
r
Memphis 17. American Express Co.
Nor can it be truly said that the provision of
the Act of 1889, here involved, was a police regu-
lation to prevent the use of narrow-tired vehicles
upon the streets, rather than a law taxing privileges,
and that, therefore, that provision was unaflfected by
the Act of 1897.
It is true a much larger sum was laid in that
provision for the use of narrow than of broad-tired
vehicles, and the difference may have been made to
discourage the use of the former kind; yet it does
not follow that the sum exacted in the one case
or the other was a police charge and not a priv-
ilege tax. In the Act of 1889 and in the Act of
1879, amended thereby, the use of all such vehicles
in the taxing district was distinctly called a priv-
ilege, and as a privilege was subjected to the desig-
nated tax. This shows the legislative intent, and is
controlling.
Finally, the privilege of doing business as an
express company includes the privilege of operating
such wagons and other vehicles as may be essential
^ the orderly and efficieQt dispatch of that business;
*^d> from this, it follows that a privilege tax laid
^^ that business as a unit, as was done by the Act
^^ 1897, covers the right to operate those necessary
vehicles.
This principle was applied in Bell v. Watson^ 3
^^^> 328. There the Court held that the payment
^^ H tax for the privilege of operating a livery
stable protected the owner from additional privilege
344 JACKSON :
Memphis v. American Express Co.
taxation on the buggies used in the business of the
stable, it not appearing that the Legislature intended
to impose the additional tax.
The company now before the Court paid to the
State, for the year 1898, the sura required by the
Act of 1897 as a privilege tax, and thereby re-
lieved itself of all liability for privilege taxation for
that year.
Affirmedi
APRIL TERM, 1899. 345
McCarthy u Catholic Knights.
'
McCaethy v. Catholic Knights.
{Jackmn. April 22, 1899.)
^' Cha^ceby Practice. Amenclmeyit of answer,
The Court's refusal to permit ameDdment of answer at the hear-
ing constitutes no abuse of discretion where it would necessi-
t>a.te a continuance, and the matter of the amendment had long
^>een within defendant's knowledge, and no reason is assigned
'vvhy it had not been presented earlier. {Post, pp. 349, 350.)
9
I-'iKE Insurance. Applicant's statement as to age.
'^^e statement as to the applicant's true age, made in an appli-
cation for membership in a frateral insurance order, which
declares that the statement and representations made therein
Blxall be the basis of the contract, is a part of the contract of
insurance, although the same is not incorporated or referred
to in the policy or certificate issued to the applicant. {Post,
pp. 350, 3.5/.)
^' Same. Same.
^ misstatement as to the applicant's age in an application for
membership in a fraternal insurance order, which is made a
part of the contract of insurance, will not defeat a recovery
under the policy, notwithstanding that, contrary to the state-
ment, she had passed the age limit prescribed by the constitu-
tion of the order, where she did not know her exact age, the
application was made out on one of the association's blanks,
and presumably by some of its officers or members, the date
and place of her birth were not filled in the blanks, and the
facts as to her character and age were, under the provisions of
the constitution, referred to a ("oiumittee, upon whose report
the certificate was issued upon which dues were paid for nearly
seven years. (Post, pj). 360-357.)
346 JACKSON :
McCarthy v. Catholic Knights.
Cases cited and approved: Insurance Co. i;. Booker, 9 Heis., 628;
Boyd V. Insurance Co., 90 Tenn., 212; Insurance Co. t\ Morris,
3 Lea, 101.
FROM SHELBY.
Appeal from the Chancery Court of Shelby County.
Lee Thornton, Ch.
PiERSON & EwiNG for McCarthy.
Percy & Watkins and Edgington & Edgington
for Knights and Ladies.
McFarland, Sp. J. This was a bill filed by
Mary McCarthy, individually and as administratrix
of Ellen Rogers, against Catholic Knights and Ladies
of America and Bridget Conner to recover of said
association, a fraternal insurance order, the sum of
$2,000 upon a benefit certificate issued by the or-
der in 1891 upon the life of Ellen Rogers, payable
upon death of assured to her two nieces, the com-
plainant, Mary McCarthy, and defendant, Bridget
Conner. The latter had at first refused to join in
the bill, and was made defendant, but subsequently
joined in the prosecution of the claim and suit.
The application for membership was made by
Ellen Rogers on June 21, 1891, and appears to
have been signed by her "Ellen Rogers." This ap-
APRIL TERM, 1899. 347
McCarthy u Catholic Kaights.
plication was made upon one of the association's
printed blanks and premises by saying: " Having
read the constitution and laws of your order, the
subordinate constitution and your by-laws, and being
fully acquainted with the objects of your order, and
fully indorsing them, I desire to become a member.
. . . And, furthermore, do pledge myself (under
pain of forfeiture of all rights of membership and
benefits) that the following statements are true."
Then follows a number of questions and answers, in
which she gives her age as 49 next birthday, but
the answers as to place and date of birth are left
blank. She further agrees ^'that the statements and
representations made in the foregoing application and
declaration shall be the basis of the contract be-
tween me and said Supreme Council Catholic Knights
and Ladies of America, the truthfulness of which
statement and representations I do hereby warrant,"
etc.
Upon this application there is the following:
* ^Note. — In case of doubt as to the age of the
applicant, the investigating committee must reject or
require proof as provided in Sub. Con."
There follows a report of the investigating com-
mittee which was appointed, in which they say *<they
have attended to that duty and find her qualified
to become a member."
Another indorsement of instructions appears upon
this application, as follows: ^'If committee are not
satisfied as to applicant in regard to character or
348 JACKSON :
McCarthy v. Catholic Knig-hts.
age, or any other reason, they should reject the
candidate at gnce. ' '
The constitution of subordinate branches provided
that '^no person shall be admitted to this branch
unless sound in bodily health, free from all infirmi-
ties or disease, between the ages of 18 and 50
years." It further provides for the investigating
cnmmittee, and says: '^The committee shall present
re{x>rt, which shall be final."
There was also a medical examination, made by
the association's medical examiner, Dr. Willett, who
makes his report, and, in this report, he puts her
age as 49. Appended to this report, and a part
of same, appears another declaration of assured as
to truth of the statements in her application itself.
This declaration is signed "Ellen Rogers. Her X
mark. ' '
Upon this application and these several reports a
certificate of membership is issued to the assured,
simply reciting that the assured is a member in
good standing and in case of death of men^ber $2,-
000 is to be paid her neices, Bridget Conner and
Mary McCarthy. There are no stipulations in the
certificate as to any representations or warranties.
Under this certificate she was duly initiated on the
sixteenth day of August, 1891, and paid her proper
dues, and these were regularly paid up to January
30, 1898, amounting to over $100. The assured
died in 1898.
On hearing there was a decree for defendant. The
APRIL TERM, 1899. 349
McCarthy v. Catholic Knights.
only defense made by the answer necessary to be
noticed is that at the date of her application, Jane
21, 1891, the assured was more than 49 years of
age, was, in fact, more than 50 years old, and
that her statement in her application for member-
ship as to her age was a warranty of its truth,
was material, and was untrue, and, for this reason,
this policy was void.
When the cause came on for hearing the defend-
ant asked leave to amend its answer so as to show
that Mary McCarthy and Bridget Conner were the
nieces of Mrs. Rogers, who was dependent on them,
and who paid the premiums on the policy. They
had no insurable interest in her life. The policy is
a contract of wager, and cannot be recovered on.
The Chancellor refused to allow this amendment, to
which exceptions were reserved and these proceed-
ings incorporated into the record by a bill of ex-
ceptions.
There is no assignment of error upon the part
of the defendant to this error complained of, and
we cannot consider same now in aid of other de-
fenses raised in the answer to the contention of
complainant. If we were to concede, however, that
this question is now open, tits determination would
not help defense. The application to make the amend-
ment came after all the proof had been taken and
the cause regularly called for hearing. The facts,
if true, must have been known to defendant long
before the application. There was no cause shown
360 JACKSON :
McCarthy u Catholic Knig-hts.
why the application was not made sooner. To have
granted this would have probably necessitated a con-
tinuance for further proof on behalf of complainant.
It was a matter of discretion in the Chancellor, and
no such abuse of this discretion appears as would
cause this Court to pronounce it error. The only
question for determination, then, is that raised as to
the age of the assured at the date of her applica-
tion.
It is contended on behalf of defendant that her
statement as to age was a warranty, was material,
and was untrue. The contention of complainant is
that it was not incorporated in the policy or cer-
tificate, but appeared only in the application, and
was, therefore, only a representation, and not a
warranty. They also contended that the whole con-
tract, including the constitution and by-laws of the
association, which were incorporated in the contract,
must be taken together, and by this constitution a
previous examination as to age was had, a commit-
tee appointed, who reported upon this question of
age, upon which this association acted and deter-
mined. That it was known this woman did not
herself know her exact age, and for this reason the
examination was made, and, by the very language
of the constitution itself, clause 74, this report
*' shall be final."*' The complainant contends further
that the defendant has not shown that the age as
given was not true.
Wo are of the opinion that the representation made
APRIL TERM, 1899. 351
McCarthy v. Catholic Knights.
by the assured as to her true age was a part of
the contract of insurance, and that it was a mate-
rial part. Says Bacon: *' Where it is provided that
if any of the statements made foy the applicant as
the basis of the contract, shall be found in any re-
spect untrue, then the policy shall be void. A mis-
representation as to the age will void the policy.
The question of age is so material that a false
statement in regard to it will be fatal, whether re-
garded as a representation or a warranty. Where
an applicant for admission to a voluntary association
for mutual relief, the rules of which did not admit
members over 60 years of age, stated his age in his
application to be 59 years, when, in fact, he was
64 years old, it was held by the Supreme Court of
Maine that the misrepresentation voided the contract
for insurance issued thereon.^' Benefit Soc. & Ins.
(Bacon), 225; Sicett v. Cithefis'* Mut, ReL Soc, 78
Me., 541.
In this Maine case the Court says: "The age of
the applicant was a material fact. If more than 60
he could not become a member. This representa-
tion of a fact was a warranty of its truth, and if
not true the contract was invalid. This rule is so
uniformly held by the Courts that no authorities
need be cited." McCoy v. Rom, Cath, Ins, Co,^
132 Mass., 272; Koboh v. Plmnlx Mat, Co., 4 N.
Y. S., 718; ^tna Ins, Co, v. French, 91 U. S.,
510; Southern Life Ins, Co. v. Booker, 9 Heis., 628;
Boyi V. Ins. Co,, 6 Pickle, 212.
352 JACKSON :
McCarthy v. Catholic Knights.
It may be said, however, that this rule, though
well established, is not applicable to every case of
misrepresentation as to age. This rule, like every
other rule in principle, is subject to modification, or
is not applied when made under special circumstances
of ignorance, misrepresentation or mistake, where
this want of knowledge is known to the insurer.
Thus, in Milhr v. Phomix Mutual Life Ins. Co.^ 107
N. Y., 292, where the agent of an insurance com-
pany filled in the application and the applicant was
an old man, who spoke English imperfectly, and
told the agent he did not know his age, and the
agent inserted an age which turned out to be erro-
neous. So where (as in Brant v. Guaranty Mat,
Ins. Oo.^ 7 N. Y. App., 847) the agent made a
miscalculation, and where the applicant was an
ignorant man and the agent computed his age and
inserted it wrong (as in Keystone Mut. Ben. As90,
V. JameSy 72 Md., 363), in these and like cases
the company was estopped from claiming advantage
of the misstatement.
So in a great number of other cases, under vary-
ing circumstances, where it was shown that the
error of statement was inserted by the agent of
the company upon facts as honestly given by the
insured, the policy was not invalidated. See note to
Colemana v. Supreme Assembly^ 16 L. R. A., 33,
for a great number of authorities on this point.
The case presented here is very similar, though
not so strong in favor of the assured, in some of
APRIL TERM, 1899. 368
McCarthy v. Catholic Knig-htB.
its features, as the Miller case, %upra. Here the
applicant was an Irish woman that bad come from
Ireland in her youth, ignorant and uneducated, who
could neither read nor write. There are several
facts in the record demonstrating she did not know
her exact age, and her nearest kin so testifies. Her
application was made out on one of the association's
blanks, and, presumably, by some of the oflScers or
members of the association. The date and place of
her birth was not filled in the blanks. The facts as
to her character and age were, under the provisions
of the constitution of the association, referred to a
committee composed of members, and pro hac vice
oflScers, of the association, and, upon an investiga-
tion of these facts and their report on the fact as
to her age, the .certificate was issued to her, and
upon this certificate the dues were paid for a period
of nearly seven years to her death. These facts
should, it would seem, bring the case within those
numerous cases which hold the association estopped
from questioning the age of the assured after her
death. Independent of this question, the inquiry still
remains whether the defendant has established the
fact that the insured was over 49 years of age
when she made her application. Was this statement
in fact false?
It is an elementary principle that forfeitures are
not favored in the law, and, in order to work a for-
feiture of the rights of membership in a mutual
association, it must clearly appear that such was the
18 p— 23
364 JACKSON :
McCarthy v. Catholic Knights.
meaning of the contract, and the facts upon which
a forfeiture is claimed mast be proved by the most
satisfactory evidence. 3 Am. & Eng. Enc. L. (2d
Ed.), 1086; Bates v. Detroit Mut. Ben. So., 61
Mich., 687; Jackson v. The N. W. M. R. Asso.,
78 Wis., 468; Benefit So. & Life Ins. (Bacon), 198;
Southern Life Ins. Co. v. Booker^ 9 Heis., 606;
Ins. Co. V. Morris^ 3 Lea, 101.
In this last case the question was whether the
answers of the assured were false or fraudulent.
The Circuit Judge had charged the jury that the
burden of proof was on the defendant, and that the
plaintiff was entitled to recover unless the proof
positive shows that Blount Morris, <Hhe assured,
made false or fraudulent answers to the questions,"
and this charge was sustained.
There were three classes of evidence adduced in
this case by the defendant to show that the assured
was, in fact, over 49 years of age when the appli-
cation was made.
1. The testimony of several witnesses who had
known the assured for a number of years.
2. Two copies of marriage licenses issued by the
County Court of Shelby County, Tenn., one of date
February 4, 1854, between Stephen Leonard and
Ellen Walsh, and the other date January 12, 1859,
between Martin Rogers and Ellen Walsh, and two
certificates purporting to be taken from the registry
of marriages of St. Peter's Parish, testified to by
Father Sheehan, and dated February 6, 1854, be-
APRIL TERM, 1899 366
McCarthy u Catholic Knights.
tween Stephen Leonard and Helenam Walsh, and the
other dated January 12, 1858, between Martin
Sogers and Eleen Walsh.
3. A deposition made by the assured in the Pro-
bate CJourt of Shelby, on May 29, 1897, in which
the assured was proving a claim against an estate,
and in which she gave her age as 60 years.
As to the first class of testimony, that of wit-
nesses as to her age, this was of witnesses testify-
ing in 1879 as to the apparent age of assured when
they first knew her forty to fifty years before.
None of these witnesses, except one Eleen Curry,
had more than a general acquaintance with assured,
and had but an indefinite remembrance when she
married Martin Rogers, and they could only say she
was grown at that time. None of them knew her
age or place of birth. The testimony of all these
witnesses is too indefinite and confessedly uncertain
as to date and facts to prove anything.
Another witness, Ellen Curry, an old and igno-
^nt Irish woman, testified that she came over from
Ireland in 1853 or 1864, she couldn't remember
^hich, with assured, and says assured was older
than witness; that she was bigger, and a little older,
''^^t nowhere states how old she herself was; says
assured first married a man by name of Leonard,
*^d afterwards a man by name of Rogers, but don't
™ow first name of either. This witness does not at-
^^pt to give the age of assured at any time. The
^^idence of all other witnesses is only circumstan-
356 JACKSON :
McCarthy v. Catholic Knig-hts.
tial, and too indefinite to be worth anything. As
to the marriage licenses and certificates, there is no
evidence certainly establishing that the Ellen Walsh
mentioned in the license of 1854 was the same as
the assured.. In the certificate from the parish reg-
istry Hellen Walsh is given as the woman who
married Stephen Leonard in 1854.
One of plaintiflF's witnesses, Bridget Conner,
testifies she always heard the first husband was
named Peter Leonard, while the witness for defense
says Stephen Leonard had a cousin named Peter
Leonard. Another witness for defendant says she
heard assured say her first husband was Stephen
Leonard. Upon this evidence it is argued that if
Ellen Walsh married in 1854 she must have been
over 49 in 1891, as she could only have been 12
years old in 1854, if only 49 in 1891. Upon the
other hand, Ellen Curry, who came from Ireland with
assured in 1854, says she was only a girl then.
To say the most of this testimony, taken as a
whole, it is not of that clear and positive character
as to her age as is required under the authorities
cited to prove the falsity of her statement in the
application, and demand a forfeiture of the rights
under the policy. Upon the other hand there is in
the record the testimony of all the living relatives
of assured that she was not, in their opinion, more
than 49 years old in 1891, with the investigation
and report of the committee composed of her neigh-
APRIL TERM, 1899. 3.57
McCarthy v. Catholic Knights.
bors and acqaaintances, made at the time upon this
question of age.
The evidence under the third class of evidence in
the cause — the oath of the assured made in May,
1897, as to her age, and that she was 60 years of
age at that time — is equally inconchisive, giving it
all the force of a sworn statement made by a party
in interest.
This statement by her in her deposition, naming
her age as 60, was one of those preliminary and
formal questions and answers entirely immaterial to
the matters in controversy in the Probate Court.
The proof in the record, as has already been shown,
abundantly establishes the fact that she did not
in fact know her age. And as evidence of her
ignorance and inaccuracy of statement as to dates
and prominent occurrences of her own life, in the
very next clause of the same answer she states that
she had been living in Memphis fifty years, while
according to defendant's evidence in the cause she
^Dae to Memphis in 1854, and had thus been living
^^ IVlemphis, when that deposition was given in 1897,
^'^Jy forty-three years, a difference of seven years.
"^'^is is clearly not such a solemn statement or ad-
mission as would estop her from denying its truth.
This disposes of all the material contentions of
^^^^ndant and in favor of the complainants, and the
^^<5ree of the Chancellor will be reversed and de-
cii^^e entered here in favor of the complainants for
amount claimed and costs.
868 JACKSON :
Bedford v. McDonald.
Bedford v. MoDonald.
{Jackson. April 28, 1899.)
1. PABTNEB8HIP. . CredUoTS^ lien upon prm assets.
The creditors of a firm cannot, after the members thereof have
diyided the assets among themselves, waiving or failing to as-
sert any lien they have as partners, set up and enforce such
lien, even if the Arm was insolvent, unless the division was a
fraud upon them. {PosU PP' 960-^965.)
Cases cited and approved: Qin Co. v, Bannon, 85 Tenn., 712;
House V. Thompson, 3 Head, 512; Qill v, Latimore, 0 Lea, 381.
2. Same. PurctiaseT ofjlrm assets from part/ner not innocent, when.
One who, with knowledge that a firm had dissolved and was in-
solvent, accepted in payment of an antecedent debt a transfer
from one of the partners of a note which originally belonged
to the firm, but which had been allotted to the transferer in a
division of the firm assets, cannot claim to be an innocent par-
chaser without notice entitled to protection against the firm
creditors, if the division of the assets between the partners
was fraudulent, although his debt was a bona fide one. {PosU
pp. 365, 966.)
Case cited and approved: Allen v. Bank, 6 Lea, 558.
3. Same. Firm creditor iwt estopped to claim partnership asset, when.
A firm creditor will not be estopped to follow a note originally
belonging to the firm in the hands of a transferee from one of
the partners, after a fraudulent division of the assets by the
partners, or to assert that a judgment recovered thereon
should be applied to the firm debts, merely because he ap-
peared for the maker of the note, who was his nephew, in the
action by the transferee thereon, and did not challenge the
latter *s ownership until judgment had been recovered and had
been secured by a stay or, where it does not appear that any
concessions were granted by the plaintifi! in that action in or-
der to quiet his title to the note, or that anything was said on
the trial as to the true ownership of the note and no cost or
APRIL TEKM, 1899. S59
Bedford v, McDonald.
expense was incurred on account of anything^ done or said by
such creditor. (PotU pp. 3Se, 307.)
Csaes cited and distingnished: Barham v, Turbeville, 1 Swan,
430; Fields u Carney, 4 Baz., 137; Galbraith v. Lunsford, 87
Tenn., 104.
4. Injuhctiok. Effect and eacterU of.
An injunction prohibiting one from receiving any of the pro-
ceeds of sale under execution upon a Judgment recovered by
him, does not prevent him from bidding at the sale as any
third person might, but, instead of crediting his judgment or
applying it in payment, he will be required to pay the amount
bid into Court and await further orders before any credit can
be given. {Post, p. 368.)
^' Jdbgmknt. Stayor*8 obligation.
The stayor of a judgment obtained by a fraudulent assignee of
the debt is liable thereon to the assignor's creditors who suc-
cessfully impeach the transfer of the claim. {Postt p. 368.)
^' Execution. Sale under, invalids when.
^le of land under execution will be set aside at the suit of the
plaintiff in the judgment, where it was made under circum-
stances that virtually prevented him from bidding on it, and
& bid made by a third party failed to satisfy the judgment.
{I^ost, p. 369.)
FROM SHELBY.
Appeal from the Chancery Court of Shelby County,
''^o. L. T. Sneed, Ch.
R. M. Heath for Bedford.
J. H. Malone for McDonald.
Wilkes, J. T. T. and J. M. McDonald were
partners in business at Collierville, Tenn., under the
360 JACKSON :
Bedford v. McDonald.
firm name and stvie of McDonald Bros. Thev failed
ft/ ar
in business and dissolved partnership December 4,
1894. T. M. McDonald is a son of T. T. Mc-
Donald. He was also a merchant, and owed the
firm of McDonald Bros, a debt. W. H. Bedford
owed a debt to T. M. McDonald. On February
7, 1895, W. H. Bedford, being indebted also to
McDonald Bros, and to the individual members of
that firm, executed his notes, one to T. T. Mc-
Donald for $523.87 and one to J. M. McDonald
for $625. T. T. McDonald kept the note for
$523.87 and used it as collateral from time to time,
and, after about two years, being indebted to his
son, T. M. McDonald, he transferred it to him in
payment of his debt. About $25 of this note rep-
resented an individual debt that W. H. Bedford
owed T. T. McDonald, and the balance of $498.87
was the one-half of the debt due from W. H. Bed-
ford to McDonald Bros. The other half was in-
cluded in the $625 given to J. M. McDonald. In
other words, W. H. Bedford being indebted to the
firm of McDonald Bros, in the sum of $997.74,
this amount was divided between the two partners
equally and included in notes given to each for this
amount and the amount due each individually. W.
H. Bedford having failed to pay the note for
$623.87, T. M. McDonald sued him on it. On the
trial before the Justice of the Peace, complainant,
who is the uncle of W. H. Bedford, appeared for
him and represented him and had various credits
APRIL TERM, 1899. 361
Bedford v. McDonald.
I
entered, and, as a final result, judgment was ren-
dered for $599. Execution was stayed by Mrs.
Virginia Bedford, the sister-in-law of complainant.
After the stay expired execution issued and was re-
turned indorsed no personal property to be found
of either defendant. A levy was then made on land
of Mrs. Virginia Bedford, and it was condemned
and advertised for sale on January 13, 1898.
On January 10, 1898, H. L. Bedford filed a
bill claiming that he was a creditor of McDonald
Bros.; that as such he had a lien on this judg-
ment, as partnership assets, and on behalf of him-
self and all other creditors of McDonald Bros,
sought to have the proceeds of sale paid upon the
partnership debts, and enjoined T. M. McDonald, the
judgment <5reditor, from receiving or collecting any
of the proceeds of sale. The bill charged in detail
that the judgment was really firm assets; that T.
M. McDonald paid nothing for it; that its transfer
to him was a fraud and made to hinder and delay
creditors of McDonald Bros, and T. T. McDonald,
and that T. M. McDonald participated in and aided
this fraud.
T. M. McDonald answered and claimed that H.
L. Bedford was present at the time the judgment
was rendered in his favor on the $523.87 note and
made no claim that it was partnership assets or
that be had any lien upon it. The answer was
filed as a cross bill, and denied anv rio^ht in the
complainant or any creditors of McDonald Bros, to
862 JACKSON :
Bedford v. McDonald.
reach the note as firm assets; that it had been
transferred to him in good faith to pay an honest
debt, and claimed that the sale of the land was
void for imperfect description and because it had
been conveyed in trust, and the cross bill asked for
a resale of the land free from redemption. It was,
when sold under execution, struck off to S. P. Wil-
son for $300, and, he not complying with the terms
of sale, it was resold to H. L. Bedford for the
same sum of $300. Mrs. Bedford, in her answer
-to this cross bill, resisted any attempt at resale and
insisted on the first sale and her right to redeem.
The Chancellor gave judgment for the complain-
ant's debt and ordered the bill to. stand as a gen-
eral creditors' bill for the benefit of all creditors of
McDonald Bros. , and dismissed the cross • bill, and
defendant appealed. As error he says:
1. That the creditors of McDonald Bros, had no
lien on the two notes which the partners had taken to
close up the amount due them from W. H. Bedford,
and especially none as against T. M. McDonald or the
proceeds of sale of the lands of the stayor, Mrs.
Virginia Bedford.
2. That if mistaken in this, complainant could
have no lien on the judgment or note on which it
was based, because the defendant had offered him
enough of the note to pay the debt ' he claimed
against the firm, and he had refused it and re-
nounced all claim to it, and encouraged defendant
to proceed in his suit against W. H. Bedford, and
APRIL TERM, 1899. 363
Bedford v, McDonald.
had made no claim to the note until defendant had
gone to the expense and labor of obtaining the
judgment levying on the land and condemning the
same, and he is now estopped to claim the pro-
ceeds of the judgment.
3. That the Court did not hold the sale void
because of imperfect description of the land and be-
cause it was conveyed in trust and the title had not
been cleared up, and because he was virtually pre-
vented from bidding at the sale, because he was
enjoined from receiving the proceeds and the prop-
erty was thus brought to sale under circumstances
prejudicial to it, and which resulted in a purchase
for $300 of land worth $3,000.
It appears from the testimony of T. T. McDonald
that nothing special was said between him and his
former partner when they divided up the W. H.
Bedford note between themselves as to waiving or
retaining any lien; that he thought he had a right
to take the note and leave the firm creditors in the
larch, and that he was never willing to use the
notes in paying firm debts; that the division was
made in order to effect a settlement with W. H.
Bedford, but not for the purpose of using up the
money so the creditors of the firm could not get it.
T. M. McDonald states that he knew the firm of
McDonald Bros, had failed and that they had di-
vided the assets between themselves, and that the
note of $528.87 was given to him in payment of
an antecedent debt.
364 JACKSON :
Bedford v. McDonald.
In regard to the first assignment of error, that
there was no lien on this note for partnership debts,
it is evident that the partners expressly retained no
lien when they divided the debt of W. H. Bed-
ford between themselves, but the fair inference is
that they intended to waive any such lien. It ap-
pears also that the Chancellor did not find, in terms,
that this division was made fraudulently, but simply
found the facts as before stated, and the question
is, whether when the partners have made such di-
vision of partnership assets among themselves, waiv-
ing or failing to assert any lien they have as part-
ners, can the creditors of the firm set up and enforce
such lien? We think they cannot, unless it be on the
ground that such division is a fraud, which a Court
of Chancery will not tolerate, but will treat the
assets still as firm assets and liable as firm debts.
In other words, the assets cannot be subjected on
the ground of a lien, for that can only be worked
out through the partners, and where there is no lien
in favor of partners there is none in favor of firm
creditors. The general doctrine is laid down in the
case of the Gin Co, v. Bannon, 85 Tenn., 712,
in these words: '*The general creditors of a firm
have no lien upon the partnership assets if the part-
ners have none themselves. The claims of the firm
creditors must be worked out through the equities
of the partners. And a joint conveyance by part-
ners of their partnership property in trust to secure
their individual debts, operates to defeat their own
APRIL TERM, 1899. 366
Bedford v. McDonald.
lien and equity thereon, and a fortiori that of firm
creditors, and gives priority of satisfaction out of
the assets conveyed to the individual creditors. So
partners may convey firm assets to one of their own
number free from any lien for firm debts." IIoiiHe
v. Thompson.^ 3 Head, 512. To the same effect is
the ruling in Case v. Beauregard^ 99 U. S., 119; Ex
Parte Ruffin^ 6 Vesey, 119-126; Fltzpatrick v. Flan-
agan^ 106 U. S., 648; IhiUcamp v. Moline Plato
Co.^ 121 [J. S., 310. And the mere insolvency of
the firm does not change the rule. Fltzpatrick v.
Flanagan^ 106 U. S., 648. To the same effect see
Wiggl)is V. Blachshear^ 86 Texas, 670; ReynoldH v.
Johnnon^ 54 Ark., 452; Victor v. Glover, 17 Wash.,
37; Bank v. Kllef}, 64 Miss., 151 (S. C, 60 Am.
Rep., 47); Goddard v. McCane, 122 Mo., 426;
ElUmn V. Lucas, 87 Ga., 227 (S. C, 27 Am. St.
Rep., 242); Ilarrin v. Mexjer^ 84 Wis., 147; Purple
V. Farrington, 119 Ind., 164.
This we conceive to be a rule supported by an
overwhelming weight of authority. But in all these
cases and others holding the same doctrine stress is
laid upon the fact that the transfer by the partners
to third persons is made in good faith and for no
fraudulent purpose of defeating firm creditors in col-
lection of their debts, and the mere preference of an
individual debt over partnership debts is not in itself
and alone fraudulent. But where there is a fraud-
ulent design, whether expressed or necessarily im-
plied from a division of partnership property be-
366 JACKSON :
Bedford v, McDonald.
tween the partners, to defeat the creditors of the
firm, the Courts will treat the fraud as vitiating
the division or transfer and the assets as still be-
longing to the firm and subject to its debts. This
is illustrated by the case of Gill v. Lattitruyre^ 9
Lea, 381, where two partners divided certain horses
and wagons between themselves and then claimed
them as individual property and exempt from execu-
tion. The Court held that this could not be done
and the horses and wagons were still firm property
and subject to partnership debts. It would be diffi-
cult to distinguish that case in principle from the
one now at bar, if the note had been seized in the
hands of the partner, T. T. McDonald, and counsel
for defendant concedes that in that case the seizure
would have been good and the debt could have
been subjected, but it is insisted that T. M. Mc-
Donald, the transferee of the note, is entitled to
hold it and its proceeds as a hcma fide assignee of
T. T. McDonald. It appears that T. M. McDonald,
when he received this note, knew that the firm had
dissolved; that it was insolvent, and that he took it
for an antecedent debt. He cannot, therefore, claim
to be an innocent purchaser without notice, even
though his debt is bona fide. Allen v. The Bankj
6 Lea, 558.
It is insisted that complainant, by his conduct at
the trial before the Justice of the Peace, has estopped
himself from claiming the note or judgment ren-
dered on it as partnership ai>sets, since he made no
APRIL TERM, 1899. 367
Bedford v, McDonald.
such claim at the trial, but, by simply insistiDg on
certain credits for W. H. Bedford, impliedly recognized
the right of defendant to recover the balance, after
giving these credits, and then permitted execution to
be stayed, and waited until the expiration of the
stay before he made any claim. The argument is
that T. M. McDonald, by his conduct, was encour-
aged to incur the trouble and expense of the suit,
and p)erhaps to concede other claims which he held
against W. H. Bedford in order to obtain the judg-
ment, and the cases of Barharn v. Turbefville^ 1
Swan, 439; Fields v. Carney, 4 Baxter, 137; Gal-
hraith v. Lunsford, 87 Tenn., 104, are relied on as
sustaining this view.
We cannot see any tangible ground for estoppel
io the case. T. M. McDonald was claiming the
note, and had sued upon it, as well as other claims
he held against W. H. Bedford. All that complain-
ant did was to insist upon certain set offs or credits
for his nephew. It is not shown these were granted
in order to quiet title to the balance of the note,
or that anything was said on the trial as to the
true ownership of the note. No costs or expense
was incurred on account of anything done or said
by complainant, and the most that can be said is
that he waited on his rights until T. M. McDonald
had obtained the judgment and had it secured by a
stayer. We cannot see any want of good faith in
this nor any ground for estoppel.
It is said that an offer was made to pay com-
368 JACKSON :
Bedford v. McDonald.
plainant out of this debt — that is, to credit the note
if he would take his claim against W. H. Bedford.
This he was unwilling to do, as W. H. Bedford
was his kinsman and was insolvent, and we can see
no obligation he was under to do so, nor can we
see why, after the debt was secured by a stayor,
he might not have been willing to look to it when
he was unwilling before that. It is said the sale
should be set aside because defendant was prevented
from bidding at the sale. The injunction did not go
to this extent, but only to the extent of prohibit-
ing him from receiving any of the proceeds of sale.
The effect of this was that he could still bid as
any third person might, but instead of crediting his
judgment or applying it in payment, he would have
been required to pay the amount bid into Court and
await further orders before any credit could be given.
It is also insisted that the second sale was made
after the crowd had dispersed and there were no
bidders, and this was prejudicial to the sale. It is
said, also, that whatever may be complainants^ rights
as against T. M. McDonald, they cannot be enforced
as against Mrs. Virginia Bedford, the stayor, and
it is insisted her obligation to pay is an independ-
ent one to T. M. McDonald, and not to the firm.
This position is, we think, untenable, as the stay is
a mere incident of the judgment and security for it
and occupies, so far as this question is concerned,
no independent status.
It is said the sale is void for want of certainty
APRIL TERM, 1899. 369
Bedford v. McDonald.
in the description of the land in the levy. It will
be noted that this levy was made or caused to be
made by defendant himself and that he was willing
to purchase under it, and one of his complaints now
is that he was not allowed to do so. It will be
noted, also, that Mrs. Virginia Bedford takes no ex-
ception to the levy, but insists that it and the sale
thereunder remain undisturbed, and she only insists
upon her right to redeem and that such right be
preserved.
We are of opinion that the sale was made for
an insufficient price; that it was made under such
circumstances as virtually prevented defendant from
bidding for it; that, owing to these and other com-
plications set up in the cross bill, the sale was not
fairly made and should be set aside and the land
resold after the title and description are perfected,
but such sale will be subject to redemption for cash,
and the decree of the Chancellor dismissing the cross
bill is reversed and the cause will be remanded to
be proceeded with according to this opinion and the
prayer of the cross bill. The proceeds of sale will
be treated as partnership assets for the benefit of
partnership creditors. The cost of this Court will be
divided between complainant and defendants and the
cost of the Court below will be paid as the Chan-
cellor may hereafter direct.
18p— 24
370 JACKSON :
Polk V. Williams.
Polk v. Williams.
{Jackson. April 29, 1899.)
Estoppel. Exists, when.
A person, who, by accepting^ an order of indefinite amount and
^ivlngf assurance that at least 8100 would be realized thereon,
induced the payee to dismiss his suit against the maker, ia
estopped to deny liability to the payee for at least one hun-
dred dollars.
Cases cited and approved: Merri wether v. Larmon, 3 Sneed, 447;
Spears v. Walker, 1 Head, 166; Phillips u Hollister, 2 Gold.,
377; Bankhead v. Alio way, 6 Cold., 75; Ruffin v, Johnson, 5
Heis., 609.
FROM SHELBY.
Appeal from the Chancery Court of Shelby County.
Lee Thornton, Ch.
PiEBSON & EwiNG and R. P. Cart for Polk,
Spinning & Co.
W. B. Glisson for Williams.
Wilkes, J. The suit in this case is brought on
the following order and acceptance:
"Memphis, Tenn., Aug. 13, 1897.
'*For value received I have this day bargained
and sold and transferred to Polk, Spinning & Co.
APRIL TERM, 1899. 371
Polk i;. Williams.
any and whatever interest I now have in and to
the profits of the business of Evander Williams &
Co., and this transfer is intended by me to operate
as an order on said Evander Williams & Co. for
whatever may be due from them or which may
hereafter become due me by or through them. This
does not include indebtedness due arising from cot
ton or cotton sales.
** Witness my hand, etc.
^'(Signed) B. G. West.
*'We accept the above order and agree to pay
Polk, Spinning & Co. whatever is now due or may
hereafter become due by or through us to the said
B. G. West. (Signed) Evander Williams."
The order arose out of this state of facts: West
was owing Polk, Spinning & Co. $260 and was in-
solvent. Williams and West had been partners in
selling farm implements on a credit and on which
they were to receive a commission or profits. These
profits were to be divided, two-thirds to Williams
and one-third to West. This arrangement continued
until about August 1, 1897, when West withdrew.
About this time an interview was had between Polk
and Williams, in which Williams made a statement
about his accounts with West.
Williams' version is that he told Polk, on Polk's
inquiry, that West had quit him, and he thought
he would owe him something, perhaps $50 or $100,
but he could not tell what until the business was
372 JACKSON :
Polk V. Williams.
settled, and it depended on that settlement whether
he would owe him anything; that the sales had been
made on a credit, with liberty to return the imple-
ments or exchange them.
Polk, Spinning & Co. brought suit before a
Justice of the Peace, whereupon West gave the
order referred to and Williams gave the acceptance,
and the suit was thereupon dismissed at complain-
ants' cost. Williams' version is that several appli-
cations were made to him to know what amount
would be due West, but that he replied he could
not tell until the books were closed up, and he
told complainants finally, but before they brought
this suit, that there was nothing due West, and pro-
posed to exhibit the books, and was greatly sur-
prised when the suit was brought, and that, as a fact,
nothing was due West, nor would be on settlement.
The version given by complainants puts quite a
different aspect to the case. Their insistence is that
Williams, having fallen out with West, came to Polk
and said, in substance, that he had at that time $100,
or $110, due West in his hands, and would have
on final settlement enough to pay their entire de-
mand of $260. The decided weight of the testi-
mony is in favor of complainants' version of the
matter, and this is strengthened by the terms of
the order and acceptance, and which, we think,
clearly implies that there was an amount owing when
the order was given and accepted, and that more
would be owing when the final settlement was made.
APRIL TERM, 1899. 373
Polk V. Williams.
•
The CbaDoellor gave judgment for 1109.20 and
cost, and both sides appealed and assigned errors,
the defendant because any judgment was rendered,
and the complainant because judgment was not ren-
dered for the full amount of $260. We are sat-
isfied with the result reached by the Chancellor.
We think the proof fails to show what amount
would be due on final settlement, and it appears no
final settlement had been made when the bill was
filed, but the proof is very clear and convincing
that the defendant, Williams, stated before and when
the order was drawn and accepted, that he had
$100 in his hands at that time to which West was
entitled, and upon the faith of this statement Polk,
Spinning & Co. brought suit before a Justice of the
Peace with a view of garnisheeing the defendant, and
afterwards, upon the faith of this order and accept-
ance, and the assurance of defendant that he had
this sum then in hand, dismissed the suit, paid the
costs, and took the accepted order.
The rule laid down in Coolldge v. Payson et al.^
2 Wheaton, 62, is applicable, that a promise to ac-
cept a bill amounts to an acceptance to a person
who has taken it on the faith of that promise, al-
though the promise was made before the existence
of the bill, and although it is taken by a person
for a pre-existing debt.
Defendant is estopped to deny the statement that
he had in his hands $100, a statement which led
the complainant to bring the suit before the Justice
374 JACKSON :
Polk V. Williams.
of the Peace and afterwards to accept the order and
dismiss the suit. Merriwether v. Lamion^ 3 Sneed,
447, 452; 8pear% v. Walker, 1 Head, 166; Phillips
V. Hollister, 2 Cold., 277; Bankhead v. AUoway,
6 Cold., 75; Ruffin v. Johnson, 5 Heis., 609.
The judgment of the Court below is affirmed, and
the cost of this Court will be divided equally. The
costs of the Court below will remain as adjudged
by that Court.
APRIL TERM, 1899. 376
Slack V, Suddoth.
Slack v, Suddoth.
{Jackson. April 29, 1899.)
Good Will. Not svJjject of fofrced sale or transfer, when.
No forced sale or transfer can be made of a good will, such as
that of a partnership of dentists, in a suit to wind up the part-
nership, when it is based upon professional reputation and
standing' or upon business connections, although it might be
the subject of a voluntary sale.
Case cited: Bank v» Bank, 7 Lea, 420.
FROM SHELBY.
Appeal from the Chancery Court of Shelby County.
Sterling Pierson, Ch.
L. & E. Lehman for Slack.
Smith & Trezevant, for Suddoth.
Wilkes, J. Drs. Slack and Suddoth were part-
ners in the practice of dentistry in the city of
Memphis for a number of years. They occupied
two offices on the second floor of No. 243 Main
Street, which they rented or leased year by year.
They were equally interested in the business and
property of the firm and the partnership was un-
376 JACKSON :
Slack V- Suddoth.
limited as to duration. The subject of dissolution
was discussed between them for several months, but
no satisfactory conclusion was reached until, on April
80, 1894, complainant notified defendant that the
partnership was dissolved. Before doing so, how-
ever, or on the day after, he rented another office
in the same building and near the head of the stair-
way, and on the next day after the dissolution he
advertised in the daily paper that the partnership
was dissolved and he was located for practice in an
adjoining room in the same building, and he put
his sign up at his office door. Attempts were made
between the parties to settle up their business, but
they were unsuccessful. Suddoth remained in charge
of the old offices and used such of the furniture
and instruments as he needed or wished. Slack then
filed a bill to wind up the partnership, and he
asked that a receiver be appointed to take charge
of the lease and property and sell the same, and
that he be allowed to start the biddings for the
same at $2,000. The defendant answered. The Chan-
cellor appointed a receiver, and directed him to offer
the use and rent of the two rooms to both parties
for the remainder of the year (about seven months)
and to let them go to whichever would indemnify
the other against the landlord's rent and give the
greatest bonus in addition. He was also to take
possession of the personal property and hold it for
further orders. Defendant thereupon obtained from
one of the Judges of this Court a fiat superseding
APRIL TERM, 1899. 377
Slack V, Suddoth.
the order of the Court below to sell the use of
the offices. This was dissolved at the April term,
1895, of this Court and the cause remanded for
further proceedings. In the meantime the current
rent or lease expired, and defendant himself leased
the rooms from the landlord and continued in posses-
sion. The Chancellor ordered a reference upon the
several features necessary to settle accounts between
the parties, and, among other things, the Master
was directed to report what leases the partnership
bad when the suit began and which one of the par-
ties had received the benefit of the same, and how
much, if anything, he should pay therefor, and who
had paid the landlord's rent, and what damage had
accrued to complainant by reason of the supersedeas
sued out in this Court. The Clerk reported the
facts as already stated and that defendant should
pay to the complainant $500 for his interest in the
lease, upon the ground that it was valuable, and en-
abled the holder to appear to the public as the suc-
cessor of the old and well established firm and pro-
cure a re-lease of the property. This was excepted
to and exception overruled by the Chancellor, and
there was an allowance of $500 in favor of com-
plainant for his interest in the remainder of the
rental or lease contract, reciting that it was the
value of the '*good will" attached to the offices.
From this much of the decree the defendant ap-
pealed, and this presents the only question before us.
The rental paid the landlord for the rooms under
378 JACKSON :
Slack V. Suddoth.
the lease to the firm was $49 per month, and after
the firm dissolved defendant continued to pay this
amount of rental, and after the expiration of that
lease he rerented at the same rate. It appears that
the complainant also tried to rerent the rooms at
the same price after the firm lease terminated.
The Chancellor, as well as counsel, have treated
the item of $500 as the ''good will" of the firm.
It is diflScult to define what ''good will" is. Lord
Eldon said that it was simply "the possibility that
the old customers will resort to the old place."
CrutweU v. Lye^ 17 Vesey, 335; Moreau v. Edwards^
2 Tenn. Ch., 349. But in Christian v. Douglass^
Johns. Eng. Ch., 174, it was said that this was
too narrow a view to take of it, and there it was
said that it was every positive advantage acquired,
arising out of the business of the old firm, whether
connected with the premises where it was carried on,
with the name of the late firm, or with any other
matter carrying with it the benefit of the business
of the old firm. But it is evident that this defini-
tion IS too narrow when applied to the good will
of a partnership to practice a profession, since it
leaves out of view the advantage to be gained from
the professional standing and reputation of the part-
ners themselves, which constitutes the principal
feature of value in such partnerships. Accordingly,
it is insisted that there is no such thing as "good
will" attaching to professional partnership!^. Cer-
tainly there can be no forced sale or transfer iri in-
APRIL TERM, 1899. 379
Slack V, Suddoth.
vitum of such good will so far as it is based upon
professional reputation and standing, such as arises
from the skill of physicians, dentists, attorneys, etc.,
whatever may be done as to such good will as
arises out of location. Still, in the sense in which
Lord Eldon uses the term good will of the prem-
ises, there may be an advantage of pecuniary value
in occupying premises which have been occupied by
skilled professional men, and to which the public
has resorted or has been attracted by advertisements,
or prior visits or general reputation of prior occu-
pants. Many persons attracted to the place by the
reputation of former occupants might remain no mat-
ter who might be in occupancy, and others might
leave so soon as it was ascertained they were not
occupied by the persons in whom they have pro-
fessional and personal confidence.
It will be seen from this brief mention what an
unreliable, and we might say imaginary, value could
be placed upon what is called "good will" in this
case. Bank v. Banky 7 Lea, 420. Certain it is
that there was no actual good will between these
parties after the dissolution. On the contrary, they
were hostile in their views.
It was not the case of one professional retiring
and recommending his successor to his old custom-
ers, which is the principal feature in the sales of
good will when voluntarily made. But in this in-
stance the defendant was not recommended by com-
plainant. On the contrary, he entered immediately
380 JACKSON :
Slack V. Suddoth.
into open and aggressive competition with him.
Neither could defendant hope to reap much, if any,
advantage from occupying the same quarters, for the
complainant, as an active competitor, was hard by
in the next room, and as likely to get the old cus-
tomers, perhaps, as was the defendant. The Clerk
and Master and Chancellor evidently fixed the value
of this good will, as it is termed, from the cir-
cumstance that complainant had expressed a willing-
ness to pay defendant $500 for the use of the
offices for the remaining term of seven months unex-
pired. But it must be evident on the one hand
that he might be willing, after having secured his
own office adjoining, to pay this sum to have the
old offices closed and defendant removed entirely
from the premises, and never use the rooms himself,
and, on the other hand, defendant did not stand upon
an equal footing in bidding for the use of the
offices, because if he failed to get them he must
go off into some other locality, while, if complain-
ant failed to get them, he had only to step into
the next room, and, according to the proof, be as
favorably located, if not more so, than in the old
offices. The complainant could thus set himself up
in the premises of the old firm, and, inasmuch as
the defendant had gone out of the building, he
might be taken as the successor of the old firm.
But defendant could not do this, because complain-
ant was located at his very threshold, to rebut such
an inference by the public. We do not think this
APRIL TERM, 1899. 381
Slack V. Suddoth.
offer was any criterion of value of the use of these
rooms. It might more properly be said to be com-
plainant's estimate of benefit to be used for clos-
ing them up. But we think the principle back of
all is that no forced sale or transfer can be made
of a good will when it is based upon professional
reputation and standing or upon business connections.
*'Good will" implies something gained by consent,
not something realized by force or coercion. We
do not mean to hold that ^<good will" has no
value and may not be the subject of a voluntary
sale. On the contrary, we think it might be sold
and is a valid consideration for a contract, and it
has been so held in a number of cases. 8 Am. &
Eng. Enc. L., 1372, note 7.
In Bums v. Guy^ 4 East, 190, a contract by
a practicing attorney to relinquish his business and
recommend his clients to two other attorneys, and
that he would not re-enter the practice in certain
localities, was held a good contract. So in Whit-
taker V. Howe, 3 Beavan, 383. In Jloyt v. Holly^
39 Conn., 326, there was a similar contract made
by a physician with a brother physician, and it was
sustained. So in the case of Warfield v. Booths 33
Md. , 63. In all these cases there * was a voluntary
sale and an obligation to aid the purchaser or not
to enter into competition with him for a certain
time or in certain localities. No doubt in this case
complainant could have made a valid agreement with
defendant for a consideration to leave the old offices
I
882 JACKSON :
Slack V. Snddoth.
and let him have the advantage of their use, but
this was not done.
We are of opinion it was error to allow this
item, and it is stricken out. Judgment will be ren-
dered as may be indicated by the result. This may
be agreed on, or the Clerk of this Court, in the
absence of such agreement, will report the amount.
The appellee will pay costs of appeal. Costs of
Court below will remain as adjudged by that Court.
APRIL TERM, 1899. 383
Fitzgferald v, Standish.
Fitzgerald v. Standish.
(Jacknon. April 29, 1899.)
1. Wills. SurvivinQ executrix may execute power of sale.
Under a will devising the widow a life estate and authorizing
her and her co-executor, as such, to sell lands, ^4f, in their
judgment, they think it best," the widow may, as surviving
executrix, in pursuance of such power, sell the lands to pay
debts of the estate and make a valid, fee simple title. {Post,
pp. 3M-393.)
2. Same. Survival of powers.
The general rule is, that powers coupled with a trust, or coupled
with an interest in the estate, survive, but mere naked powers
do not survive. (PosU PP- 388-390.)
Cases cited and approved: Robinson v. Gaines, 2 Hum., 367; Will-
iams V. Otey, 8 Hum., 563.
3. Same. DiscretUrtiary powers.
The rule and policy that forbid delegation or survival of dis-
cretionary powers, the execution of which rests upon personal
trust and confidentse, do not apply to discretionary powers
conferred upon executors in their representative capacity.
{Post, pp. 391, 392.)
Cases cited and approved: Deadrick v. Cantrell, 10 Yer., 263;
Armstrong v. Park, 9 Hum., 195; Belote v. White, 2 Head, 703;
Murdock v. Leath, 10 Heis., 176.
4. Innocent Pubchaseb. Rightful execution of powers presumed
in favor of.
Where it is doubtful whether a power has been exercised legally
or illegally, in favor of innocent purchasers and meritorious
102 888
llin 211
884 JACKSON :
Fitzgerald v. Stsndish.
claimants, the legal execation will be presumed. {PoaU 2>.
393.)
Cases cited and approved: Marshall v. Stephens, 8 Hum., 159;
Wilburn v. Spofford, 4 Sneed, 699.
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
Sterling Pierson, Ch.
A. S. Buchanan for Fitzgerald.
John C. Myers and F. P. Poston for Stan-
dish.
Wilkes, J. The question involved in this case
is the power and authority of a survivor of two
executors to sell land belonging to the testator
under a discretionary power vested by the will in
the executors. It arises under the will and codicil
thereto of Rev. James Dennis, of DeSoto County,
Mississippi, which are in the following words and
figures:
'*I, James Dennis, of the County of DeSoto,
and State of Mississippi, being of sound and dis-
posing mind and memory, make this, my last will
and testament, hereby revoking all other wills made
by me, to wit:
'*!. It is my will that all of my just debts be
APRIL TERM, 1899. 386
Fitzgerald v. Staadish.
paid, and funeral expenses, and after they are all
paid:
''2. I give, devise, and bequeath all of my
estate, real and personal, to my beloved wife, Caro-
line Dennis, during her natural life.
'' 3. After her death, I give to the Baptist Col-
lege, at Clinton, Mississippi, one thousand dollars, the
interest of which is to be used to educate poor
young men of the Baptist Church who feel it their
duty to preach the gospel and have not the means
to get an education.
^'4. And the remainder, if any, to be equally
divided between my nephews, S. B. Dennis and J.
B. Dennis, and my niece, Mattie Dennis.
'*5. I appoint my wife, Caroline Dennis, and
my friend, S. C. Williams, executrix and executor
of this, my last will and testament. It is my willl
that my executrix and executor give no bond.
*' Witness my hand and seal this sixteenth of Oc-
tober, 1878. James Dennis. (Seal.)
**J. L. DOLEHITE,
*^G. T. Banks,
"T. L. Clifton.
^'CODICIL.
'* State of Mississippi,
^'DeSoto County, January 13, 1881.
*'I, James Dennis, do make this my codicil, hereby
confirming my last will, made on the sixteenth of
October, 1878, and do hereby authorize my executor
18 P— 25
386 JACKSON :
Fitzj^erald v, Standish.
and executrix to sell my land, all or any part
thereof, if in their judgment they think it best.
''In testimony whereof 1 have hereunto set my
hand and seal this day and date above written.
«*J. L. DoLEHiTE, James Dennis. (Seal.)
'«T. L. Clifton,
''G. T. Banks.
''Filed March 5, 1883. R. R. West, Clerk.''
' Both the executor and executrix were duly ap-
pointed, and qualified as such in 1885. Two years
after the death of the testator, and after he had
qualified as executor, S. C. Williams died, and no
other executor was appointed or qualified in his
stead. About seven months after the death of S.
C. Williams, Mrs. Caroline Dennis, executrix, exe-
cuted a deed to a lot in Memphis to one Scott
Wilson (one of the defendants herein) for $100
cash, he to assume payment of the taxes then due
on the said lot, the deed reciting that there is a
large amount of back taxes and the taxes of the
current year. And in about two years afterward
Wilson sold and conveyed this lot to his co-defend-
ant, Mrs. Standish, for $1,750.
The complainants' contentions are: (1) That Mrs.
Caroline Dennis only intended to sell and convey
her life estate; (2) that neither the executor nor
executrix could, alone, convey the fee title to any
part of the land belonging to the estate, but that,
APRIL TERM, 1899. 387
Fitzgerald v. Standish.
by the terms of the will, it required the concur-
rence of both.
The bill was filed by the remaindermen under
the will, and it was sought to have the conveyance
made by Mrs. Caroline Dennis, executrix, declared
inoperative and void except so far as it might serve
to convey her life estate in the lot. The cause was
heard upon demurrer, which presented to the Court
the insistence that the deed was a valid execution
of the power given under the will to sell the lot,
and that it conveyed a fee simple title thereto to
Scott Wilson. This demurrer was sustained and the
bill dismissed, and complainants appealed and have
assigned errors.
The only question presented in this Court is
whether the power to sell the real estate of James
Dennis, conferred by this will, survived S. C.
Williams, one of his executors, who died without
executing the power, and could be exercised by the
surviving executrix, Mrs. Caroline Dennis, so as to
vest a fee simple title in the purchaser. It is a
pure legal question. No bad faith is attributed to
the executrix. It appears she received from the
sale of the lot $100 cash, and the assumption of
current taxes* and a large amount of delinquent
taxes, but what the full consideration was does not
appear. It also appears that when Wilson, two
years afterward, sold, he received $1,760 for the lot,
but it does not appear that it was not improved in
the meanwhile. At any rate, no question is made
388 JACKSON :
Fitzgferald v. Standish.
but the one of legal authority to sell and the effect
of the conveyance as made in good faith. It is
said there is an intention, clearly and unmistakably
inferable from the will, that the testator did not
intend a sale of the real estate to be made except
it was concurred in both by his executor, Williams,
and his widow, Caroline. As evidences of this in-
tention, our attention is called to the fact that the
testator had such implicit confidence in his executor,
Williams, that he released him, as well as his wife,
from giving any bond; that in the codicil he vested
in the executor and executrix power to sell if, in
their judgment, they might think best, and the use
of these terms, executor and executrix, was a des-
ignation as pointed as if he had called the names.
It is also said that he does not vest tide in his
executor, nor does he authoritatively require a sale,
but merely confers a power contingent upon their
discretion and joint judgment. It is also suggested
that the testator must have relied most upon the
judgment of his friend, and not upon that of his
wife, or he would not have named him as co-executor.
Unquestionably where a mere power is vested in
two or more persons, they must join in its execu-
tion in order that it be valid, and the general
rule is that mere powers do not survive unless so
expressed. 18 Am. & Eng. Enc. L. (1st Ed.), 160;
Peter v. Beverly^ 10 Pet., 532; Asgood v. Franklin ^
7 Am. Dec, 673; Burger v. Bennett, 2 Am. Dec,
281.
APRIL TERM, 1899. 389
Fitzgerald v. Standish.
**A mere direction to executors to sell, there
being no devise of an interest and no trust created,
is a naked power, and does not survive. But, if
anything is directed to be done in which other per-
sons are interested, or if others have the right to
call on the executor to execute the power, such
power survives, even though it is not strictly a
power coupled with an interest." 18 Am. & Eng.
Enc. L. (1st Ed.), 961. Powers coupled with a
trust do survive, and will be enforced in equity,
/i., note 1. The same doctrine is held in our own
cases of Robinson v. Gaines^ 2 Hum., 367, and Wil-
lia/m V. Otey^ 8 Hum., 563. The result of the
cases is that a power coupled with an interest in
the estate, or with a trust in reference to it, will
survive, while a mere naked power will not. Vol.
1, pp. 205, 206.
Mr. Sugden lays down the general rules govern-
ing the survivorship of powers as follows:
''1. Where a power is given to two or more by
their proper names, not made executors, it does not
survive without express words.
*'2. Where a power is given to three or more as
a class, such as *my trustees,' ^my sons,' and
not by their proper names, the authority survives
so long as more than one remains.
<'3. Where the power is given to executors, and
the will does not expressly require a joint exercise
of it,- even a surviving executor may execute it;
bat, if given to them nominatim^ though in the
390 JACKSON :
Fitzgerald v. Standish.
character of executors, it is doubtfal wliether it shall
survive."
In 2 Perry on Trusts, Sec. 499, it is said: ''In
the United States a power given to executors, or
trustees as such, to sell real estate, may be exer-
cised so long as a single donee survives." To the
same effect, see 4 Greenleaf s Cruise's Dig., 199, note
1; 18 Am. & Eng. Enc. L., 963, note 3.
In Zeback v. Smith, 3 Burnley (Pa.), 69 (S. C,
5 Am. Dec., 362), three executors were given power
to sell land, naming them. Two of the executors
declined to act, and it was held that, though these
were given power nominatim, still the authority was
given them in their character of executors, and it
was held that the one who qualified was empowered
to sell.
In the case of Jackson v. Ferris, 15 Johns., 346,
the testator directed a sale of his real estate if there
was a deficiency of personal assets, and then devised
his real and personal estate to his wife for life, and
appointed her and another his executors. The widow
alone undertook to execute the will, and there being
no personal estate, she sold and conveyed part of
the land. The Court held that it was a power
coupled both with a trust and an interest, and was
well executed by the wife alone. It will be observed,
however, that there was a necessity, in this case, to
sell land to pay debts.
In Heim v. Forth, 43 N. J. L., 1, the will di-
rected payment of debts, then gave the wife a life
APRIL TERM, 1899. 891
Fitzgerald v. Standish.
estate,' with remainder to third persons, and named
the wife and a friend as executor and executrix,
with power of sale in language much the same as
in this case. In that case, as in the one at bar,
the will directed, first, the payment of debts, second,
created a life estate in the wife and a remainder to
third persons, naming his wife and friend as execu-
tor and executrix. One of the executors died or
was removed, and the survivor attempted to exercise
the power, which was resisted. It was held that
the power was validly executed, and that the life
estate was such an interest as, coupled with the
power to sell, had the effect to make the power of
sale effective in the surviving executor. Now, in
the case at bar, there .was no interest vested in
Williams, but only a trust to pay debts, and to
pay $1,000 to the Baptist College, and to see that
the life tenant and remaindermen took under the
provisions of the will, and the latter may be classed
as passive and not active trusts. As to Mrs. Den-
nis, there was a life interest, and, in addition, a
trust to pay debts. The trust as to the college
and as to the remaindermen she could not join in
executing, as it was to be executed only after her
death, and as to these Williams alone could have
the power to sell after her death, and there could
be no joint exercise of both power and judgment.
It is strongly urged that the power given in this
case, whether coupled with an interest or trust, or
not, is, nevertheless, a discretionary power vested in
392 JACKSON :
Fitzgerald v. Standish.
both. As to discretionary powers the exeQution of
which rests upon personal trust and confidence, the
rule is that the power can only be executed by the
trustee, or trustees, appointed by the donor, and
cannot be delegated, nor does it survive. Dead-
ericky. Cantrell^ 10 Yerg., 263; Annsty^ong y, Park^
9 Hum., 195; Belote v. White, 2 Head, 703; Mur-
docky. Leath^ 10 Heis., 176.
It is agreed, however, that the discretion in this
case is not rested upon personal trust and confidence
in Williams and Mrs. Dennis, but at most can only
vest in them in their representative character as ex-
ecutors, and in that capacity their right to sell is
absolute.
It must be noted, however, that the power to
sell in- this case is not mandatory. There is only
one contingency in which it could be necessary for
the widow to sell, and that is for the payment of
debts. She could not sell for the benefit of the
college nor for the remaindermen, for they were to
take nothing until after her death. We are, of
course, not now considering the authority of Will-
iams if he had been the survivor. It is true, a
sale might be a matter of convenience and policy
for the better enjoyment of the widow's life estate,
but this would not be a matter of necessity, but
convenience only. But in this case it appears that
she sold, at least to a great extent, to pay debts.
The consideration for the deed is $100 cash, and
APRIL TERM, 1899. 393
Fitzg-erald v. Standish.
the current taxes and a large amount of back taxes.
The amount of taxes does not appear, but the lan-
guage of the deed is that it was a large amount,
and the term *' large amount" was evidently used
in contrast to the small amount of cash received.
When these taxes accrued does not appear, but the
testator died in 1883, and the deed was made in
1885, so that we may and must infer that they
had accumulated in the lifetime of the testator to a
large extent, and were, therefore, debts against his
estate. We think we are authorized, therefore, to
infer that the surviving executrix sold this lot in
order to pay the large amount of taxes upon it,
and the cash of |100 was a mere incident and
minor part of the consideration. The purchaser of
the lot in this case, as well as the present owner,
apj)ear to be innocent purchasers and to have bought
in good faith, and in their interest the rule will be
enforced that where it is doubtful whether a power
has been exercised legally or illegally, in favor of
innocent purchasers and meritorious claimants, the
legal execution will be presumed. Marshall v. Ste-
phens^ 8 Hum., 159; Wilburn v. Spofford^ 4 Sneed,
699.
We are of opinion, therefore, that the widow, as
surviving executrix, had the power to make the
sale, and made it for purposes contemplated by the
will, and could and did convey a fee simple title
and not merely her life estate, and that she con-
394 JACKSON :
Fitzg-erald v. Standish.
veyed as executrix under the power, and not as
widow and owner of a life estate simply. The de-
cree of the Court sustaining the demurrer is, there-
fore, sustained and the bill dismissed at cost of
complainant.
APRIL TERM, 1899. 395
Shelby County u Bickford.
Shelby CouNxr v. Bickford.
{Jackson. April 29, 1899.)
1. Chancbbt Practice. ApplicabU to case transferred from Law
Court,
The proceedings subsequent to the transfer of a case from the
Circuit Court to the Chancery Court, pursuant to Shannon's
Code, 2 6074, are according* to the forms and rules of chancery
pleading and practice, and upon appeal the hearing will be
de novo upon the record as its component parts may appear, and
there is no presumption, as in cases at law in the absence of a
bill of exceptions, that the proof below was sufficient to sustain
the finding of the Court. [Post, pp. 397-402.)
Code construed: §6074 (S.); §5008 (M. <& V.); ^ 4236 (T. <& S.).
2. Maxim.
Nullunt tempu9 occurrit regi. (Post^ p. 402.)
3. Limitations, Statute op. Rutis against county when.
An action by a county to recover an indebtedness which it claims
by yirtue of a contractual relation between itself and defend-
ants, is subject to the statute of limitations the same as an ac-
tion by an individual. (Post, p. 402.)
Cases cited and approved: State v. Ward, 9 Heis., ill; Moore v.
Tate, 87 Tenn., 729.
4. Supreme Coubt. Will not reverse for variance between decree and
summons.
The objection that the damages allowed by the decree exceed
the amount laid in the summons cannot be raised for the first
time on appeal, where damages laid in the declaration are not
less than those allowed by the decree, as the statute of jeofails
is in force in this State. (Post. pp. 40H, 404.)
Code construed: {§4553-4560 (S.); §§ , (M. & V.); g§ ,
(T. & S.).
Cases cited and approved: Johnson v. Bank, 1 Hum., 77; Martin
396 JACKSON :
Shelby County v. Bickford.
V, Bank, 2 Cold., 332; McBee v. Petty, 3 Cold., 178; Eakin v.
Burger, 1 Sneed, 424; Lyon v. Brown, 6 Bax., 64.
5. Same. Deeds and records not considered part of record, when.
Deeds and records of other causes used as evidence on the hear-
ing- of a chancery cause cannot be considered by this Court,
though copied into the transcript, in the absence of bill of ex-
ceptions, decree, or other sufficient action to indicate that they
were so used in the lower Court. {Post, pp. 404-406.)
Code construed; i 4836 (S.); { 3821 (M. & V.); { 3108 (T. & S.).
Cases cited and approved: Allan v. State, M. & Y., 205; Bush u
Phillips, 3 Lea, 63; Railway Co. i;. Foster, 88 Tenn., 671; Mar-
ble Co. V. Black, 89 Tenn., 121.
6. Same. Cannot amend record.
This Court cannot incorporate into the record sent up evidence
not made part of it, though it is made to appear by affidavits
that such evidence whs used on the hearing in the lower Court.
(Post, pp. 406, 407.)
Case cited: Kennedy v. Kennedy, 16 Lea, 736.
7. Pleading akd Practice. Several and inconsistent pleas aMowed.
Under our practice, the defendant may plead and rely upon sev-
eral and inconsistent pleas, and hence the admission of the
covenants sued on, implied from the plea of covenants per-
formed does not deprive defendant of the benefit of other dis-
tinct pleas denying execution of the deed and covenants. {Post^
pp. 407, 408.)
Code construed: { 46^8 (S.); § 3617 (M. & V.); } 2907 (T. & 8.).
Cases cited: Steele v. McKinnie, 5 Yer., 549; Governor v. Organ,
5 Hum., 161; Langford in Frey, 8 Hum., 443; Kelly v. Craig, 9
Hum., 215.
FROM SHELBY.
Appeal from the Chancery Court of Shelby County.
Sterling Pierson, Ch.
APRIL TERM, 1899. 397
Shelby County v. Bickford.
R. D. Jordan, Geo. B. Petebs, and Gilmer P.
Smith for Shelby County.
Jas. H. M alone and J. M. Gregory for Bick-
ford.
McFarland, Sp. J. This suit was brought on
January 8, 1880, by the county of Shelby against
W. A. Bickford and Amos WoodruflF, in Circuit
Court. The damages laid in summons were |10,000.
The declaration contained three counts, two of which,
in substance, alleged that Bickford and Woodruff,
being seized of certain lots in Memphis, Tenn., known
as the Overton Hotel property, on April 23, 1874,
sold these lots to the county of Shelby for $150,-
000, a part of which was paid in cash, and notes
given for deferred payments; that a deed was exe-
cuted in which the defendants covenanted that they
were seized in fee, had a good right to convey, that
the land was free from incumbrances, and that they
would defend* title to same. The declaration says as
to this deed: '*And by this deed here to the Court
shown, in consideration of $150,000, . . . did
bargain and sell," etc. This deed does not appear
to have been filed with the declaration or appear in
the record as originally filed in this Court. The
declaration averred a breach of the covenants espe-
cially against incumbrances, alleging that Bickford
and Woodruff were the owners of the property in
1870 and 1871, and that there was due the State
398 JACKSON :
Shelby County v, Bickford.
and county for taxes, which were a lien on this
property, for the years mentioned, to the State $2,-
732.38; county, $7,243.05; total, $10,475.43, and
that this first sum of $2,732.38 due the State the
plaintiff had to pay the State under decree of sale
made in the cause of Ander'soii v. Partes et al.^ in
Chancery Court of Shelby County, Tennessee.
The first count concludes in these words: ''And
the plaintiff avers that it has often demanded of the
defendant the payment of said sum of $2,732.38
paid to the State of Tennessee, and the sum of
$7,743.05 due to it for the assessed value for said
property for the years 1870 and 1871, but, not-
withstanding this, said defendants have wholly and
entirely failed and refused to pay either or any
part of said sums of money or interest, to the
plaintiff's damage, wherefore it sues."
The second count recites the deed, covenants, etc.,
and avers that the lots were liable for taxes to the
State and county for 1870 and 1871, for $10,108.13,
and that the defendants were bound by their cov-
enants to pay the same; that when final payment
of the balance due on the purchase was made in
the sum of $14,035, on February 2, 1885, the de-
fendants declared that all taxes due and a lien on
said property had been paid, and that it was free
from taxes, notwithstanding which the defendant suf-
fered said land to be sold for taxes due to the
State for the years 1870 and 1871,
APRIL TERM, 1899. 399
Shelby County v. Bickford.
For the sum of 9 2,363 08
Together with the cost of the cause 369 30
Making a total of $ 2,732 38
Which, added to amount due county 7,743 05
Made a grand total of $10,475 43
The raain feature of this count is to have a recov-
ery upoD the verbal promise and undertaking of the
defendants, thus set forth: ^'And the plaintiff avers,
at the time of the payment of the several sums of
money due the said defendants for the purchase of
said property by the plaintiff, and especially on the
occasion of part payment, to wit, the second day of
February, 1885, the said defendants represented that
each and all of the taxes on said property due the
State and county, including all years, have been paid,
and if there were- any still due prior to the year
1875, the same should and would be paid at once,
and they positively alleged, plaintiff avers, that all
of said taxes were then paid and discharged. But,
notwithstanding this, the said taxes due for the years
1870 and 1871 were forced out of plaintiff in order
to redeem their said property, and the county taxes
for the years 1870 and 1871 still remain unpaid to
plaintiff, though often requested," etc.
The third count in the declaration is for money
loaned, work and labor done, and money paid for
them, all on February 2, 1889, etc., without stat-
ing any amount claimed.
Bickford filed twenty different pleas, in which he
denied every material averment of the declaration, and
400 JACKSON :
Shelby County v. Bickford.
plead covenants performed, limitation, payment, stated
account, settlement, merger, general issue, etc.
The case was, by order of the Circuit Court
and the consent of the parties, transferred for
trial to the Chancery Court November 28, 1890.
Woodruff made no defense, and a pro confesso was
taken as to him, and no further notice seems to
have been taken so far as he was concerned,
his name not beinor mentioned in the final decree.
W. A. Bickford having died, a motion was made
on, to wit, November 25, 1895, by counsel for
the defense, to abate the cause, for the reason
that four whole terms of the Court had elapsed
since the death of Bickford had been suo^trested
and proven, and as it appeared to the Court
that scire facids had been issued and served on the
executrix of Bickford, requiring her to show cause
why the suit should not be revived against her, the
motion to abate was overruled and the cause was
revived.
On October 8, 1895, a stipulation of counsel
was filed in the cause by which they agreed to
use the original papers in the chancery case of
Anderson v. Partee as evidence in the cause, subject
to all exceptions for irrelevancy and incompetency.
This record in the case of Anderson v. Partee^ No.
— , Chancery Court of Shelby County, appears in
the transcript, but how it got there does not ap-
pear except upon affidavits of complainant's attorney,
filed upon suggestion of diminution. There was a
APRIL TERM, 1899. 401
Shelby County v. Bickford.
decree in the Chancery Court against W. A. Bick-
ford's estate for $13,984-. 63, appeal and assignment
of errors by Bickford's executrix.
It is necessary, before noticing the several assign-
ments of error, and in order to correctly determine
this case, that we should fix and define the status
of this case, and of the complainants in the case.
The case was begun by summons in the Circuit
Court, and declaration filed there. It was then re-
moved to the Chancery Court, and further proceed-
ings had there. The results may be very different
if the case was continued in the Chancery Court as
a law case and heard as such. If still a law case,
inasmuch as there was no bill of exceptions filed,
the presumption here will be, whatever may be want-
ing of proof in the record, that there was proof
below sufficient to sustain the finding of the Court
below. If proceeded with after removal and heard
as a chancery cause there, upon appeal here the
hearing will be de novo and upon the record as
its component parts may appear.
The order transferring is as follows: ''On appli-
cation of plaintiff to transfer this cause to the
Chancery Court of Shelby County, and it appearing
to the Court that it is a cause of an equitable
nature, and, by consent of parties, it is by the
Court ordered that this cause be, and is hereby,
transferred for further proceedings and trial to the
Chancery Court of Shelby County," etc. This order
was made under the provisions of § 6074, Shannon's
18 P— 86
402 JACKSON :
Shelby County u Bickford.
Code, which provides for such removal, and clearly
contemplates that proceedings subsequent to removal
shall be according to the forms and rules of chan-
cery pleading and practice.
The next question is as to the status of the
plaintiffs with respect to this suit. If this is an
action by the State in its sovereign capacity, or by
the county as one of the agents of the sovereign,
and for the recovery of taxes, then the ordinary
statutes of limitation will not apply, under the
maxim, ^^ Nullum tempus occu?*rtt /•<^i," unless the
Acts 1885, Ch. 24 and Ch. 86, apply.
This action is not by the county to recover
taxes — quasi taxes — but to recover an indebtedness,
which it claiins by virtue of a contractual relation
between it and defendant. It is not brought by the
county in its clelegated sovereign capacity for the
recovery of any revenue due it by imposition of its
sovereign will, but as an individual sues another
individual for any ordinary breach of contract. It
is well settled that in such cases, where the gov-
ernment enters into trading relations or litigation,
it divests itself of all sovereignty and loses its ex-
emption. T/i^ Siren, 7 Wall., 154; Bank U, S.
V. P, Bank, 9 Wheaton, 907; Shomburg v. United
States, 103 U. S., 667; Moore v. Tate, 3 Pickle,
729; State v. Ward, 9 Heis., Ill; Angell Lim.,
Sec. 41; Gallmcay Y, Copart, 45 Ark., 81.
The case, then, is to be tned as one between two
APRIL TERM, 1899. 403
Shelby County v, Bickford.
individaals, governed by the rules of chancery
pleading and practice.
Proceeding, then, to the examination of the ques-
tion involved in this record, as raised by the sev-
eral assignments of error, we find that the first
assignment of error is that the decree was too large,
being for $13,984.63, while the damages laid in
summons are only $10,000. This objection was not
made until in this Court. This is too late. The
declaration in all the counts, except the third, claims
115,000 damages. There was no plea in abatement,
motion in arrest of judgment, or other objection be-
low. The declaration increased the damages, issue
was made upon it, trial and verdict. *^By statute of
jeofails," says Stephens, *'an objection to variance
between declaration and original summons cannot now
be taken by writ of error after verdict." Stephens
Plead., 427. It is settled in Tennessee that a variance
in the writ and declaration is cured by plea in bar
and trial on the merits. Johnson v. Plantei's^ Bank^
1 Hum., 77.
In this case the Court held that the statute of
jeofails is in force in Tennessee, and that the stat-
ute 5 George I. declares that no judgment shall be
stayed or reversed for any defect or fault, either in
form or substance, in any bill, writ, or for any
variance in such writs from the declaration or other
proceedings. The Court says: '*Had the defendant
in the Court below pleaded in abatement, they would
have defeated the plaintiff's action, but they chose to
404 JACKSON :
Shelby County o. Bickford.
plead to the declaration in bar and to have a trial
on the merits. Having done so, and a verdict having
been found against them, the situation of the parties
is very much changed . . . We consider, there-
fore," says the Court, "that the statute of 5 George
I. is in force, and that, after verdict, no judgment
can be reversed for any variance in the writ from
the declaration either in form or substance."
Now, under the various statutes as to amend-
ments, carried into the Code §§4553 to 4560, this
Court will permit amendments of the writ so as to
conform to the declaration and judgment. Jdarti?i v.
JBank of Tennessee^ 2 Cold., 332. And this is usu-
ally done by merely considering it as done. MoBee
V. Petty ^ 3 Cold., 178; Eaken v. Burgei\ 1 Sneed,
424; Lyon v. Brown^ 6 Bax., 64. This assignment
of error is not well taken, and is overruled.
The second assignment is as follows: '^The action
is based on alleged covenants of a certain deed. De-
fendant Bickford, by plea, denied having made such
a covenant. The deed was not offered in evidence,
nor is there a line of evidence to show that Bick-
ford entered into the covenants sued on, hence there
is no evidence to support judgment or decree."
The sixth assignment raises the same question as
to the record in the case of Anderson v. Partee,
It follows the fifth assignment of error as to stat-
ute of limitations, and is as follows: '*The action is
not taken out of the operation of the statute by
reason of the alleged chancery suit of Anderson v.
APRIL TERM, 1899. 406
Shelby County u Bickford.
Partes. The record in that case, though copied into
the transcript, is no part of the record in the pres-
ent case. It was not made a part of the record
either by being filed in the cause, or by a bill of
exceptions, or by recitation in the decree of the
Court."
The eighth assignment is also to the effect that,
for other reasons, this record is incompetent as evi-
dence in this suit.
These three assignments of error raise substan-
tially the same question.
As to the deed, which is the basis of complain-
ant's action, it was not copied in the original tran-
script; it was not mentioned in the final or any other
decree. The only reference to it in the record was,
as has been shown in the declaration, where it is
referred to as *'here shown to the Court," and
Woodruff, in his testimony, also referred to it in a
general way and only incidentally. He does not
pretend to set up such deed.
As to the record in the case of Anderson v. Par-
tee^ Chancery Court, which is copied in the tran-
script, the only reference to that in this case is an
agreement of counsel, filed in this cause December
6, 1895, that the record in that cause ''may be
used herein as evidence on the hearing of this cause
in lieu and instead of certified copies, . . . ex-
ceptions for incompetency and irrelevancy, as to all
or any portions of said record, reserved." The de-
crees, interlocutory or final, do not mention this
406 JACKSON :
Shelby County v. Bickford.
case. There was no bill of exceptions filed in the
case. There is no evidence, therefore, in the record
that either the deed apon which complainant based
his recovery, or the record in Anderson v. Part^e,
upon which complainant sought to base an outstand-
ing incumbrance, were ever used as evidence. Neither
of these appear to be a part of the record. The
agreement of the parties is only that the proceed-
ings in Anderson v. Partee may be used — not that
they were used. There is nothing showing they
were used.
It is the province of a bill of exceptions to make
the evidence used in the trial of a cause a part of
the record where not made so by the statute. Allen
V. State, M. & Y., 295; Bmh v. Phillips, 3 Lea, 63.
Sections 4836 and 4839 make depositions filed and
exhibits and bonds part of the record.
But without such bill of exceptions or some de-
cree entered in the cause, making deeds or records
of other causes parts of the record in the case ap-
pealed, they will not be considered. Railway Co.
V. Foster^ 4 Pickle, 671; Marble Co, v. Black, 5
Pickle, 121, and cases cited.
After the appeal was effected in this cause and
transcript filed here, diminution of record was sug-
gested here, and several afiSdavits filed seeking to
show that the deed referred to and the record in
the cause of Anderson v. Partee were both read on
hearing below, and the deed was thereupon sent up
and filed with the balance of the record. This,
APRIL TERM, 1899. 407
Shelby County u Bickford.
however, does not make these papers a part of the
record. Even the trial Judge cannot, after appeal,
amend and insert in the bill of exceptions omitted
recitals, though parties agree to its being done.
Kinnedy v. Kinneday,^ 16 Lea, 736. The effort here
is, by affidavits filed in this Court, to supply the
bill of exception and incorporate into the record here
evidence which was never made a part of the record
in Court below. This practice is vicious in itself,
contrary to established rules, and would lead to harm-
ful results in the future.
It is insisted, however, that inasmuch as the
defendant did not plead non eat factum^ demur,
or crave oyer, and did plead covenants per-
formed and went to trial on such issue, he waived
the objection this assignment of error raises. It is
true, a plea of covenants performed, under our de-
cisions, admits the covenants to be as set out in the
declaration. Steele v. McKinnie^ 6 Yer., 449; Gov-
ernor y. Orga7ij 6 Hum., 161. Under these authori-
ties, if the plea of covenants performed stood alone,
and was the only defense set up by plea of defend-
ant, it would have been unnecessary to prove the
making of the covenants. But this was not the
only plea of the defendant. The first plea pleaded
was that ''he did not undertake, agree or covenant
as the plaintiff hath in its -declaration alleged."
The second plea says ''he does not owe the plaintiff
anything on the deed or covenants, or on account
of any matters or thing whatever alleged or set
408 JACKSOJS :
Shelby County v. Bickford.
forth in the declaration." These, and other pleas
of the twenty filed, negative the allegations of the
declaration as to execution of the deed and cove-
nants sued on. Each of these separate pleas made
a separate and distinct defense, and were not waived
by anything set up or conceded by the legal effect
of the pleading itself in any other separate and dis-
tinct plea. Defendant may plead as many pleas as
he has real grounds of defense. Code, §4628 (S.)
These pleas may be inconsistent — as, a defendant
sued as executor may plead ne icnques executor^ non
est faotum^ or a defendant sued for slander may
plead not guilty, statute of limitations, and justifica-
tion. Langford v. Frey^ 8 Hum., 443; Kelly v.
Craig ^ 9 Hum., 215.
The result of these authorities and their applica-
tion is that there is no evidence in the record to
support the decree or upon which this Court can
decree in favor of the complainant, and the decree
of the Chancellor is reversed and the bill dismissed
at the cost of complainants. We add, however,
that, upon an examination of the several interesting
questions presented in this record as a whole, and
so ably argued by the learned solicitors for both
sides, we are satisfied this conclusion reaches the
real merits of the case.
APRIL TERM, 1899. 409
Burke v. Street Railway Co.
Burke v. Street Railway Co.
{Jackson, April 29, 1899.)
1. Evidence. Burden of aTwwing contributory negUgence on de-
fendant.
Plaintiff in an action for personal injuries is not bound to prove
affirmatively that he v^as free from contributory negligence,
but where his contributory fault does not appear upon his tes-
timony, the burden of proof to establish it rests upon the de-
fendant. (Po8U pp. 410-412.)
Case cited and approved: Stewart v. Nashville, 96 Tenn., 50.
2. Charge of Court. Erroneous as to xise of street crossings.
An instruction in an action for personal injuries sustained by
one who was struck by a horse and wagon as he was crossing
a street, which, in effect, states that whatever may have been
the surroundings at the time and place of the accident, the de-
fendant could drive across the crossing at any rate of speed he
chose to do and yet presume that the plaintiff would see the
way he (the defendant) was using the street and not get in his
way, is erroneous. (Post^ pp. 412-414.)
FROM SHELBY.
Appeal in error from Circuit Court of Shelby
County. L. H. Estes, J.
George B. Cleveland and Geo. Gillham for
Burke.
Tcrley & Wright for Street Railway Co.
410 JACKSON :
Burke v. Street Railway Co.
MgFarlakd, Sp. J. There are a number of as-
signments of error tiled by plaintiff, Burke, but it
is unnecessary to set these out in detail. It is suf-
ficient to say they cover the errors complained of,
which are decisive of the case. They are mainly
directed against the charge of the Court below.
Among other charges the plaintiff complained of as
error were these: The Court, at the outset of his
charge and as a concise summary of the necessities
of plaintiff's case, says: "That you may have the
material points of the case fairly before you, so
that you may apply the evidence properly to them,
the Court will now state to you what the material
points of this case are:
"1. Mr. Burke, the plaintiff, must establish to
your satisfaction, by a preponderance of the evidence,
that he was exercising the care and caution of an ordi-
narily careful and prudent man in the manner in
which he was using the crossing at the corner of
Main and Madison Streets at the time of the acci-
dent."
This first prerequisite, as declared by the Court,
to a recovery is, in effect, to throw at once the
burden of proof upon the plaintiff to show that he
was in the exercise of the care and caution of an
ordinarily careful and prudent man at the time of
the accident, and deprives him, at the very outset
of the case, of the presumption that every man of
sound mind will ordinarily avoid personal injuries.
This very question, upon whom the burden of
APRIL TERM, 1899. 411
Burke v. Street Railway Co.
proof of proper care or want of negligence was
first cast, and when and how shifted upon plaintiff,
was fully discussed in the opinion of this Court,
Judge Beard delivering the opinion, in the case of
Stewart v. Nashville^ 12 Pickle, 60, in which the
trial Judge said, among other things, that, in order
to recover, the plaintiff "must show, by a prepon-
derance of the evidence, that he was at the time
of the accident in the exercise of ordinary care, and
could not have avoided the accident by the exercise
of care on his part." Says this Court, in com-
menting upon this charge: "In actions for personal
injuries, and with regard to the question presented
in this instruction, there is an irlreconcilable conflict
of opinion between the Courts. An examination of
the cases will show that the Courts of Maine, Mis-
sissippi, Louisiana, Georgia, Massachusetts, North
Carolina, Michigan, Illinois, Connecticut, Iowa, and
Montana have adopted the rule that the burden is
on the plaintiff to show affirmatively, as a part of
his case, that no negligence or fault of his con-
tributed proximately to the injury complained of,
and, failing to show this, he cannot recover. Beach
on Contributory Negligence, Sec. 422; 4 Am.
& Eng. Enc. L., 93; Pack v. O'Btieii, 23
Conn., 339; IliicJcJey v. Cape Cod H. Ji,, 120 Mass.,
255." These two cases last cited give the clearest
and most concise reasoning supporting this conten-
tion. Upon the other hand, as is shown in the
case of Stewart v. Kashville^ %upva^ the Courts of
412 JACKSON :
Burke v. Street Railway Co.
many other States hold that the plaintiff has dis-
charged his full duty when he has shown his injury
and that the negligence of the defendant was its
proximate cause. It then devolves upon the defend-
ants to show contributory negligence as matter of
defense, the presumption being in favor of the
plaintiff that he was at the time of the accident in
the exercise of due care, and that the injury was
caused wholly by the defendant's negligent conduct.
This is the doctrine of the Supreme Court of the
United States, and of the Courts in Alabama, Ken-
tucky, California, Kansas, Maryland, Minnesota, Mis-
sissippi, New Hampshire, New Jersey, Oregon,
Idaho, Washington^ Arkansas, Nebraska, Ohio, Penn-
sylvania, Rhode Island, West Virginia, South Caro-
lina, Texas, Wisconsin, Vermont, and Colorado.
The Court quotes Judge Dillon (2 Dillon Mun.
Cor., Sec. 1026), as adopting this latter view as the
better one, as follows: ''That where the plaintiff's
contributory fault does not appear upon his testi-
mony, the burden of proof to establish it rests upon
the defendant; in other words, the plaintiff is not
bound to prove affirmatively that he was himself
free from negligence," saying, '* We regard this as
an accurate statement of the rule." Following this
case, this charge of the Judge was erroneous.
The second prerequisite to recovery, as given in
the charge, was as follows:
''2. He must establish to your satisfaction, by
a preponderance of the evidence, that the defendant,
APRIL TERM, 1899. 413
Barke v. Street Railway Co.
Smith, was not exercising the care and caution of
an ordinarily prudent man in the way in which he
was driving his horse upon and along Madison Street,
and that Smith's negligence was the sole cause of
the injury."
This charge, in itself, totally ignores the question
of remote and proximate cause, and needs no cita-
tion of authority in support of the suggestion that
it is clearly erroneous. True the Court in the sub-
sequent portions of his charge, and in another branch
of the charge, modiBes this portion quoted, and lays
down the correct rule, and if this was the only
error complained of we would be slow to reverse
on this alone, but, looking further, we find the
Court further charged the jury, in defining in what
negligence consisted, as follows: '<It consists in using
the street without looking and seeing how it is be-
ing used by others, when, by looking, anyone of
ordinarily good eyesight could have seen how the
street was being used and what was the probability
of a collision."
This part of the charge applies the rule as laid
down between street cars and persons walking or in
vehicles, and could have but little application to per-
sons about to cross in front of vehicles not easily
to be seen, by reason of obstructions or otherwise.
Again, after saying that Burke could presume
that others would see him after he left the side-
walk, etc., says: << Smith had the right to presume
that Burke or anyone else crossing Madison at Main
414 JACKSON :
Burke v. Street Railway Go.
Street would see the way Smith was using Madison
Street, and not attempt to use the street right in
front of his vehicle, and so near to it as to make
it impossible for Smith to stop and avoid collision.
Under these circumstances, if he attempted to cross
and was injured, no recovery can be had." This
portion of the charge in effect ignored the surround-
ings of the parties at the time and circumstances of
the collision, and the rate of speed at which Smith
may have been going. It tells them that, whatever
may have been the surroundings at the time and
place of the accident. Smith could drive across this
crossing at any rate of speed he chose to go, and
yet presume that Burke would see the way he,
Smith, <<was using Madison Street," and not get
in his way. These charges were erroneous, and,
taking the charge as a whole, we are of opinion it
was misleading to the jury, and for this reason, al-
though we are of opinion the plaintiff is not enti-
tled to any very large damages, the case is reversed
and remanded at cost of defendant.
APRIL TERM, 1899. 415
Meacham v. (Calloway.
Meacham V. Galloway.
{Jackson. May 2, 1899.)
1. Hotels. Proprietor's liahilUy for boarder's goods.
The proprietor of a hotel is not liable for the loss, by theft or
otherwise, of the baggage and goods of a boarder, unless it is
shown that the loss resulted from the wrongful or negligent
act of himself or servants.
Case cited and approved: Pullman Palactf Car Co. i;. Gavin, 93
Tenn., 53.
2. Same. Boarder not guest
A person is a boarder, not a guest, who, for the purpose of en-
tertaining a yisitor, removes, with his family, from his home to
a hotel in the same city, and takes rooms in the quarters allot-
ted to regular boarders, for himself, family, and visitors for
two or three weeks, at a special rate, less than that charged
transient customers.
Case cited and approved: Manning i;. Wells, 9 Hum., 746.
FROM SHELBT.
Appeal from the Chancery Court of Shelby County.
Lee Thornton, Ch.
PiERSON & EwiNO for Meacham.
Percy & Watkins for Galloway.
McAlister, J. This bill was filed in the Chan-
cery Court of Shelby County against the defendant
416 JACKSON :
M each am v. Galloway.
partnership, carrying on and operating a public inn
in the city of Memphis known as the Peabody
Hotel, to hold it liable for the value of a sealskin
coat and sealskin cape and a valise, alleged to have
been stolen from complainants' room while guests at
said hotel. The Chancellor, upon final hearing, dis-
missed the bill. Complainants appealed and have as-
signed errors.
The first assignment is, the Court erred in hold-
ing that the relation of innkeeper and guest did not
exist between complainants and defendants.
Seco7id. — The Court erred in holding that, as board-
ers, the complainants were not entitled to recover. .
The facts may be briefly stated. The complain-
ant and his wife, in December, 1897, were board-
ing in the suburbs of Memphis, and, desiring to
entertain a young lady visitor, engaged three rooms
at the Peabody Hotel. At the time Mr. and Mrs.
Meacham moved to the hotel, he was told the rate
would be $2 per day if they stayed one week.
Mr. Meacham stated that his family might stay as
long as two or three weeks. As a matter of fact
the family stayed less than two weeks. There is
proof tending to show that complainant and his wife
were assigned rooms on the fourth floor, among the
regular boarders and families of the hotel, and this
was done conformably to the request of complainant,
and under an agreement to that effect made by him
with the hotel clerk. The proof tends to show that
the rate given, $2 per day for each person, was a
APRIL TERM, 1899. 417
Meacham v. Galloway.
special rate given to all persons who remained longer
than a week. Transient guests receiving the same
accommodations would have paid higher rates. The
proof shows that complainant, his family, and guest
occupied three rooms, numbered respectively 139, 140,
and 141. Complainant and his wife occupied room
141, while their son occupied room 140, the two
rooms being connected by a door. It appears that
after complainants had been staying at the hotel about
a week, there was stolen from room 141, occupied
by complainant and his wife, a sealskin coat valued
at $300, a sealskin cape valued at $250, a boy's
watch and chain valued at $12, and a gentleman's
valise valued at $9.
The larceny was committed after 2 and before 4
o'clock P.M., on December 1, 1897. Mrs. Meacham
testified that she had been wearing the sealskin coat
during the morning, returned to the hotel about
12:30 o'clock, removed it, and hung it up in the
wardrobe where the cape was hanging. She then
locked the .door, put the key in her purse, and
went down to the parlor to see a lady acquaint-
ance; that in about twenty minutes she returned to
her room, prepared for lunch, again locked the door,
and did not return to her room until 3:30, when
she discovered the larceny. Mrs. Meacham testified
that the door was locked and her key to the room
was in her purse during the time the larceny was
committed; that when she returned to her room and
made the discovery the door was still locked.
18 P— 27
4:18 JACKSON :
Meacham v. Galloway.
There is testimony tending to show that room
140 adjoining 141, with a door connecting, was not
locked during the time covered by the larceny. The
proof shows that, in addition to the key kept by
Mrs. Meacham, there was a key to that room in
the hands of the chambermaid, one in the hands of
the fireman, and another kept at the office, which
might be used by a bellboy, under the direction of
the clerk, for the delivery of parcels, etc., into the
room. Only one of these keys is accounted for on
the day of the larceny — that held by the chamber-
maid, who testified that the key was in her posses-
sion, and that she did not enter the room. She
testified that room No. 140, the adjoining room oc-
cupied by the boy, was not locked about 9:30
o'clock that morning, but that she did not return
to it again until after the larceny.
Mrs. Meacham testified that since the larceny the
manner of the chambermaid had undergone a marked
change; that, while prior to the larceny she was a very
attentive servant, afterwards she seemed quite fright-
ened whenever she met Mrs. Meaoham or her family.
Mrs. Meacham was asked by her counsel what
she thought of the possibility of the garments having
been placed in the valise and carried off in that
way, to which she replied: ''That is my idea; that
they did that and walked through. No one could
have suspected that it was not the gentleman's who
took the valise, if a man had walked through the
office with it, and if a man had, in fact, taken it."
APRIL TERM, 1899. 419
Meacham V. Galloway.
It should have been stated that, while room 141
was locked, the wardrobe in that room, where the
garments hung, was not locked. The door to the
room 141 was not broken open, but the door be-
tween 140 and 141 was open when the larceny was
discovered. The proof fails to show whether the
outside, or hall, door to 140 was locked at the
time the larceny was committed. The fact that
Mrs. Meacham fails to testify on this point makes
it inferable that the hall door to 140 was not
locked.
It was conceded on the trial that the watch
and chain should have been de[)osited in the safe,
in compliance with notices to that effect posted in
the room, and that no recovery could be had for
the loss of the watch and chain.
The Chancellor held that complainant and his wife
were boarders at the hotel, and that, as the record
did not disclose any culpable negligence, the de-
fendants were not liable for the value of the
articles. In support of the decree of the Chan-
cellor, it was argued that complainant was not a
guest, for he was neither a traveler, wayfarer, or
transient comer. It is insisted: (1) He was a
neighbor, (2) he came at a fixed rate, (3) he
came for a definite time, and specified that he
should be located with the families, the regular
boarders, and not with the transients. It is argued
that as to him the hotel was not an inn, but a
boarding house; that he received a lower rate, and
420 JACKSON :
Meacham i;. Galloway.
more limited liability was thereby incurred by the
company.
An inn is defined as a house for the lodging
and entertainment of travelers. The People v. Jones^
54 Barb., 311; Leicin v. Hitchcock^ 10 Fed. Rep.,
4. '*A house where a traveler is furnished with
everything he has occasion for while on the way."
Thoiapwii V. Lax^y^ 3 Barn. & Aid., 286. **Inn8
are houses for the entertainment of travelers — way-
farers, as they are called." Caylis case^ 8 Co., 32;
Willard V. Reinhardt, 2 E. D. Smith (N. Y.), 148;
11 Am. & Eng. Enc, Inns, 7; Bacon's Ab., Inns
and Innkeepers; 3 Story on Bailments, Sec. 475.
So it has been held that common inns are insti-
tuted for passengers and wayfaring men, therefore,
if a neighbor, who is no traveler, lodges there, and
his goods be stolen, he shall not have an action.
Carter \\ Ilohhs, 12 Mich., 52; 83 Am. Dec, 762.
The prominent idea of the term guest is that he
must be a traveler, wayfarer, or transient comer to
an inn for lodging or entertainment. 11 Am. &
Ens:. Enc. L., 13. ^'Everv one who is received
into an inn and has entertainment there, for which
the innkeeper has remuneration or reward for his
service, is a guest. The relation of host and guest
exists. This general definition, however, only in-
cludes those who are, in a legal sense, travelers or
wayfarers, and boarders or persons who reside in
the same place are not embraced by it. It is only
travelers or wayfarers that innkeepers are bound to
APRIL TERM, 1899. 421
Meacham 17. Galloway.
accept as guests, and it is to them alone that he is
under extraordinary responsibility for the safe-keeping
of beast and goods." Hussel v. Fagan^ 8 Atl.
(Del.), 258; Curtis y. Murphy, 63 Wis., 4.
'*The basis of this restriction is the peculiar lia-
bility of innkeepers to those who, as strangers and
sojourners, are compelled to put up in an inn with-
out knowing the character of the house. The lia-
bility of innkeepers is strict, and justly so, but it
is a liability limited to their relation to travelers
or wayfaring men. The law of civilized countries
benignantly protects men away from home and from
those resources with which the denizen or citizen can
guard himself from wrong and protect his property
from loss or injury." Ilomar v. Ilai^ey, 5 Pac, 329.
''When a traveler comes to an inn and is ac-
cepted, he instantly becomes a guest. The inn-
keeper, when he accepts him and his goods, becomes
his insurer, and the innkeeper must answer in dam-
ages for the loss or injury of all goods, money,
and baggage of his guest brought within his inn
and delivered into his charge and custody, accord-
ing to the usage of travelers and innkeepers; but
he must be a guest, and before he can be a guest
he must be a traveler. When he ceases to be a
traveler or a transient or a wayfaring man, and
takes up a permanent abode, even in an inn, he
ceases to be an object of the law's especial solici-
tude, and he is no longer a guest, but a boarder;
no longer a traveler, but a citizen." Ih.
422 JACKSON :
Meacham v. Galloway.
Again, in Hussel v. Fagan^ 8 Atl. Rep. (Del.),
258, Chief Justice Comegys said: <<It is said that
inns exist for the benefit of the traveling commu-
nity. In fact, they are almost as much a necessity
to travelers as the public means of locomotion are.
In them wayfaring people of every kind, if they
can afford the expense which the host charges for
that service, can be accommodated with diet and
lodging; in other words, can be entertained in their
journeyings. The necessities of such people oblige
them to solicit entertainment at the public or com-
mon inn, both for themselves and their beasts, where
they travel with such, otherwise they would be with-
out shelter and food. Because of this necessity, and
that the host or entertainer is generally unknown to
a party resorting to his house or inn, and that such
party is compelled to trust himself and his property
to his keeping, and that he is charged by the inn-
keeper for entertainment of himself and his beasts
and the custody of his property, the law holds the
innkeeper to a strict liability, not from any contract
between the parties, but from the duty growing out
of his public employment."
< < It is said that there are two classes of persons
who are entertained by innkeepers for reward, guests
and boarders. The distinction between a guest and
boarder, which it is diflBcult to draw, and which is
variously stated, is based mainly upon the fact that
boarders contract for a definite stay at specific
prices. ' '
APRIL TERM, 1899. 423
Meacham v. Galloway.
In Lawrence v. Howard^ 1 Utah, 142, the CJourt
said: <'In this country, hotel keepers act in a double
capacity, being both innkeepers and boarding house
keepers. As innkeepers, they entertain travelers and
transient persons, those who come without bargain
as to time or price and go away at pleasure, pay-
ing for only actual entertainment received. As board-
ing house keepers, they entertain resident and regu-
lar boarders for definite lengths of time, and at
specific prices previously agreed upon."
In Shortcraft v. Bailey^ 25 Iowa, 563, the dis-
tinction between a guest and boarder seems to be
this: '*The guest comes without any bargain for
time, and remains without one, and may go when-
ever he pleases, paying only for the actual enter-
tainment he receives, and it is not enough to make
one a boarder and not a guest that he stayed for
a long time in the inn in this way."
The case of Manning v. WelU^ 9 Hum., 746, is
to the same effect. In that case it appeared plain-
tiff was boarding at the house of defendant, who
kept a public inn in the city of Memphis, at $12.50
per month, and lodged in a room that had no lock
on the door, and that during the night, while he
slept, his coat, worth $12.50, was stolen. The trial
Judge charged the jury that defendant was liable
for the coat if lost or stolen from his house, un-
less it happened by the act of God or the public
enemy, but if the plaintiff had exclusive use and
possession of the room, then the defendant would
424 JACKSON :
Meacham v. Galloway.
not be liable. The jury found for the plaintiff the
value of the coat, and the defendant appealed to
this Court. Said Judge Green, viz.: ''The doctrine
stated by his Honor is certainly the true one as
applicable to the goods of a guest in an inn, but
a guest is a traveler or wayfarer who comes to an
inn and is accepted. Story on Bail., Sec. 477. A
neighbor or friend who comes to an inn, on the in-
vitation of the innkeeper, is not deemed a guest.
Bac. Abr., Inn & Innkeeper; 5 Com. Dig., Action
on Cases for Negligence, B. 2. Nor is a person a
guest, in the sense of the law, who comes upon a
special contract to board and sojourn at an inn; he
is deemed a boarder, and if he is robbed, the host
is not answerable for it. 5 Bac. Abr., Inn & Inn-
keeper, 6.
''These principles are settled by the authorities,
and founded in sound reason. A passenger or way-
farer may be an entire stranger. He must put up
and lodge at the inn to which his day's journey
may bring him. It is, therefore, important that he
should be protected by the most stringent rules of
law, enforcing the liability of the innkeeper. In
such case, therefore, the law makes the innkeeper
the insurer of the goods of his guest, except as to
losses occasioned by the act of God or public ene-
mies. But as a boarder does not need such pro-
tection, the law does not afford it. It is sufficient
to give him a remedy when he shall prove the inn-
keeper has been guilty of culpable negligence."
APRIL TERM, 1899. 425
Meacham v, Galloway.
See 2d Ed. Am. & Eng." Enc. L., Vol. 4, title,
Board, 692.
These authorities we think conclusive of the
question presented by the first assignment of er-
ror, for it must be conceded, upon the undisputed
facts in the record, that plaintiff and wife were
mere boarders in defendant's hotel, and while occu-
pying this relation the proprietors were not insurers
of their property, but are only liable for culpable
negligence. There being no proof of negligence, or
that the articles were purloined by any employe of
the defendant, the company is not liable. Pullman
Palace Car Co, v. Oavin^ 9 Pickle, 63.
Affirmed.
426 JACKSON :
Viley V. Lockwood.
ViLEY V. Lockwood.
{Jackson. May 3, 1899.)
Lien. Of lioeryman,
A liTeryman waives his lien on a horse by refusing to deliver it
to the owner until he pays, in addition to the bill for feeding,
an unwarranted claim for the training of the horse by a third
person.
FROM SHELBY.
Appeal from the Chancery Court of Shelby
County. Sterling Piekson, Ch.
PiERSON & EwiNQ for Viley.
F. P. PosTON, for Lockwood.
Beard, J. This is an action of replevin for a
blooded mare, brought by its owner. The defend-
ant is a livery stable keeper, and resisted recovery
on the ground that he had an unsatisfied lien for
the keeping of the mare.
It is unimportant that the defendant had a lien
on the animal if, under the facts of the case, he
had waived it at the time of the demand by the
owner for its return. The facts relied on by com-
APRIL TERM, 1899. 427
Viley V. Lockwood.
plainant to show a waiver are that defendant had
been notified by Mr. Richardson, at whose residence
the mare had been left in the stable of defendant,
that he had a trainer's lien on her, and that she
must not be delivered to the owner until his claim
was paid. The complainant denied there was any
such lien, and insisted that Richardson had been
wron^ully in possession of the animal, and in this
he is fully sustained by the record. He therefore
declined to pay the Richardson claim, and demanded
a delivery of the mare to him upon the payment
of defendant's claim for keeping her. To this de-
mand the defendant replied that he would not sur-
render her until, in addition to his own bill, the
Richardson bill was paid, or a written contract was
produced by complainant, showing that Richardson
had no claim. Thereupon this suit was brought.
The demand made by Lockwood was unwarranted
in law, and amounted to a waiver of his livery sta-
ble lien; it was the assertion of a claim adverse to
the rights of the owner, and independent of, and in-
consistent with, the lien for the keep of the horse.
Hamilton v. McLauglilin^ 145 Mass., 20; Rogers v.
F^>, 34 N. H., 463; Holhrook v. Wight, 24 Wend.,
169.
AflSrmed.
428 JACKSON :
Robinson v. Bierce.
Robinson v, Bierce.
(Jackson. May 8, 1899.)
1. Covenants. When breached.
Covenants of seizin, and against incumbrances, are breached and
action lies at once if an incumbrance exists against the land
at date of the deed ; but a covenant of warranty is not breached,
so that action lies, until actual eviction. {Posty pp. 431, 432.)
Cases cited and approved: Barnett d. Clark, 5 Sneed, 436; Kin-
caid V. Britton, 5 Sneed, 132; Austin v. Richards, 7 Heis., 605;
Crutcher v. Stump, 5 Hay., 100; Allison v. Allison, 1 Yer., 16;
Ferriss v. Harshea, M. <& Y., 48; Kenney v. Norton, 10 Heis., 388;
Austin V. McEinney, 5 Lea, 499; Collis v. Cogbill, 9 Lea, 137;
Stipe V. Stipe, 2 Head, 168; Greenlaw v. Williams, 2 Lea, 533;
Williams v. Burg, 9 Lea, 455.
2. Same. Burden of proof in action oti.
If a covenantee pays off an incumbrance without submitting to
suit and making defense, or affording his covenantor op-
portunity to defend against it, the burden is upon him, in a
suit to recover of the covenantor the amount thus paid, to
show that the incumbrance was a valid and subsisting one at
the time of payment. {Post, pp. 432, 433.)
3. Limitations, Statute of. Action to save right from bar.
An action to enforce a lien subject to statutory bar, must, in
order to arrest the running of the statute of limitations and
keep the lien alive, not only be brought in time, but must be
prosecuted, after commencement, with such reasonable dili-
gence as will save a lis pendens lien from loss by laches. {Post,
pp. 433-438.)
Cases cited: Mannt;. Roberts, 11 Lea, 57; Williamson u Williams,
11 Lea, 355; Anderson v. Tolbot, 1 Heis., 407; Zook v. Smith,
6 Bax., 213.
4. Same. Tax lien lost, when.
The lien for taxes is lost and ceases to.be an incumbrance upon
the property, within the meaning of the covenants of a war-
APRIL TERM, 1899. 429
Robinson v. Bierce.
ranty deed conveyinfif it, where an action to enforce the lien,
brought in due time, was permitted to slumber in the Court
for eleven years without the taking of a single step therein.
(Post, pp, 433-438.)
Acts construed: Acts 1885, Ch- !24.
FROM SHELBY.
Appeal from the Chancery Court of Shelby
County. Lee Thornton, Ch.
PiERSON & EwiNG for Robinson.
R. M. Heath for Bierce.
McFarland, Sp. J. On February 16, 1886, C.
W. Frazier, now deceased, sold to W. W. Bierce
a lot in Memphis, and executed deed to him. On
July 31, 1886, Bierce sold this lot to E. G. Rob-
inson, complainant herein. At the time of sale by
Frazier to Bierce there were some back taxes due
on this lot, and when Frazier executed his deed to
Bierce he also executed to Bierce a written agree-
ment, in which it is recited that back taxes were
due upon this lot, and that by this agreement
Bierce agreed to take no steps about the same, nor
interfere therein, and that the payment and settle-
ment of same was to be left entirely and solely
with said C. W. Frazier, and Bierce testifies that,
at the time of the sale by him to Robinson, the
430 JACKSON :
Robinson v, Bierce.
latter was informed as to the arrangement between
himself and Frazier in regard to the back taxes,
and the original paper was turned over to him, and
he was at the time fully aware that Frazier was
to look after the tax matter, and take such course
as he saw proper in respect thereto without inter-
ference on his (Bierce' s) part, and Robinson assented
to the arrangement.
In 1897, Robinson, through his agent, Avery,
negotiated a sale of the lot to one Graves, but
these taxes appearing on the books as unpaid. Graves
refused to complete the purchase, and, therefore, a
correspondence ensued between the parties about
them, Robiason insisting that Bierce should pay them,
and Bierce referred the matter to Mrs. Frazier, ex-
ecutor, of C. W. Frazier.
On December 28, 1897, Bierce writes to Avery,
agent of Robinson, in response to one from him
saying: "We are this day writing Mrs. Frazier to
have Mr. Heath consult with you immediately upon
his return, and we verily believe there will be no
trouble whatever in obtaining a check from Mr.
Heath for whatever amount you may expend in re-
lieving the Calhoun Street property from any tax
incumbrance."
Upon receiving this letter, Avery had the taxes
reduced as much as possible and paid the balance
of taxes, which were State and county for the years
1873 to 1884, both inclusive, and amounting to
$422. 99, including interest and costs, and thereupon
APRIL TERM, 1899. 431
Robinson v. Bierce.
filed his bill to recover the amount from Bierce.
Bierce answered, claiming that these taxes were
barred when paid by Robinson, and were not such
an incumbrance upon the land as was covered by
the warranty in his deed to Robinson.
In this deed executed by Bierce to Robinson, there
were covenants of warranty and against incumbrances,
but not of seizin.
There was a decree for complainant, from which
defendant, Bierce, has appealed and assigned errors.
The substantial question raided by the pleadings is,
were these taxes, when paid by Robinson, such an
incumbrance on the land as to justify Robinson in
paying oflf same before actual eviction, and entitle
him to sue his vendor.
Under the common law, where there is a cove-
nant of 3eizin, this covenant is broken at once, if
there be an incumbrance, and there can be an ac-
tion at once for the breach. Barnett v. Clark,, 5
Sneed, 4*36 ; Kincaid v. Britton,, 5 Sneed, 122; Aus-
tin V. RicJiards^ 7 Heis., 665.
If there be only covenants of warranty of title,
these cannot be sued on without alleging and prov-
ing actual eviction. Crutcher v. Stump,, 5 Hay.,
100; Allison v. Alliso7i, 1 Yer., 16; Ferriss v.
Harnhea^ M. & Y. , 48.
Complainants insist, however, that, under cove-
nants against incumbrances, the authorities in Ten-
nessee hold that a vendee may yield to a superior
title or pay off an incumbrance or judgment or lien
432 JACKSON :
Robinson v. Bierce.
on the land, and sue for breach of the covenants
without eviction. Kenny v. Norton^ 10 Heis., 388;
Austin V. McKinney^ 6 Lea, 499; Callis v. Coghill^
9 Lea, 137.
In Kenny v. Norton^ supra^ Norton had conveyed
to Hubbard, trustee, to secure a debt. The trustee
sold to Kenny. Norton owed unpaid purchase money,
and the land was sold, upon proper proceedings, for
payment of this purchase money, and was bought
in by Kenny, who then sued Norton on his cove-
nants of title made to Hubbard, trustee. Held, that
this covenant of warranty ran with the land; that
purchaser could pay off incumbrance fastened upon
the land, suggesting that this was stated as the rule
in Stipe V. Stipe^ 2 Head, 168, but not definitely
settled. The Court adds: **lt must, as a matter of
course, be a valid, subsisting incumbrance .fixed on
the land, and one which the party would be com-
pelled either to discharge or have enforced against
the land, and which was paramount to his own title,
and by law would override it." To the same effect
is Aitsthi V. Mc Kinney^ supra.
Judgment of eviction, without actual eviction, is
conclusive where notice is given to defend. Greenlaw
V. Williams^ 2 Lea, 533; Williams v. Burg^ 9 Lea,
455.
In Callis V. Cogshilly 9 Lea, 137, a judgment for
possession of land, recovered against the widow of
warrantor, holding under warrantor, in favor of a
third party, held to be such eviction as would en-
APRIL TERM, 1899. 433
Robinson v. Bierce.
able a vendee of same land purchasing from war-
rantor to recover purchase money. But it is main-
tained, in such case, that the party who surrenders
possession without actual eviction does so at his peril,
and, in a suit against the warrantor, the biu'den of
proof lies upon the plaintiff to show the paramount
title.
The burden, then, being upon the plaintiff here
to show this paramount title, the question is. Has the
complainant done so? The complainant has assumed
this burden, and has shown that the lot was as-
sessed to one Parker for taxes 1873 and 1874, and
toC. W. Frazier for the other years; that two tax
bills were filed for the recovery of these taxes, and
those tax bills, and the proceedings thereunder, are
made parts of the record. There are several defects
pointed out by defendant in these two proceedings,
which are not necessary, however, to be noticed.
The facts important to be noticed are that Fra-
zier is made a party to the first bill, and the com-
plainant, Robinson, to the second. In the first case
a pro Gonfesso was taken against Frazier on August
19, 1887, and no further steps were taken as to
him. He died in July, 1897, and in the second
proceeding service of process was had on Robinson
on April 14, 1890, and no further steps taken in
this case. With these two tax suits in this condi-
tion, Robinson voluntarily paid off these taxes Jan-
uary 13, 1898, nearly eleven years after the last
step taken in the second suit. Under the Act of
18p— 28
434 JACKSON :
Robinson v. Bierce.
1885, Ch. 24, all taxes are barred by limitation,
unless suit is brought within six years from the first
of January of the year on which taxes accrued. All
of these taxes were barred, then, unless the bar is
saved by the institution of the several suits therefor
above mentioned. The institution of these suits pre-
served the lien of these taxes after bar operated,
not as originally imposed, but by virtue of the in-
stitution of the suits themselves, and converted the
statutory lien into one of lis j?endens, and must be
regarded as such at the time of the payment of
these taxes, and the question then becomes one of
lis pejidens.
The contention of complainant is that by the very
terms of the Act of 1885 itself, the institution of
the suit for taxes, and nothing more, suspends the
running of the statute, and an ingenious argu-
ment to this effect is based upon the word '* insti-
tuted," in the Act, citing Collins v. Insurance Co.y
7 Pickle, 432. That case only decides that the fil-
ing of a bill in equity is the beginning or institu-
tion of a suit, and does not affect this question.
The construction^ of this statute contended for by
learned counsel for complainant is too narrow. The
''institution" of a suit for taxes, properly begun
against the proper parties, does stop the running of
the statute. But, from its institution, that suit is
subject to all the rules of practice and the results
of laches or subsequent incidents, as any other suit,
and if in this case there was such laches in its
APRIL TERM, 1899. 435
Robinson v. Bierce.
prosecation as lost to the State, county, or city
the lien it acquired upon this property by the in-
stitution of its tax bill, or, to put it differently, if
the State, county, or city having instituted its tax
suits so as once to suspend the statute of limita-
tions, failed to prosecute such suit so as to pre-
serve this suspension, it lost by laches the benefits
obtained by bringing the suit. This is the effect of
laches in the prosecution of any suit.
This complainant, in his bill, states that when he
bought this property from Bierce he had no knowl-
edge of the existence of any back taxes thereon
which were an incumbrance on the property, and,
consequently, did not know of the existence . of any
tax suits. He was, therefore, an innocent purchaser
with respect to this Iw pendens of this tax suit.
In the case of Mann v. Roberts^ 11 Lea, 57,
failure to prosecute a suit for nearly four years
was held to be such laches as lost the lien of lis
pendens as against an innocent or bona fide purchaser
of the land.
In Williamson v. Williains^ 11 Lea, 355, the same
principle was held, the Court saying: ''The doc-
trine of many cases operates harshly upon innocent
purchasers, and can only be sustained on grounds
of public policy, where the private mischief must
yield to public convenience (see John. Ch., 576).
This being so, whenever the case is within this
rule it must be enforced, but should not be ex-
tended beyond its settled requirements and well-de-
436 JACKSON :
Robinson v, Bierce.
fined conditions. The true grounds upon wliich the
Courts should decide whether there has or has not
been such a prosecution of any given suit as to
preserve or destroy the continuity of the lis pendens^
is by the application of the established principles of
estoppel. The law imposes the duty upon the
plaintiff or complainant to prosecute with proper dili-
gence. The public have a right to expect it. If
there is a failure to prosecute, the Courts have a
right to treat the negligence as intentional and mis-
leading to the public. If the degree of this negli-
gence has been so great as to have induced the
public to believe that the prosecution of the suit
has been abandoned, they should then hold the
plaintiff or complainant estopped from claiming to
the contrary." 13 Am. & Eng., 891.
No fixed or arbitrary rule can be formulated by
which to define laches, nor definite time fixed with-
out which steps shall be taken in a given suit, or
the same brought to conclusion. To have the bene-
fit of lis pendens^ however, there should be a close
and continuous prosecution of the suit from its com-
mencement to its close, taking into consideration the
character of the case, the obstacles thrown in the
way by the opposing litigant, and the usual law^s
delay. Hayden v. Buckling 9 Paige, 512.
A delay of seventeen months in one case, and of
three years in ^ another, has been held sufficient to
deprive the creditor of a priority of lien by levy.
APRIL TERM, 1899. 437
Robinson v, Blerce.
Owens V. Patterson^ 6 B. Hon., 489; Deposit Bank
V. Berry, 2 Bush, 236.
This Court hfts held that the lien of a lev^y on
land of Justice's execution may be lost, as against
an intermediate innocent purchaser, by failure to file
the papers in the Circuit Court for condemnation
in a reasonable time. Andei'scni v. ToVbot, 1 Heis.,
407; York v. Smith, 6 Bax., 213.
The lien of an attachment on land has been held
to be lost by a delay of two years in the prose-
cution of the suit {Petree v. Bell, 2 Bush., 68),
and of a mechanic's lien where there was a delay
of four years. Ehrmon v. Kendrick, 1 Met., 146.
These cases are all quoted with approval in the case
of Mann v. Roberts, 11 Lea, 67.
It is true that laches in prosecution of a given
suit may be explained, and, thus explained, lis pen-
dens may be preserved for a great number of years,
but that does not help the complainant in this cause.
The rule as laid down in Callis v. Coghill, supra,
is that when the grantee in possession surrenders
possession before eviction, or suffers eviction pro
tiinto by paying off an incumbrance, he must be
prepared to justify such surrender by clearly making
out the facts authorizing his acts. Here the com-
plainant seeks to justify his payment of this incum-
brance by showing pendency of these suits, and, in
order to do this, • exhibits records which disclose the
gross laches in this prosecution, while he does not
attempt to explain the effect of the laches.
438 JACKSON :
Bobinson v. Bierce.
It is again insisted that these were tax suits, and
they should be treated with great leniency because
they involve a great number of tracts of land and
a great number of parties, and that the delay is
generally to the advantage of the defendants, and
gives them time to raise the money to pay off the
taxes. We know of no rule of sovereignty or di-
vinity which hedges a tax suit with immunity from
the rules of equity and practfce which control other
suits. The very facts stated by complainant, of
number of parties and tracts of land involved, tend
to obscure particular lots and names of individual
owners, and i*ender more^ secret the liens placed
upon particular lots, and bring these cases clearly
within the rule which requires more active diligence
in the prosecution of suits which fix secret liens, in
order that hurt may not fall to innocent parties.
Our conclusion is that the complainant has not
shown that, at the date he paid the taxes sued for,
they constituted such an incumbrance upon the lot
bought by him, and justified him in paying them
off before even a decree adjudging them to be a
lien upon this lot.
The decree of the Chancellor is reversed, and bill
dismissed at cost of complainant.
APRIL TERM, 1899. 439
Schilling v. Darmody.
Schilling v. Darmody.
(Jackson. May 8, 1899.)
1. Husband and Wife. Intermarriaqe extinguishes pre-existing debt
The intermarriag'e of a mao with a woman to whom he has
loaned money, evidenced by a note and secured by a trust deed
of her real estate, extinguishes the debt and also the mort-
gage, as a matter of law. (PosU pp» 440-448.)
Cases cited: Joiner v. Franklin, 13 Lea, 422; Cox v. Scott, 9 Bax.,
305; Bennett v. Bead, 4 Heis., 440; McCampbell v, McCampbelb
2 Lea, 661; Castellar v. Simmons, 1 Tenn. Cas., 65.
2. MoBTeAGES AND DEEDS OP TiiuST. Title revests in irwrtgagor on
saHsf action of secured debt.
On payment or satisfaction of a debt secured by mortgage, the
title to the property therein conveyed revests in the mort-
gagor without a reconveyance. {PosU PP* 448, 449.)
Cases cited and approved: Hannum v. Wallace, 4 Hum., 143;
• Boss u Young, 5 Sneed, 627; Carter v. Taylor, 3 Head, 30.
3. Same. Heir not required to pay off, when.
The heir of a woman who gave a note and trust deed upon land to
secure an indebtedness to one to whom she was afterwards mar-
ried is not required, under the equitable maxim, ^' He who seeks
equity must do equity," when he seeks the removal of a trust
deed as a cloud upon the title to the lands, to pay the amount
of the debt which the deed was executed to secure. (Post, p.
449.)
4. Supbeme Coubt. Will not remand for proof, wTien.
The appellate Court may not remand a cause without a final dis-
position thereof on the merits, on the ground that full proof
of the facts and circumstances were not made and to enable
the making of such proof in the Court below, when the case
does not fall under Shannon's Code, ^ 4905, because the appli-
cant has had full opportunity to establish such facts if they
440 JACKSON :
Schilling v. Darmodj.
existed, and the failure to do so must be imputed to inability
or negligence upon the trial in the lower Court. {PosU PP'
449, 450.)
Code construed: §4»05 (S.); i (M. & V.); § (T. & S.).
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
Jno. L. T. Sneed, Ch.
H. C. Warinner for Schilling.
Jas. H. Malone, R. Lee Bartels, and W. B.
Glisson for Darmody.
Wilkes, J. This is a bill to enjoin the fore-
closure of a deed of trust, and have the same set
aside as a cloud upon complainant's title upon cer-
tain real estate, and to have the debt secured orig-
inally by said trust deed declared satisfied and ex-
tinguished. The Chancellor granted the relief prayed,
and defendant has brought the record before us for
examination, upon writ of error.
It appears that Henrietta Schilling, while a widow,
borrowed from defendant, Darmody, $1,700, for
which she executed her note to him. She also ex-
ecuted a deed of trust upon her house and lot, to
secure this note, to W. B. Glisson, trustee. This
was in April, 1886. Mrs. Schilling was then keep-
ing a boarding house in Memphis, and defendant
APRIL TERM, 1899. 441
Schilling v, Darmody.
and his family were boarding with her. Afterward
they intermarried. There was no marriage contract
or agreement fixing the property rights of either
after marriage. In 1894 Mrs. Darmody (nee Schill-
ing) died intestate, leaving complainant as her only
heir, and defendant, her late husband, became her
administrator. Defendant demanded of complainant
payment of the note, which was refused, and he
thereupon proceeded to foreclose the deed of trust,
when he was enjoined by the bill in this case. The
claim made in the bill is, in short, that the mar-
riage of the parties operated by law as an extin-
guishment and satisfaction of the debt. The defend-
ant by answer denies that such was the legal result
of the marriage, and states that the parties contin-
ued to treat and regard the note and mortgage as
existing obligations after as before the marriage.
There was no cross bill. No proof was taken ex-
cept an agreement in lieu of proof that after the
marriage the wife obtained a loan upon this real
estate fi'om a building and loan association, and ex-
ecuted to it a deed of trust, in which the property
was represented and warranted to be unincumbered,
and as the property of the wife. The husband and
wife joined in executing this mortgage, and there
was a provision that, in case of sale to pay the
debt, the surplus should go to Mrs. Darmody. The
deed of trust from Mrs. Schilling to her subsequent
husband was not registered until after her death.
It is insisted the Court erred in holdino: that the
442 JACKSON :
Schilling v. Darmody.
note had been satisfied by the marriage of the
parties, and that it should not have directed its can-
cellation and the satisfaction and setting aside of the
trust deed without at the same time requiring the
amount due defendant to be repaid him, as evi-
denced by the note and trust deed. *
It is conceded that at common law the marriac^e
of the mortgagor to the mortgagee would operate
as a satisfaction of the mortgage debt and discharge
and release of the trust. But it is insisted that the
rules of common law have, by statute, in Tennessee,
been changed in many respects, and, while there is
no statute directly bearing on this point, yet the
trend of legislation and judicial decision is in the
direction of emancipation of married women and
placing them upon the basis of femes sole. It may
be granted that this is true so far as legislation
extends, and it may also be granted that the Courts
have recognized these innovations upon the common
law and enforced them when authorized, but the
Courts have not gone beyond the legislation and
laid down any rules in regard to the property rights
of married women not authorized by statute, on the
idea that such rules are in accord with the general
trend of legislation. The Courts have followed the
legislation, but have not gone ahead of it, and, un-
less the rules of the common law have been ex-
pressly changed by statute, they are in full force
in Tennessee. Joiner v. FranJcltn^ 12 Lea, 422;
Cox V. Scott^ 9 Bax., 305.
APRIL TERM, 1899. 443
Schilling v, Darmodj.
It is highly possible that legislation, in its pro-
cess of emancipating women by statute, may succeed
in making her the equal of man in every respect,
notwithstanding she has always been his superior,
but the Courts can only follow, and not lead, in
this experiment, and these rules in regard to mar-
ried women apply in Courts of Equity as well as
in Courts of Law. Courts of Equity have, how-
ever, always recognized certain rights of married
women and enforced them even where they are not
recognized in Courts of Law, such as the right of
the wife to a settlement out of her personal estate
as against her husband or his creditors and her mar-
riage contracts with her intended husband and con-
tracts with regard to her separate estate.
Mr. Story, in his work on Equity Jurisprudence,
Vol. 2, Sec. 1370, says: "By the general rules of
law the contracts between husband and wife before
marriage, become, by their matrimonial union, utterly
extinguished. Thus, for example, if a man should
give a bond to his wife, or a wife to her hus-
band, before marriage, the contract thereby created
would, at law, be discharged by the intermarriage.
Courts of Equity, though they generally follow the
same doctrine, will, in special cases, in furtherance
of the manifest intentions or objects of the parties,
carry into effect such a contract made before mar-
riage between husband and wife, although it would
be avoided at law." As, for illustration, "An agree-
ment made between husband and wife before mar-
444 JACKSON :
Schilling v. Darmody.
riage, for a settlement of their separate estates, will
be enforced in equity, though void at law, for
equity will not suffer the intentions of the parties
to be defeated by the very act (marriage) which is
designed to give effect to such contract." See Ben-
nett V. Headj 4 Heis., 440; McCampbeU v. Mc Camp-
bell^ 2 Lea, 661; Cdstellar v. Simmons^ 1 Tenn.
Cas., 66.
But in these and similar cases the contracts and
agreements are enforced because the parties intended
them to remain and be in force notwithstanding the
marital relation, and so provided by express agree-
ment. In the present case, no feature of that kind
exists. The loan and trust deed were not made, so
far as the record shows, in contemplation of mar-
riage, and there was no agreement that the debt
should continue in force after the marriage, and the
parties made no provision by contract to change the
leoral effect of the marriao^e union.
In Indiana, where the rights of married women
are very much the same as in Tennessee, the almost
exact question here presented was elaborately con-
sidered in the case of Long v. Kinney^ 49 Ind., p.
236. The facts are as follows: On January 8, 1872,
Eliza McCabe, a single woman, executed a mortgage
on real estate to Michael Kinney, to secure the pay-
ment, at maturity, of a promissory note made by
said Eliza McCabe, payable to said Michael Kinney.
Some time after the execution of the note and mort-
gage, Eliza McCabe and Michael Kinney intermar-
APRIL TERM, 1899. 445
Schilling- v. Darmody.
ried. After the marriage, Michael Kinney trans-
ferred the note and mortgage to one Long. Long
brought suit against Kinney and his wife, and sought
to foreclose the mortgage. The wife insisted that
by her marriage to Kinney the note and mortgage
were dissolved and discharged. The syllabus of the
case is: '^An unmarried woman, executed a note and
mortgage on her real estate to secure its payment,
and afterwards married the payee of the note, the
mortgagee, after the marriage, assigned the mort-
gage and delivered the note to a third person, who
brought suit to foreclose the mortgage."
It was held, in substance, that by the marriage
the debt and mortgage were discharged and the
action could not be maintained. This case o:oes
fully into the whole question, showing that the rule
at common law was well established, and could not
be changed except by express statutory enactments,
and that, although under the statutes of Indiana
declaring that both her real and personal property
should remain her own, after marriage as before,
there was "no statute which attempts to save the
right of action of the husband against the wife on
contracts entered into by her before the marriage."
Authorities were cited, and it was shown that the
case presented did not fall within the exceptions
allowed in Courts of Equity, which exceptions relate
to marriage contracts and the like, the performance
of which 18 intended to take place after marriage.
The Court cites as authorities: 1 Blackstone^s Com.,
446 JACKSON :
Schilling v. Darmody.
442; 1 Kent's Com., 129; Story's Eq. Jiir., Sees.
1367 and 1370. To the same effect, see Baniet v.
Ilamhberger^ 105 Ind., 410; Ilenegar v. Lortias^ 145
Ind., 287; Cord on Mar. Women, Sec. 164, p. 82;
Reeves Dom. Rel., 167, star p. 2; Reeves Dom.
Rel., 53, star p. 2; and cases cited above from
Tennessee Reports. A case in apparent conflict is
that of Powers v. Lester, 23 N. Y., 527. The
syllabus is: **The marriage of a female mortgagee
with the mortgagor, since the act for protection of
married women (Ch. 200 of 1848), does not extin-
guish her rights of action on the mortgage.
"Where such mortgagee unites with her husband
in a junior mortgage of the same land, the act
affects only her inchoate dower interest, but does
not, in the absence of words for that purf)ose, im-
pair her right to priority of lien."
The facts were: That a suit was instituted to
foreclose a mortgage bearing date April 1, 1861,
executed by Melvin Power to plaintiff, upon certain
land, to secure a bond of $951.92, due April 1,
1855. Melvin Power (mortgagor) married the
plaintiff, the creditor and mortgagee, in the year
1852.. After marriage, and in 1856, Mrs. Lester,
the plaintiff, united with her husband in another
mortgage embracing, with the land in the previous
mortgage, a large amount of other lands, to secure
to Lester her husband's bond for $60,000. This
mortgage by no words purported to affect the wife's
separate estate, and no words indicated that it was
APRIL TERM, 1899. 447
Schilling v. Darmody.
to operate on her mortgage. Lester foreclosed the
mortgage in his favor, and at the sale bought in
all the lands embraced in the mortgage to him, but
the rights of the wife in the lands mortgaged to
her were reserved in the foreclosure decree. She
filed her bill against Lester to establish her prior
right, and it was held that there was still due her
$1,516.98, and the usual decree was pronounced in
her favor, and Lester appealed.
The Court of Appeals fully recognized the rule
of unity at common law and its legal effect, but
adverted to the fact that the common law rule had
been changed by statute in New York (1848, 1849).
That statute declares *' that the property of any
female who shall thereafter marry, and which she
shall own at the time of the marriage, shall con-
tinue her separate estate, as if she were a single
woman,'' and that this was an express change in
the common law rule, which left no doubt for con-
struction. In that case the female creditor after-
wards became the wife of the debtor, and as the
statute expressly and plainly reserved her rights in
the property she owned at the time of her mar-
riage, this debt and mortgage, which were her per-
sonalty, were reserved to her by the plain statute,
in derogation of the common law rule, which would
have extinguished her claim. It is probable that in
New York no such legislation exists, changing the
common law rule as to the effect of the marriage
upon the husband's rights, when he occupies the
448 JACKSON :
SchiLlingf v. Darmody.
status of creditor. At all events, that ease is
wholly diflFerent from the one at bar, and i^ based
upon a plain, positive, express statutory provision.
No such statute exists in Tennessee. The husband,
as before, takes the wife's personalty as at common
law, subject alone to the right of her creditors.
Under a statute in New York the unity of persons
which disabled the wife from suing her husband, has
also been repealed. Code N. Y., § 114. And so
in Butler v. Ives, 139 Mass., 202, and Wrig/U v.
Wright, 54 N. Y., 437, it was held that the note
remained in force, notwithstanding the marriage, but
this was by virtue of the special statutes of Mas-
sachusetts and New York changing the common law
rule as to the effect and result of a marriage.
If we are correct in holding that the note was
satisfied and discharged by the result and by virtue
of the marriage, there remains but little more to
be considered in the case. The trust deed provides
upon its face that if the note shall be paid, the
deed shall be satisfied and quitclaimed according to
law.
It has been repeatedly held that on payment of
a mortgage or trust debt by the debtor, the estate
of the mortgagee or trustee ceases and the legal
title revests in the mortgagor or grantor ipso facto,
without a reconveyance. This upon the idea that a
trustee takes only such title and estate as is re-
quired for his trust. Hannum v. Wallace, 4 Hum.,
APRIL TERM, 1899. 449
Schilling' v. Darmodj.
143; Hoss v. Young, 5 Sneed, 627; Carter v. Tai/-
lor, 3 Head, 30.
The doctrine invoked that a party who seeks the
aid of a Court of Equity must first do equity, and
that the Court will not remove a cloud upon a title
and decree a cancellation of a deed and a revesti-
ture of title except on condition that the debt which
the deed was executed to secure be paid, is not
applicable in this case, for the debt is paid and the
mortgage is satisfied, in our view of the case, and
complainant is entitled to have it so declared when
an attempt to enforce it is made, as is done in
this case.
The title having revested in the mother of the
complainant by the satisfaction of the note, descended
<
to him upon her death, as there was no child by
her marriage with Darmody, and, being the heir,
he is entitled to have the cloud removed there-
from.
It is insisted that the Court, in any event, should
remand the cause, without a final disposition on the
merits, to the Court below, to the end that full
proof may be made of circumstances and facts to
show that the parties intended to keep the debt in
force after the marriage as before. This insistence
was made in the answer, and it must be presumed
that if there was such proof or circumstances from
which such intention could be inferred, it would
have been shown. The case does not fall within
18 p— 29
460 JACKSON :
SchilliDg- 17. Darmody.
the provisions of the statute (Shannon, § 4905), be-
caase defendant has had full opportunity to establish
such facts if they existed, and the failure to do so
must be imputed either to inability so to do or
negligence in not doing so in the Court below.
The decree of the Court below is affirmed with
cost.
APRIL TERM, 1899. 451
CbiToU 1^ Taylor.
Carroll v. Taylor.
(Jackson. May 8, 1899.)
Chancbby Pbactic£. Cross bill disposed of in ad/oance of original
MIL
The Chancellor, upon discovering, on a hearing of the whole
case, that the original cause is unprepared for a decree, and
that the auxiliary case made by the cross complainant is pre
pared and of such a nature as to admit of full determination
without affecting the original cause, may dispose of the latter
and hold the former open for further adjudication.
Case cited: Cocke v. Trotter, 10 Yer., 313.
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
Lee Thornton, Ch.
Carroll & McKellar for Carroll.
H. J. Livingston, T. B. Turley, and F. H.
Heiskell for Taylor.
Beard, J. The question presented in this record
is, Can a decree be entered in favor of the com-
plainant in a cross bill, leaving the case made by
the original bill undisposed of, because at the time
not ready for trial ?
If the present case was as it is assumed in ar-
452 JACKSON :
Carroll v. Taylor.
gument to be — that is, one where the Chancellor, in
advance of the preparation of the original cause and
independent of it, had taken up the cross bill and
entered a decree upon it — we would regard it as
unsound practice, and so the subject of reprobation.
But such is not. the fact. The decree recites that
the cause came on for hearing on the original bill,
the answers thereto, the cross bill, and the order
pro co?ifes8o taken against the defendants to the
same, and, the Court finding the original cause not
ready to be disposed of, and that of the cross com-
plainant in a condition for a decree, therefore pro-
nounces it. While the matters with regard to which
relief is sought by the cross bill, are possibly suf-
ficiently incidental to the subject of the original bill
as, perhaps, to have saved it from a demurrer if
one had been interposed, yet they are so remotely
connected with it that a decree could be entered
settling finally and conclusively the rights of the
parties, without in the least affecting the controversy
arising on the original bill. This being the condi-
tion of the case, we are not prepared to hold that
the decree now complained of was improvidently en-
tered.
It is true the cross bill is a mere auxiliary of
the original bill, growing out of the litigation pre-
sented by that bill. So intimately are the two con-
nected in practice that in Cocke v. Trotter^ 10 Yer.,
213, it is said where '*the complainants in a cross
bill set it down for hearing, they did an act the
APRIL TERM, 1899. 453
Carroll v. Taylor.
legal effect of which, perhaps, was to set down the
principal cause also." And again, that the cross
bill ** incorporates itself with the original bill, and
must be heard with it." This case, however, does
not determine the exact question presented by this
record — that is, where, upon a hearing of the whole
case, the Chancellor discovers the original cause un-
prepared for a decree, and the auxiliary case pre-
pared and of such a nature as to admit of full
determination without affecting the original cause,
can he dispose of the latter, and hold up for fur-
ther adjudication the former?
The Supreme Court of the United States has said:
''Both the original and cross bill constitute one suit,
and ought to be heard at the same time, conse-
quently ' any decision or decree in the proceedings
upon the cross bill is not a final decree in the suit,
and not the subject of an appeal to this Court.' "
In accord with this case, and furnishing the author-
ity upon which it is rested, are Cross v. De Valley
1 Wall., 5, and AyresY. Cann^ 17 How., 591.
. In each one of these last three cases the ques-
tion arose on an appeal from a decree of the lower
Court pronounced on a cross bill, leaving the main
cause undisposed of, and in each one the appeal
was dismissed as premature from a decree interlocu-
tory and not final. In neither of the cases is it
intimated that the practice in question was an erro-
neous one.
While granting to the full extent the auxiliary
464 JACKSON :
Carroll v, Taylor.
nature of a cross bill, yet it is so far independent
that the complainant in the original bill failing alto-
gether in maintaining it, the cross complainant may
press his claim on his pleading to a decree, and
thus obtain full relief upon it, exactly as if it was
an original bill. This being so, we cannot see that
there was any improper practice pursued in the
present case.
It is proper to add that the Chancellor exercised
his legal discretion, under § 4889 of the (Shannon's)
Code, in allowing the appeal in this case.
APRIL TERM, 1899. 465
Laoghlin v. Johnson.
Laughlin V, Johnson.
(Jackson. May 8, 1899.)
1. Dbscbnt and Distbibution. Inheritance hy illegitimates.
At common law illegitimates had no inheritable blood, but this
has been changed by statute in this State. (Post, p. 456.)
2. Samb. Same.
Under Acts 1866-67, Ch. 36, Sec. 10 (Shannon's Code, § 4169), pro-
viding for inheritance from the mother by illegitimates,
equally with legitimate children, and that, '* should either of
such children die intestate, without child, his or her brothers
and sisters shall, in like manner, take his or her estate," ille-
gitimate children sharQ equally with legitimate children the
estate of a legitimate child who dies leaving no child, without
regard to the source from whence the property came, whether
from the mother or elsewhere. {PosU pp. 456-461.)
Act construed : Acts 1866-67, Ch. 36, Sec. 10.
Code construed: J 4169 (S.); J 3274 (M. & V.); { 2423a (T. & S.).
Cases cited: Riley v. Byrd, 3 Head, 19; Woodward v. Duncan, 1
Cold., 562; Scoggins v. Barnes, 8 Bax., 560; Murphy v. Por-
trum, 95 Tenn., 605; Shepherd v. Carlin, 99 Tenn., 64.
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
John L. T. Sneed, Ch.
Young & Young and James M. Greer for
Laughlin.
D. M. Scales and Randolph & Randolph for
Johnson.
466 JACKSON :
Laughlin v. Johnson.
Beard, J. The complainant, Laughlin, is the
illegitimate son, and the defendants, Amanda F.
Johnson and Josephine P. Clifton, are the legitimate
daughters of one Eveline Chann, who departed this
life many years ago. Louisa J. Hardwick, who was
also a legitimate daughter of the same mother, died
intestate some time before the institution of this
suit, leaving neither husband nor lineal descendants.
At the time of her death she was the owner of
realty in the city of Memphis, acquired by her by
deed from a former husband, and the question in
this record is. Does complainant share with the
legitimate sisters of the deceased in this property?
At common law a bastard had no inheritable
blood, so that if complainant is to be let into an
interest in this property as an heir, it must be by
virtue of some statute.
It is conceded that the Acts of 1851-52, Ch.
39, and of 1885, Ch. 34, Sec. 1, carried into the
Code of Tennessee (Shannon's, §§4166, 4167, M. &
v., §§3273, 3274), gives no support to this claim,
but it is insisted that it is provided for in the last
clause of Sec. 10, Ch. 36, of the Acts of the Legisla-
ture of 1866-67, found in Shannon's Code, at § 4169.
That section, as a whole, is as follows: '* Where
any woman shall die intestate, having a natural born
child or children, whether she also have a legiti-
mate born child or children, or otherwise, such natu-
ral born child or children shall take, by the general
rules of descent and distribution, equally with
APRIL TERM, 1899. 457
Laug'hlin i;. Johnson.
the other child or children, the estate, real or per-
sonal, of his or her and their mother; and should
either of such children die intestate, without child,
his or her brothers and sisters shall, in like man-
ner, take his or her estate."
No doubt is entertained that the iirst clause of
this section removes the taint of illegitimacy so far
as to confer inheritable blood on the natural born
child, and thus enable him or her, as the case may
be, to share equally with the legitimate child or
children in the estate of their mother who dies in-
testate. It is the last clause in the section which
raises the present controversy, the complainant insist-
ing that, upon a natural and necessary interpreta-
tion of its terms, he is entitled to a share in the
estate of Mrs. Hardwick, although it did not come
from the mother common to himself and the de-
fendants, while, on the other hand, these defendants
insist it is to be construed with regard to the first
clause of the section, and that, taken altogether, to
use the words of the solicitors of the defendants, in
their brief, ''the statute applies only to the estate of
the mother, real or personal, of the illegitimate, or,
in other words, its language confines such illegiti-
mate person to the estate, real or personal, of his,
her, or- their mother."
We have had occasion in two other cases involv-
ing a construction of this statute, upon facts simi-
lar to those found in this record, and with like
arguments, pressed with so much earnestness and
468 JACKSON :
Laughlin v. Johnson.
ability in this case, to carefully examine this stat-
ute, and in each of these cases we have announced
a conclusion adverse to the contention of the de-
fendants. We find nothing new, either in this record
or in the argument presented. A re-examination of
the question satisfies us that the conclusion heretofore
announced is sound. To hold otherwise, we think,
would be to do violence both to the literalism of
the statute as well as the purpose of the Legisla-
ture in enacting it. It is but a culmination of leg-
islation begun in this State in 1819, the design and
effect of which has been to change radically the
status of illegitimates before the law. The Acts of
1861-52 (Shannon^s Code, § 4166), heretofore referred
to, provided for the disposition of the estates of
illegitimates who died intestate without child or chil-
dren, husband or wife, while Section 10, Chapter 36,
of the Acts of 1866-67, was a more advanced step
in effectuating the general design to give ample re-
lief to this unfortunate class of persons. The first
part of the section places legitimate and illegitimate
children upon a common ground of inheritance as to
the mother^s estate, where she dies intestate, while
the last clause, in distinct terms, does the same
thing for these two classes as to the estate of any
one of either class who may die intestate aqd want-
ing lineal descendants, without regard to how or
from whom this estate was acquired.
As has already been indicated, the Act of 1861-52,
Ch. 39, was not the beginning of legislation with
APRIL TERM, 1899. 459
Laug'hlin v. Johnson.
regard to illegitimates. For the first time, by Sec.
1 of Cb. 13 of the Act of 1819, the State mate-
rially altered the common law rule on this subject.
That section is as follows: '^When any woman shall
die intestate, having natural born child or children,
and no legitimate child or children, such natural
born child or children shall take, by the general
rules of descent and distribution, the estate, real
and personal, of his, her, or their mother, and
should either of such children die intestate without
child, his or her brothers and sisters shall in like
manner take his or her estate." For some reason
the salient features of this Act were not brought
forward into the Code of 1858, but they were em-
bodied in broader terras and with comprehensive
effect in the Act of 1866-67 which we are now
considering.
The Act of 1819 came up at ' least twice for
construction by this Court — once in the case of Bilei/
V. Byrdj 3 Head, 19, and again in Woodward v. I}un-
cauy 1 Cold., 662. In the first of these cases it
was held that, under the Act, legitimate brothers
and sisters could inherit from an illegitimate, and
that the legitimates setting up their claim in that
suit were entitled to the land acquired by their
bastard deceased brother, while in the last it was
ruled that under the provisions of the statute, an
illegitimate could not be let in the estate of a le-
gitimate half brother. These two cases illustrated
the inequality which was worked under this Act.
460 JACKSON :
Laughlia v, Johnson.
To correct this, and to create mutual rights of in-
heritance as between legitimate and illegitimate
brothers and sisters when either should die intes-
tate and without child, was the evident purpose of
the Legislature carried into the Code (Shannon's),
§4169. And this view was clearly indicated in
Scoggina v. Baimes^ 8 Bax., 560. Nor is there
anything in the cases of Murphy v. Portrum^ 95
Tenn., 605, and Shepherd v. Carlin^ 99 Tenn., 64,
in conflict with the conclusion here announced.
It is insisted, however, that this construction is
out of line with Giles v. Wilhost^ 48 S. W. Rep.,
a case decided by the Chancery Court of Appeals,
whose finding was afterwards affirmed by this Court.
That case involved a controversy between an illegit-
imate sister of an illegitimate brother, who died
without issue and intestate, and an illegitimate niece
of that brother over the estate of the deceased.
It arose under and called for a construction of § 4166
of the Code (Shannon). That section is as follows:
''When an illegitimate child dies intestate without
child or children, husband or wife, his estate shall
go to his mother, and if there be no mother living,
then equally to his brothers and sisters by his
mother, or descendants of such brothers. and sisters."
The words of difficulty in this section were the
last, ''descendants of such brothers and sisters," and
the question was, Should the line of descent thus
provided for be extended to illegitimates, or be con-
fined to legitimates? And as these terms admitted of
APRIL TERM, 1899. 461
Laughlin i;. Johnson.
either construction, in recognition of the well-settled
rule of interpretation of statutes that the common
law must be allowed to stand unaltered as far as
is consistent with a reasonable construction of the
new law [Arthur v. Baker ^ 11 Md., ; Green-
wood V. Greeriwood, 28 Md., 369; Home v. M. cfe
0, a. H. Co., 1 Cold., 72; Triton v. Dichuisoii^
3 Sneed, 396) the phrase was construed as if it
read *' legitimate descendants," etc. In other words,
the Courts would not go further in the recognition
of inheritable blood in illegitimates than the Legis-
lature had unmistakably gone, and it being left in
doubt by the use of the terms in question what line
of descendants should take under the conditions pre-
scribed by that section, a construction was adopted
which involved the least departure from the princi-
ples of the common law.
It is otherwise, however, as to the clause of the
statute on which the present case depends. It is so
plain and unambiguous that we think little, if any-
thing, is left for judicial interpretation. The decree
of the Chancellor is reversed, and the cause re-
manded.
468 JACKSON :
Carpenter v. Frazier.
Carpenter v. Frazier.
(Jackson. May 9, 1899.)
1. CoRPOBATioNs. Registration of facsimile of grecU seal.
It is a substantial and suflQcient compliance with the require-
ment that the facsimile of the gfreat seal of the State appear-
ing on a charter of incorporation shall be registered along
with the other portions of the charter, as a condition prece-
dent to its yalidity, if the Register, at the proper place on the
record, makes a scroll or other similar device, manifestly in-
tended as a facsimile of the great seal, however inartistically
it may be executed. {Post, pp, 464, 465.)
Code construed: { 2026 (S.): { 1693 (M. & V.).
Case cited and distingnished: State u Brewer, 7 Lea, 682.
2. Building and Loan Associations. AvMrnnt due on mortgage.
The method announced in Rogers u Hargo, 92 Tenn., 35, for
ascertaining amount due on mortgage of a building and loan
association is reaffirmed. {Post, p. 466,)
Cases cited and approved: Rogers v. Hargo, 92 Tenn., 35; Car-
penter V. Richardson (oral).
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
Lee Thornton, Ch.
F. H. Heiskell for Carpenter.
R. M. Heath for Frazier.
APRIL TERM, 1899. 463
Carpenter v, Frazier.
McAlistek, J. This bill was filed in the Chan-
cery Court of Shelby County to foreclose a mort-
gage executed by the defendants to the Southern
Bailding & Loan Association. The bill recites that,
October 1, 1894, C. W. Frazier, deceased, and
Letitia A. Frazier, his wife, mortgaged certain real
estate in Memphis to said association to secure a
loan of $4,000. The bill further showed that on
November 1, 1894, C. W. Frazier executed a mort-
gage on the same property to Mrs. P. A. Edmonds.
This was about one month after the mortgage was
executed to the building and loan association.
C. W. Frazier died, leaving a will, in which he
left the property included in the mortgage in trust
to secure debts to Mrs. P. A. Edmonds, and then
to his wife, Mrs. L. A. Frazier.
The answers denied that the Southern Building &
Loan Association was a corporation, and denied that
the transaction in question was in accordance with
and governed by the law of building and loan cor-
porations. Mrs. P. A. Edmonds, in her answer,
claimed that her mortgage was superior to the one
sought to be foreclosed. The ground upon which
the corporate existence of the Southern Building &
Loan Association was attacked is that, while the
charter purports to have been registered in Knox
County, Tenn., the facsimile of the great seal
of the State of Tennessee was not registered, as
required by law.
Shannon's Code, §2026, provides how corporations
464 JACKSON :
Carpenter i\ Frazier.
are formed. It says: *'The said instrument [appli-
cation for incorporation], when probated as herein-
after provided [§ 2542], with application probates and
certificate, is to be registered in the county where
the principal ofiice of the company is situated, and
also registered in the office of the Secretary of State;
and a certificate of registration given by the Secre-
tary of State, under the great seal of the State,
shall, when registered in the Register's office of said
county, with the facsimile of said seal, complete
the formation of the company as a body politic, and
the validity of the same in any legal proceeding
shall not be collaterally questioned." The argument
is that the corporation enjoys no vitality or exist-
ence until these conditions precedent are observed.
The particular infirmity in the present charter,
which, it is claimed, has destroyed, or, rather, pre-
vented, corporate life, was the failure of the Regis-
ter to make a facsimile of the great seal of the
State in registering the charter. It is insisted the
certificate of Johnson, Register of Knox County,
shows that the so-called great seal of the State of
Tennessee, as recorded in Knox County, did not
have emblazoned thereon the two pictures which sym-
bolize agriculture and commerce. It is true the
Register, in copying the great seal, has not made
a very artistic representation, but it bears intrinsic
evidence that it was intended for the great seal of
the State, and it so recited.
Counsel cite numerous authorities to the effect
APRIL TERM, 1899. 465
Carpenter v. Frazier.
that when compliance with certain statutory require-
ments is made a condition of corporate life, non-
compliance is fatal, and the corporation cannot be
viewed as a de fucto concern. In State v. Breioei\ 7
Lea, 682, it appeared defendant was indicted for sell-
ing liquor within four miles of an incorporated in-
stitution of learning, and, in order to convict him,
it was necessary to show the McKinney High School
was a corporation. It was claimed to be incorpo-
rated, but the incorporators had failed to register
the certificate of the Secretary of State and the
facsimile of the seal of State. This Court held it
was not a corporation, saying: <'As we have seen,
these things w^ere not done when the oflfense is al-
leged to have been committed, hence the McKinney
High School was not then an incorporated institu-
tution in the sense of the statute."
But we are of opinion these authorities are not
applicable, since there was a substantial compliance
with the statute in the present case. The great
seat of the State was spread upon the record. The
fact that the emblems of commerce and agriculture
were not copied, was due, perhaps, to the fact that
the Register was not an artist or sufiiciently expert
to draw the pictures. It was not expected that the
Register should have a scenic artist or illustrator in
his oflSce. In respect of the registration of the seal
of any deed a scroll is sufficient.
In 20 Am. & Eng. Enc. L., 560, note 5, it is
said: ''The seal of a deed is sufficiently recorded
18p— 30
466 JACKSON :
Carpenter v. Frazier.
if indicated upon the record by the word ^ seal '
written within a scroll or some similar device."
Citing Dale v. Wright, 57 Mo., 110; Jluei/ v. Wd7i
Wk, 23 Wis., 613; Pulney v. Ctitter, 54 Wis., 66;
Switzer v. Knapp, 10 Iowa, 72 (S. C, 74 Am.
Dec, 375).
The third assignment of error is that the decree
in favor of complainant is excessive and that there
was no competitive bidding when the loan was made
to C. W. Frazier, and hence the transaction was
illegal and usurious.
The amount decreed by the Chancellor was de-
termined by the rule laid down in Rodgers v. Hargo,
92 Tenn., 35, and applied by this Court at last term
in Carpenter* v. Richardson.
The averment of the answer that there was no
competitive bidding for this loan was not proven.
We find no error, and the decree is affirmed.
APRIL TERM, 1899. 467
Memphis City Bank v. Smith.
Memphis City Bank v. Smith.
(Jackson. May 13, 1899.)
1. Mortgages and Deeds of Trust. ApplioatUm of proceeds.
Under a trust deed that directs application of the proceeds of
the trust property (1) to expenses, (3) to debts due bank A as
its president may direct, (3) to debts due bank B as its presi-
dent may direct, and further provides that the trust is created
for *^the exclusive protection and indemnity of said banks
against loss on account of indebtedness " to them of the maker
of said trust deed, and further authorizes said banks to ex-
haust all personal and collateral securities held by them, re-
spectively, before making application of the proceeds of the
trust — under such deed the president of bank A, although he
is likewise the president of bank 6, and the two institutions
are owned and operated by the same parties, has no authority
to divert any part of the proceeds of the trust to payment of
debts due bank B until all debts of bank A are fully paid, at
least so far as sureties thereon are concerned. {Postf pp,
468-472.)
2. Same. Same,
Nor, under such trust deed, has the president of said banks, or
the president of either of them', any authority to divert a col-
lateral owned jointly by the maker of the deed and another,
and deposited to secure their joint note, to the payment of an
unsecured debt of the maker of the deed. (Post, p. 472. )
3. Obury. Allowed under answer.
Under his answer to a bill seeking to recover a note against him,
a surety may have reference to ascertain any credit for
usury paid by his principal upon the notes sued on and upon
notes out of which they originated as renewals. {Post, pp.
472, 475. )
FROM SHELBY.
Appeal from Chancery Court of Shelby County,
Lee Thornton, Ch.
468 JACKSON :
Memphis City Bank v. Smith.
Scruggs & Henderson for Bank.
H. F. Dix and Turley & Wright for Smith.
Wilkes, «T. This is a bill to collect from W.
J. Smith as indorser upon five notes executed by
L. B. Eaton. His liability, so far as presented by
the answer in this controversy, turns principally upon
the provisions of certain trust deeds made to secure
these as well as other notes, and especially a trust
deed made to R. A. Parker on June 6, 1894, by
Eaton, the maker of the notes. This trust deed
confirmed three other trust deeds made to James and
J. T. Frost, and provided for debts due the City
Bank, as well as others due the Security Bank.
The instrument provides that if the indebtedness se-
cured by it is not paid, the property shall be sold
and proceeds applied first to expenses, and second
to the indebtedness due the Memphis City Bank as
the acting president of that bank may direct, and
third to the payment of debts due the Security
Bank as its acting president may direct, and the
balance to Eaton.
Then follows this statement: ''The trust herein
provided is for the exclusive protection and indem-
nity of the Memphis City Bank and Security Bank
of Memphis against loss on account of the indebted-
ness of Eaton to them, and said banks may exhaust
all security, personal or collateral, to their several
dfebts before applying the proceeds of this trust to
the debts secured, and may make application in such
APRIL TERM, 1899. 469
Memphis City Bank v. Smith.
manner to be directed by the presidents of said
banks as to save said banks harmless against loss
after exhausting all security, personal or collateral,
specifically pledged as security for the several debts."
Some $16,000 was realized from a sale under this
deed of trust, and was applied by the trustee after
paying expenses, to certain specific debts due the
City Bank, and then to debts due the Security Bank.
The defense set up by Smith in his answer is
that the proceeds of the trust property, under the
trust deed of June 6, 1894, should have been ap-
plied exclusively to debts owing the City Bank before
any of it was diverted and paid to the Security
Bank, since to that extent such application would
have inured to his benefit and exoneration, and also
that the proceeds of certain abstract stock being
joint property of himself and Eaton, should have
})een applied to their joint obligation, and that such
is the plain construction of both the trust deed upon
the lands and the collateral note pledging the ab-
stract stock.
The Chancellor held with this contention, and di-
rected the proceeds of the trust property to be ap-
plied wholly to the City Bank, but in such a way as
to protect it from loss, and to that end directed the
unsecured debts and liabilities held by that bank on
Eaton to be first paid. The Chancellor also held
that the City Bank had misapplied one-half of the
proceeds of the abstract stock to debts of Eaton
not indorsed by Smith, and, so far as this applica-
470 JACKSON :
Memphis City Bank v. Smith.
tion was made, it was to be treated as void and
held for nothing, and the debts thus paid were to
be treated as still subsisting, and the proceeds of
this abstract stock to be applied to the debts, on
which Eaton and Smith were both liable. A refer-
ence was had as to this, and also as to usury paid
by Eaton to the bank. From this decree the Meip-
phis City Bank appealed and has assigned errors.
It is insisted that the Chancellor erred in hold-
ing that the proceeds of the trust should be ap-
plied to the payment of debts due by L. B. Eaton
to the Memphis Bank until they were satisfied, be-
fore anything could be paid to the Security Bank;
that it was error to order a reference as to usury,
and that it was error to hold that the half pro-
ceeds of the abstract company stock should be
applied to debts on which Eaton and Smith were
both bound, to the exclusion of the debts on which
Eaton alone was bound.
The first assignment, put in a little different
form, is that the City Bank has the right to waive
its preference to be paid out of this trust fund, in
favor of the Security Bank, and look to Smith, the
indorser, for the payment of its debts, the effect of
which will be to deprive Smith of any benefit of
these trust funds. On the other hand, it is insisted
that while the City Bank had a right to apply the
trust funds to any debt it holds against Eaton,
secured or unsecured, as its President might direct,
and so as to protect it from loss, still it could not
APRIL TERM, 1899. 471
Memphis City Bank v. Smith.
waive its right to the fund in favor of the Se-
curity Bank.
The contention, narrowed down, is that the City
Bank could apply the proceeds to the unsecured
debts of Eaton held by it, in preference to those
secured by Smith, but it could go no further, and
could not permit the Security Bank to take the
fund and leave the City Bank to rely upon Smithes
indorsement. And that to allow the fund to be
thus diverted, would be to indirectly give the Security
Bank the benefit of Smithes indorsements to the City
Bank, inasmuch ^s it would appropriate funds which
otherwise would go to the relief of Smith or his
indorsements, to debts in the Security Bank on which
he is not bound.
We are of opinion the decree of the Chancellor
is correct. The proper construction of the deed of
trust of June 6, 1894, is that the debts due the
City Bank of Memphis are to be paid before those
to the Security Bank. The option given to the act-
ing president to apply the proceeds of the trust
property as he may direct, means that he may apply
it, at his discretion, between the secured and unse-
cured debts held by the City Bank, and not that
he may divert it to the Security Bank, leaving debts
due the City Bank unpaid; and the fact that he is
president or acting president of both banks and the
banks are virtually owned and operated by the same
parties, does not matter. The two banks and the
debts owing to them are to be treated as separate
472 JACKSON :
Memphis City Bank v. Smith.
and independent, and each standing upon its own
rights, and the trust deed does not mean that they
may be treated together as a common creditor and
the proceeds applied between the debts held by both
as though they were all held by one creditor.
The clear provision is that the debts due the Se-
curity Bank stand in a third class, and are to be paid
only after those due the City Bank, which stand in
a second class and have preference over those of
the Security Bank, but, as between themselves, may
be paid as the acting president may direct.
In like manner, the abstract company stock was
pledged to secure debts on which both Eaton and
Smith were bound upon the collateral note, which
set forth the terms of the pledge, and the proceeds
should have been so applied, as there was no dis-
cretion given the president of the bank as to this
fund, and the property pledged was the joint prop-
erty of the two. The Security Bank is not a party
to this suit. It was made such party on motion,
but subsequently this order was vacated and set
aside, and the decrees in this case are made with-
out regard to it.
The Chancellor, in his decree, held that Smith,
under his answer, was entitled to a reference, to
ascertain the usury exacted of Eaton upon the notes
upon which he was indorser, and any renewals of
the same, but not for any usury exacted on trans-
actions outside of these notes, or notes out of which
they originated as renewals, and his order of refer-
APRIL TERM, 1899. 473
Memphis City Bank v. Smith.
ence was framed upon this idea and basis. A cross
bill filed by Smith was accordingly dismissed, inas-
much as its object was to impound usury collected
from Eaton on transactions other than those in
which Smith was indorser, and from this there is
no appeal, but upon Smith's answer the reference
was made, as before stated, as to usury paid on
debts on which he was bound.
It is said this reference as to usury was error,
but no reason or ground is assigned why it should
be treated as error.
We are of opinion that all of the matters of
defense in this case would have been more properly
set up by cross bill, but no exception is taken in
this Court or the Court below upon this ground,
and the defendant is clearly entitled, on the merits,
to the reference for usury and to a proper applica-
tion of the proceeds of the trust property, in order,
so far as possible, to relieve him of his liabilities,
and the decree of the Chancellor reaches the merits,
and it is affirmed and the cause remanded for
further proceedings. Appellant will pay cost of
appeal.
474 JACKSON:
street Railroad Co. v. Howard.
Street Railroad Co. v. Howard.
{Jackson. May 18, 1899.)
1. SuPBEME Court. Will not set verdict aside^ when.
This Court will not set aside a verdict for plaintiff for want of
evidence to support it, when the plaintiff^s testimony on the
trial makes out a case, although it is impeached by his state-
ment on a former trial that did not make out his case. The
question presented was one of credibility of the witness, not
of sufficiency of evidence, and therefore peculiarly a matter for
the jury. (Post, pp. 476, 477.)
2. Evidence. Res gestcB.
The statement of a street car motorman, * * that he saw plaintiff
and thought he would g^t off the track," made fifteen minutes
after the collision that resulted in plaintiff's injury, at the
place of the collision, but after plaintiff had been extricated
from the car wheels and his wounds washed, is not admissible
as part of the res gestae. (Post, pp. 477, 483.)
Cases cited and approved: Denton v. State, 1 Swan, 278: Diwid>
die V. Railroad, 9 Lea, 309; 144 Mass., 148; 51 N. Y., 295; 53
Mich., 322; 74 Mo., 553; 119 U. S., 99; 45 Kan., 503.
3. Street Railway Companies. Rights to use of track.
The rule that at crossings a street railway company has, in the
operation of its cars, no preferential right of way over vehicles
and pedestrians, has no application to the operation of its cars
over that portion of its track between crossings, where, under
the law, it has a superior, though not exclusive, right of way.
(Post, m>' 483-485.)
Case cited and approved: Citizens* Rapid Transit Co. v. Segrist,
96 Tenn., 123.
FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. L. H. Estes, J.
APRIL TERM, 1899. 475
Street Railroad Co. v. Howard.
TuBLEY & Wright for Railroad Go.
Jas. M. Greer for Howard.
McAlister J. Howard commenced this suit in
the Circuit Court of Shelby County against defend-
ant company to recover damages for personal in-
juries. The case has been tried several times. The
first trial resulted in a verdict for the plaintiff for
$1,000; the second ended in a mistrial; the third
and last resulted in a verdict and judgment against
the defendant for $3,250. A new trial having been
refused, the company appealed and has assigned
errors.
The plaintiff resided in the State of Mississippi,
and, at the time of the accident, had stopped over
in the city of Memphis while ^?i route to visit his
parents. That night, between 8 and 9 o'clock, plain-
tiff, accompanied by a friend, started to visit some
ladies who lived on Marley Avenue, in the suburbs
of Memphis. Plaintiff admits taking several glasses
of beer prior to his departure, but claims he was
not intoxicated. He and his friend boarded a John-
son Avenue car, operated by defendant company, and
when Marley Avenue was reached they separated,
Howard remaining on the south side of the street
car track while Elliott went off to look for the
house they wished to visit. Plaintiff, after waiting
some time for Elliott to return, started north on
Marley Avenue in search of the house. Plaintiff
crossed the track going north at the intersecting
476 JACKSON :
Street Railroad Co. v. Hov^ard.
street, and, after an unsuccessful search for the
house, returned south again, and, while trying to
cross the track of defendant company, he was struck
by a car running west and very severely injured.
There is evidence tending to show that the rail-
road track at this point is laid out in a straight
line for nine hundred feet east of Marley Avenue,
and that a lighted car can be easily seen that dis-
tance. This fact is admitted by plaintiff and is un-
disputed.
On the first trial the plaintiff testified that when
he retraced his steps, failing to find his friend, and
walking eight or ten steps on the track, he stopped
to look at a house facing the old Raleigh road, and
that, just as he stopped, a car came up from his
side and rear, striking him and inflicting the per-
sonal injuries for which he sues. He further
testified on that trial that he could have seen the
car approaching for a distance of nine hundred
feet, and could have heard it, but, as a matter of
fact, he neither saw nor heard a car.
On that trial the plaintiff further testified that
just as he stepped into the track, from the north
toward the south, he was struck by the car; that
he had neither looked nor listened for a car to the
east or west, from which directions cars were likely
to come, and that he was not thinking about a car
at all.
On the last trial the plaintiff testified that before
attempting to cross the track he stopped and looked
APRIL TERM, 1899. 477
Street Railroad Co. v. Howard.
around, across, and in every direction, and that he
did not see a street car coming.
Overruling the motion for new trial on the last
verdict, the Court said, viz.: ''This case has been
tried three times. The first time there was a ver-
dict for $1,000. The Court set the verdict aside
because plaintiff's own testimony showed clearly that
he did not look or listen for a car. In granting
the new trial the Court held the failure to look
or listen was such contributory negligence that it
ought to defeat plaintiff's right of recovery." The
Court then remarked that on this (the last) trial
Howard's testimony is much more favorable to his
case. He appears to be an honest man, with a
purpose to tell the truth, and thereupon the motion
for new trial was overruled. The question, then,
upon this assignment of error, is whether there is
any evidence to support the verdict.
The conflict in the testimony of the plaintiff was
a matter that went to his credibility as a witness,
and was for the jury. This Court could not ad-
judge his testimony unworthy of credit and say
there was no evidence to sustain the finding of the
jury. At last it is a matter for the settlement of
the jury upon the irreconcilable statements claimed
to have been made.
The second assignment is that the Court erred
in admitting declarations made by the motorman
after the accident was over. These declarations
were admitted upon the theory that they were
478 JACKSON :
Street Railroad Co. v. Howard.
part of the res gestce. These declarations are proved
by two witnesses who visited the scene of the acci-
dent immediately after it occurred. One of the
witnesses testified that he was at his home in the
neighborhood, about two hundred and forty feet
away, and that his attention was first attracted by
what he denominates a terrible noise, as if made
by the sudden reversal of the car. He went out
to his front gate, and was informed that some one
had been run over. Witness immediately ran down
there and found the plaintiff under the car, the con-
ductor and motorman trying to extricate him. Wit-
ness assisted the employes of the road, and the
plaintiff was finally removed from the track. An-
other witness then came up, and he was sent back
to his home, one hundred and fifty feet away, for
a basin and towel. He returned, and the plaintiff
was then washed. After all this had been done,
which consumed, probably, fifteen minutes, one of
the witnesses asked the motorman how it occurred.
The motorman replied that **he saw plaintiff, but
thought he would get off the track."
The question presented is, whether the statements
of the motorman were part of the res gestcB or
merely narrative of a past occurrence. The true
rule on this subject is thus expressed by Mr. Whar-
ton, in his work on Criminal Evidence, Sec. 262,
viz.: ^^ lies gestcB are events speaking for themselves
through the instinctive words and acts of partici-
pants, not the words and acts of participants when
APRIL TERM, 1899. 479
street Railroad Ck>. v. Howard.
narrating the events. What is said or done by the
participants under the immediate spur of the trans-
action becomes a part of the transaction, because,
then, it is the transaction that then speaks. In
such cases it is not necessary to examine as wit-
nesses the persons who are participants in a trans-
action thus instinctively spoken or acted. The
question is, Is the evidence offered that of the
event speaking through the participants, or that of
the observers speaking about the event ? In the
first case what was thus said can be said without
calling those who said it; in the second case they
must be called. Nor are there any limits of time
within which the res gestce can arbitrarily be con-
fined. They vary, in fact, with each particular
case. A distinguishing feature of declarations of
this class is that they should be the necessary inci-
dents of the litigated act, necessary in this sense,
that they are a part of the immediate concomitants
or conditions of such act, and are not produced by
the calculated policy of the actors. In other words,
they must stand in immediate causal relation to the
act and become part of the action immediately pro-
ducing it, or which it immediately produces."
Again, at Sec. 269, Vol. 1, of the same work,
edition 1888, he says: **The res gestm may, there-
fore, be defined as those circumstances which are
the automatic and undesigned incidents of a particu-
lar litigated act, and which are admissible when
illustrative of the act. Incidents that are imme-
480 JACKSON :
Street Railroad Co. v. Howard.
diately and unconsciously associated with the act,
whether such incidents are doings or declarations,
become, in this way, evidence of the character of the
act. They are admissible, though hearsay, because,
in such cases, from the nature of things, it is the
act that creates the hearsay, not the hearsay the
act. It is the power of perception unmodified by
recollection that is appealed to, not of recollec-
tion modifying perception. Whenever recollection
comes in — whenever there is opportunity for re-
flection and explanation — then statements cease to
be parts of the rea gestw. Aside from the
temptations to the parties, when thej^ have
time to collect themselves, to palliate or aggravate,
there is a tendency to exaggeration apt to swerve
the memory of those who were witnesses of any
casualty or collision when they talk about it after
it is over. Hence it is important for the interests
of truth and justice that the statements of neither
parties nor bystanders, made after the event, should
be received on trial unless under the responsibility
of an oath and with opportunity of cross-examina-
tion."
This question has frequently been before this
Court. In Denton v. State^ 1 Swan, 278, the facts
were that Denton and Sullivan, in the presence of
several other persons, quarrelled and fought. They
were separated, when Denton threw a chair at Sul-
livan, but no one saw it strike him. Sullivan was
thrust out of the house. In twenty-five or thirty
APRIL TERM, 1899. 481
Street Railroad Co. v. Howard.
minutes be returned to the room, and complaining of
being sick, was put to bed. On being interrogated
as to the cause of his sickness (Denton not being
present), he replied that "Denton had hit him on
the belly with a chair."
It was held that these statements of Sullivan
formed no part of the res gesUe^ but were mere
hearsay and inadmissible as evidence. It was said
in that case that declarations, in order to be part
of the I'es gesUe^ must be contemporaneous with the
principal transaction of which they form a part.
"This principle of law is founded upon the clear-
est dictate of reason. The declarations were evi-
dence, because they are a part of the thing doing.
If, therefore, the thing shall have been done and
concluded, declarations then made are not evidence."
The Court further remarked: "That the scuffle be-
tween the parties had ended twenty-five or thirty
minutes before these declarations were made, and
that the principal transaction had so completely
ended as that these statements cannot be connected
with it as part thereof, and they are mere hearsay
and not evidence."
In Diwiddle^ Adrar.^ v. L. d; JV. H. Ii,y 9 Lea,
309, it appeared that after deceased had been run
over, the train was stopped, and the engineer, con-
ductor, and other train hands, gathered around the
body, which was still breathing. It was held that
statements made around the body by operatives of
18 P— 31
482 JACKSON :
street Railroad Co. v. Howard.
the train as to how the killing occurred were inad-
missible.
Booth on Railroads thus lays down the Lsw
on this subject: ^<In an action to recover damages
for personal injuries, the declarations of a servant of
the defendant are not admissible against it as a part
of the 7*68 gestcBj unless it appears affirmatively, be-
fore such declarations are admitted, that they were
made at the time the injuries were inflicted. This
principle applies to acts as well as to declarations,
and to all cases alike. If the declaration offered
in evidence was not an actual part of the transac-
tion on account of which the plaintiff seeks damages,
it is inadmissible, although made at the place of
the accident in the presence of those who witnessed
it, and immediately after it occurred. In such cases
time is a very important, although not always the
controlling, element in determining the question of
competency. But in each case such declarations
must be excluded if they do not tend to give char-
acter to a contemporaneous act, and are merely nar-
rative, however nearly connected in time they may
be with the main fact in controversy." See also
Wilson V. Railroad Co,^ 144 Mass., 148; Wltittak^r v.
Street Ry. Co.^ 61 N. Y., 295; Johnson v. Ice Co.^
63 Mich., 322; Ad^wisv. Railroad Co,^ 74 Mo., 653;
Railroad Co. v. O'Brien, 119 U. S., 99; 45 Kan.,
503; 19 L. R. A., 733.
We are of opinion the Circuit Judge was clearly
in error in admitting the statements of the motor-
r"
APRIL TERM, 1899. 483
street Railroad Co. v. Howard.
M- I -I— - —
man under the circumstances stated, and this assign-
ment of error is sustained.
The Court also erred in charging the jury, as
follows: ^*The conduct of the motorman (Sparrow)
and of plaintiff (Howard) must be measured by ex-
actly the same rule. To vary the rule in the least
in favor of either one, is to violate your oath.
They both were using the street; their rights to use
the street were exactly the same."
This error is intensified by the failure of the
Court to give special instruction No. 3, which is as
follows: " The defendant had the superior right of
way, although not the exclusive right of way, of
that portion of the highway occupied by its tracks,
which are used or about to be used, by the transit
of cars between street crossings — that is, between
blocks, while the traveler has the right to use the
street car tracks when not occupied, or about to be
occupied, by the cars, but it is the traveler's duty
to give the right of way to the cars upon their
approach and not impede their progress."
The well-established rule is that street railroads
have the superior, though not the exclusive, right
of way between street crossings, and all the evi-
dence in this case places Howard between street
crossings when injured.
The doctrine contended for in this special in-
struction was approved by this Court in the case of
Citieens^ JRapid Transit Co, v. Segrist^ 12 Pickle, 123,
where the Court uses this language: ^'In his late
484 JACKSON :
street Railroad Co. v. Howard.
work on Street Railways, at Section 304, Booth says:
'As already stated, as a general rule, especially be-
tween street crossings, cars have a right of way
superior to other vehicles and pedestrians. This
preferential right must be exercised in a reasonable
and prudent manner. But this rule does not apply
to crossings, or street intersections; here neither has
a superior right to the other; the right of either
must be exercised with due regard to the right of
the other.'"
In Section 303 Booth on Street Railroads states
the law as follows: *'A reconsideration of the groupds
of the earlier decisions, aided by time and expe-
rience, has resulted in establishing a rule, now well-
nigh universal, that a street car has, and from the
necessities of the case must have, the right of way
upon that part of the street upon which alone it
can travel paramount to that of ordinary vehicles,
but that this superior right does not prevent others
from driving along or across its tracks, at any place
or time, when by doing so they will not interfere
with the progress of the cars. In this case the
better right is not an exclusive right, but, being
paramount to the extent stated, it will be enforced
against all who needlessly oppose obstacles to its
exercise. Other travelers, therefore, must yield the
right of way. Therefore the driver of a private
vehicle may cross the tracks, and this right is not
confined to occasions when other portions of 'the
street are crowded or obstructed, and may drive
APKIL TERM, 1899. 485
Street Railroad Co. v, Howard.
along and upon the tracks, if he uses due diligence
not to interfere with the passage of the cars."
Sherman v. Street Ry.^ 44 Cal., 418; Street R. R.
V. Ingram^ 131 111., 659; Heai^n v. Street Ry.y 34
La., 160; State v. Foley ^ 31 la., 527; Commomoealth
V. Ulcks^ 7 Allen, 573; Rui^cherY, Street Ry.^ 51 N.
W. Rep., 463 (Mich.); BrooJcs v. Street Ry.y 22
Ndb., 816; 49 N. J. Law, 468; 126 N. Y., 625;
Adolph V. Street Ry., 76 N. Y., 530; 24 Atlantic,
596 (Pa.); 141 Pa. State, 615.
It will be observed that throughout the charge
the Court, time and again, tells the jury, in effect,
that the rights of both parties between street cross-
ings were equal. It is true he does state that the
same degree of care, to be on the lookout for pedes-
trians between crossings, as at crossings, is not
required of motormen, nor are they to use the same
degree of speed between crossings as at crossings;
but- this instruction is wholly apart from the rule
that between street crossings the company has a
preferential right, which principle was not recognized
by the Court, but a wholly different doctrine an-
nounced. For the reasons indicated, the judgment
is reversed and the cause remanded.
486 JACKSON :
,102 4861
116 3761
A. Landreth Co. v. HcheTenel.
A. Landreth Co. v. Schevenel.
(Jackson. May 22, 1899.)
1. Fbaud. Does not vitiate contrcust or aettlementt when.
Fraud im procuring the settlement and compromise of the claims
of a wholesale merchant against a retail merchant cannot be
predicated of the latter 's failure to keep his promise to continue
the business and his relation with the former, although he did
not intend to keep the promise when he made it, as it relates to
a matter in the futuT*e, and, besides, the benefit from the con-
tinuance of the business is uncertain and purely speculative.
(^Post, pp. 488-491.)
Gases cited: Farrar v. Bridges, 3 Hum., 565; 81 Fed. Rep., 64; 15
C. B., 207.
2. Rescission. Statu quo.
To authorize the rescission of a contract or settlement for fraud,
the parties must be put in statu quo. {Postt P* ^^O
3. Same. Promptness required.
A party seeking to repudiate a contract for fraud of the other
party, must do so at once upon learning of the facts constitut-
ing the fraud. (Post, pp. 492, 493.)
Cases cited and approved: Woodfolk v. Marley^98 Tenn., 467; 93
U. S., 62; 48 S. W. R., 729; 83 N. Y., 300.
4. Fbaudulknt Conveyance. Debts mv^t be sJiown.
Complainant must prove debts due him in order to justify the
setting aside of an alleged fraudulent conveyance of his debtor
at his instance. {Post, pp* 492, 493. )
Case cited: 17 Wall., 521.
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
Jno. L. T. Snbed, Ch.
APRIL TERM, 1899. 487
A. Landreth Co. v. Schevenel.
S. M. Neely for Landreth Co.
Watson & Fitzhugh and Cahroll & McKellar
for Schevenel & Co.
McFarland, Sp. J. This was a bill filed by the
A. Landreth Co. against A. W. Schevenel & Co. for
the purpose of rescinding and setting aside a settle-
meni; made between the parties, and also to subject
certain real estate to the payment of complainant's
debts, conveyed by Schevenel, one of the partners,
to his wife.
The facts are that A. W. Schevenel & Co., a
firm composed of A. W. Schevenel and one Pace,
was doing business in Memphis, Tennessee, in 1897.
Beginning with August 20, 1897, the complainants
sold to A. W. Schevenel & Co. goods amounting
to sixteen hundred and ninety-six and ^^^V dollars
($1,696.16). A. W. Schevenel & Co. were engaged
in the grocery business in Memphis. On November
8, 1897, the firm made an assignment to A. B.
Duncan, as trustee, for certain creditors, and pre-
ferring some of the creditors, but the complainants
were not included in the preferences. On March 1,
1898, the complainants and said firm compromised
their indebtedness, by which the firm paid thirty-
three and one- third (33^) per cent, of their indebt-
edness, amounting to five hundred and sixty-five and
3^ dollars ($565.41) in cash, and executed their
three notes, due six, nine, and twelve months, for
the balance of their account. It is this settlement
488 JACKSON :
A. Landreth Co. v. ScheTenel.
and compromise that this bill is filed to set aside.
It also seeks to set aside a conveyance of a tract
of land made by A. W. Schevenel to his wife
March 25, 1897, but not recorded until November
8, 1897.
The allegations in the bill upon which relief is
predicated as to this compromise, are as follows:
"This settlement was accepted by your complainants
solely upon the express representation that the firm
of Schevenel & Co. would continue in the same
business as they had conducted and would resume
business as before the assignment. Your complain-
ants aver they would not have accepted any order
of settlement from A. W. Schevenel & Co. less
than their whole debt in cash, except such settle-
ment as the above, and this was entered into upon,
and in consequence of, repeated assurances that the
firm of A. W. Schevenel would resume business and
their business relations with your complainants, and it
was due absolutely and entirely to these representa-
tions and assurances that your complainants accepted
settlement on this basis. Your complainants aver these
representations were false and fraudulent, and known
by the firm to be so, and that these representations
have never been carried out by the firm, nor have
they paid any of the above notes, although two of
them have long since become due and payable."
No offer to return the five hundred and sixty-five
and yVo ($565.41) dollars was made.
The ground upon which it was sought to set
APRIL TERM, 1899. 489
A. Landreth €k>. v. Schevenel.
aside the conveyance to the wife is that that con-
veyance was made during the existence of the origi-
nal indebtedness, and, that indebtedness not being
settled, the conveyance was, therefore, void as to
these existing creditors.
There was a demurrer filed by the defendants,
which raised the question properly as to the suf-
ficiency of this bill. This demurrer was allowed,
and the complainants have appealed to this Court.
The first question to be determined is whether
or not the allegations of the bill, as to the repre-
sentations made by A. W. Schevenel & Co. as to
future business, if done fraudulently, is sufficient to
rescind the contract without the repayment of the cash
received. Independent of the question of whether
an offer to return the cash received is necessary,
we are of opinion that the grounds alleged in the
bill are totally insufficient. *' Misrepresentations, in
order to be fraudulent, must be of facts at the time
or previously existing, and not mere promises for
the future." 8 Am. & Eng. Enc. L., 636; Fen-
wick V. Grimes^ 5 Cranch. C. C, 439; Long v.
Woodmaii^ 58 Me., 49; Bart w. Bowles^ 69 Ind., 1;
Bethell Y. Bethell, 92 Ind., 318; BlgJunn v. Big ham ^
57 Tex., 238; Kerr on Fraud and Mistake.s, 88.
'* Fraudulent expressions of opinion are generally
insufficient to justify the rescission of a contract ex-
ecuted and acted on by the parties. An action for
rescission for fraud cannot be predicated on a prom-
ise to do something in the future, although the
490 JACKSON :
A. Landreth Go. v. Schevenel.
party promising had no intention of fulfilling the
promise at the time it was made." 1 Beach Mod.
Law of Contracts, Sec. 797, and cases cited.
In Baelie v. Taylor, 136 Ind., 368 (36 N. E.
Rep., 269), the Court declared that these principles,
as above announced, are elementary. ^^As distin-
guished from the false representation of a fact, the
false representation as to a matter of intention not
amounting to a matter of fact, though it may have
influenced a transaction, is not a fraud at law, nor
does it afford a ground of relief in equity." Kerr
on Fraud and Mistake, 88. Thus where it was al-
leged that the defendant fraudulently represented that
he would grant the plaintiff an easement by locating
a street, this was held not to be fraud. Richter v.
Irvine, 28 Ind., 26. So, where one was induced to
grant another a lease on the representation that he
intended to use the premises for a certain purpose,
whereas he intended to use, and did use, them for
a totally different purpose, it was held that relief
could not be granted. Feret v. Hill, 15 C. B., 207.
'< Statements of forecast, opinion, or expectation that
are in substance matters of inference, cannot be con-
sidered false representations justifying the rescission
of a contract." Oreen v. Society Anonynie, etc,
81 Fed. Rep., 64.
The case of Farrar v. Bridges, 3 Hum., 565, is,
in principle, directly in point, and conclusive of the
correctness of the Chancellor's decree sustaining the
demurrer in this case. Says the Court in that
APRIL TERM, 1899. 491
A. Lsndreth Co. v, Schevenel.
case: ''Averments of fraadulent intention and fraudu-
lent combination are made with sufiScient liberality
throughout the bill, but no fraud is shown to dis-
tinguish this case from any other in which a party
neglects or refuses to comply with his engagements
and to pay for the property he purchases. The
prayer of the bill is that the deed be canceled.
Bridges has demurred to the bill, and his demurrer
has been allowed by the Chancellor. His decree must
be affirmed. Fraud, indeed, vitiates a contract into
which it enters, but mere noncompliance with the
terms of a contract, in not paying the stipulated
consideration, is not fraud. If a party conveys his
land by deed upon a promise that he shall be paid,
it will not authorize the cancellation of the deed in
chancery by the mere allegation of fraudulent in-
tent."
It is another elementary principle as to rights
and remedies, that some wrong or hurt must have
been done from which relief must spring. The
hurt here is purely speculative. Had defendants con-
tinued in business, and continued to purchase from
complainant, profits to plaintiff would have been uncer-
tain and purely speculative. The relief here prayed,
though different, is analogous in principle to claim
of damages for breach of contract. In such cases
such damages cannot be recovered, because incapable
of accurate estimation.
We have examined the cases referred to by learned
counsel for complainants, and especially the case of
492 JACKSON :
A. Landreth Co. v, Schevenel.
C?V88 y, JfcICee, 53 Miss., 538, and, without review-
ing these cases in detail, we think that each one of
them may be differentiated in some important and
material fact and principle from this case at bar.
It is an elemental principle, as applicable to re-
scission of contract or settlement, by fraud or other-
wise, that upon rescission the parties must be put
in statu quo^ and independent of the mere question
whether the repayment of this five hundred and
sixty-five ($565) dollars will be a prerequisite, there
are other facts shown by the bill which demonstrate
that the parties could not be restored to the status
quo in which they were when this compromise was
made. It is shown, after compromise and settle-
ment of this debt was made, that the trustee had
wound up his trust, and, after winding up his trust,
had turned over the balance of the property of A.
W. Schevenel & Co. in his hands to that firm, and
that they have dissolved, and one of the partners,
not sued in this action, has removed to the State
of Arkansas, and they are each now in separate
business. It would be impossible, from this account,
to restore the parties or the assets of that firm
into the hands of the trustee.
There is still another principle applicable to the
denial of relief to the complainants in this case*
This compromise and settlement was made March 1,
1898. This bill was not filed until January 12,
1899. The complainants must have known, long
before this bill was filed, that this firm had ceased
APRIL TERM, 1899. 493
A. Landreth Co. v. Schevenel.
to do business and had gone out of existence, and
yet they waited to see whether or not these notes
would be paid. It is incumbent, in such case, that
the party seeking repudiation shall do so at once
upon learning the ground upon which the rescission
is ultimately based. **It is a settled rule that the
right to rescind a contract for fraud must be exer-
cised immediately upon its discovery, and that any
delay in doing so, and the continued employment,
use, and occupation of property received under a
contract, will be deemed an allegation to confirm
it." Skifer v. Dletz, 83 N. Y., 300.
''A party who desires to rescind, in whole or in
part, a transaction of this kind, must, upon the dis-
covery of fraud, repudiate it, and cannot, after ac-
quiescing in its ratification, avail himself of such
defense." JTema v. Perri/, 48 S. W. Rep., 729;
Woodfolk V. Marly J 98 Tenn., 467; Gi*ime8 v. San-
ders, 93 U. S., 62.
The settlement of this first question of necessity
settles the other. The conveyance to the wife was,
in fact, before the indebtedness to the complainants.
It was, at any rate, registered before this compro-
mise settlement, and this is conclusive against the
complainants' right to set it aside now. Besides,
there are no sufficient allegations in the bill upon
which to base a decree setting aside this as a fraud-
ulent conveyance.
*'A Court of Equity will not exercise its juris-
diction to release property applicable to the payment
494 JACKSON :
A. Lsndreth .Co. v, Schevenel.
of these debts, unless the debts are clear and un-
disputed, and there exists some special circumstances
requiring the interposition of the Court to obtain
possession of and apply the property." Public Works
V. Columbia College, 17 Wallace, 521.
The decree of the Chancellor is confirmed, with
costs to the complainant.
APRIL TERM, 1899. 495
Boyd 1^. Hunt.
*BOYD V. ifuNT.
{Jackson. May 22, 1899.)
1. Easement. Alley,
Failure to use an alley, in order to amount to an abandonment
of an easement therein, must be accompanied by some act of
the owner of the dominant estate clearly indicating his purpose
to set up no further claim, and such intent cannot be inferred
from the mere fact, in connection with long nonuse, that the
owner of the servient estate excavated under and projected
his buildings above the alley, erected at its entrance a gatei
which, however, was not inconsistent with the enjoyment of
the easement, and may have been attributed by the owner of
the easement to a desire to keep out the public. (PosU PP* 496-
508,)
3. Same. Created by stipulation in deed.
A stipulation in a deed, that the lot conveyed shall adjoin an
alley, to be carved out of the grantor's adjoining property, and
to be perpetually kept open for the common use, imposes a
servitude upon the land thus set apart, as an alley, and in this
land the grantee has the dominant, and the grantor the servi-
ent, estate. (Post, pp. 496-498.)
Cases cited: Crutchfield v. Car Works, 8 Baz., 243; Brew v. Van
Deman, 6 Heis., 433.
3. Same. Passes by transfer of dominant estate.
And such easement passes by conveyance of the lot to which it
is thus annexed. {Post, pp. 498^ 499.)
4. Same. Nonuser.
Mere nonuser, however long continued, affords no sufficient evi-
dence of abandonment of an easement created by express
grant. The failure to use must be accompanied by some act
of the owner of the dominant estate, clearly indicating his
purpose to set up no further claims, in order to work abandon-
ment. {Post, pp. 499, 500.)
*On the question of the nonuser of an easement, there is a review of the decisions
in note to WeUh ▼. Taylor (N. Y.), 18 L. R. A., 635.— Bbpobtbb.
496 JACKSON :
Boyd V. Hunt.
Cases cited and approved: Railroad v, French, 100 Tenn., 209; 83
Ky., 628; 110 111., 264; 49 N. Y., 348; 82 Pa. St., 208; 47 N. J.
Eq., 421 (S. C, 10 L. R. A.. 276); 38 N. J. Eq., 20; 11 Gray, 423;
140 Mass., 205; 112 Mass., 224; 18 L. R. A., 535.
Cited and distinguished: Monaghan v. Memphis Fair Co., 95
Tenn., 108.
FROM SHELBY.
Appeal from Chancery Court of Shelby County.
Lee Thornton, Ch.
J. H. Malone for Boyd.
Morgan & McFarland and Perez & Lehman for
Hunt.
Beard, J. The complainants are the owners of
the south part of lot 237, on Main Street, in Mem-
phis, while the defendants, Mrs. Hunt and Mrs.
Phelan, are owners of the northern part of the same
lot, and both parties trace their titles back to a
common source — one W. B. Greenlaw. The original
deed from Greenlaw, under which complainants claim,
was made on January 7, 1861, and described the
lot now owned by them in these words: *' Begin-
ning on Main Street (the east side of Main Street
at the southwest corner of the lot 237), running
thence east 100 feet on a line parallel with Main
Street to — foot alley; thence north with said al-
ley 24 feet 9 inches to a stake (the above, men-
APRIL TERM, 1899. 497
Boyd V. Hnnt.
tioned alley shall be perpetually kept open to Mon-
roe Street for common use); thence with a line par-
allel with Monroe Street west 100 feet to the east
side of Main Street, 24 feet 9 inches to the begin-
ning, this lot being the south portion of the subdi-
vision of lot No. 237, as aforesaid."
A few months thereafter Greenlaw conveyed the
remainder of lot 237 to the predecessor in title of
the defendants, describing it as having a front on
Main Street, and running back 100 feet. The title
to this portion of that lot passed through various
intervening conveyances until it was lodged, in the
year 1857, in W. R. Hunt. In all these convey-
ances, the description of this lot carried it back to
this private alley. In 1859, W. B. Greenlaw, for
the recited consideration of five dollars, deeded this
alley t) Hunt, and, in 1865, he conveyed to his
wife, Mrs. Hunt, one of the defendants, his entire
holdings in lot 237, describing them as having a
front on Main Street of 49^ feet, running eastward
108 feet, thus embracing therein this alley. Mrs.
Hunt and her co-respondent, Mrs. Phelan, are now
the owners of this property.
The bill in this case avers that these defendants,
with their lessee, Loeb, have very recently erected
across this alley a solid brick wall, and a gate at
the entrance to the alley, so as to prevent complain-
ants from passing from the rear of their lot, over
the alley, to Monroe Street, and the purpose and
18 P— 32
498 JACKSON :
Boyd V, Hunt
prayer of the bill is to compel, through proper de-
cree, a removal of this wall and gate.
No question is, or on this record could be, made
as to the creation of an easement in the strip of land
described in Oreenlaw's deed by the stipulation
already set out, but relief is resisted by the de-
fendants on the ground that complainants and their
privies in estate, abandoned this easement in 1859,
and that the defendants, and those from whom they
claim, have been in open, exclusive, and adverse
possession of that part of the alley in the rear of
their lot since 1859, so that the easement now
claimed by complainants has been long since extin>
guished.
Before coming to the discussion of the issues
made by this defense, it is not improper to advert
to certain well-established principles of the law of
easement, which may assist in their determination.
In the first place, there can be no doubt that, by
the stipulation in question, the easement thereby
created was appurtenant to the lot then » conveyed,
and that, with regard to the strip of land thus set
apart for an alley, a servitude was imposed upon
it, and, as to it, Greenlaw's then vendee had the
dominant and the vendor, Greenlaw, the servient
estate. Wash, on Ease. & Serv., pp. 10, 11; Crutch-
field V. Car TT^?'X'«, 8 Bax., 242; Breio v. Van De-
many 6 Heis., 433.
Again, there is as little doubt that this easement,
so annexed to this lot, in the hands of Greenlaw's
r^
APRIL TERM, 1899. 499
Boyd V, Hunt.
vendee, has passed as appurtenant to it, with the
▼arioas transmutations of title, to the complainants
as privies in estate of the first taker, and that the
charge on the servient tenement has followed it into
the hands of the defendants, Mrs. Phelan and Mrs.
Hunt (BtUa v. MzUer, 3 Pai^ Chy. R., 254; Wash,
on Ease. & Serv., 4th Ed., 34-37; Orvtehfidd v.
Car Worksj supra)^ unless it be that it has been
extinguished, as is alleged by the defendants.
Further, mere nonuser will not amount to an
abandonment which will impair or defeat an ease-
ment. The failure to use must be accompanied by
some act of the owner of the dominant estate,
clearly indicating his purpose to set up no further
claim, in order to work abandonment. Wash, on
Ease. & Serv., 707-717. And the cases, as well as
text-books, concur in the proposition that this is
true, especially as to easements created, as the one
in controversy was, . by grant. Curran v. Louisville^
83 Ky., 628; Krecken v. Voltz, 110 111., 264; Wig-
gins \. Mc Clary y 49 N. Y.^ 348; Bamhaicgh y. MiUer^
82 Pa. St., 208; 2 Wash, on Real Property, 312.
In Dill v. Board of Education^ 47 N. J. Eq.,
421 (S. C, 10 L. R. A., 276), it was held that
nonuse alone for any length of time will not extin-
guish an easement created by express grant, and
that, to accomplish this result, there must be non-
use, accompanied by <<some conduct on the part of
the owner of the servient tenement adverse to and
defiant of the easement, and the nonuse must be the
500 JACKSON :
Boyd V. Hunt.
result of it. In short, it must amount to an
acquiescence of twenty years in the acts of the owner
of the servient tenement hostile to and intended to
prevent it, " and such is the holding of many of the
best authorities.
In Riddle v. Ileulings^ 38 N. J. Eq., 20, Chan-
cellor Runyon said: "A right of way cannot be
released, abandoned, or surrendered by a mere parol
agreement. The right in this case is the privilege
of the use of a lane or passageway of twelve feet
wide. It was granted, in connection with the con-
veyance of the lot (by the same deed), for use in
connection with the lot and for the convenience of
the owners thereof. If the fact were that the land
or passageway has not been used for the last
twenty-seven years, except by express permission
from the defendant or his father, it would not bar
the complainant from a right to relief. The right
in question exists by grant, and nonuse alone will
not forfeit or extinguish it."
But nonuser by the dominant owner, united with
an adverse use of the servient estate for the period
of twenty years, notoriously and clearly inconsistent
with the continued existence of the easement, will
extinguish it. Dill v. Board of Education^ supra;
Jamison v. ^Yalker^ 11 Gray, 423; Smith v. Lang-
wald^ 140 Mass., 205.
With these legal principles established, we will
turn to the facts on which these defendants seek to
repel the claim of the complainants.
APRIL TERM, 1899. 601
Boyd 17. Hunt.
In 1869 Mr. Hunt erected a large block on his
lot. The eastern or rear wall of this block was
built up to the western line of the alley. It was,
however, left as an open area. On one side of
this area, a stairway was built by him to give ac-
cess to the upper rooms of this building. This,
however, did not interfere with its use as a passage-
way. Underneath he constructed a cellar 108 feet
from front to rear, which was extended below and
to the eastern margin of the alley, and at the same
time he put up a gate at the mouth or Monroe
Street entrance to the alley. This building was
burned in 1862, and some time afterward there was
erected by him upon its site some cheap structures,
which ran back 100 feet, having the same open way
in the rear, which, as formerly, was closed by a
gate erected at the line of Monroe Street. This
gate stood there for some time, when, according to
Mrs. Hunt's testimony, it was taken down, and the
inclosure was boarded up entirely. This condition
existe<l until 1866, as stated by this witness, when,
upon the solicitation of one Mrs. Valentine, whose
husband, she says, occupied the lower part of the
Robinson house as a store, the latter was permitted
to put a door at the entrance- from Monroe Street,
upon the condition that he should keep it locked,
and use the area alone for the benefit of his friends
and business. She further states that her husband
soon became dissatisfied with this arrangement, and
he again closed up this entrance, and it so remained
602 JACKSON :
Bojd V. Hunt.
until the year 1873, when, upon a contract with
herself as the owner of the property, Mr. Luerh-
man, who occupied a house on the eastern side of
the alley, placed a gate at the entrance, and, for
the use of the alley, paid a nominal rent. In 1882
Mrs. Hunt leased to Luerhman 49^ by 100 feet of
her property, and he erected a one-story building
upon it. This lease did not include the alley, as
Mrs. Hunt says she desired that left open for light
and air, but the north wall of the building extended
across the alley, having, however, an opening or
doorway into this area. In 1887 Mrs. Hunt gave
Luerhman a new lease, covering a period of ten years
from that date, and then he erected, upon the walls
of his original structure, four more stories, the sec-
ond story extending over this area, but leaving it
open beneath. In this area he erected a stairway
for the use of his building, and at its entrance, as
before, a gate or door for access to and egress from
it. In 1893 this building was destroyed by fire,
when the property was improved by Mrs. Hunt and
Mrs. Phelan, and leased to their co-defendant, Loeb.
After getting possession he erected a solid brick wall
across the alley, and thus cut off complainants from
all that part of it .in the rear of the Hunt and
Phelan tenement. It is this wall that has occasioned
the present controversy.
It is clear that neither the extension of the Hunt
cellar underneath this alley nor the construction of
the rooms above it possess any significance, so far
APRIL TERM, 1899. 608
Boyd V. Hunt.
as the issue here presented is concerned, for neither
of these improvements interfered with the easement
of passage from the Robinson house to Monroe
Street. And we think the defendants attach undue
importance to the gates and doors, which were put
up and maintained, according to Mrs. Hunt, during
the greater part of the time by Col. Hunt and his
privies in estate at the entrance to this alley. For
even if it be true that these parties by these acts
intended to assert an independent and exclusive right
to the alley, yet it does not follow, as a matter of
law, that the easement therein of complainants, and
those from whom they claim, would be affected
thereby. Nor does it any the more follow that an
assertion of control, as against Luerhman o r any
other stranger in interest, would impair it. Such a
result would only be consequent upon an adverse,
exclusive claim set up in connection with these ob-
structions, of which the owners of the easement had
notice. These gates and doors might have stood for
an indefinite time, and the defendants might have
asserted to others their exclusive claim, yet if they
did not make it known to those entitled to the
easement as an appurtenant to their estate, by de-
barring them from its enjoyment or otherwise assert-
ing such adverse right, they would not be affected
by it. The mere maintenance of these gates and
doors was not inconsistent with the rights of these
parties. They might well assume that they were
erected to prevent intrusion into the alley and in
504 JACKSON :
Boyd V, Hunt.
the interest of all, to secure it from the commis-
sion of nuisances by outsiders. As was said by
Chief Justice Gibson, in Nitzdl v. Paschall^ 3 Rawle,
76, in such a case there must be a denial of the
title, or other act on the adverse part, to quicken
the owner in the assertion of his right.
In Wehh V. Taylor^ New York Court of Appeals,
18 L. R. A., 535, the same contention was made
as to the effect of the erection of a gate by one
owner of an easement of way through an alley upon
the right of another entitled to a like easement
through the same alley. The Court then said:
*'The fact of the existence of a gate is of no im-
portance in the case as evidence of abandonment,
in the absence of evidence that it was used to ex-
clude the ow^ner of the adjoining property. It is
not denied that no use was made of the alley by
the owner of 143, and as long as there was no
occasion on their part to use it, the mere existence
of a gate was not notice of any adverse claim on
the j)art of their co-tenants. Nor would acqui-
escence in its existence be prejudicial to their rights
unless an adverse claim was brought to their knowl-
edge. So long as it did not hinder, obstruct or
annoy others legally privileged to pass through the
same, it was not in violation of the terms upon
which the easement was granted."
Another case asserting the same view is that of
Barnes v. Lloyd, 112 Mass., 224. There the de-
fendant claimed a right of way over the plaintiff's
APRIL TERM, ' 1899. 606
Boyd 17. Hunt.
land, each having title to his property from the
same party, who, in his deed to the grantee of de-
fendant had expressly granted a right of way over
the lot which, through subsequent conveyances, passed
to the plaintiff. All the conveyances of the plain-
tiff's lot down to 1869 had in them this reserva-
tion. For a term of seventy years from the grant
of the easement and for a period of twenty years
<'from its last recognition by the owner of the serv-
ient tenement, no use whatever of the right of way
had been made by the successive owners of the de-
fendant's lot, and plaintiff's lot had always been
kept fenced, both on its road side and on the line
with defendant's lot, and also across the middle by
fences, without any gateway or barway or other
opening, and the lot itself had been continuously
cultivated. The jury found, nevertheless, that there
had not been such adverse use as to extinguish the
easement, . and the Court held that mere nonuser,
under the circumstances, did not extinguish it."
Authorities to like effect could easily be multi-
plied, but it is sufficient for our purpose to refer
•
to only one more — that of Railroad v. French^ 100
Tenn., 209 — where the principle underlying these
cases was applied for the preservation of the charter
easement for right of way of a railroad over one hun-
dred feet on each side of the center of the track, as
against a party claiming under a deed to the fee and
actual occupancy for over seven years by his vendor
of an original tract of which this lot formed a part.
606 JACKSON :
Boyd V. Hunt.
Torning to the record, we think the evidence is
overwhelming that there was no abandonment by the
complainants, or of those through whom they claim,
of this right of way, nor adverse holding so as to
extinguish it.
What was the extent of the authority over this
alley exercised by Mr. Hunt from 1869, when he
took his deed for it from Greenlaw, until his death
in 1872, only appears from the testimony of Mrs.
Hunt, and while she stated that during that period
of time Mr. Hunt, for himself and her, asserted
through the visible evidences of gates, etc., an ex-
clusive claim to this alley, yet it is manifest this
statement is of little value, in view of her admis-
sion that up to her husband's death she had not
looked after anything connected '^with the holding,
improvments, or renting out of the property," or
^'its management." In fact, the testimony of Mr.
Jones, a property owner in the immediate vicinity of
this alley, would rather repel the suggestion that Mr.
Hunt acquired title to it in order to set up a
claim against the parties interested in common with
•
himself in this easement. This witness says he was
present on one occasion when Col. Hunt was com-
plaining to Greenlaw about the nuisances the tenants
across the alley from him were constantly commit-
ting on it, and that Greenlaw then proposed to con-
vey it to him, to better protect himself against said
offenders, and that he did then execute the deed of
1869. We think it fairly inferable from this that
APRIL TERM, 1899. 507
Boyd V, Hunt.
this was his sole purpose in taking this deed and in
the erection and maintenance of the gate at the en-
trance of the alley.
It is true Mrs. Hunt says that while one Val-
entine occupied the Robinson property as a business
house, she, at the solicitation of Mrs. Valentine,
obtained her husband's permission for the Valentines
to use this alley. In this she is corroborated by
one Emma Chalmers, a colored nurse. Both these
witnesses place this circumstance in 1866. They
were certainly mistaken at least as to the year of
its occurrence, as Mrs. Valentine fixes her marriage
in 1869, and she denies the occurrence altogether,
and says, with great positiveness, that from her
marriage she and her husband occupied this property
for living and business purposes until his death, in
1879, and during this period without let or hin-
drance, as well as without permission, from the
Hunts, continually using the alley for themselves,
their employes, and also in passing their merchan-
dise. From 1873 until 1893, when the Robinson
house was burned by the same fire which consumed
the Luerhman structure, the evidence is practically
without contradiction that the tenants of the Robin-
son building made daily use of this alley as a
matter of right, and without molestation from or
submission to these defendants.
But it is insisted that John B. Robinson, at
one time an owner of the lot now the property of
the complainants, extended a wall on a line with the
508 JACKSON :
Boyd V. Hunt.
north wall of his building, across this alley, and
thus clearly indicated his purpose to abandon all
right of easement in the remainder. In the first
place, Mr. Robinson parted with his interest in this
property in 1859, by a deed conveying it to his
wife for life, and at her death to such of her chil-
dren as then survived her. It is evident that this
wall was built long after that year, and when he
was managing it for minor remaindermen, whose
interest he could not prejudice by any such personal
action. But an equally conclusive answer to this
insistence is that he constructed a door in this wall,
which gave him and the occupants of the building
easy access to and from the passageway to Monroe
Street.
We have examined the case of Monaghan v. Mem-
phls Fair Co,^ 11 Pickle, 108, and we find that it
has no bearing on this controversy.
After a careful consideration of the whole record,
we are entirely satisfied that the easement of right
of way through this alley, appurtenant to the lot of
the complainants, has neither been abandoned nor lost
by reason of adverse holding, and the obstructions
placed in it by defendant, Loeb, with the consent of
his co-defendants, are unwarranted.
The decree of the Chancellor, therefore, will be
reversed and a decree will be entered here for the
abatement of this obstruction, and perpetually en-
joining the defendants from interfering with the use
by complainants and their tenants of this alley.
APRIL TERM, 1899. 509
The Judges* Cases.
The Judges* Cases.
McCuLLY V. State.
(Jacison. August 29, 1899.)
FROM HENDERSON.
Appeal in error from the Criminal Court of Hen
derson County. Jno. M. Taylor, J.
AND
Thornton v. State.
(Jackmn, August 29, 1899.)
FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. L. H. Estes, J.
L. B. McFarland, S. J. Shepherd, A. B. Pitt-
man, John C. Myers, E. L. Bullock, C. G. Bond,
610 JACKSON :
The Judges* Cams.
W. G. TiMBEBLAKE, W. M. TaTLOB, MgCaLL &
Langasteb, F. M. Davis, and D. E. Scott for the
Judges.
Attorney-general Pickle, H. D. Minob, and Bab-
ham & TiMBEBLAKE ootdra.
1. Judges. BemowA o/, hy cfmcurrem resotution.
The removal of a Judge by concurrent vote of the two houses of
the General Assembly, as authorized by Art. VI., Sec. 0, of
the Constitution, cannot be justified or sustained where the
resolution of removal negatives the existence of any cause of
removal personal to the Judge or affecting the administration
of his office, and recites as the sole cause for his removal a
superfluity of Judges, and the necessity to reduce their number
and judicial expenses to subserve the public welfare. The re-
moval contemplated by the provision is for ** cause " affecting
the official personally or the administration of his office, to be
effected after notice and trial. (PosU PP> 512-531.)
Constitution construed: Art. VI., Sec. 6.
Acts construed: Acts 1899, Chs. 64, 155.
Cases cited: Hawkins v. Kercheval, 10 Lea, 535; 72 N. Y., 449; 39
N. J. L., 14; 1 Burr, 517; 57 Mo. App., 203.
2. Courts. AholUlon of clrcuUs and chaiicery diutoioii^.
It is the law of this State, established by repeated adjudications,
that the Legislature has the constitutional power to abolish a
circuit or chancery division and reassign the counties compos-
ing it, and thereby deprive the incumbent Judge or Chancellor
of his official character and powers, and of his right to draw a
salary from the State. {PosU PP- 531-575.)
Constitution construed: Article VI., Sees. 1, 4, 7.
Act construed: Acts 1899, Chs. 64, 155.
Cases cited and approved: State, ex rel.^ v. Campbell, 3 Shan.,
335; Halsey v. Gaines, 2 Lea, 316; State v. McConnell, 3 Lea,
333; State v. Algood, 87 Tenn., 163; 30 L. R. A., 153; 30 Ark.,
566; 72 Iowa, 401.
Cited and distinguished: State v. Leonard, 86 Tenn., 485;
Keys V. Mason, 3 Sneed, 6; Cross and Mercer, ex parte^ 16 Lea«
489; Powers v. Hurst, 2 Hum., 24; Pope v. Phifer, 3 Heis., 682;
State V. Cummings, 98 Tenn., 667; State v, Glenn, 7 Heis.,
APRIL TERM, 1899. 511
The Jndgefi' Gases.
473; Normant v. Smith, 5 Yer., 270; Venable u Curd, 2 Head,
586; Brewer v, Davis, 9 Hnm., 208; State v. McKee,1S Lea, 24.
3. CoNSTiTUTiovAL Law. ITm Of joumal in constnUng ConsHtutUm,
While the proceedings of a Constitutional Convention may be
properly looked to, and are of value in ascertaining the mis-
chief designed to be remedied and the purpose soughi to be
accomplished by a particular provision, stiU, if the meaning of
the language used is dear, it must be assumed that the Con-
stitution was adopted by the people in its obvious sense, and
not as having some other secret or abstruse meaning, deduci-
ble alone from the proceedings of the Convention. {Post, pp.
Case cited and approved: State v. Wilson, 12 Lea, 259.
4. Samk. Stance decisis in construction of.
The rule of stare decisis applies with peculiar force in the con-
struction of Constitutions. '*A principal share of the benefit
expected from written Constitutions would be lost if the rules
they established were so flexible as to bend to circumstances
or be modified by public opinion." (^Post, p. 633.)
5. Sahie. Legislative authority.
The Constitution invests the General Assembly with legislative
authority in general terms, and it is a well-settled rule of con-
struction that a State Legislature, in its sphere of legislative
action, has unlimited power, except so far as restrained by the
Coutttitution of the State or the United States. {Post, pp. 549, 550.)
Case cited and approved: Henley v. State, 98 Tenn., 665.
6. Samr. Constitutional provision violated by a statute must be
pointed out.
It is a familiar rule that a statute will not be annulled as in con-
flict with the Constitution unless its assailant can put his
finger on the specific provision of the Constitution that the
statute expressly, or by unavoidable implication, contravenes.
{Post, pp. 550,551.)
Case cited and approved: Henley v. State, 98 Tenn., 665.
7. Same. Statute not declared unconstUutUinal, when.
The wisdom, policy, and desirability of statutes are matters ad-
dressed to the intelligence, patriotism, and discretion of the
General Assembly. Hence a statute will not be annulled as
612 JACKSON :
The Judges* Cases.
unconstitutional because it may be supposed to violate the
best policy, or some natural equity, or to interfere with the
rights of freemen, or upon the idea that it is opposed to some
spirit of the Constitution not expressed in its words, or be-
cause it may be supposed to be contrary to the genius of a
free people. {Post, p. 551.)
Case cited and approved: Henley u State, 98 Tenn., 665.
McAlister, J. The plaintiff in error, McCiiUy,
was convicted in the Criminal Court of Henderson
County of the offense of selling liquor to a minor,
and from said judgment has appealed in error.
The main assignment arises upon the action of
the trial Judge in overruling the defendant's plea
to the jurisdiction of the Court. The plea averred
that the Hon. John M. Taylor, who was assuming to
preside and hold said Court, was not Judge of the
Criminal Court of the Eleventh Judicial Circuit, nor
Judtre of anv Court in the State of Tennessee, for
the reason that, on April 20, 1899, the General
Assembly of the State of Tennessee adopted a reso-
lution, two-thirds of the members of each branch
concurring, which resolution was, on April 21, 1899,
approved by the Governor, removing the Hon. John
M. Taylor from said oflBce, in accordance with the
authority conferred by Section 6, Article VI., State
Constitution. The plea then recites the proceedings
of the Legislature which resulted in the removal of
Judge Taylor.
The cause for removal recited in the resolution,
is that there is not suflScient business to require or
justify the retention in oj£ce of said official, and
APRIL TERM, 1899. 513
The Judges' Cases.
that it is necessary for the welfare of the State
that the judicial circuits and chancery divisions
should be redistricted, and that there should be a
reduction in the number of Circuit Judges, Chan-
cellors, and Attorneys-general, to the end that there
may be a reduction in the judicial expenses of the
State and for the promotion of economy in the ad-
ministration of public justice. No reason personal
to the Judore was assi^jned as cause for removal,
but, on the contrary, the resolution contains a testi-
monial to the ''eminent ability, tidelity, and purity
in public and private life of said John M. Taylor."
The plea to the jurisdiction was, on motion of
the Attorney-General, stricken from the files, and
thereupon the defendant was placed on trial, con-
victed by a jury, and fined by the Court the sum
of ?10. The verdict of the jury is fully supported
by the evidence, and the only question presented for
our determination upon the record is whether the
Court had' jurisdiction of the case.
It should be remarked that, prior to the adop-
tion of the removal resolution, the General Assem-
bly had passed an Act repealing the Act creating
the Criminal Court of the Eleventh Judicial Circuit
and abolishing said Court, but the repealing Act
was expressly limited not to take effect until the
expiration of thirty days from the final adjournment.
At the time the case now. under consideration
was tried in the lower Court, to wit, on May 7,
1899, the abolishing and repealing Act, approved
18 P— 33
614 JACKSON :
The Judgfes' Cases.
April 6, 1899, had not taken effect, and hence no
question is presented upon this record in respect of
the right of the Legislature to abolish the Court.
It is further to be observed that when the removal
resolution was approved, to wit, on April 21, 1899,
the abolishing and repealing Act had not taken effect.
That Act, as already stated, did not take effect
until thirty days after the final adjournment of the
Legislature. Precisely formulated, then, the ques-
tion for our determination, upon this record, is
whether, upon a proper construction of Art. VI.,
Sec. 6, of the State Constitution, the Legislature is
empowered, for economic reasons, to remove a
Judge whose office is still in existence. If the Act
abolishing the Court had already taken effect, and
afterwards the removal resolution had been adopted,
a different question would arise. In such case the
whole question would turn upon the power of the
Legislature to abolish the Court, for if such power
existed the Judge would thereby be displaced, and
a removal resolution would be useless and superero-
gant. It would seem a legislative solecism to remove
a Judge from an office which had already been
abolished and had no existence. The present case,
however, must be adjudged upon the state of the
law as it stood at the date of the trial below, and,
as we have already seen, the Act abolishing the
Court had not then taken effect, and the jurisdiction
of the Judge was challenged alone upon the ground
of his removal from office.
APRIL TERM, 1899. ' 616
The Judgfes* Cases.
The question, then, is whether the Legislature is
clothed with authority, under the Constitution, to re-
move a Judge from oflSce for economic reasons
purely. The authority is claimed to be derived from
Art. VI., Sec. 6, Constitution of 1870, which pro-
vides, viz.: ' 'Judges and Attorneys for the State may
be removed from office by a concurrent vote of both
houses of the General Assembly, each house voting
separately, but two-thirds of the members to which
each house may be entitled must concur in such
vote. The vote shall be determined by ayes and
noes, and the names of the members voting for or
against the Judge or attorney for the State, together
with the cause or causes of removal, shall be en-
tered on the journal of each house, respectively.
The Judge or attorney for the State, against whom
the Legislature may be about to proceed, shall re-
ceive notice thereof, accompanied with copy of causes
alleged for his removal, at least ten days before the
day on which either house of the General Assembly
shall act thereupon."
Article V., Sec. 4, provides for im[:^eachment of
Judges for crimes committed in their official capacity.
In support of the action of the General Assembly,
it is insisted by the Attorney-general (1) that, under
this article and section of the Constitution, Judges
and Attorneys-general may be summarily removed for
any cause that the two houses of the General Assem-
bly may deem sufficient; (2) that the two houses are
exclusive and final Judges of the sufficiency of the
516 ' JACKSON:
The Judges^ Cases.
cause for removal, and the Courts cannot revise or
annul their action; (3) that it is a sufficient cause
for removal that an office is useless and the salary
an unnecessary public burden. These propositions,
thus formulated by the Attorney-general, have been
reinforced with an argument evincing much ability
and research. Antagonizing the views of the Attor-
ney-general, it is insisted that the Legislature had
no power, under Art. VI., Sec. 6, of the Constitution,
to remove a Judge, excepting for causes personal
to the Judge, or his administration of the office, and
that the removal of a Judge upon economic grounds
is void. It is insisted that the removal clause of
the Constitution was designed to cover cases of in-
competency, mental or physical disability, continued
neglect of official duty, misconduct in office, or other
causes which would not constitute impeachable crimes,
but would, nevertheless, be proper grounds for re-
moval. It is further insisted that if the theory of
the State is sound, the constitutional tenure of office
is subject to abbreviation or destruction at the will
of two-thir4s of the members of the Legislature,
exercised for any cause they may deem sufficient for
removal, whether founded on economy, politics, re-
ligion, race, policy, or expediency, thus discrowning
absolutely the independence of the judiciary. On
the other hand, in support of the contention that
the power of removal is unlimited, it is shown from
the journal of the Constitutional Convention of 1870
that three amendments, defining and limiting the
APRIL TERM, 1899. 517
The Judges' Cases.
authority conferred by this section, were successively
defeated.
First, Mr. Gibson proposed an amendment to
define and limit the power of removal in these words
— ''for crime, corruption, habitual drunkenness, in-
competency, or neglect of duty."
Second, Mr. Fentress offered, in lieu of Mr.
Gibson's amendment, the following — *'for official cor-
ruption or for continued neglect of duty or con-
tinued incai)acity of any kind to perform the duties I
of his office."
Third, Mr. Turner proposed the following amend-
ment— '^provided the causes of removal are such as
are prescribed by the general law of the land,
passed by a Legislature prior to the one taking
action thereon."
But the convention rejected all of these amend-
ments, and adopted the section substantially as it
stood in the Constitution of 1834. It is now asked
if this Court will undertake to do what the conven-
tion so emphatically refused to do — instruct the Leg-
islature for what causes removal can lawfully be i
had.
It is insisted that if the convention was willingr
to leave the matter to unlimited legislativ^e dis-
cretion, this Court cannot inquire into the sufficiency
of the cause of removal or the regularity of the
proceedings. It is insisted the Courts can no more
inquire into the existence and sufficiency of the
causes or reasons that prompted the Legislature to
618 JACKSON :
The Judges* Cases.
adopt a removal resolution than they can inquire
into the reasons for the passage of statutes, or the
levy of taxes or the appropriation of money. It
is insisted the power of removal, as therein de-
clared, is absolute and unconditional, and that the
language indicates that the whole matter was left to
legislative discretion.
We cannot concur in this construction of the
removal clause of the Constitution. The fact that
several amendments, specifying the particular causes
for which the Legislature would be authorized to
remove, were successively rejected, does not, in our
judgment, demonstrate that the convention thereby
intended to invest the Legislature with an unlimited
power of removal. As well said by able coun-
sel: <<The authors of these amendments may have
believed it best to put beyond any question that the
cause of removal should be confined to the official
or personal conduct of the Judge, and that this
desire was met by the counter opinion that no other
construction than this could be placed upon the
removal section, and that, therefore, the amendments
were needless and superfluous
''Again, there is another reason showing it was
judicious to reject said amendments. Causes personal
to the incumbent or relating to the conduct of his
ofllice might assume many phases, and, therefore, it
would be unwise to undertake to define the same.
The enumeration of certain causes should have ex-
cluded any legislative power to act upon other causes
APRIL TERM, 1899. 619
The Judges* Cases.
not expressly designated. An examination of the
causes of removal might partially defeat the object
of the removal clause. For this reason it was judi-
cious to use general terms, so as to include the
intended causes of removal in all possible phases."
Mr. Cooley, in his works on Constitutional Limi-
tations (2d Ed.), p. 65, says: ''When the inquiry is
directed to ascertaining the mischief designed to be
remedied or the purpose sought to be accomplished
by a particular provision, it may be proper to ex-
amine the proceedings of the convention which framed
the instrument. Where the proceedings clearly point
out the purpose of the provision, the aid will be
valuable and satisfactory; but where the question is
one of abstract meaning, it will be difficult to de-
rive from this source much reliable assistance in in-
terpretation. Every member of such a convention
acts upon such motives and reasons as influence him
personally, and the motions and debates do not nec-
essarily indicate the purpose of a majority of the
convention in adopting a particular clause. It is
quite possible for a clause to appear so clear and
unambiguous to the members of the convention as
to require neither discussion nor illustration, and the
few remarks made concerning it in the convention
might have a plain tendency to lead directly away
from the meaning in the minds of the majority. It
is equally possible for a part of the members to
accept a clause in one sense and a part in another.
And even if we were certain we had attained the
520 JACKSON :
The Judges' Cases.
meaning of the convention, it is by no means to be
allowed a controlling force, especially if that mean-
ing appears not to be the one which the words
would most naturally and obviously convey. For,
as the Constitution does not derive its force from
the convention which framed, but from the people
who ratified it, the intent to be arrived at is that
of the people, and it is not to be supposed that
they have looked for any dark or abstruse meaning
in the words employed, but rather that they have
accepted them in the sense most obvious to the com-
mon understanding, and ratified the instrument on
the belief that that was the sense designed to be
conveyed. These proceedings (the journal) are less
conclusive of the proper construction of the instru-
ment than are legislative proceedings of the proper
construction of a statute, since in the latter case it
is the intent of the Legislature we seek, while in
the former we are endeavoring to arrive at the in-
tent of the people through the discussions and de-
liberations of their representatives." We have an il-
lustration of this in the adoption by the convention
of 1870 of that clause which provides, viz., ^'No
corporation shall be created or its powers increased
or diminished by special laws," etc. The journal
of the convention shows that an amendment to limit
the provisions of this section to private corporations
and exclude municipal corporations was rejected. Yet
this Court held that, looking to the scope and pur-
pose of the entire section, private corporations were
APRIL TERM, 1899. 521
The Judges' Cases.
alone contemplated, and the clause did not apply to
municipal corporations. State v. Wilson^ 12 Lea, 259.
We think any plain man looking at the force of
this removal clause, and reading therein that the
cause or causes of removal shall be entered on the
jouraal of each house respectively, and that the
Judge against whom the Legislature ma}'^ be about
to proceed shall receive notice thereof, together with
a copy of the causes preferred for his removal, at
least ten days before the day on which either house
of the General Assembly shall act thereon, would
say at once that the clause in question contemplated
an investigation of some cause touching the personal
or official conduct of the Judge. If the power of
removal is unlimited, why provide for service upon
the Judge of a copy of the causes alleged for re-
moval at least ten days before action, unless it was to
give him an opportunity to prepare for trial, and why
provide for a trial of an economic question^ This
would present a curious anomaly in legislative proceed-
ings— a trial of an issue to determine whether the
services of the Judge are needed. In our opinion,
if economic reasons had been in the minds of the
framers of the Constitution, other words than a re-
moval for "cause" and on notice would have been
used. The word cause used in the removal clause
means legal cause. It contemplates a charge, a
trial, and a judgment of removal upon cause. State
V. Hewitt, 44 Am. St. Repts., 793, 794.
In the case of the State v. The City of DuJuth^
622 JACKSON :
The Judges* Cases.
39 Am. St. Repts., 596, 598, the validity of an
official removal was involved. The city ordinance
provided **that any member may be removed by a
vote of two-thirds of all members of the Council,
for sufficient cause, on charges and notice.'' The
Court said, viz.: <^ Cause or sufficient cause means
legal cause, and not any cause which the Council
may think sufficient. The case must be one which
specially relates to . and affects the administration of
the office, and must be restricted to something of a
substantial nature, distinctly affecting the rights and
interests of the public. The cause must be one
touching the qualifications of the officer or the per-
formance of his duties, showing that he is not a fit
or proper person to hold the office. An attempt
to remove an officer for any cause not affecting his
competency or fitness, would be an excess of power
and equivalent to an arbitrary removal. In the
absence of * any statutory specification, the sufficiency
of the cause should be determined with reference to
the character of the office and qualifications neces-
sary to fill it." HawJcina v. Kercheval^ 10 Lea, 535.
Where the removal is to be made for cause on
notice, and no specific cause is defined, the cause of
removal is to be construed as relating to the per-
son of the official and his administration of the
office. See Throop Pub., Sec. 367; 1 Dillon (3d
Ed.), Sec. 251.
*' Removal for cause" is defined in Anderson's
Law Dictionary as follows: »< Removal for cause im-
APRIL TERM, 1899. 623
The Judges* Cases.
ports that a reason exists, personal to the indi-
vidual, which the law and sound public opinion
recognize as good cause for his no longer occupying
the place. Implies some dereliction or general neg-
lect of duty, some incapacity to perform the duties
of the post, or some delinquency affecting the in-
cumbent's general character or fitness for office.
The power to remove an officer * for cause ' can
be executed only for just causes after he has had
an opportunity to defend." The following authori-
ties are cited to support definition: People v. NichoU^
19 Hun, 448 (1879); PeopU v. Fire Cmm., 72 N.
Y., 449; ITaighty v. Dove^ 39 N. J. L., 14; Rex
V. Richardson. 1 Burr, 617.
"Where an officer is appointed or elected for a
definite term, he cannot be removed but for cause,
by which is meant charges, notice, and trial." 67
Mo. App., 203.
'*The statute of New York confers upon com-
missioners of New York city the right to remove
certain officers at pleasure, with this limitation — that
such power of removal "cannot be exercised in re-
spect to any regular clerk or head of a bureau
until he has been informed of the cause of the pro-
posed removal, and has had an opportunity of mak-
ing an explanation." It also provides that a record
of the true causes of removal shall be entered of
record in the department, and a statement thereof
shall be filed. Under this authority, the commis-
sioners undertook to remove a certain officer who
524: JACKSON :
The Judges' Cases.
came within the provisions above set out, and the
Court of Appeals of New York, through Allen, J.,
said: *'The party against whom the proceeding is
taken must be informed of the cause of the pro
I)osed removal, and be allowed an opportunity of
explanation. This necessarily implies that the cause
must- be some dereliction or general neglect of duty,
or incapacity to perform the duties, or some delin-
quency affecting his general character ^and his fitness
for the office. The cause assigned should be per-
sonal to himself and implying an unfitness for the
place." People v. Fire ConinuHaionerH^ 72 N. Y.,
448, 441).
Another Act of the Legislature confers the fol-
lowing power: **The heads of all departments, and
all other persons whose appointment is in this sec-
tion provided for, may be removed by the Mayor
for cause, and after opportunity to be heard, sub-
ject, however, before such removal shall take effect,
to the approval of the Governor, expressed in writ-
ing."
The Court, in reviewing a removal which had
been made under above quoted power, said: '* Be-
fore an officer can be removed thereunder, he must
have definite and specific copy of charges, reasonable
time to answer, the right to hear and examine the
evidence against him, to offer testimony himself, and
to have aid and advice of counsel during the con-
duct of the examination. The cause must be found
in some act of commission or omission by the officer
APRIL TERM, 1899. 625
The Judges' Cases.
in regard to his duty or affecting hivS general char-
acter, which the law and a sound public opinion
pronounce to be sufficient to justify a forfeiture
by the officer having the power of removal.
People V. Nichoh^ 19 Ilun (N. Y.), 441 et seq.
This case also explicitly recognizes the power of
the judiciary to review the action of the Governor,
as well as that of the Mayor in such matters. It
also discusses at length the method of procedure
which shall te followed in removinof officers where
a Constitution or act of the Legislature confers
such power without prescribing the procedure, giv-
ing to the party whose rights are to be affected
all the privileges he would have under the common
law when his rights are souo^ht to be interfered
with." Other authorities on the point under discus-
sion are: Ilaiglit v. Lom^ 39 N. J. L., 14; 32
Mich., 255; Edimn v. Hayden, 20 Wis., 932; State
V. Mc Carry, 21 Wis., 498; State v. Waterton, 9
Wis., 271.
In the last case above cited, the following lan-
guage is used: <'What is *due cause' for the re-
moval of an officer is a question of law to be de-
termined by the judicial department, and in the ab-
sence of statutory provision as to what shall consti-
tute such cause, should be determined with reference
to the nature and character of the office and quali-
fications necessary to till it."
Removal for personal causes seems also to have
been the construction of this clause by an eminent
626 JACKSON :
The Judgfes' Cases.
member of the convention, who was afterward Attor-
ney-general of the State, and who argued the case of
Coleman^ ex rel.^ v. Campbell^ decided by this
Court in 1875, reported in 3d Shannon's Tennessee
Cases. In his brief, still on file in that case, he
said, viz.: "Here we have the Constitution with ex-
press provisions for the independence of the judiciary.
What are those provisions? (1) A fixed salary; (2)
a permanent Supreme Court, not subject to inter-
ference by legislative action, independence in tho
highest degree in the Court of last resort; (3) ex-
emption from removal from office for personal
reasons, except by a two-thirds vote of both houses."
He further says: *'The Constitution itself provides
for the removal of Judges on personal grounds, but
it throws restrictions around these by requiring a
two-thirds vote. It also, in one view, provides for
the destruction of the Courts (inferior Courts), but
as this involves not personal consideration merely
but general matters of public policy, as it involves
the interests of the people, their rights to their
Courts or their support of the burden of them, it
no longer throws this protection, which a man un-
supported requires, but trusts him to the common
cause he makes with his people."
While this section of the Constitution was not
necessarily involved, and hence was not construed by
the majority of the Court in Colenian v. Campbdly
3 Shannon, 355, nor in Ilalsey v. Gaines^ 2 Lea,
yet Judge Freeman, in his dissenting opinions in
APRIL TERM, 1899. 627
The Judges' Cases.
those cases, expressed his views of the meaning of
this section. In the former case he said, viz.:
'*The other mode is found in Art. VI., Sec. 6,
which provides for .removal by a concurrent vote of
both houses, each house voting separately; two- thirds
of the members to which each house may be enti-
tled must concur in this vote. This is not based
on crime in his official capacity (as provided in cases
of impeachment), but the right may be exercised
for other causes, but not, we take it, without
causes or at arbitrary discretion of the body, for
it is provided the cause or causes of removal shall
be entered on the journal of each house, respect-
ively." Again, he says: **In any case for removal
the mode by which it shall be done is definitely
pointed out in the Constitution, with its proper
safeguards and restrictions, involving a trial or
hearing, and the principle of responsibility on the
Legislature for the act, as a check upon improper
action." Similar views are expressed by Judge
Freeman in his dissent in Ilalsey v. Gaines^ 2 Lea.
The General Assembly, in the removal of Judge
Taylor, proceeded upon the idea set forth in the
report of the Redistricting Committee, that the pro-
ceeding was not, in its opinion, a proper case to be
submitted on proof, and that the matter was not
susceptible of proof, and was a question which ad-
dressed itself to the judgment of the Legislature, and
the Judge had no constitutional right to be heard.
We entirely agree that if the Legislature had the
528 JACKSON :
The Judg-es' Cases.
right to remove the Judge upon economic grounds,
then an issue and trial to determine whether the
State needed the services of the Judge would have
been absurd. Questions of policy and economy are
matters addressed exclusively to the lawmaking
power, and it would seem ridiculous to argue that
the Judge is guaranteed a constitutional right to be
heard on such a subject. But it is very plain that
this section of the Constitution does guarantee him
a right to be heard on the particular cause alleged
for removal, and an opportunity to defend himself
against the attack, b}'^ requiring at least ten days' no-
tice of the intended action, with a copy of the cause
assigned for removal. It is very evident that eco-
nomic reasons could not have been within the con-
templation of the Legislature, and the cause of
removal must relate to the personal conduct of the
Judge or his administration of the office. Again,
if the power of removal conferred by this section
is arbitrary and unlimited, a Judge might be re-
moved on account of his religion, his politics, his
race, or because he had declared unconstitutional a
particular enactment of the Legislature. Such a
construction would be monstrous, and wholly abhor-
rent to fundamental ideas of justice and judicial
independence. The design of the framers of the
Constitution was to create three departments, execu-
tive, legislative, and judicial, which should be co-
ordinate and wholly independent in the exercise of
their appropriate functions. ' ' The Legislature, though
APRIL TERM, 1899. 529
The Judges* Cases.
possessing a larger share of power, no more repre-
sents the sovereignty of the people than either of
the other departments. It derives its authority from
the same high source." Bailey v. Philadelphia H.
Co., 4 Harr, 402; Whittingion v. Polk, 1 H. & J.,
244. Said Thomas T. Marshall, viz. : ' * We have
incorporated certain permanent and eternal principles
in written constitutions, and erected an independent
judiciary as the depository and interpreter, the
guardian and the priest of these . articles of free-
dom." It has been said that of all the contrivances
of human wisdom this invention of an independent
judiciary affords the surest guarantee and the amplest
safeguard to personal liberty and the rights of in-
dividuals.
If the Legislature has such power as is contended
for in the construction of this clause of the Con-
stitution, the judiciary would no longer be an inde-
pendent and co-ordinate branch of the government,
but a mere servile dependency. But it is said, con-
ceding the Legislature had no power to remove for
the cause assigned, its action is nevertheless final and
not subject to review by the judiciary. If this is
so, the distribution of the powers of government and
vesting their exercise in separate departments, would
be an idle ceremony. It is very true that no de-
partment can control or dictate to another depart-
ment when acting within its appropriate sphere.
People V. JBissell, 68 Am. Dec., 591; Wi^ght v.
Wright, 56 Am. Dec, 723.
18 P— 34
630 JACKSON :
The Judges* Gases.
Each department has exchisive cognizance of the
matters within its respective jurisdiction, and when
acting within the authority of each, its action must be
final and supreme. 6 Am. & Eng. Enc. L., 1008,
note.
These principles are axiomatic, and need no cita-
tion of authority to support them, but the question
remains. Who is to decide when a particular depart-
ment is acting within the sphere of its authority?
Mr. Webster, in his great speech on the independ-
ence of the judicary, said, viz.: «'The Constitution
being the supreme law, it follows, of course, that any
act of the Legislature contrary to that law must be
void. But who shall decide this question? - Shall
the Legislature itself decide it? If so, then the
Constitution ceases to be a legal, and becomes
only a moral, restraint upon the Legislature. If
they, and they only, are to judge whether their
acts be conformable to the Constitution, then the
Constitution is admonitory and advisory only, and
not legally binding, because, if the construction of it
rests wholly with them, then discretion in particular
cases may be in favor of very dangerous and er-
roneous constructions. Hence the Courts of Law nec-
essarily, when the case 'arises, must decide on the
validity of particular acts."
We are constrained, therefore, to hold that the
Legislature, in removing Judge Taylor from office
for the reason assigned, transcended its constitutional
authority, and such action is therefore void.
APRIL TERM, 1899. 531
The Judges^ Cases.
Chief Justice Snodgrass, Judges Caldwell and
Beard concur, Judge Wilkes dissents.
It is insisted, however, that the General As-
sembly, by an Act passed at the same session — to
wit, April 6, 1899 — abolished the Criminal Court of
the Eleventh Judicial Circuit, and repealed the Act
of 1896, which created the same. As already
observed, this Act did not take effect until thirty
days after the adjournment of the Legislature, and
it had not taken effect at the date of the proceed-
ings in this case, nor at the date of the adoption
of the removal resolution herein discussed. The
question, then, of the abolition of the Court does
not arise on this record. But since counsel have
presented the question and earnestly ask the Court's
opinion touching it, thereby to avoid further litiga-
tion, we proceed to express our views. The Act
creating the Criminal Court of the Eleventh Judicial
Circuit was passed in 1895. That Act was repealed
by an Act passed April 6, 1899, and the Criminal
Court of the Eleventh Judicial Circuit was abolished.
The Act provided that it should take effect thirty
days from and after the final adjournment of the
Greneral Assembly. At the same session another
bill was passed providing that the jurisdiction of
said Criminal Circuit should be exercised by the
Circuit Courts of said counties. Said Act also de-
tached Benton County from the Eleventh Judicial Civil
Circuit and attached it to the Twelfth Circuit. It
was further provided that the Judge of the Eleventh
632 JACKSON :
The Judges' Cases.
Civil Judicial Circuit should have civil jurisdiction
iu Madison County, and then enacted, viz.: ^<And
the said county of Madison is hereby attached to
and also made a part of the Eighteenth Judicial
Circuit of the State, and the Judge of said Circuit
shall have exclusive general common law and statu-
tory jurisdiction in all cases of a criminal character
arising in said county of Madison, but shall have
no civil jurisdiction whatever." Said bill further
provided, viz. t ''That no case, proceeding or process
shall . abate by reason of any of the changes here-
inbefore made," etc. This Act also provided that it
should take effect thirty days after the final adjourn-
ment of the Legislature.
First, it is insisted by learned counsel representing
Judge Taylor that the Act of 1899, repealing the
Act of 1895, which created the Eleventh Judicial
Criminal Circuit and abolished the Court, is uncon-
stitutional and void.
We are constrained to hold, however, that this
question is not primcB impremonis in this State, but
has, on two occasions, been solemnly and delib-
erately determined by this Court contrariwise to the
present contention. These adjudications have stood
for a quarter of a century, and daring that period
the Legislature has repeiatedly exercised the power
to abolish Courts of its own creation and the power
has been unchallenged. The rule of stare decisis is
peculiarly applicable in the construction of written
constitutions. Says Mr. Cooley, viz.: *'A cardinal
I
APRIL TERM, 1899. 533
The Judges^ Cases.
rale in dealing with written instruments is that they
are to receive an unvarying interpretation, and that
their practical construction is to be uniform. A
Constitution is not to be made to mean one thing
at one time and another at some subsequent time,
when the circumstances may have so changed as,
perhaps, to make a different rule in the case seem
desirable. A principal share of the benefit expected
from written constitutions would be lost if the rules
they established were so flexible as to bend to cir-
cumstances or be modified by public opinion."
Constitutional Limitations (2d Ed.), star page, 52.
In the case of the St(de^ ex reL Coleman^ v. Camp-
hell^ decided by this Court at Jackson, in 1875, re-
ported in 3d Shannon's Tennessee Cases, 355, the
question presented was in respect of the constitutional-
ity of the Act of March 15, 1875, entitled **An Act
to abolish the Second Circuit Court and the Second
Chancery Court of Shelby County." The Constitu-
tion of 1870, Art. VI., Sec. 1, provides, viz.:
*'The judicial power of this State shall be vested in
one Supreme Court, and in such Circuit, Chancery,
and other inferior Courts as the Legislature may
from time to time ordain and establish;" provides
**that Judges of the Circuit and Chancery Courts,
and other inferior Courts, shall be elected by the
qualified voters of the district to which they are to
be assigned. . . . His term of service shall
be eight years." Section 7 provides, viz.: "The
Judges of the Supreme and inferior Courts shall, at
634 JACKSON :
The Judges' Gases.
stated terms, receive a compensation for their serv-
ices, to be ascertained by law, which shall not be
increased or diminished during the time for which
they are elected."
Construing these sections of the Constitution, this
Court held: (1) That the Legislature bsB Mm nanatitn-
tional power to abolish particular Circuit and Chan-
cery Courts, and to require the papers and records
therein to be transferred to other Courts, and the
pending causes to be heard and determined in the
Courts to which they are transferred. The power
to ordain and establish from time to time Circuit
and Chancery Courts includes the power to abolish
existing Courts, and to increase and diminish the
number. (2) The Judge's right to his full term and
his full salary is not dependent alone upon his good
conduct, but also upon the contingency that the
Legislature may for the public good, in ordaining
and establishing the Courts from time to time, con-
sider his office unnecessary and abolish it. The
exercise of this power by the Legislature is neither
such as interferes with the independence of the
Judge or with his tenure of office in such manner
as can be complained of. When the Court or
Courts over which a Judge presides is abolished,
the office of the Judge is extinguished and his
salary ceases. (3) It is provided there shall be but
one Supreme Court; the number of its Judges is
fixed and the places of its sessions are designated.
These provisions show that it is the direct creature
APRIL TERM, 1899. 535
The Judges' Gases.
of the Constitution and subject to no invasion by the
Legislature.
Judge Nicholson, among other things, said, viz.:
''But it is not necessary that wie should rely upon
the authorities, conclusive as they are, to sustain
the construction of the Constitution, so repeatedly
acted upon by the Legislature, and so long acqui-
esced in by the people and the Courts. Upon a
fair view of the subject intended to be accomplished,
and the circumstances under which the language was
used in the Constitution, we are of opinion it will
properly bear the construction placed upon it by the
Legislature. The object was to provide a system of
inferior Courts, which would secure to all the people
of the State the benefits of a sure and economical
administration of justice through all time. The State
was composed of many citizens, and its population
and material interests subject to great changes. These
fluctuations would necessarily require changes, from
time to time, in. any system of Courts that might
be adopted. Hence it was not deemed proper by
the Convention of 1870, to fix, permanently, by
Constitutional recognition, the systems of inferior
Courts then in operation, although they embrace the
entire State. For the purpose of providing for
future contingencies and exigencies, they were con-
tent to leave the ordaining and establishing of in-
ferior Courts from time to time, to the discretion
of the Legislature, with the single restriction as to
continuance of the Circuit and Chancery Courts. It
536 JACKSON :
The Judges* Gases.
IB legitimate business of the Legislature to determine
how many Courts are necessary, and how the vari-
ous circuits and districts should be arranged and
formed. It was proper for the representatives of
the people, session after session, to have the power
to provide such changes in the circuits and districts,
as should be shown by experience and observation
to be necessary for the public good. This was the
power conceded to the Legislature by the Conven-
tion when it was provided that they should ordain
and establish such Circuit, Chancery, and other in-
ferior Courts, as they should deem necessary from
time to time. The ordaining and establishing of
such Courts was to be the business of the Legisla-
ture through all time. It was impossible that the
object to be accomplished could be effectuated by
simply adding to the number of circuits or districts.
Changes would or might become necessary, which
involved the necessity of abolishing existing circuits
or districts in ordaining and establishing others, or
in reducing the number, if experience should prove
that the public good required a reduction. The
power to abolish for the purpose of effecting these
objects was, therefore, necessarily implied. It was
not intended that the power to abolish districts
should be exercised with a view of depriving any
portion* .of the people of Courts, but as a means of
so ordaining and establishing the Courts as would
better promote the public good. It is proper to add
that any attempt of the Legislature to exercise this
APRIL TERM, 1899. 537
The Judges' Cases.
restricted power of abolishing existing Courts, for
the purpose of depriving the people of the requisite
number and character of Courts, would be an abuse
of power which we have no right to anticipate,
and which was not anticipated by the Constitution.
Against such abuse of Legislative power the ballot
box is the egitimate remedy."
It has no doubt been upon this view of the
meaning of the power to ''ordain and establish"
Courts, that the various Acts of the Legislature
have been passed, as well as the Act now under
consideration, and we are satisfied that the construc-
tion so acted upon is correct.
We have not been able to discover in the Act
in question the danger to the independence of the
judicial department of the government which has
been dwelt upon in argument with such earnest elo-
quence, nor do we see in it any evidence that the
Legislature resorted to this as an indirect mode of
removing obnoxious Judges. It appears to us to be
the exercise of a legitimate power by the Legisla-
ture, under the conviction that two of the Courts
in Memphis were unnecessary for the dispatch of the
public business, and that, therefore, for the promotion
of the public good they were abolished as useless,
and their work assigned to two other existing Courts.
We have no reason to suppose that the two Judges
whose ofSces depended upon the continuance of the
former law, were in any way obnoxious to the Leg-
islature or the people, but were regarded as entirely
688 JACKSON :
The Judges* Gases.
worthy of their positions. The Act cannot, therefore,
be regarded as an abuse of the power of removal
for reasons personal to the judges, 'nor do we see
how Jhe xfamger of such an abuse of power here-
after could be in any way guarded against or pre-
vented by that construction of the Constitution which
would render the Act of the Legislature null and
void.
We have not deemed it necessary to discuss the
bearing upon the case of those clauses of the Con-
stitution which provide for the salaries and the
terms of service of the Judges, for the reason that
we consider it too clear for argument, that if the
law abolishing the Courts is valid, the offices and
their incumbents, necessarily cease, and, of course,
along with them, their salaries.
In our view of the Constitution, the Judge's
right to his full term and his full salary is not de-
pendent alone upon his good conduct, but also upon
the contingency that the Liegislature may, for the
public good, in ordaining and establishing the Courts
from time to time, consider his office unnecessary
and abolish it. The exercise of this power by the
Legislature is neither such as interferes with the
independence of the Judge or with his tenure of
office, as can be properly complained of. The power
may possibly be exercised without good cause, but
in such case the Courts can furnish no remedy.
The opinion in the case last cited was delivered
by Chief Justice Nicholson, who was a member of
APRIL TERM, 1899. 589
The Jadges^ Cases.
the Constitutional Convention of 1870, and an active
participant in its deliberations. Judge Freeman de-
livered an able dissenting opinion. These two opin-
ions demonstrate that the questions now made against
the validity of this legislation were presented and
exhaustively considered by the Court. But ^im 4s
*nat iKfl. In ^^879 tills question was again elabo-
rately considered by this Court in the case of Hal-
Bey V. Oaines^ 2 Lea, 316, and the ruling in the
Coleman case reaffirmed. Judge McFarland delivered
the opinion of the Court in the Halsey case. In
the latter case it appeared that Judge BLalsey,
whose Court had been abolished, had applied to the
Comptroller for a warrant for his salary, insisting
upon his right to have the same paid until the end
of his term, notwithstanding his Court had been
abolished. The warrant was refused, and thereupon
proceedings were commenced by mandamus to enforce
its payment. <<Much of the argument," said Judge
McFarland, << which has been pressed upon us in
support of the claim, assumes that the former rul-
ings of this Court as to the validity of the Act
abolishing the Court is erroneous. . . The Act
was solemnly and in terms adjudged constitutional.
It is true the relator was not a party to those
proceedings, nor was he a necessary party.
The adjudication is nevertheless conclusive. ... In
this view it would seem unnecessary to re-examine
the grounds of our former decision, but entertaining,
as we do, no doubt of its correctness, we produce
540 JACKSON :
The Judges^ Cases.
briefly the substance of the reasoning of Chief Jus-
tice Nicholson, to which we can add but little."
Among other things Judge McFarland said, viz.:
* ' But it is argued that although by the foregoing
construction the Legislature may have power to
abolish Courts when they become unnecessary —
that the abolition of the Court can only take effect
at the expiration of the Judge's term, otherwise we
defeat that clause of the Constitution which saya
that the Judge's term shall be eight years. If the
framers of the Constitution intended to leave it to
the Legislature to establish and abolish Courts as
the public necessities demanded, this was not qualified
or limited by the clause as to the Judge's term of
office. To so hold would be to allow the clause as
to the length of the Judge's term to overthrow
the other clause, whereas we construe the provision
that the Judge's term shall be eight years to be
upon the assumption that the Court continues to ex-
ist, otherwise we should have to hold that the
Court must continue, although declared unnecessary
and abolished by the Legislature, simply to secure
to the Judge his full term and salary."
Again, said Judge McFarland, '*It is argued that
the Act abolishing the Court did not abolish the
judgeship — that the relator might still be judge
although his Court was abolished. Our Constitution
does not recognize a judgeship except as the Judge
is the incumbent of a Court or Courts which he is
commissioned to hold. We have no supernumeraries^
APRIL TERM, 1899. 541
The Judg^es' Cases.
etc. If the law abolishing the Courts is valid, the
offices and their incumbents necessarily cease, and,
of course, along with them their salaries.
To dispense with an unnecessary Court is not to
change the term of judgeship, nor is it to affect the
guarantees of the Constitution as to his salary, nor
does it remove the Judge from office. The office
no longer exists, and, of course, a removal from an
office that has no existence is not a conceivable prop-
osition." Judge Freeman again dissented from
the views of the majority, and filed an opinion in
which his ojections to the constitutionality of the
Act are set forth with great vigor and earnestness.
It is obvious that in order to meet the exigen-
cies of the present case we will be constrained to
overrule two opinions of this Court, delivered by
two of its ablest jurists, in which the very ques-
tions now presented were solemnly and deliberately
adjudicated.
Lord Cairnee wisely said: <<I think that with
regard to statutes it is desirable not so much that
the principle of the decision should be capable at
all times of justification, as that the law should be
settled, and should, when once settled, be maintained
without any danger of vascillation or uncertainty."
Commissioners v. Harrison^ L. R., 7 H. L., 9.
<< Where a question has been well considered,"
says Judge Harris, ^'and deliberately determined,
whatever may the views of the Court before which
the question is again brought, had it been res nova,
542 JACKSON :
The Judges* Cases.
it is not at liberty to disturb or unsettle such de-
cision, unless impelled by the most cogent reasons."
Baker v. Lorillard^ 4 N. Y., 261.
If the law was manifestly misunderstood or misap-
plied in the case decided, its primacy as a precedent
may be overthrown. Those who antagonize the con-
struction announced in the two cases decided by this
Court cannot claim more than that the constitutional
provisions involved are of doubtful interpretation.
That doubt has been resolved against their contention
in two decisions of this Court, and upon every prin-
ciple, looking to certainty and stability in the admin-
istration of the law, those rulings should now be fol-
lowed. They have been cited and followed in other
jurisdictions, while the Pennsylvania and Indiana cases,
maintaining the adverse view, have been discarded.
Alkman v. Edward^^ 30 L. R. A., decided by the
Kansas Supreme Court, in 1895; Van Buren Co.
Supervisors v. Mattox^ 30 Ark., 666; Grazier v. Zy-
ons^ 72 Iowa, 401.
In Alkman v. Edwards the Court said, viz.:
*' While the independence and integrity of Courts in
the exercise of all the powers confided in them by
the Constitution should be firmly maintained, jeal-
ousy of encroachments on judicial power must not
blind us to the just power of the Legislature in
determining within constitutional limits the number
of Courts required by the public exigencies, and the
kind and extent of jurisdiction and functions to be
discharged by each. We think," said that Court,
APRIL TERM, 1899. 643
The Judges* Cases.
^'the Legislature has the power to abolish as well
as create, to diminish as well as to increase, the
number of judicial districts." It should be observed
that the constitutional provisions construed in that
case were entirely similar to those involved herein.
The provisions of the Federal Constitution on this
subject are almost identical with the Constitution of
this State. The late Justice Miller, in his work on
the Constitution of the United States, wrote, viz.:
''The Supreme Court, once in existence, cannot be
abolished, because its foundation is not in an Act
of the legislative department of the government, but
in the Constitution of the United States.
It cannot be abolished, nor its Judges legislated out
of existence, although it has been forcibly urged,
and probably with truth, that all the other Courts
can, by legislative Act, be abolished and their
powers conferred on other Courts or subdivided in
different modes." This is the opinion of one of
the profoundest jurists that ever sat upon the Su-
preme Bench of the United States. In this con-
nection it may be remarked that, in 1802, Congress
repealed an Act under which sixteen Federal Judges
had been appointed and commissioned during good
behavior. It is true Story and Tucker, in their
commentaries, express the opinion that the repealing
Act was unconstitutional, and that a majority of all
the ablest lawyers of that day were of the same
opinion. But the best answer to this opinion of
Mr. Story is that the authority of Congress to pass
544 JACKSON :
The Judges* Cases.
the repealing statute was not challenged in the
Courts, and the Judges themselves acquiesced in their
displacement. It is strange that an Act of Con-
gress so palpably unconstitutional was not assailed
if that was the opinion of the majority of all the
ablest lawyers of that day.
It has been argued that the Coleman and Halsey
cases were overruled by the later case of St<Ue^ ex
rd.^ V. Leonard^ 86 Tennessee. The cases were
wholly dissimilar. The question in the Leonard
case, as stated by the Court, was whether the Leg-
islature has the power to terminate the office of a
Judge elected under a constitutional law and for a
constitutional term of eight years, within that term,
leaving the Court with its jurisdiction in existence
and unimpaired, by simply devolving the duties of
the office upon another official, namely, the Chair-
man of the County Court." In HaUey v. Gaines j
2 Lea, Judge McFarland had argued this could not
be done. <*We concede," said he, <<that legisla-
tion which indirectly aims to legislate the Judge out
of office before his constitutional term expires,
under the guise of changing the circuit, or other-
wise, would be unconstitutional and void." Judge
Snodgrass, in his opinion in the Leonard case, dis-
cusses the Coleman and Halsey cases, and says ^^it
is sufficient to say that the case here presents no
such question as that determined there" (in those
cases).
The cases of Keys v. Mason^ 2 Sneed, 6; Cross v.v
APRIL TERM, 1899. 545
The Judg'es' Cases.
Mercer^ 16 Lea, 489, relating to the constitutional
tenure of Justices of the Peace; Pmcers v. Hurst ^ 2
Hum., 24, relating to the constitutional office of
Register; Pope v. Phifer^ 3 Heis., holding the quar-
terly CJounty Court a constitutional Court, do not,
in our judgment, bear the remotest kindred, either
by affinity or consanguinity, to the cases now under
consideration. They are not even, mentioned in the
majority or minority opinion in the Coleman-Halsey
cases, nor in the Leonard case. The cause of State
V. C ummings^ 14 Pickle, in which we held the
constitutional office of Sheriff inviolable, is not at
all analogous to this case. Art. VII., Sec. 1, Con-
stitution of 1870, provides: '< There shall be elected
in each county one Sheriff, one Trustee, one Regis-
ter," etc. This provision is similar to the other
clause providing for one Supreme Court. How dif-
ferent the other clause, empowering the Legislature
from time to time to ordain and establish Circuit,
Chanuary, and other inferior Courts! One is estab-
lished by the Constitution and the others are
established by the Legislature.
Another objection to the constitutionality of this
Act remains to be noticed. It is based upon Art.
VI., Sec. 4 of the Constitution, which provides that
<'the Judges shall be elected by the qualified voters
of the district or circuit to which they are to be as-
signed." As already seen, the Legislature, in this in-
stance of the abolishino: of the Eleventh Criminal Cir-
cuit, directed that the Circuit Judge of the respective
18 P— 35
646 JACKSON :
The Jadg^* Cases.
counties formerly constituting the Eleventh Criminal
Circuit should have and exercise criminal jurisdiction
in said counties, except that Benton County should
be detached from the Eleventh Civil Circuit and at-
tached to the Twelfth Civil Circuit, and that Madi-
son County, which was embraced in the Eleventh
Civil and Criminal Circuits, should be attached to
the Eighteenth Judicial Circuit, so far as jurisdic-
tion in respect of criminal cases arising in said
county was concerned, but excluding from the juris-
diction of said Court all civil causes arising in said
county. The objection to the Act is that the Crimi-
nal Court of Madison County and the Circuit Court
of Benton County are to be held by Judges who
were not elected by the qualified voters of said
counties.
The question now sought to be made arises upon
the Act which attaches Benton and Madison Counties
to circuits whose Judges the qualified voters of
said counties had no voice in electing. If this
question is fairly before us, the two Acts, being
component parts of one plan to be considered and
construed together, we should say, first, that the
constitutional provision in question was designed to
determine who should be electors of Judges — *'They
are to be elected by the qualified voters of the dis-
trict or circuit to which they may be assigned."
It does not mean that a Judge may not exer-
cise civil or criminal jurisdiction in a county unless
he has been elected by the qualified voters of that
APRIL TERM, 1899. 547
The Judges' Cases.
county, for that would prevent the interchange of
Judges and Chancellors. Morover, the Act of the
Legislature authorizing the Governor to make pro
tempore appointments of Judges to fill vacancies until
the next biennial election would also contravene this
provision of the Constitution.
In State^ ex rel.^ v. GUnn^ 7 Heis., 472, it was
remarked that this clause of the Constitution, pro-
viding for election of Juges by the qualified voters
of the district or circuit, has not been supposed
to take, away the power of the Governor conferred
by the Legislature to fill a temporary vacancy.
The Constitution, Art. VI., Sec. 17, provides,
viz.: **No county office created by the Legisla-
ture shall be filled otherwise than by the
people." It was held this provision relates only to
the mode of 611ing a temporary vacancy. State v.
Glenn^ 7 Heis., 472. So we think the present
arrangement is in the nature of filling a temporary
vacancy in the Circuit Courts of said counties.
Judicial Circuit Judges were elected by the qualified
voters of their respective circuits. The fact that
Benton and Madison Counties have been attached to
these circuits since the Judges were elected cannot
affect their election or show they were not elected
by the qualified voters of the circuit. It is trua
they were not elected by the qualified voters of
Benton or Madison Counties, but they were them-
selves elected by the qualified voters of their
respective circuits. There has been no election for
548 JACKSON :
The Judg'es* Cases.
Judges since the new coanties were attached, but
when there is an election the qualified voters of
Baid new counties will of course participate.
The Constitution, moreover, does not provide that
the election shall be by the qualified voters of the
respective counties, but by the qualified voters of
the district or circuit. By § 6708 Shannon's Code,
^Uhe Judges and Chancellors are Judges and Chan-
cellors for the State at large," etc. The con-
struction now sought to be placed upon this section
of the Constitution would revolutionize and destroy
our whole system. The Legislature has, from time
to time, changed judicial circuits by adding and de-
taching counties, and its power to do so has never
been challenged. State v. Mc Connelly 3 Lea, 332;
State V. Algood^ 87 Tenn., 163. If the Legislature
has the power to abolish circuits, which we think
is no longer open to question in this State, it must
follow that it can reassign its parts. Construing a
similar provision of its Constitution, the Supreme
Court of Kansas, in Aikirmn v. Edwards^ 30 L. R.
A., 153, said, viz.: '^The most substantial objection
that can be urged against such a transfer as is
made by this Act is that the people are placed in
a district under a Judge in whose selection they
have had no voice, and who might not have been
chosen if all the people in the enlarged district had
been permitted to vote at the time of his election.
The reasons apply against the transfer of one county
with just the same force as against the transfer of
APRIL TERM, 1899. 549
The Judges* Gases.
all the counties included within a district. Acts of
the Legislature transferring a county from one dis-
trict to another have very frequently been passed
during the history of the State, and their validity
has never been questioned. It has never been con-
tended, so far as we are aware, that the Legisla-
ture is without power to change the boundaries of
judicial districts by deducting counties from one
and adding them to another, nor has it been
doubted that the Legislature might do this during
the continuance in office of any Judge."
In our opinion the power to detach counties from
one circuit and add them to another is clearly
within the constitutional grant of authority conferred
upon the Legislature to ordain and establish from
time to time Circuit, Chancery, and other inferior
Courts, and it is not a valid objection to the ex-
ercise of the power that it may result in placing
the people of the county so transferred temporarily
under the jurisdiction of a Judge in whose election
they have had no voice.
Affirmed.
Judges Caldwell and Wilkes concur. Chief Justice
Snodgrass and Beard dissent.
JUDGE WILKES' OPINION.
Wilkes, J. The questions involved in these cases
having been fully stated, I proceed at once to their
consideration and decision.
550 JACKSON :
The Judges' Cases.
The question underlying both is the extent and
authority of the power of the Legislature, in view
of the provisions of our Constitution. That instru-
ment, Section 3, Article XI., declares, *'The legis-
lative authority of this State shall be vested in a
Genera] Assembly." It nowhere attempts, in gen-
eral terms, to limit this power and authority, and
it is a well-settled rule of construction that a Leg-
islature, in its sphere of legislative action, has un-
limited power, except so far as restrained by the
Constitution of the State or the United States. It
does not derive its power from the Constitution, but
has all power not expressly withheld from it by the
Constitution so far as the legitimate sphere of its
action extends. While, under our form of govern-
ment, Congress has only such power as is conferred
upon it by the Constitution of the United States, a
State Legislature has all and every power not ex-
pressly withheld from it by the organic law of the
State or Union that properly pertains to a legisla-
tive body. H&txley v. State^ 98 Tenn., 666 and
cases cited; 6 Am. & Eng. Enc. L. (2d Ed.), 933.
The ordaining and creating of Courts and their abo-
lition, and the removal of Judges from their offices,
can neither be said to be strictly a legislative func-
tion, and hence we may upon these matters look to
the constitutional provisions, and they must, so far
as they extend, form a guide for legislative action
and a check upon legislative power.
It is another familiar rule that no Act of the
APRIL TERM, 1899. 651
The Judges' Cases.
General Assembly can be annulled and set aside by
•
the Coarts, anless it contravenes and conflicts with
some provision of the Constitution, and whenever the
validity of any Act is assailed, the specific provision
of the Constitution which it expressly, or by una-
voidable implication, violates, must be pointed out.
Henley v. State^ 98 Tenn., 665.
An Act cannot be annulled because, in the opinion
of the Court, it violates the best public policy, or
does violence to some natural equity, or interferes
with the inherent rights of freemen, nor upon the
idea that it is opposed to some spirit of the Con-
stitution .not expressed in its words, nor because it
is contrary to the genius of a free people, and
hence the wisdom, policy, and desirability of such
Acts are matters addressed to the General Assembly,
and must rest upon the intelligence, patriotism, and
wisdom of that body and not upon the judgment of
this Court. The only question for this Court is,
Does the Act or resolution violate any provision of
the Constitution, expressly or by necessary implica-
tion? Henley v. State, 98 Tenn., 665; 6 Am. &
Eng. Enc. L. (2d Ed.), 923.
The provisions of the Constitution which relate to
the judicial department are as follows: *'The judi-
cial power of this State shall be vested in one
Supreme Court, and in such Circuit, Chancery, and
other inferior Courts as the Legislature shall, from
time to time, ordain and establish, in the Judges
thereof and in the Justices of the Peace." Consti-
652 JACKSON :
The Judges' Cases.
tution, Art. VI., Sec. 1. It is further provided
in Sections 4 and 7, in substance, that the Judges
of the inferior Courts shall be elected by the quali-
fied voters of the district or circuit to which they
are to be assigned; that their term of office shall
be eight years; that to be eligible they must have
been residents of the State for five years and of
the circuit or district one year; that they shall at
stated times receive a fixed compensation for their
services, to be ascertained by law, and which shall
not be increased or diminished during the time for
which they are elected.
It is urged with much force that the proper con-
struction and unavoidable implication arising out of
these provisions, when considered together, as they
must be, is, that the people of any particular county,
circuit, or district are entitled to have over them
Judges of their own selection, and not others in
whose election they have had no voice; that these
Judges must be residents, when elected, of the par-
ticular circuits and districts over which they preside;
that such Judges shall have a tenure of office of
eight years and a fixed compensation during that
time, to be paid at stated intervals, and which shall
not he lessened or increased during the term. It is
insisted this latter feature is essential to the inde-
pendence and integrity of the judicial department,
and hence any law abolishing a Court, thereby bring-
ing the people who had been subject to its juris-
diction under a different Court and Judge, or any
APRIL TERM, 1899. 553
The Judges' Cases.
act or resolution which removes a Judge from office,
and thus deprives him of his compensation for the term
for which he was elected, and deprives the people who
had elected him of his services, is contrary to these
provisions by necessary and unavoidable implication.
All of these questions do not arise in the case
of the defendant, Lee Thornton, since he was, when
he was removed and his Court abolished, holding
under an executive appointment, and not under an
election, and the business of his Court was simply
transferred to another Chancellor, elected by the
same people and having a local jurisdiction the same
in extent and otherwise, but it is not insisted that
there is any difference between an appointed Judge
and one elected, and the whole question of the abo-
lition of Courts and removal of Judges, under vari-
ous acts passed at the last session of the General
Assembly, has been argued before us and treated
as involved.
It is evident that, under our judicial system,
Judges and Chancellors, no matter where elected,
nor by whom, are officers for the State at large,
and not merely for their own circuits or divisions.
The statute (Shannon, §5707) says: "Each Judge or
Chancellor is requircid to reside in the judicial district
or division for which he is elected, and a removal
therefrom shall create a vacancy in the office."
By §5708 it is provided: ''The Judges and
Chancellors are, however, Judges and Chancellors for
the State at large, and, as such, may, upon inter-
654 JACKSON :
The Judges* Cases.
change and upon other lawful grounds, exercise the
duties of office in any other judicial circuit or di-
yision of the State."
Accordingly, under both the Constitution of 1837
and that of 1870, the Legislature has, from time to
time, repeatedly transferred counties from one circuit
or division to another having a different Judge not
elected by the people of the county transferred. It
has also consolidated Courts, and abolished them, and
transferred causes to other Courts, as it deemed for
the public interest. A few instances, by way of
illustration, will suffice to show the extent of the
power claimed and exercised by the Legislature.
In 1865 the counties of the Fourteenth Judicial
Circuit were distributed to the Eleventh, Twelfth, and
Fifteenth, and the Fourteenth Judicial Circuit was
abolished.
In 1867 (Ch. 25, Sec. 4) the Circuit and Chan-
cery Courts of Overton were consolidated, and the
process of the Chancery Court was made returnable
on the Circuit Court days.
The Common Law and Chancery Courts of Mem-
phis was separated by the Act of 1866 (Ch. 32)
into two Courts, and a new Judge made.
On December 4, 1869, by Ch. 28, Sec. 2, ''the
present Circuit Court of Shelby County, the Law
Court of Memphis, the Municipal Court of Mem-
phis, the Chancery Court of Memphis, and the
Criminal Court of Memphis were abolished," and by
Section 3 six new Courts were established. This
APRIL TERM, 1899. 556
The Judges* Cases.
was just before the Convention of 1870, which met
on January 10, 1870.
December 3, 1869, the Seventeenth Circuit was
abolished (Ch. 25, Sec. 1).
County Judge's office was abolished in Sumner
Shelby, Giles, Lincoln, Smith, Weakley, Wilson,
and Van Buren Counties, in October and November,
1869; in Anderson, November 1; in Cheatham, No-
vember 27.
Session of 1870, office of County Judge of Knox
County was abolished. Removal of county seat of
Hamilton and merger of Courts provided June,
1870. Office of County Judge of Lauderdale abol-
ished.
On June 24 and June 28, 1870, the circuit and
chancery districts were organized by the Legisla-
ture, and fifteen circuits were made, where before
there were seventeen and twelve chancery districts.
Chancery Court of Madisonville abolished January
26, 1871.
Quorum Court of Carroll and DeKalb abolished.
These citations are taken from a brief upon the
subject, prepared by Hon. J. B. Heiskell, formerly
Attorney-general of the State, a member of the
Constitutional Convention of 1870, and Chairman of
its Judiciary Committee. We have not been acces-
sible to the Acts to verify the citations. Cases in
which this power of adding counties to, or detaching
them from, existing circuits or divisions was involved,
have passed in review before this Court, and the
566 JACKSON :
The Judges' Gases.
validity of the Acts involved questioned on other
grounds, but this power appears to have been con-
cede State V. Mc Connelly 3 Lea, 332; State v. Al-
good, 3 Pickle, 163.
In the great majority of cases of this character
no question of the power of the Legislature has
ever been made. However, in the case of State v.
Campbell, decided at Jackson in 1875, the constitu-
tionality of the Act of March 16, 1875, was drawn
into question, and was ably and clearly contested.
The object of that Act was to abolish the Second
Circuit Court and the Second Chancery Court of
Shelby County. It required the records and papers
of the two Courts to be transferred to the First
Circuit and First Chancery Courts of Shelby County,
respectively, and provided for the hearing in these
Courts of causes pending in the abolished Courts,
and repealed the Act of December 4, 1869, under
which the Courts of Shelby County were organized
and the Second Circuit and Second Chancery Courts
established. The suit was an action by the clerk
of the surviving Court to compel the clerk of the
abolished Court to deliver to him the records and
papers of the abolished Court. The opinion was de-
livered by Chief Justice Nicholson, who had been
one of the most prominent members of the Consti-
tutional Convention of 1870, and within five years
after the framing of that instrument, which is still
the organic law, and when the proceedings and de-
liberations of that body were fresh in his mind.
APRIL TERM, 1899. 657
The Judges' Cases.
He stated the questioDS involved in the case in this
language: '^The question is whether the Legislature
has the power, under the Constitution, to abolish
these two Courts and to transfer the causes therein
pending to be heard and determined in the other
two Courts of Shelby County to which they were
transferred. If the Legislature had the power to
enact the law, it must be either because the or-
daining and establishing of Courts is a legitimate
legislative power, necessarily involving the power to
abolish, as well as to ordain and establish, and that
the Constitution has placed no restriction upon the
exercise of this power inconsistent with the action
of the Legislature in the present case, or because
the Constitution, either expressly or by necessary
implication, has vested in the Legislature the power
to ordain and establish Courts, and that this power
carries with it the power of abolishing existing
Courts. It is maintained by the Attorney-general
and counsel for the State that the Act in question
is constitutional and valid on both of these grounds,
while the counsel for the relators insist that the
two Courts abolished by the Act were so guarded
and protected by the Constitution that, in the exer-
cise of its power to ordain and establish Courts,
these two Courts could not be abolished.
The Court proceeds to discuss the questions in-
volved in a manner at once exhaustive and able,
and arrives at a conclusion that the Acts were valid
and constitutional. We cannot hope to add anything
668 JACKSON :
The Judges^ Cases.
to the force and reasoning of the opinion in this
case. With one immaterial difference, the case pre-
sents every question that could arise in the consid-
eration of the present Acts, which attempt to abolish
Circuit, Chancery, and special Courts, and it is well
worthy the perusal of every lawyer and other per-
son interested in the important question involved.
The case is now for the' first time reported in 3d
Tennessee Cases, pages 365 to 368, and we will not
mar its force and symmetry of reasoning by attempt-
ing to make extracts from it, and it is too lengthy
to be copied in full. We can add nothing to it,
and we do not feel disposed, for reasons hereafter
stated, to take anything from it. An able dissent-
ing opinion was filed by Mr. Justice Freeman,
which is also worthy of perusal and closest atten-
tion.
In the case of HaUey v. Gaines^ 2 Lea, 316,
the question came up the second time before this
Court. In that case the Judge of the abolished.
Court sought to compel the State Comptroller to
issue warrants for his salary after his Court was
abolished, and again the sole question considered
was the constitutionality and effect of the abolishing
Act. The Court was divided as in the Campbell
case, Justice McFarland delivering the opinion of the
majority, and after a very painstaking and careful
consideration of the whole question, again sus-
tained the constitutionality and validity of the Acts.
There was also an exhaustive dissent by the same
APRIL TERM, 1899. 569
The JndgreB* Gases.
Judge (Freeman) who dissented in the Campbell
case. These judicial interpretations, in addition to
the fact that they are able and learned and by
Judges who are equal to any who have ever adorned
the bench of Tennessee, have the added force of
holdings almost contemporaneous with the promulga-
tion of the Constitution itself, and by men some of
whom were members of the Convention. Such con-
temporaneous construction, judicial and legislative, is
entitled to great weight. 6 Am. & Eng. Enc. L.
(2d Ed.), 931, 932.
It is said the case of The State^ ex rel,^ v.
Leonard^ 86 Tenn., is not in accord with these
rulings. The opinion in that case cites the former
opinions, and states that it differs with their reason-
ing in some respects, but also disclaims any intention
to overrule them. The question- involved in that
case was not identical with that involved in the
former cases nor in this case. The Act of March
14, 1887, then brought into question, undertook to
abolish the office of County Judge of Marshall
County, and to transfer his powers, duties, and juris-
diction, without diminution or change, to the Chair-
man of the County Court to b^ elected by that
body, and the Act was held to be invalid and un-
constitutional. It was also held in that case that a
County Judge elected under a valid law was entitled
to hold his office for the constitutional term of eight
years, although the statute creating the office may
have prescribed a shorter term of four years. The
660 JACKSON :
The Judges* Cases.
case was differentiated from the former cases in the
able opinion of the present Chief Justice, Snod-
grass, in the following language:
*'It is sufficient to say that the case here pre-
sents no such question as that determined there.
The Act of 1875 construed [in the Halsey case]
had abolished the [Memphis] Court. It did not
leave the Court with all its powers, jurisdiction,
rights, and privileges intact, and devolve them upon
another, as in this case.
*'Here the Court was left as it existed, except the
change made in its official head. He was simply
removed by operation of the Act, if it could take
effect according to its terms, and another put in his
place. ' '
The Leonard case appplies only to a County
Judge, where only one can exist in a county, and
where his functions and duties cannot be devolved
upon another, and is different from cases involving Cir-
cuit, Chancery or other judicial officers who preside
over a system of courts common to the whole
State. In the former class of cases the jurisdiction
and business of the abolished court must necessarily
go to a Judge created especially by the Legislature
to receive them. In the latter class Judges are
Judges for the State at large, and the transfer is
not of jurisdiction but of business; not to a Judge
specially created, but to a Judge already elected by
the people and clothed with authority and jurisdiction
to act.
APRIL TERM, 1899 661
s
The Judges* Cases.
These cases we consider to be conclusive upon
the right of the Legislature to abolish or change
judicial circuits or districts, or special courts, and
so far as this feature of the controversy is con-
cerned, the case might be left to rest upon their
authority. It was in view and consequence of this
holding of the Court that the General Assembly
framed its legislation when in its wisdom it saw
proper to reorganize the judiciary and dispense with
what it deemed unnecessary offices and officers.
These holdings and constructions given by the Court
to constitutional provisions, which have been made
the basis and foundation for legislative action, should
not be departed from, even though, if the matter
were i^es Integra^ this Court or members of it should
be disposed to entertain contrary or modified views
of the subject. We know, as a part of our his-
tory, that this action by the Legislature was not
only based upon this holding by the Courts, but
was in obedience to a public demand which had
been impressed upon the members when elected.
But examining the question without regard to these
adjudications, we find, as we think, a safe guide to
the interpretation of these constitutional provisions,
arising out of the proceedings of the Convention
which framed the Constitution. It is evident from
the provisions of the Constitution that but few lim-
itations were intended to be placed upon the power
of the Legislature to create, establish, and change
inferior Courts. Limiting safeguards were placed
18 P— 36
562 JACKSON :
The Judg'es' Cases.
around the Supreme Court, to protect it both from
legislative and executive control, which were not
placed around the inferior Courts. It was provided
there should be but one Supreme Court, so that its
powers and prerogatives could not be lessened by
being divided; the number of Judges was fixed,
so that it could neither be increased nor diminished;
the places of holding its Courts were fixed, so that
they could not be changed. None of these limita-
tions were thrown around the inferior Courts. The
number of Courts, the number of Judges, and the
places of holding these Courts was left to be de-
termined by the Legislature. Why this distinction
between the supreme and inferior Courts was made
we need not now stop to consider. It was not
•done, as we know, without an effort to place restric-
tions also upon the Supreme Court, and to put it
likewise within the control of the Legislature. It
appears that a resolution was submitted by Hon.
John M. Taylor, a delegate to the Convention of
1870, and one of the officials now concerned in
these proceedings, providing that the Supreme Court
should consist of a Chief Justice and four associate
justices, and that the number of associate justices
might be increased or decreased by law, but
should never be less than two. Journal of the
Convention, page 69. This resolution was referred
to the Judiciary Committee, but never became a part
of the Constitution, and the Convention refused to
APRIL TERM, 1899. 563
The Judges* Cases.
put the Supreme Court to this extent under the
control of the Legislature.
The Convention did see proper to restrict the
Legislature in the enactment of certain other statutes,
such as retrospective laws, laws impairing the obli-
gation of contracts, laws increasing or diminishing
certain official salaries, but it did not place any
restriction upon the enactment of statutes similar to
those under consideration so far as they relate to
inferior Courts and Judges. An* effort, however,
was made to do this. Hon. Henry R. Gibson, a
member of the Convention, offered the following as
an independent section: *'The Legislature shall, from
time to time, by a general law, divide the State
into judicial circuits and chancery districts or divis-
ions, so that the number of circuits shall not exceed
one for every sixty thousand inhabitants, and the
number of chancery districts or divisions shall not
exceed one for every seventy-five thousand inhab-
itants; Prmnded^ That territory and population shall
be so equalized as to equalize the labors of the
several Judges and the several Chancellors as nearly
as possible. And no circuit, district or division
shall be created otherwise than by a general law
recircuiting or redistricting the entire State." Jour-
nal, 237. This was defeated, and the Convention
refused to make it a part of the Constitution.
While thus refusing to relax any of the restrictions
upon legislative power over the Supreme Court im-
posed by the Constitution of 1834, as evidenced by
664 JACKSON :
The Judg^es* Cases.
the rejection of the Taylor resolution, the Convention
refused to impose any restrictions upon legislative
power over the inferior Courts, except simply to
preserve a system of Circuit and Chancery Courts,
as evidenced by the rejection of the Gibson resolu-
tion.
It is insisted there is a difference between the
abolition of a Circuit Court and the removal of
the Circuit Judge, as in the case of Judge Taylor,
and the abolition of one of two Courts in the same
territory and the removal of one of the Judges,
leaving another with the same local jurisdiction, as
in the case of Judge Thornton; and the Campbell
case and the Halsey case are referred to as belong-
ing to the latter class and standing upon the same
footing as the Thornton case. This argument pro-
ceeds upon the idea that in the abolition of a Cir-
cuit Court and removal of a Circuit Judge the
people within that local jurisdiction are necessarily
compelled to pass under a Judge in whose election
they never had a voice, while in the cases such as
Campbell's, Halsey 's, and Thornton's there remains
a Judge elected by the people and a Court with
the same power and jurisdiction, local and otherwise,
which pertains to the one abolished, and so the
people are not required to pass under a Judge
whom they did not aid in electing, but still have a
Judge selected by themselves. We think this argu-
ment specious, for several reasons. In the first
pliice, if the people of any particular locality have
APRIL TERM, 1899. 565
The Judges' Cases.
elected two Judges to preside over them, upon
the reasoning assumed they are entitled to both,
and, in having their controversies determined, to
a choice between the two, and neither can be
abolished or removed. In the next place all
Judges and Chancellors have jurisdiction co-ex-
tensive with the limits of the State, and, while
they are expected to preside where they were
elected, they can preside elsewhere. Again, when-
ever a new circuit or Court is established, the
office is filled by appointment of the Governor
until the next election, and not by a vote of the
people until that time, and, while this may be in
consequence of a special constitutional provision, it
is in accord with the whole theory and system of
our judicial department. We may grant that, as a
general provision, it is intended the people shall
elect their own Judges; still in exigencies, when it
becomes necessary. Judges may be appointed until an
election can be had, and this is virtually what is
done in cases when a Circuit Court is abolished and
a Circuit Judge removed, and the citizens of that
locality transferred temporarily to other Courts and
Judges.
The decisions of other States are conflicting upon
the questions here involved. Perhaps a few of the
State Constitutions do not contain the removal clause.
It is not to be found in the Federal Constitution.
There are leading and important cases reported in
Pennsylvania, Indiana, Illinois, and Wisconsin that
/
566 JACKSON :
The Judges' Cases.
support the contention of the Judges. There are
others in Kansas, Iowa, and Arkansas that sustain
the views herein expressed.
The case of Aikman v. Edwards^ decided in 1895
by the Supreme Court of Kansas, considers the
question more elaborately than any other, and may
be found in 30 L. E. A., pages 149 to 155.
By an examination of the opinion of the Court and
the briefs of counsel, it will be seen that all the
questions raised in this case were then forcibly pre-
sented, elaborately argued and maturely considered in
the light of constitutional provisions very similar to
our own. It was there urged that Judges were con-
stitutional officers, and had a vested right in their
offices; that their terms were fixed by the Constitu-
tion, and could not be abridged or destroyed; that
it was the intention of the Constitution that they
should not be disturbed in their offices for any
cause except malfeasance in office; that taking
away the territory of the officer in effect took
away the office, and that the exercise of power of
removal would destroy the independence of the
judiciary. On the other hand, it was insisted for the
State that the Constitution did not, directly or indi-
rectly, prohibit such action by the Legislature as the
abolition of Courts, and, such being the case, that
body had the power to do so, and the passage of the
Act was conclusive upon the Courts of the wisdom
and necessity of the Act, and the fact that thereby
the terms of judicial office were lessened would not
APRIL TERM, 1899. 567
The Judj^es' Cases.
render the Act unconstitutional. A large number of
authorities from diflferent States were cited and relied
on, and considered and commented on by the Court.
The provisions of the Constitution of Kansas are
set out, and upon the features of abolishing Courts
and removing Judges are very similar to those in
the Constitution of Tennessee. The opinion is too
long and elaborate to be copied, but it is worthy
of perusal. It antagonizes the cases of Com, v.
Gamble, 62 Pa., 343 (1 Am. Repts., 422); State v.
Fiddly, 135 Ind., 119 (21 L. R. A., 634); People v.
Dubois^ 23 111., 547, and State v. Messinan^ 14
Wis., 177. The condition of affairs which caused
the abolition of the Courts in Kansas was quite sim-
ilar to that existing in Tennessee. By previous leg-
islation judicial districts had been created which
were found to be unnecessary and the salaries nec-
essary to support them burdensome, and the people
demanded the abolition of useless offices, and the
Acts were passed abolishing the Courts in recog-
nition of this public demand. It will be noted,
however, that the matter was in that case placed
before the Court under somewhat different circum-
stances from those presented in this case, and it is
not directly in point. The case did not involve the
removal of an officer from office by the abolition of
his office, but presented the question of the right of
the relator to become a candidate to fill the office
which the Legislature had abolished. The Act itself
provided that it should not be construed as to de-
568 JACKSON :
The Judges* GaBes.
prive any Judge of his salary. The contention, as
broadly made, was that the Legislature could not
abolish the circuit which it had established, and,
this being so, the offioe of Judge still existed, and
the relator had a right to become a candidate for
it, and the Court very properly said that the re-
lator did not claim any vested right in the office,
and that the question of the right of the Legisla-
ture to deprive a district Judge of the compensa-
tion allowed by law was not involved; and the
Court declined to discuss the question whether there
could be a Judge without a district or Court over
which to preside, and the question was not involved.
The leading and strongest case holding a view
contrary to this is that of the State of Indiana v.
FriecUy^ which may be found in 21 L. R. A., 634,
in which the question was fully presented, elabo-
rately argued, and maturely considered and decided
by the Supreme Court of Indiana in view of the
provisions of the Constitution of that State. The
real points decided in that case were that a Judge
whose term of office is fixed by the Constitution
cannot be deprived of his office or of the exercise
of its duties before the expiration of his term, by a
statute attempting to abolish the judicial district
to which he was elected. The removal of a
Judge under a constitutional provision was not in-
volved. This case is also well worthy of pe-
rusal, and presents the question of the abolition
of Courts, and offices in consequence, strongly
APRIL TERM, 1899. 669
The Judges' Cases.
in favor of defendant's contention. There are
numerous other authorities cited in these cases
and , elsewhere, but we need not quote them here.
19 Am. & Eng. Enc. L., 562; 6 Am. & Eng.
Enc. L., 2d Ed., 1047.
We are cited by defendant's counsel to a number
of cases in our own reports in support of their con-
tention, and to them we make a brief reference, with
the general statement that none of them are applicable
to the present case. With three exceptions they
were cases decided prior to the cases of Campbell,
Halsey and Leonard, and yet were not cited by the
Court in those cases, nor, so far as we can learn,
relied on by counsel. We cannot presume they were
overlooked.
The first case is that of Norment v. Smithy 5
Yer., 270, in which it was held that the Act of
1827, Ch. 37, authorizing the Governor to appoint
a special Judge in case of sickness or bodily in-
firmity of a Circuit Judge, was unconstitutional and
void under the Constitution of 1796. This was
remedied by the Constitutions of 1834: and 1870 by
express provisions, and the case itself has been seri-
ously questioned, if not overruled, by the case of
Venable v. Cardy 2 Head, 586, and was only a
majority opinion in the first instance. So far as this
case touches the real question at issue in the present
one, it is antagonistic to the views of the defendant, as
it illustrates the greater power vested in the Legisla-
ture over the judiciary by the Constitutions of 1834
K
70 JACKSON :
The Judg^es* Cases.
and 1870, when compared with that of 1796, and it
serves also to show that the disastrous results fore-
shadowed in the views of Chief Justice Catron as
liable to happen, if the power of appointing a
special Judge was conceded, have proved to be en-
tirely baseless by our subsequent judicial history.
The case of Breicer v. Davis^ 9 Hum., 208, is
one affecting the tenure of oflSce of the Clerks of
inferior Courts, who under the Constitution are given
a term of four years. It was held arguendo^ but
no doubt correctly, that the term could not be
changed by the Legislature so as to eject one in-
cumbent and install another during that time. This
is in accord with all the cases, but is not applicable
to the case at bar.
The case of Keyn v. Mason^ 3 Sneed, 7, is a case
under the Constitution of 1834:, which fixed the
term of office of Justices of the Peace at six years,
and it was held that a Justice elected to fill a
vacancy was entitled to hold the full term of six
years, not merely for the unexpired term of his
predecessor. This provision in regard to filling va-
cancies was changed by the Constitution of 1870,
and furnishes another illustration of the trend of
constitutional and legislative action to provide for a
shorter term of oflSce under certain conditions, though
the term, in the absence of such conditions, remained
as before. It is well to note in this connection
that neither of our Constitutions made Justices of
the Peace impeachable or liable to removal by reso-
APRIL TERM, 1899. 671
The Judges* Cases.
lution of the Legislature, as was provided in case of
Judges.
Pope V. Phlfer^ 3 Heis., 682, simply holds that
the County Court is one of the judicial institutions
of the State recognized by the Constitution, and
that its functions cannot be taken away from it and
devolved upon another body.
The case of State v. McKee^ 8 Lea, 24:, is to the
effect that while a Judge of the County Court is a
constitutional officer so far as pertains to his judi-
cial functions, he is also general agent and account-
ing officer of the county, and may receive extra com-
pensation for services in that capacity.
The case of Cross <& Mercer ex parte ^ 16 Lea, 486,
holds that the Legislature has no power to abridge the
term of office of a Justice of the Peace to a period
less than that fixed by the Constitution of six years.
The case is distinguished from the Campbell and
Halsey cases by the same Judge (Freeman), who
dissented in those cases, and shown to be not a
parallel case, and this is so obviously apparent
that we will not discuss it.
The case of State v. Cumjuiiigs^ 15 Lea, 667,
holds that the Legislature cannot deprive the
Sheriff, who is a constitutional officer, of a sub-
stantial part of his powers and functions. The
office of sheriff is one !^ul generlfi. It is provided
for by the Constitution, but the duties of the
office are not defined. There can be only one
in any county, and no other officer in the county
572 JACKSON :
The Judges* Cases.
has the same functions and powers. The same
is true of the County Judge as in the Leon-
ard case, and the County Register, as in the case of
Powers V. Ilurst^ 2 Hum., 24. They are all
oflScers recognized by the Constitution, and there is
no other officer upon whom the same functions and
powers are devolved, and the Legislature can create
no other. There is no provision for ordaining and
establishing a number of these offices. In many re-
spects they stand upon a footing similar to that of
Supreme Judges. There can be but one Supreme
Court for the State, one County Judge, one Sheriff^
and one Trustee and Register for a county, and the
Legislature has no power to create more, nor can
their powers, duties, and functions be taken from
them and devolved upon others. Upon this propo-
sition alone the Leonard case is abundantly sup-
ported.
There are cases cited from other States, not-
ably Com. v. Gamble (Pa.), 1 Am. Rep., 422;
Fant V. Gibhsy 54 Miss., 396; Hoke v. Hendersouy
25 Am. Dec, 675 et seq,^ but this Court, in the
Halsey case, refused to follow them.
It is said upon the one hand that the power to
create and establish Courts and Judges carries with
it the power to abolish and regulate, and, on the
other hand, it is said the Constitution does not give
the power of removal. If the latter contention be
correct, it follows that once a Court always a Court,
once a judgeship always a judgeship, and the logi-
APRIL TERM, 1899. 573
The Judgfes' Cases.
cal result would be that when a Court or judicial
circuit is once established it could never be changed
or abolished. No one takes this extreme view, but
it is conceded that the Legislature has the power to
change and abolish, provided the tenure of the Judge
is not interfered with, and the people are not trans-
ferred to a district or circuit presided over by a
Judge whom they have had no voice in electing.
It cannot be insisted that there is any express
prohibition against abolishing a Coui*t, except at such
time as the term of oflSce of its Judge expires, but
the strength of defendant's contention is based upon
that provision of the Constitution which gives to
Judges a term of oflSce of eight years and a stated
salary. And it is argued that this term cannot be
abridged, nor the officer removed, nor the Court
abolished, so as to affect the right of the Judge to
discharge its duties and receive compensation for the
constitutional term. The eight-year term of office is
thus made the constitutional limitation upon the
power to abolish the Courts. It must be evident
that the provision that the term of service shall be
eight years is not unconditional and absolute. On
the contrary, it is subject to many contingencies and
conditions. For instance, the term is not eight
years if the incumbent dies or is impeached, or be-
comes incompetent by removal from the district or
State, or if he shall be convicted and sentenced for
felony, or shall be removed by the adoption of a
new Constitution. If the term of office can be
574 JACKSON :
The Judges' Cases.
abridged by these means, why may it not be by
the abolition of the office or by removal of the in-
cumbent by the General Assembly ? The implication
is as strong against any abridgment of the term in
the one case as in the other. It has never been
held in this State that an official holds his office by
virtue of any contract which is protected by consti-
tutional provision. Even in jurisdictions where this
doctrine most strongly prevails, it is said that offices
are only subjects of property so far as they can be
so treated in safety to the general interests involved
in the discharge of their duties. And as is the cre-
ation, so is the continuance of the office a question
of sound discretion in the Legislature, of which the
Court cannot question the exercise. When the office
ceases to be required for the benefit of the people,
it may be abolished. There is no obligation on the
Legislature or the people to keep up a useless office
or pay an officer who is not needed. He takes the
office with the tacit understanding that the existence
of the office depends on the public necessity for it,
and that the Legislature is to judge of that. Uoke
V. Henderson^ 25 Am. Dec, 677, a North Carolina
decision by Kuffin, Chief Justice.
The doctrine, tersely stated, is, that the rights of
the individual must give way to the rights of the
public, and the tenure of office is controlled by the
general welfare and the interests of the public, and
they must control the term of office instead of being
controlled by it, and this is the holding of our cases.
APRIL TERM, 1899. 675
The Judges* Cases.
Much that has been said in regard to the abo-
lition of Courts is directly applicable also to the
resolutions of removal. The *' causes" of removal,
as set out in the resolutions and other proceedings
relating thereto — and they are all substantially the
same — are that the public business will not justify
the retention in oflSce of the Judges involved; that
the public welfare requires a redistricting of judicial
circuits and chancery divisions; that a reduction in
the number of inferior Judges and compensation to
be paid them is demanded in the interest of public
economy, and that the Courts over which they
have presided have been abolished as unnecessary.
It will be noted that there is no charge of incom-
petency or dereliction of duty or want of fidelity
in the discharge of his duties ascribed to any Judge
or attorney who is removed; but, on the contrary,
the resolutions testify to and emphasize the eminent
ability, fidelity, purity, and faithfulness of the offi-
cials in private and official life.
The constitutional provision under which this re-
moval is effected was in this language, to wit:
'* Judges and attorneys for the State may be
removed from office by a concurrent vote of both
houses of the General Assembly, each house voting
separately; but two-thirds of the members to which
each house may be entitled must coincide in such
vote.
*'The vote shall be determined by ayes and noes,
and the names of the members voting for or
676 JACKSON :
The Jndgfes' Cases.
against the Judge or attorney for the State, together
with the cause or causes of removal, shall be en-
tered on the Journal of each house, respectively.
*'The Judge or attorney for the State against
whom the Legislature may be about to proceed,
shall receive notice thereof, accompanied with a copy
of the causes alleged for his removal, at least ten
days before the day on which either house of the
General Assembly shall act thereon." Const., Art.
VL, Sec. 6.
It is conceded that the Legislature has the power
to remove Judges and attorneys for the State under
this provision, but it is insisted that the true inter-
pretation of the word ''causes" is that such removal
can be had only for reasons personal to the official,
and does not embrace reasons and grounds of public
economy and public policy. I insist that no such
narrow or limited construction can be given to the
term "causes" as used. A provision similar to this
one contained in our Constitution is found in that of
a majority of the States of the Union. It exists
in Alabama, Arkansas, Colorado, Connecticut, Dela-
ware, Georgia, Florida, Illinois, Kansas, Kentucky,
Louisiana, Michigan, Maryland, Mississippi, Minne-
sota, Missouri, New York, New Hampshire, Penn-
sylvania, Rhode Island, South Carolina, Tennessee,
Texas, Vermont, Virginia, West Virginia, and Wis-
consin.
In different States the power of removal is vested
in different tribunals and to be pursued in different
APRIL TERM, 1899. 577
The Jndgres' Cases.
modes — sometimes by the Governor, sometimes by the
General Assembly, and in other States by the Su-
preme Court. The modes prescribed are substantially
the same. Some of the State Constitutions specify,
either in general or special terms, the grounds upon
which removals may be made. In Delaware, Ken-
tucky, Nevada, and Louisiana removal may be for
any reasonable cause; in Alabama, South Carolina,
Michigan, Mississippi, Pennsylvania, and Texas it may
be for any willful neglect of duty or any other
reasonable cause which shall not be sufficient ground
for impeachment; in Georgia and Rhode Island by
impeachment or upon conviction of any crime; in
Indiana for corruption or for any high crime; in
Oregon for malfeasance, misfeasance, or willful neg-
lect of duty; in West Virginia upon conviction of
willful neglect of duty or misbehavior in office, or any
other crime; in Maryland on impeachment; in Ohio
upon complaint; in Illinois, Missouri, New York, Ten-
nessee, Virginia, and Wisconsin for ''cause," with-
out any limitation or definition of that term. The
language of our Constitution enumerates no causes of
removal, not even by general classification. It gives
no hint of the nature of the causes for which re-
moval may be had. The power of removal, as
therein declared, is broad, general, and unrestricted.
The tribunal to which the power belongs, inherently
and by declaration, is one of general powers, un-
limited except by Constitution.
The term ''cause or causes" signifies nothing: as
18P— 37
578 JACKSON :
The Judfi^es' Cases.
regards the nature of the groundB for removal. The
language indicates that the whole matter was left to
legislative discretion, and that any cause dictated by
the public interests is sufficient. The history of this
clause, and its predecessors, is instructive and con-
clusive of this view.
In England the proceeding was known as re-
moval by address, and consisted of an address of
both houses of Parliament to the sovereign for re-
moval of a Judge. When it was sought to pro-
vide for removal by address in framing the Consti-
tution of the United States, the proposition was
bitterly antagonized, and received in the Convention
the vote of only one State, to wit: New Jersey.
3 Story on Const., 484.
No removal clause is found in our Constitution
of 1796, probably by reason of antagonisms excited
by the then recent debates in the convention that
framed the Federal Constitution. The clause is
found in the Constitutions of 1834 and 1870 in
practically the same language. The first time was
but a short while after the fearful struororle in
Kentucky over a similar provision. It was antag-
onized in both conventions, and has passed twice
through the fire of discussion. The proceedings of
these conventions, in relation to this clause, as pre-
served in the journals, leave no doubt that it was
intended the Legislature might remove for any cause
whatever that might be deemed for the public good.
In the Convention of 1834 the following occurred:
APRIL TERM, 1899. 679
The Judges' Cases.
Mr. Hantsman oflfered to amend the clause by add-
ing: **And the Judge shall be served with a copy
of charges to be exhibited against them at least
twenty days before the General Assembly shall act
upon his removal. ' '
In lieu of which Mr. Humphreys oflfered the fol-
lowing: '^ Judges for any reasonable cause, which
may not be suflScient for an impeachment, may be
removed from oflSce," etc.
Mr. Huntsman accepted thi& amendment, which
was rejected by a vote of 33 to 23.
The proposition confining the clause to <^ in-
famous and corrupt conduct,'' and requiring a trial,
was rejected.
These proceedings are significant.
The Convention of 1870 witnessed another and
more doubtful stiniggle over this clause. It was re-
ported, without material change, from the corre-
sponding clause in the Constitution of 1834. When
it came up for adoption, Mr. Gibson oflfered the
following amendment, seeking to define and limit the
legislative power of removal to the causes named
therein: '* Insert between the words ^oflfice' and
'by,' in the first line, the words 'for crime,
corruption, habitual drunkenness, incompetency, or
neglect of duty.'"
Mr. Fentress oflfered in lieu the following: "In-
sert after the word ' State, ' first line, the words
* for oflScial corruption, or for continued neglect of
580 JACKSON :
The Judges* Cases.
duty, or continued incapacity of any kind to per-
form the duties of his office.'"
A motion to lay both amendments on the table
failed.
Mr. Turner offered the following amendment:
< i Pt^cyijided^ The causes of removal are such as are
prescribed by a general law of the land, passed by
a Legislature prior to the one taking action there-
on." Journal, 225.
Mr. Cobb then offered, in lieu of the entire
clause as adopted, the following: "If any cause of
removal assigned amounts to a charge of infamous
or corrupt conduct, then a Judge shall be tried by
impeachment, or the Attorney-general by impeach-
ment or indictment; or if guilt has been ascertained
by previous indictment for a crime not committed
in office, then they may be removed, as aforesaid,
without further trial, and, in either case, the Judge
or Attorney- general shall be suspended from office
from the time of impeachment or indictment filed
until the end of the trial." This was likewise re-
jected. Journal, 229. The clause resisted a mo-
tion to strike out by a vote of 42 to 14.
These proceedings show a determined purpose to
limit, and an equally determined purpose not to re-
strict, the legislative discretion as to causes of
removal. The proposition naming the grounds for
removal as "charges to be exhibited," was too
strong. The weaker term, "causes," was adopted.
The proposition naming the grounds, as * ' for any
APRIL TERM, 1899. 581
The Judg>e8' Cases.
reasonable cause which may not be sufficient for im-
peachment,'' was too restrictive, and was rejected.
Some confusion appears in the journal as to the
voting upon the several amendments, but the final
result was the rejection of all amendments and the
adoption of the clause as reported by the commit-
tee, without change. Journal, 227-230.
It is significant that the Convention, after a
struggle between forces nearly equally divided, re-
fused in any way to define the causes for removal.
Three propositions for this purpose were submitted
and rejected. The first two covered a very broad
field, and yet did not meet the views of the ma-
jority. The third was a proposition that the Legis-
lature should, by law, define the causes. But the
majority would not submit to even this limitation of
the clause. The minority wanted the legislative
power defined and limited, but failed. The majority
wanted it left without limitation, and succeeded.
Art. V. of the Constitution deals with impeach-
ment. Art. VI., in which is found the clause
under consideration, deals with the judicial depart-
ment. Both articles were reported in the Conven-
tion of 1870 by the same committee, to wit: the
Committee on the Judicial Department, and at the
same time. Among the distinguished lawyers on the
committee were A. O. P. Nicholson, John Baxter,
W. B. Staley, and J. B. Heiskell, the latter its
chairman. Journal, 42.
In Art. V. it was provided that all Judges and
582 JACKSON :
The Judg'efi* Gases.
Attorneys for the State should be *' liable to im-
peachment whenever they may, in the opinion of the
House of Representatives, commit any crime in their
official capacity which may require disqualification."
Art. v., Sec. 4. A trial and mode of procedure
are provided for in this article. The House prefers
the articles of impeachment and prosecutes them by
its members. The Senate, presided over by the
Chief Justice, is the tribunal for trial. The trial
is had after the adjournment of the Legislature sine
die. Concurrence of two-thirds of the Senators,
sworn to try the officer impeached, was required
for conviction. The judgment, upon conviction, was
removal from office and disqualification thereafter to
hold office. In view of these proceedings and the
provisions of the Constitution relating to impeach-
ments, what scope and operation did the Convention
intend the removal clause to have? It is conceded
that it was intended to apply when the cause of
removal was personal to the Judge, and it is in-
sisted that it goes no further. In other words, a
Judge who has become physically or mentally unable
to discharge the duties of his office may be re-
moved, but one who is able to work cannot be,
even though there is nothing for him to do. I
cannot consent to such construction, and, I ask, what
warrant is there in the language of the Constitution
for such construction as leads to the result that a
Judge who, by misfortune or overwork, has become
unable to serve can be removed for these reasons,
APRIL TERM, 1899. 583
The Judges' Cases.
and one who has become useless for want of work
to do cannot be? The rejection of the amendments
oflFered by Mr. Gibson and Mr. Fentress expressly
negative the idea that the causes of removal should
be limited to grounds personal to the official. These
debates and proceedings in the Convention to which
we may look (2d Ed., Am. & Eng. Enc. L., Vol.
6, 930), discloses the fact that, while a persistent
effort was made to define and limit the causes of
removal, the Convention steadfastly refused to do so,
but left it to the discretion, wisdom, and patriot-
ism of each General Assembly, not allowing it to
prescribe in advance what should constitute cause.
But the official to be removed was hedged around
by extraordinary safeguards and protection. It re-
quires more unanimity on the part of the Legisla-
ture to remove than it does to impeach. Both
houses in removal cases must vote and vote sepa-
rately. In impeachment cases the Senate alone votes.
In removal cases two-thirds of all the members to
which each house is entitled must vote for the re-
moval. In impeachment it requires only two-thirds
of the Senators sworn to sit on the trial. In re-
moval proceedings the individual responsibility of
each member is fixed and perpetuated by entering
the ayes and noes on the journal. It would thus
appear that no greater safeguard could be thrown
around the officer concerned. It is said, with much
more force and vigor than logic, that the exercise
of the power of removal is violative of the Con-
584 JACKSON :
The Judges* Cases.
stitution, BubverBive of the fundamental principles of
our government, and doBtructive of the independence
of the judiciary, and an earnest protest, much in
this language, was presented to the General Assem-
bly and spread upon its minutes when the proceed-
ings were pending. But it is plain that if the re-
moval resolutions are authorized by the letter of the
Constitution, they cannot violate that instrument.
The question as to whether they are subversive of
the fundamental principles of our government, and
destructive of the independence of the judiciary, are
questions proper to be addressed to the Convention
that framed the Constitution and to the Legislature
that passed the resolution, but they are not ques-
tions for this Court when the provision is plain and
unambiguous. Arguments which might have been
weighty and conclusive before those bodies are out
of place in this Court. The question for this Court
is. Is there such a provision, and what does it
mean? When that is answered it must control this
Court, no matter what views it may entertain of the
consequences. If the power of removal exists, this
Court cannot ignore it, nor refuse to recognize it,
even if it be deemed hurtful jor dangerous. It is
difficult, in debating this question, to keep out of
view considerations of public policy and welfare, and
confine ourselves strictly to the point proper for us
to consider, and that is the existence and scope of
the power, without regard to the results of its ex-
ercise. As individuals the members of this Court
APRIL TERM, 1899. 586
The Judges' Cases.
may entertain their own convictions of the wisdom
of such power, but as a Court we must lay aside
such convictions and simply inquire, Does the power
exist and what is its scope?
I am not able to see that the Legislature in-
tended to limit the removal resolutions to causes
personal to the official. To so hold one must read
into the Constitution a provision that not only does
not appear in it, but one that, after the most per-
sistent and determined struggle, the Convention re-
fused to incorporate in it.
In the case • of The State v. Campbell^ which we
have already commented upon, the learned Judge
who dissented in that as well as the Halsey case,
expressed the opinion that, under the clause of the
Constitution we are now considering, the Legislature
might remove any judicial officer for any cause or
upon any ground which in its wisdom was sufficient
and proper, and the power and discretion was un-
limited. He stated that it was without question the
object of the Legislature in that case to rid the
State of a useless officer in the interest of economy;
that there were no reasons personal to the Judge
for his removal, and hence the Legislature should
have proceeded under this removal clause of the
Constitution, instead of by the circuitous way of
having the Court abolished, and said: «*Upon this
aspect of the case, the Constitution has left nothing
to inference or deduction. The language of the
clause includes all possible causes of removal known
686 JACKSON :
The Judges* Cases.
to the Constitution,' and all conceivable causes for
which a Judge or Chancellor may be removed
from his office. It appears to me an anomaly to
hold that the Legislature, for economic reasons, may
remove a Judge by abolishing his Court, but can-
not, upon the same grounds, remove him by reso-
lution."
It is said in argument that since the clause in
the Constitution provides notice to the officer, and that
he be informed of the grounds of removal, that
such removal can be had only for reasons personal
to the Judge, after a formal trial and an opportunity
to be heard, and an actual hearing by the official
to be affected, and it is said that the Constitution
did not contemplate such a farce as notice to an
officer of proceedings, without giving him the fullest
Opportunity to defend against it on every available
ground. Upon this feature of the case, it will be
noted that the resolutions of removal recite that they
were passed after hearing and due consideration.
The Constitution does not prescribe in what manner
such hearing may be had, or how formal the trial
shall be. It will also be noted that the resolutions
recite that the office of the official has become use-
less and been abolished. This is an official declara-
tion by the Legislature of the existence of such
cause, and must be conclusive. If we look to the
journals of the General Assembly, we find that an
opportunity was given to each official to be heard
before the removal body upon the resolutions, both
APRIL TERM, 1899. 587
The Judges' Cases.
by himself and his counsel; that they appeared in
person, or by attorney, and defended; that no fur-
ther time was asked. It is said, however, that the
oflScials were not pfiven the privilege of examining
witnesses to show that the causes of removal did not
exist. It appears, however, that the facts which caused
the removal were not of such nature as required
examination of witnesses or production of records.
The causes of removal were of a character known to all
as matters of public concern, and were peculiarly within
the knowledge of the legislators themselves, and all
information they did not have they have obtained
by means of a committee of investigation. It
is admitted by the majority that if the removal
could be had for economical reasons, then no evi-
dence of trial was necessary. We may concede,
therefore, that, as against many causes of removal
personal to the officer, the official might defend by
showing facts, but they are cases where the facts
are in the keeping of the official and not of the
Legislature. As, for example, if physical infirmity
or mental weakness or absence from his district, or
other cause of this character were the ground or
cause of removal, being a matter personal to the
Judge, the official may furnish evidence not access-
ible to legislators generally, and no doubt such
evidence would be allowed to be produced; but when
the facts are matters of public knowledge, about
which the members could find no witnesses better
qualified than they are themselves to speak, and
588 JACKSON :
The Judges' Cases.
which are not personal to the oflScer, it would be
folly to take a mass of evidence that could at least
be of no avail. But, so far as this case goes, the
fullest and fairest investigation was had, and an op-
portunity was afforded the official to be heard, and in
such case as this, the action of the Legislature must
be accepted as conclusive, and cannot be inquired
into. It is said that there is a discrepancy between
the causes stated in the notices and in the resolu-
tions removing the judges. This we consider a
matter of no importance. We may concede that
the Judge can only be removed for the reasons
stated in the notice, and still the ojection is not
well founded, and the discrepancy is immaterial.
The substance of the reasons stated in the notice,
and the reasons stated in the removal resolution, are
the same, to wit, that there is not sufficient business^
to require the retention in office of the official,
and that it is necessary for the welfare of the State
to abolish the office and remove 'the jofficer in the
interest of public economy. The resolutions of re-
moval set out reasons as grounds for removal, which
was in effect a legislative adjudication that such facts
existed and adds that the Court has been abolished,
a fact which had not transpired when the notice was
given, and which was merely supplemental action by
the Legislature in pursuance of the previous adjudi-
cation. The fact that the office had, since the no-
tice, been abolished may be treated as immaterial
surplusage, the important fact being that there was
APRIL TERM, 1899. 589
Tbe Judges' Cases.
no longer any necessity for either office or officer.
It is said this is a dangerous power to lodge in
the discretion of the General Assembly. Grant it.
Still, the framers of our Constitution, with the light
of experience and the lessons of history in their
minds, so lodged it. Shall we question their wis-
dom? So long as the people are to be trusted
and they do their duty in selecting representatives,
where could it be more safely lodged? It has been
a part of our organic law for sixty-five years, and
we have been cited to no case of its abuse. The
purpose of the removal resolutions now under con-
sideration, is the public good and the economical
administration of justice. No charge is made of
any sinister purpose on the part of the Legislature
towards individuals or the public. It is said it is
a power that may be used to crush the judiciary, to
break down its independence, and to stop the busi-
ness of the judicial department. But the same ob-
ject may be accomplished by other modes by the
Legislature, if it shall decide to adopt revolutionary
methods. It may unjustly impeach, and thus re-
move; it may refuse to pay salaries and expenses,
and thus stop the Courts; it may refuse to provide
for elections; it may, in other words, overthrow the
government, because it handles both the sword and
the purse. But unless such power can be lodged in
the direct and immediate representatives of the
people, it ought not to be lodged anywhere, and
ought not to be incorporated into our organic law.
690 JACKSON :
The Judg-es' Cas^s.
So that, after all, these questions are not for this
Court, but for the people, and in placing this con-
trol of the judiciary in the hands of the Legisla-
ture the people have drawn it as near to themselves
as it is possible to draw it under our system of
government.
Much has been said, and properly said, as to
the necessity for an independent judiciary. There is
no feature of our governmental system more vital and
important, but the idea must not be pushed too far,
and we must remember that, with the exception of
the Supreme Court, all Courts exist as a conse-
quence of legislative action. The number, powers,
and jurisdiction, local and general, of the inferior
Courts are all dependent upon the legislative provis-
ions. The salaries of all Judges, the expenses of
all Courts, are paid only in pursuance of legislative
action, and, in addition, the General Assembly is
given the power to impeach and the power to re-
move. The true theory of the government is that
each department is independent in its sphere. The
Legislature can enact laws without dictation from
the judiciary. The latter can pass upon their va-
lidity and meaning without legislative interference.
We cannot assume that either will arbitrarily disre-
gard the rights of the other, or trench upon its
province, and any argument based upon such prem-
ises is unsound and unwarranted. The departments
of the government should work in harmony, as com-
ponent parts of one homogeneous whole, and if each
APRIL TERM, 1899. 591
The Judges' Cases.
will accord to the other purity of motive and an
earnest desire to enhance and conserve the public
welfare, there will be that co-operation and single-
ness of purpose which will redound to the highest
good of the people. The Courts have the Consti-
tution and the statutes as charts to mark the extent
of their authority. The Legislature has the same
Constitution as its chart, but in respect to the Leg-
islature the function of the Constitution is not to
confer power and jurisdiction, but to limit it.
The argument that the power to abolish judicial
office 'Cannot exist, because it can be abused to the
extent of destroying the entire judicial system, can
have no force in the construction of the Constitu-
tion, and the possibility of abuse of power is
never a valid argument against its existence. It
ha« been properly said: <<This is an argument often
resorted to, and no argument is more fallacious. It
assumes that if the power be one that the Legisla-
ture might abuse, and in its abuse subvert the other
departments of the government, therefore the power
does not exist; whereas, it is certainly true that
the Legislature may, in many modes, in the exercise
of unquestioned power, utterly ruin and destroy the.
government. The remedy, when the Leislature at-
tempts to exercise power which it does not possess,
is in the Courts, but where it simply abuses power
that it does possess, the remedy is with the people."
McFarland, J., in HaUey v. Gahies^ 2 Lea, 322,
323.
592 JACKSON :
The Judges* Cases.
The causes assigned in these resolutions for the
removal of the Judge and attorneys are entitled to
the highest consideration, and, if any causes not
personal to the officer involved can be sufficient, these
reasons of public policy and public economy must
be so regarded. It is not necessary in this case,
therefore, to consider the question whether the Leg-
islature may arbitrarily remove such an officer,
whether for political or personal reasons or because
a particular Judge may have ruled contrary
to its ideas of law and right. No such case is
presented in this record. It is intimated in
the Campbell and Halsey cases that a removal,
with a sinister design upon the part of the Legis-
lature, would not be allowed. It is not nec-
essary to consider this proposition, as it does not
arise in this case. Whether the Court can revise
the action of the Legislature in any case of removal,
and question its authority to act upon the cause
made the basis of such removal, is a grave question
of much difficulty and delicacy. The Legislature
could act arbitrarily quite as readily for personal as
for causes of a public nature, and would more likely
do so for personal causes than for those of a pub-
lic or general nature. The danger of arbitrary and
unwarranted action is not avoided by confining the
causes of removal to personal causes. Perhaps the
true rule may be stated thus: In all impeachment
and removal proceedings before the General Assem-
bly, if the causes for which removal or impeachment
APRIL TERM, 1899. 693
The Judges' Cases.
are had are such as are authorized by the Constitu-
tion, and the methods pursued in the proceedings
are not contrary to those prescribed by the Consti-
tution, the action of the Legislature is final, and
cannot be questioned by this Court. If, however,
the Legislature should attempt to impeach or remove
for a cause not warranted by the Constitution, or
should pursue methods contrary to those prescribed
by the Constitution, this Court would have the
power to declare such proceedings void for want of
power and authority in the Legislature. If, for in-
stance, the Legislature should attempt to impeach or
remove an officer for political reasons, so specified
and expressed, this Court could declare such action
unconstitutional and void. I do not contend that
the power of removal is unlimited, and cannot be,
in any event, revised or questioned by this Court.
It is urged that this power of removal is not
contained in the Constitution of the United States,
nor in the Federal system, nor in the English sys-
tem of Courts. This is true. The Federal system,
as well as the English system, provides for a tenure
during good behavior. The history of judicial ten-
ures is not without its lesson. In England, prior
to the reign of James II., Judges held their offices
at the pleasure of the Crown. This power lodged
in the Crown was abused to such an extent that
Judge after Judge was removed, until the bench be-
came a mere tool of the Crown. Its abuse was
one of the causes of the English revolution, and in
18 P--38
594 JACKSON :
The Judges' Cases.
the bill of rights following it the permanency of
judicial tenure was first secured, and it was con-
firmed by the statute of 13 William III., providing
for a judicial tenure during good behavior, and pro-
hibiting removals except upon the address of both
houses of Parliament. Afterwards, by statute, in
the reign of George Ul., this tenure was made to
extend beyond the demise of the King, and full
salaries were provided for Judges during their con-
tinuance in office. The power of arbitrary removal
of Judges by the Crown was also one of the
reasons embodied in our Declaration of Independence
for throwing off the English yoke. In the light
of these historical events, the Federal Constitution of
1787 was framed, and judges, both Supreme and in-
ferior, were given life tenures of office, with fixed
compensation, not to be diminished during their con-
tinuance in office. This system of Federal judgeships
and tenure is still in force, and whatever may be
said by bench and bar in its praise, the people, it
may be safely asserted, are not enamored of the
system, and would gladly change it. It was
strongly commended by the statesmen of the revo-
lutionary period, and by the law writers, such as
Story, Kent, and Marshall of a little later date.
It was followed by each and every one of the
thirteen original States, and by others that came into
the union* soon after its formation. It was adopted
in Tennessee, and under our first Constitution of
1796, judges held for life with fixed salaiies. But the
APRIL TERM, 1899. 596
The Judges' Cases.
pendulum has swung back in the opposite direction,
and it is a significant fact that there are only three
State Constitutions in existence to-day that provide
for a life tenure of Judges. It was upon this feature
of a life tenure for Judges that Story and Mar-
shall and Tucker and others wrote so eloquently,
and not upon any power of removal; but their views
have not prevailed, for in the great majority of the
States the term is fixed at six years.
We speak of these historical facts as tending
simply to show the trend of public opinion upon
the subject of judicial tenures. The history of
judicial tenure in Tennessee is even more suggestive.
By the Constitution of 1796 Judges were appointed
and held for life, with fixed salary and without
power of removal. By the Constitution of 1834
they were still appointed, but for only a term of
eight years, and subject to removal. By the amend-
ment of 1853 they were made elective by the
people, but the tenure of office remained the same,
and the power of removal was continued, but slightly
modified. It has thus been clearly manifested that
the people intended to draw the Judges close to
themselves, and through their representatives, as well
as directly by election every eight years, exercise
some control over tham. This is the system now
in force under the Constitution of 1870.
For the reasons herein stated 1 am constrained to
believe that the Acts and resolutions are all valid
and constitutional.
596 JACKSON :
The Judgfes* Cases.
DISSENTING OPINION.
Snodgrass, Ch. J. This case was instituted in the
Circuit Court of Shelby County, under the statutes
authorizing such proceeding (Shannon's Code, §§ 5165,
5187) to restrain defendant from exercising the
functions of the office of Chancellor of Part II. of
the Chancery Court of said county. By bill and
amended bill two questions were made: (1) That
the Court had been abolished by an Act of the
Legislature passed February 25, 1899, approved Feb-
ruary 2T, and defendant's term of service as Judge
thereby ended, and (2) that defendant had been re-
moved from office by a joint resolution of the House
of Representatives and the Senate, adopted April 20,
1899, and approved on the twenty-first. Answer
was filed denying the constitutional validity of both
Act and resolution. The Circuit Judge, L. H.
Estes, heard the case on the issue thus presented,
and decided against defendant, enjoining him from
exercising the functions and powers of Chancellor,
and defendant appealed and assigned errors.
It is obvious that the judgment is incorrect if
both propositions of defendant are successfully main-
tained, and correct if he fails in either; for if the
Court is legally abolished, he could not continue to
hold it, whether he did or did not cease to be a
Judge, and if he has been under the resolution
legally removed from office, he could not hold the
Court, though it did not cease to be a Court by
virtue of the abolishing Act.
r
APRIL TERM, 1899. 697
The Judges' Cases.
It is necessary, therefore, to consider and deter-
mine both questions. Before doing so, however, it
is proper to determine one or two questions, and
suggest certain consequences necessarily deducible;
and, first, whether the oflScer tan exist when the
office is legally destroyed. We think that this ques-
tion is not susceptible of debate. It would be an
unintelligible jargon to employ words to elcpress
how an official existence was continued, when the
office, the thing which was constituted only as a
place and reason for such existence, was extinct.
From this a consequence is deducible that, in one
aspect, might make the consideration of the legis-
lative resolution unimportant or irrelevant. If the
Act in controversy was constitutionally passed when
approved on February 27, defendant, Thornton, was
no longer Judge, and the Legislature had no author-
ity whatever to proceed against him for removal in
any way, whether that taken was correct in form
or substance, being wholly immaterial, for it will
be remembered that the resolution was adopted on
April 20, after the Act abolishing the Court had
taken elBfect, which, by its express terms (not here-
tofore stated), was "from and after the first Mon-
day in April, 1899." Another obvious conclusion
is that if the power to remove a Judge when the
office had not been legally abolished is exercised,
the effect of it would only be to get rid of the
particular incumbent, foi:, the office remaining, the
598 JACKSON :
The Judg'es* Cases.
Governor would have to fill the vacancy, and no
purpose even of economy could be subserved.
In order, therefore, that the resolution could have
any force or effect, it is essential to establish the
invalidity of the Act; and the legislative resolution
first adopted, and which was to be, and was in fact,
served as notice upon the defendant, did assume
(not merely, as it would be held by implication to
do, when it proposed a removal from office, that
the oflice existed) in express words that the office
was then existing. This resolution was adopted on
April 7, four days after the Act, if it took effect
at all, had taken effect.
The resolution, which was the first in the series
leading to final removal, is as follows:
^' House Joint ReHolution No, 106. — Whereas,
The public welfare requiring the removal from office
of the following named official, to wil: Lee
Thornton, Chancellor of Part II. of the Chancery
Court of Shelby County, Tennessee; and,
** Whereas, Such necessity for the removal from
office of the aforesaid official arises from the rea-
sons and causes that there is not sufficient business
to require or justify the retention in office of said
official; and,
'* Whereas, It is necessary for the welfare of
the State that the judicial circuits and chancery di-
visions of the State should be redistricted, and the
aforenamed official removed from office, to the end
APRIL TERM, 1899. 599
The Judg'es' Cases.
that the said circuits and divisions may be properly
redistricted and the public welfare subserved; and,
''Whereas, There no longer exists in the State
any reason or necessity for the services of said
official, or the continuance in office of said official,
or the further continuance in existence of his said
office as now existing, and the public welfare requires
a reduction in the number of Circuit Judges and
Chancellors and Attorneys-general in the State, to
the end that a reduction may be had in the judi-
cial expenses of the State, and for the promotion
of economy in the administration of public justice,
and testifying to and emphasizing the eminent abili-
ties, fidelity, purity, and faithfulness of the above-
named official in private and public life; therefore,
be it
^^ Resolved^ by the House of Representatives of the
State of Tennessee^ the Senate concurring^ (1) That
the Clerk of the House and Senate, each, at once
make, issue and deliver to the Sergeants-at-Arms of
the respective houses correct copies hereof for service
upon the aforesaid official, duly certified by such
Clerk.
"(2) That the said Sergeants-at-Arms are hereby
authorized and directed to proceed at once to de-
liver . to said official one of said copies, and, to
carry into effect and execute this resolution, each of
such Sergeants-at-Arms is authorized to appoint a
sufficient number of deputies speedily to execute this
order. Such Sergeant-at-Arms or his deputy will
600 JACKSON :
The Judges' Cases.
make return of the time at which he delivers such
copy to the said official.
"(3) That in pursuance of, and in accordance
with, the provisions of Sec. 6, Art. VI., of the
Constitution of the State of Tennessee, the House
of Representatives and Senate proceed, as therein
authorized, on the eleventh day after the service of
copy of this resolution upon such official, to re-
move said official from the office held by him as
Judge of said Court, for the State of Tennessee, to
this end and for this purpose that the proceedings
be had and continued from day to day until finally
and fully acted upon, and disposed of in accordance
with the aforesaid provisions of the Constitution.
<'(4) That the service of a copy of this resolu-
tion on such official shall be service of notice as
required in the aforesaid section, and that the re-
moval from office shall be for the causes stated
herein.
''Adopted April 7, 1899.
''Joseph W. Byrnes,
" Speaker of the House of Representatives.
" Seid Waddell,
' ' Speaker of the Senate,
"Approved April 7, 1899.
'* Benton McMillin, Gomrnor,^^
It has already been observed, and as is therein
recited, that this was to serve as notice of the
"causes of removal" contemplated by the Constitu-
APRIL TERM, 1899. 601
The Judges' Cases.
tion, and it will have been seen that it not only
does not recite, or give notice of such <' cause" (that
is, that his office had been abolished), but it, among
other things, recites that it ' ' is necessary that the
judicial circuits and chancery divisions of the State
should be redistricted, " etc., and that there no
longer exists ''any reason or necessity for the services
of said official, or the continuance in office of said
official, or the continuance in existence of his said
office as now existing," and that on the eleventh
day after the service of a copy of this resolution
upon such official, the two houses will proceed ''to
remove said official from the office held by him as
Judge of said Court." This resolution also pro-
vided that the removal shall be ' ' for the causes stated
herein." It was followed by another giving brief
time for all Judges and all Attorneys-general pro-
ceeded against to be heard, but this it is not neces-
sary to copy.
When the final resolution of removal came to be
adopted, it was inserted, among other ' ' causes of
removal," that the Court had been theretofore abol-
ished. That resolution is as follows:
" iVb. 56. — Whereas, The public welfare requires
the removal from office of the following: named
official, to wit: I^ee Thornton, Chancellor of Part
II. of the Chancery Court of Shelby County, Ten-
nessee; and,
'^ Whereas, Such necessity for removal from
office of the aforesaid official arises from the
602 JACKSON :
The Judges' Cases.
reasons and causes that there is not sufficient
business to require or justify the retention in office
of said official; and,
*' Whereas, It is necessary for the welfare of the
State that the judicial circuits and chancery divisions
of the State should be redistricted, and the afore-
named official removed from office, to the end
that the said circuits and divisions may be properly-
rearranged and redistricted and the public welfare
subserved; and,
"Whereas, There no longer exists in the States
any reason or necessity for the service of the said
official, or the continuance in office of said official,
or the further continuance in existence of said office
as now existing, and the public welfare requiring a
reduction in the number of Circuit Judges, Chancel-
lors, and Attorneys-general in this State, to the end
that a reduction may be had in the judicial expense
of the State, fol* the promotion of economy in the
administration of public justice, and to this end the
present General Assembly, by appropriate legislation,
has abolished the Court of which the aforenamed
official was the Chancellor, thus making it unneces-
sary that he should longer remain on the pay-roll
of the State, and testifying to and emphasizing the
eminent ability, fidelity, purity, and faithfulness of
the above-named official in private and public life, and
it appearing that notice has been given to the afore-
said Lee Thornton, Chancellor of Part II. of the
Chancery Court of Shelby County, accompanied with
APRIL TERM, 1899. 603
The Judgfes' Cases.
a statement of the causes for his removal from
office, as provided and contemplated in Sec. 6, Art.
VI., of the Constitution of the State of Tennessee,
after hearing and due consideration hereof; therefore,
be it
' ' Resolved hy the Senate of the State of Tennes-
see^ the House of Representatives concui^ing^ That
aforesaid Lee Thornton be, and is hereby, removed
from the office of Chancellor of Part II. of the
Chancery Court of Shelby County as aforesaid, for
the causes mentioned and set forth hereinbefore.
« 'Adopted April 20, 1899.
*' Seid Waddell,
''^Speaker of the Senate.
^ ' Joseph W . Byrnes,
* * Speaker' of the House of Rej^resentatives,
'« Approved April 21, 1899.
' ' Benton McMillin, Go vernor. ' '
It is clear, therefore, that while the Legislature
could only remove if in office, and that it so rec-
ognized the scope of its power and did assume in
the notice given that the office yet existed notwith-
standing the Act, and that in the final resohition it
inserted this cause of removal (that is, the former
abolition of the office as a cause which was not
specified in the notice given), and left it open to
the objection that defendant was or may have been
removed for a cause of which he was not notified
nor had a hearing, yet this is only noticed by way
604 JACKSON :
The Judges* Cases.
of enforcing and illustrating other observations yet
to be made upon the resolution itself, because in the
view we take of it, the whole matter is immaterial;
for, treating the office as not a))olished, we are of
opinion that the attempted removal is utterly void,
for the clearest constitutional reasons embodied in the
plain terms and necessary implications of the consti-
tutional clauses bearing on that subject.
Waiving the question of the form of these pro-
ceedings— a joint resolution notifying defendant that
he was to be removed as an already determined
fact, and reciting in the resolution, fixing a time for
his appearing, that they would then *< proceed to re-
move him," and of a final removal by joint resolu-
tion of the ordinary character (but of requisite ma-
jority), adopted by the two houses and approved by
the Governor, when the Constitution makes no men-
tion of a resolution for such purpose, or any action
at all by the Governor, but contemplates some sort
of an accusation by or before the Legislature, and a
proceeding by it; of a trial, and a recorded vote of
necessary majority of the members of each House,
for and against the Judge, and for the purposes of
the argument, treating this as a method by which
the result contemplated by the Constitution could be
reached — we proceed to inquire if in its substance
it is a constitutional result.
The constitutional provisions bearing on the ques-
tion are as follows: After making provision for the
impeachment of Judges for the '' commission of crime
APRIL TERM, 1899. 605
The Judges' Cases.
in their official capacities" (Art. V., Sec. 4) it
then proceeds to provide for another form of re-
moval from office. It declares that "Judges and
Attorneys for the State may be removed from office
by a concurrent vote of both houses of the General
Assembly, each house voting separately; but two-
thirds of the members to which each house may be
entitled must concur in such vote. The vote shall
be determined by ayes and noes, and the names of
the members voting for or against the Judge or At-
torney for the State, together with the cause or causes
of removal, shall be entered on the journals of each
house respectively. The Judge or Attorney for the
State against whom the Legislature may be about
to proceed, shall receive notice thereof, accompanied
with a copy of the causes alleged for . his removal,
at least ten days before the day on which either
house of the Generel Assembly shall act thereupon."
Art. VL, Sec. 6.
It would, seem clear, from the express terms of
this section, that no general power was vested in the
Legislature to remove these officials whenever it ap-
peared desirable to them or for whatever reason
they assumed proper, for in that event the require-
ment that "cause" or "causes" of removal should
be entered on the journals of each house, and an
official proceeded against should have at least ten
days' notice of the proceedings, and of the causes
of removal alleged, before either house could act
thereon, would be nugatory. If it was intended to
606 JACKSON :
The Judges' Cases.
vest in the General Assembly the power to remove
*'for the general welfare," or *'to subserve the
public good," or <' to promote economy in the ad-
ministration of justice," or *<to exercise the power
of redistricting the State," surely it would not have
been accompanied with requirement that any such
official included in the provision should have notice
of such '< reasons" for removal, or that such
notice should, by at least ten days, precede the ■
authority of the Legislature to act in the prem-
ises. These are matters of general public concern,
with which the officer has no more to do than any
other citizen. They are addressed alone to legisla-
tive consideration and discretion. What answer could
any official make to such an assumption of the Legis-
lature, not to a charge against him, but the recital
of a public necessity or desirability for the vacation
of his place? Why give him notice, and timely no-
tice, of a proceeding against him, for reply, when
in the very nature of things there can be no reply.
He cannot say, *'I deny your right to determine what
the public welfare requires;" he cannot say, **You
cannot judge what is promotive of the public good
and economy in the public service or whether the State
needs redistricting." These are all suggestions made
to him, and made not only with the knowledge that "
they are not issues tendered which he can accept,
and on which he can make a contest, but they are
the recital of assumed conditions not susceptible of
outside contest, because addressed alone to the wis-
APRIL TERM, 1899. 607
The Judges* Cases.
dom and discretion of the Legislature. And the Leg-
islature did not do its intelligence the injustice to
pretend to think differently on this subject, for it
did not invite the official to contest them. It as-
sumed and assured him in the notice that they were
settled and that he was merely notified that he, be-
cause of their existence, would be removed. He was
not invited to a trial, or to take issue on a ''cause"
of removal averred against him in a proceeding in
stituted for cause, and which he might show did
not exist. He was merely notified that certain ''rea-
sons'^ for his removal existed in the judgment of
the Legislature, which alone could determine, not on
evidence necessarily, but as the legal representatives
of the people vested with power to entertain and
determine them as matters of pure discretion. So
that it comes to this, either the two houses of the
General Assembly have, upon the requisite two-thirds
•
vote, the power of removal without cause, and at
their unlimited discretion, or they have no such
power, however they attempt to exercise it, and
their action is open to objection whenever and wher-
ever the right of the official is taken away without
cause personal to himself. But here it is urged
that, granting there must be cause personal to the
official, such as unfitness, incapacity, neglect of duty,
or want of moral character, or immoral conduct, or
other causes justifying removal, and which can be
charged against him, and on which charge he can
take issue and offer evidence, still the Legislature is
608 JACKSON :
The Judges* Cases.
the final judge of what the cause or causes are,
and that they have settled it in this case. This
being so, it is argued, even though they were wrong,
there is no remedy. This specious and plausible ar-
gument is wholly unsound. If a ** cause of removal,"
like a cause of impeachment, had been presented
and tried and determined by the Legislature, though
erroneously, its action would have been final. But
before it can become so there must be a proceeding
such as is contemplated in the Constitution. There
must be an issuable averment of a honxi fide cause
of removal which may be traversed, and, before the
just legislative judges, may be successfully met or
established; until this is done there has been no
legitimate action by the Legislature, and this, like
all other acts, is subject, on this ground, to the re-
viewing control of this Court.
We come, then, to the merit of the argument
that ** cause of removal" means anything the Leg-
islature may assume to be such, which is pressed
with great urgency upon us. We are told that the
Legislature might remove because a Judge, acting in
good faith and with most loyal convictions of duty,
had decided, or was about to decide, a case a par-
ticular way, and the argument is enforced by the
illustration that if the Legislature of 1881, existing
when this Court passed adversely on that Act, had
concluded that the noted statute (called the 100 and
3 Act) was about to be declared unconstitutional, it
might have resoluted the prospectively offending Judges
[
APRIL- TEHM,' 1899. 6(f9
The Judges' Cases.
of this Coart, singly or as a body, oat of office,
under this provision of the Constitution, or that it
might have done so afterward if it had been so dis-
posed, and thus have wreaked its vengeance on the'
CJourt or any of its members for doing its consti-
tutional duty, but adversely to the legislative will.
The argument is not strained. If it be a sound
precedent position that the Legislature has unlimited
power of removal for any <' reason" it treats as a
'* cause" of removal, it was in its power to have
removed that Court before that decision and had it
reconstituted by an executive favorable to the meas-
ure, and it was in its power to have removed its
members after the decision for no other cause or
reason than that they did their duty as they saw it
in the fear of God, and, as it happened, in the
favor of the public. The State is much pressed for
reasons when it must rely, to sustain the legislative
action and uncontrolled legislative authority over the
judicial department, upon argument which leads to such
monstrous conclusions as this. Instead of having a
sensible Constitution, sustaining in all its parts, by
plain words and necessary implications, three distinct,
independent departments, we would have one which
made the judicial so dependent and so humiliatingly
subservient that its personal representation would be in
the unrestrained hands of the legislative department —
its overawed ally or its cringing dependent in every
contest on great questions of public interest, or in
the wild outbreaks of public passion. The Judges of
18 P— 39
610 JACKSON :
The Judges* Cases.
the several Courts, too, would be under a far more
despicable subserviency. From term to term of the
Legislature, recurring every two years, they would
be fighting for existence against the strife of poli-
tics, the demands, real and fictitious, of economy,
and the claim of each agitator of retrenchment in
the name of reform. They would be forced to de-
fend against the antagonisms of local enemies, disap-
pointed suitors, and desperate victims of their
administration of law. Lives would be made intol-
erable in anxieties and apprehensions to the good and
the well-meaning men of the inferior Courts, while
they would be made existencies of crawling shame
to the weak or willing tools whr) yielded to such
domination. This is the consequenc^e if the ''cause
of removal" in the Constitution means anything
assumed to be ''reason" for removal by the Leg-
islature, or if its assumption of "reason of re-
moval " as " cause ' ' is not disputable in the Courts.
To give the Constitution its plain meaning, no
such condition can- result. No honest Judge can
fear or need fear legislative deprivation of ofiice
"for cause." He will give no just cause, and he
can trust any body of legislative Judges to shield
himi from the shame to itself of robbing him of his
rights, in a trial where an issue must be made as
to his conduct or character, and where in open day
the. .public must see him condemned and hear his sen-
tence. But if the Constitution be so construed as
to mean that it is all a matter of legislative discre-
APRIL TERM, 1899. 611
The Judges' Cases.
tion, and how long he shall exist, and for what
reasons he shall go, are questions for the Legisla-
ture as his superior to determine, then the Consti-
tution is no protection to him, and a legislative Act
is not objectionable, though it remove and destroy
him, if it may be done under the properly con-
strued provisions of the Constitution. The record
itself could always be made to wear the appearance
of sanctity; the proceeding could take on the robe
of economy or the garb of piety, and the work be
done * * properly, ' ' being done under the Constitution.
Nevertheless the Judge would be, instead of a dis-
tinct, independent servant of the people by whom
he was elected (and by all of whom he was elected,
as the individual members of the other departments
were not), an easily destroyed victim of legislative
disfavor, without independence in his place or his
»
conduct, and without protection under the Constitu-
tion and law he was created to construe and sworn
to enforce.
It is said, however, that the constitutional
provision for removal is not to be for *' spe-
cific" cause, and it is, therefore, assumed to be for
'*any" cause which the Legislature may elect to so
treat, and going a step farther, that any ' ' reason ' '
the Legislature gives must be treated as '* cause," if
they so treated it, because the Constitutional Conven-
tion of 1870 rejected certain amendments which were
offered, attempting to specify particular '* causes"
of removal in the constitutional provision, or to re-
612 JACKSON :
The Judges' Cases.
quire their specification by law; and on this point
the journal of the Constitutional Convention is
quoted, and likewise the argument (made in this
case in the Court below) of a member of the Con-
stitutional Convention, and later Attorney-general of
this State, referring to the journal of the Conven-
tion, and also to his scrap-book of the daily papers,
showing more to the same effect. In that argti-
ment it seems, by reproduction here, that several
eminent men yet living, who were also members,
bad views antagonistic to his of. what took place in
the Convention on that subject, and of the intent
and purpose of the Convention, as indicated by
expression of sentiment. All this disagreement of
recollection and controversy as to views are repro-
duced here in argument, and much of it printed in
the briefs. Jt only is sufficiently important as evi-
dencing the views of good and worthy men who
figured in that great work to justify its statement.
It is really a mere word playing now. Whose
memory as to those proceedings is good or bad,
and with which one time has dealt most hardly, is
of no consequence. Both from the plain reading of
the Constitution itself, as well as from the journal
and from the newspaper account (treating it as verity)
it appears that ''cauSe" of removal was required.
*' Cause" which must be specified to the accused or
'* proceeded against" official, and to which he must
have ten days to get ready, and against which he
could defend. This is all clear. It only makes it
APRIL TERM, 1899. 618
The Judges' Cases.
the more so, and the more materially so on the
^construction that can alone be properly placed upon
it, that none of the Constitution makers undertook
to eliminate the word ''cause" or "causes" of
removal already in the section. No amendment was
offered to change or strike it out. The Convention
refused to specify or provide for the specification of
particular causes, and rejected all efforts to do so,
by amendments, because there would be many cov-
ering possibly impeachable, and certainly nonim-
peachable offenses, and other faults and con-
ditions not susceptible of easy enumeration,
and for the same reason not deemed proper to
bo reduced by special classification or limitation
on the general terms employed. Having said that
the officials might be removed for ''cause," and
only for "cause" as is absolutely implied as shown,
and having set forth that it was to be for cause
assigned in a proc^edmg against the official, where
there was to be a triable issue, which could be met
by defense; and to get ready for which he was to
be notified sufficiently in advance, and having set
forth that in that proceeding or trial, and upon the
causes for removal charged and entered of record,
there were to be votes in both houses for and
against the official on these charges, the convention
manifestly deemed it had done enough to require a
proceeding on personal causes of removal, and as
there might be a great many of them, would not
and did not limit them in number or character by
614 JACKSON :
The Judges* Cases.
indication or enumeration of a few, or by a specific
limitation on a general statement. This is all there
was of it, and it is matter of surprise that it should
be used for more, or to prove the very thing it
in fact disproves.
But the argument is made that this wholly base-
less view finds support in the fact that the removal
clause of our Constitution is borrowed from the Eng-
lish law, under which a Judge might be removed
on address of Parliament, and that in States where
this unlimited consequence is not to follow, it has
been guarded against by specifying for what "causes"
i-emovals may be made.
It is not true, in the first place, that the pro-
ceeding is so borrowed. It is not the English pro-
ceeding. ' There, on such ''address" the King could
remove. In some of the American States this was
almost immediately copied. The Legislature could
address the Governor and he could remove, as the
King in England. But no such course was taken
in our Constitution. The Governor has nothing to
do with removal. Again, in England the removal
might be with or without cause (if Parliament, which
was omnipotent, so willed, and addressed) because
Acts of Parliament practically make what is farci-
cally called the Constitution of England, for they
have no Constitution in the sense that we have, or
in any other except theoretically, but our Constitu-
tion, which is written, fixed, and permanent, left no
such scope for the removal of Judges. It gave only
APRIL TERM, 1899. 616
The Judges' Cases.
the power of removal to the Legislature, coupled
with condition that it must be for cause, for cause
of which notice must needs be given, and to which
there could be defense, and, of course, successful
defense, interposed, for no American lawmaking
body ever yet went through the form of calling a
citizen to a trial, requiring that he should have no-
tice, and yet cut him off from a trial or defense
that might be successful, that was intended to be
succesbful, if made out. It is therefore not true
that any support of this legislative resolution is de-
rived from its English semi-prototype or the con-
temporary constitutions of this country. Some of
the latter in terms specified what the ** causes"
should be. Some said for any or certain ones not
sufficient to amount to impeachable causes, but no
single one ever required a * * cause " to be assigned,
as ours does, which did not mean one personal to
the Judge to his acts, habits, or character. No one
ever did recognize as '* cause" anything over which
he had no control, or which did not have personal
relation to his discharge of duty, and no single case
can be found to the contrary.
Having devoted so much space to this question
because of its supposed serious and final efl'ect on
what was concededly a doubtful result, so far as
the Acts abolishing the office of Judges were con-
cerned (for the resolution of removal was treated,
legislatively, as a method to ''clinch," as was there
said in argument, the abolishing Act), we come to
6U JACKSON :
The Judges* Cases.
that question and proceed to its consideration with
the elaboration it deserves, at the risk of being
tedious, for the question is one of the most impor-
tant that ever ai*ose for final decision in this State,
and upon its determination hangs, as we think, not
only the independence but the existence of the ju-
dicial department of the State . government. As al-
ready stated, our government, State and national, is
divided into three distinct and independent depart-
ments, legislative, executive, and judicial. Such, too,
is, in substance, the divisions of all the other State
governments, and it may well be practically termed
the form which republican governments have taken
in these United States, and which the Constitution
thereof guarantees to eveiy State in the Union.
(Art. IV., Sec. 4.) Our own Constitution, based on
that, and substantially that original of 1796, which
bad Mr. Jefferson's commendation as one of the best
ever framed, after providing that '*all power is in-
herent in the people,'' proceeded to declare how the
people would have it exercised, to distribute into
departments and to vest in each such as the people
wished each to exercise, and to put upon each the
limitation which was deemed essential to conline it
within the scope of the authority the people vested,
and beyond which they intended to restrain. It is
sometimes said that the Legislature is omnipotent and
its authority unlimited, except when restrained by the
Constitution of the State or the Federal government.
It is treated as a great residuum of power not other-
APRIL TERM, 1899. 617
The Judges* Cases.
wise constitutionally disposed of or restrained. This is
Hub vwdo true, generally, in the <)ases in which it has
been uttered, but it is wholly inaccurate when ^iven
the general application to which its formulation would
lead. All that is meant by it is that, following
the English rule as to parliamentary power, the
Parliaments or Legislatures of the States of the
Union, as legislative representatives of tiie people,
have all legislative power, not expressly or by neces-
sary implicatioa Umited, that the English Parliament
did. Smith v. Normant^ 5 Yer., 272-3. So far
as this question is involved here, it may he dis-
missed with a mere suggestion. The power of cre-
ating or abolishing Judges never did, and does not
now, abide in the Pai*liament of England. The
English theory was that the King was the Judge in
England. Later this kingly power was delegated by
him to others appointed by him. They existed with
him (subject to his power of removal) and officially
died with him, if not before removed. Yet later,
on recommendation of the King, the last feature
was changed by Act of Parliament, and the tenure
of the office of each incumbent was extended be-
yond the death of the King, and the office was
ultimately held during good behavior, which, of
course, meant during life, if not forfeited by mis-
conduct. But still to this was &dded a right of
removal by the King upon what was- termed an ad-
dress of both houses of Parliament, and which, it
618 JACKSON:
The Judges' Cases.
is said, was made in the form of a resolution.
Enc. Br. (9th Ed.), Vol. 13, 763.
Never, therefore, did the power of appointment
or removal of a Judge vest in the Parliament of
EnfZfland. It was not a legislative power there, and
is not here, unless the people have made it so. If
it was a legislative power, and was not constitu-
tionally limited, it would remain a legislative power.
If it was not, and was never made so constitution-
ally, it would remain in our system one of the
powers amid those all of which are ' ' inherent in
the people," and not to be exercised except as they
organically will it to be.
It is necessary, therefore, to see what our CJon-
stitution provides on that subject, and how it regu-
lates the creation and abolition of Courts. Without
going on this question beyond our present Constitu-
tion, except for the purpose of illustrating the view
of the public, we would call attention to other
utterances of the people as indicative of the purpose
they had and the proper construction of the view
expressed in that Constitution. It will be remem-
bered by all students of history that the course of
dependent Judges, rendered, truculent by control and
made infamous by subservience, had created for the
English people a more insupportable condition of
legal tyranny and authorized oppression than had
ever found existence in the wildest usurpation of
pretenders or the most abominable license of estab-
lished despots. This, among all the grievances which
APRIL TERM, 1899. 619
The Judges^ Cases.
caused revolution and advanced the cause of freedom
there, and gave it absolutely here, was the result
of such disregard of popular rights and liberties by
dependent creatures of the Crown called Judges.
It is to be remembered that one of the complaints
of the American colonies against the King was that
'<he has obstructed the administration of justice by
refusing his assent to laws for the establishment of
judiciary powers. He has made Judges dependent
on his will alone for the tenure of their offices, and
the amount and payment of their salaries." Dec.
Ind., 8th and 9th complaints. When the struggle
for independence under this declaration was success-
ful, and a form of government came to be adopted,
these evils complained of were remedied.
An independent judiciary, in an independent gov-
ernment, was secured by constitutional provisions
giving a fixed tenure of office and prohibiting a re-
duction of salary. In the federal government the
tenure was for life (or what may be the same
thing, and must be, to a faithful and irreproachable
official), during good behavior, and there was a pro-
vision against decreasing judicial salaries. In the
Constitution of this State the same course was taken,
with an improvement, at least in one respect. The
tenure was fixed, not for life, but fixed . at eight
years, and the provision against decreasing was ex-
tended' to prevent increase of salaries. Specifically
our Constitution provided on this subject that 'Hhe
powers of the government shall be divided into three
«20 JACKSON :
The Judges' Cases.
distinct departments, the legislative, executive, and
judicial." Art. II., Sec. 1. *'No person or per-
sons belonging to one of these departments shall
exercise any of the powers properly belonging to
either of the others, except in the cases herein di-
rected or permitted." Sec. 2.
After thus distributing the powers of government
into these three distinct and independent departments,
the people in this Constitution proceeded to vei^t
them, so far as the question now involved is con-
cerned: ^^The judicial power of the State is vested
in one Supreme Court and in such Circuit, Chancery,
and other inferior Courts as the Legislature sh^l
from time to time ordain and establish, in the Judges
thereof and in Ju0tices of the Peace. The Legislature
may also vest such jurisdiction in corpor3.tion Courts
as may be deemed neoessary. Courts to be
holden by Justices of the Peace may also be estab-
lished." Art. VL, Sec. 1. *'The Judges of the
Supreme Court shall be elected by the qualified
voters of the State. Term of service shall be eight
years." Section 3. "The Judges of the Circuit
and Chancery Courts and of other inferior Courts
shall be elected by the qualified voters of the dis-
trict or circuit to which they are to be assigned.
Term of .service shall be eight years." Section 4.
'^The Judges of the Supreme or inferior Courts
shall, at stated times, receive a compensation for
their services, to he ascertained by law, which shall
APRIL TERM, 1899. 621
The Judges' Cases.
not be increased or diminished daring the time for
which they are elected." Section 7.
This fixed tenure of office and unchangeable sal-
ary were the methods devised to secure judicial in-
dependence, as they have ever been in the American
Constitutions. The provision vesting judicial power,
among other Courts, in Circuit and Chancery Courts,
was intended to preserve (whatever else might be
added) the system of Circuit and Chancery Courts.
So was and is its plain purport. In like manner it
has been held to be the constitutional object to pre-
serve the County Court as a part of our Court
system upon like recognition, but in yet other sec-
tions of the Constitution. Pope v. Phifer^ 3 Heis.,
683.
These three Courts thus recognized as preserved
by the Constitution, in addition to the Supreme
Court, have been protected in theory since the adop-
tion of the Constitution, always and in all opinions.
They have been in fact protected in all the cases
up to 1875, notably and powerfully in the Pope
case in 3 Heis., 683. Like other constitutional offices,
it has been held that legislative control of their ex-
istence must be denied, and that, even as to dura-
tion of their terms, the legislative power could not
be exercised.
In 1875 it was held that, though true in theory
that Circuit Courts and Chancery Courts must be
maintained, it was not so in fact — the Legislature
could abolish any it chose. Coleman v. Campbell^
622 JACKSON :
The Judges* Cases.
8 Shan., 355. Of course if it could abolish any,
it could abolish all, as it was not and is not pre-
tended that any one or more of them enjoyed a
special immunity from legislative control.
This case was based upon the theory that the
power to establish involved necessarily the power to
abolish — a theory wholly inconsistent with the con-
stitutional provision for the establishment and con-
tinuance of the Circuit and Chancery Court system.
For if one or both is ^ * established " it can and
''shall" exist or have jurisdiction vested in it un-
der the Constitution, and thus be kept alive and
preserved, against legislative power, as a part of
the Court system, as a constitutional Court, but if
the power to establish includes the power to de-
stroy, such cannot be the result, and there is no
protection to either Circuit or Chancery Court sys-
tem thus recognized and attempted to be preserved
and protected by the Constitution. It happened that
in the particular case cited (^Coleman v. Campbell)
and case heard with it ( Verene v. Willlford) the
Courts, as well as those preceding them. Circuit and
Chancery, had been created by special Acts, so that,
dealing with them, Judge Nicholson said: "If the
Legislature had the power to enact the law, it must
be either because the ordaining or establishing of
Courts is a legitimate legislative power necessarily
involving the power to abolish as well as to ordain
and establish, and that the Constitution has placed
no restriction upon the exercise of this power in-
APRIL TERM, 1899. 623
The Judges* Cases.
consistent with the action of the Legislature in the
present case, or because the Constitution, expressly
or by necessary implication, has vested in the Leg-
islature the power to ordain and establish Courts,
and that this power carries with it the power of
abolishing exi^ting Courts."
Taking this proposition, which was the question
in issue, for granted, the Judge delivering the opin-
ion proceeded to the conclusion that necessarily the
Legislature could abolish and could establish, but,
by the Constitution of 1870, it was prohibited from
disregarding the provision to establish Circuit and
Chancery Courts, and must keep those systems in
existence in connection with any other inferior Courts
it might establish. That this conclusion is so incor-
rect, not to say transparently erroneous, as to be
perfectly demonstrable, appears from the simplest
statement. If the Legislature must preserve Circuit
and Chancery Courts and yet may abolish them; if
it is true also, as it constitutionally is, that it may
also establish other inferior Courts and vest in them
such jurisdiction as it chooses, why could it not
abolish all Circuit and Chancery Courts and then
establish other inferior Courts in whom it might
vest all inferior jurisdiction? Who would say, and
what (but the Constitution) could say how many, if
any. Circuit Courts or how many Chancery Courts,
if any, it should preserve ? It is so clear that the
power to establish does not include, as against
this preservative provision of the Constitution, the
624 JACKSON :
The Judges* Cases.
power to destroy any or all of them, that it
is wonderful to us that the contrary view could
have ever prevailed for a moment. To say nothing
of the provisions which make constitutionally the
term of all the Judges of all these Courts eight
years, and prevent changing their salaries during the
time for which they were elected, it seems so mani-
fest that the power to destroy one or all of those
Courts, when created, is against the preservative
clause of the Constitution respecting the Circuit and
Chancery Courts as only to need suggestion to
demonstrate its nonexistence. If the Legislature can
abolish one, it can abolish all. Which shall it re-
establish, and how can it be required to re-establish
any one of them, and if so, which, especially in
view of its power to establish other inferior Courts
and vest them with any jurisdiction it pleases?
It is a vain thing to say it can abolish as it
pleases, but must retain or recreate the same tri-
bunals. The concession of the power to abolish
one, coupled with the declaration of constitutional
necessity for the retention of the system (which the
Court holds in that case must be done), is a patent
impracticability, not to say absurdity.
The only argument for the preservation of the
system is its constitutional establishment over and
against the power of the Legislature to abolish it
when established during the existence of any term.
It is not a question of trusting the Legislature not
to do it; it is a question of its power to do it
APRIL TERM, 1899. 625
The Judges* Cases.
against the positive provision that these Courts must
exist by the preservative clause vesting in them the
jurisdiction when created. No other conclusion meets
this difficulty, and no argument has been made or
could be made which obviates it. We would just
as well say it must exist, but may not exist, as to
assert the proposition contended for, or put two and
two together and say they shall not make four, as to
assert that the Constitution preserves this system of
C(»urts against the power of the Legislature, and
then say it may destroy it by destroying the Courts
severally or in toto. The principle herein contended
for was conceded by the same Court which decided
the Coleman case, and still that case was in part
adhered to in Hahey v. Oalnes^ 2 Lea, 316, 319.
In that case it was conceded (page 326) that an
Act abolishing a circuit with intent to destroy a
Judge would be void.
This concession can mean nothing else than that
an Act destroying a Judge by abolishing a circuit
or division, would be void, because it had been be-
fore, and has repeatedly since been, decided that the
personal motive or intent of the Legislature in pass-
ing an Act cannot be inquired into, and the only
intent which can be considered is the legal one de-
termined by the eflFect of the Act. If the Act is
to destroy the Judge, the intent appears and the
Act is void. If this is not so, the concession is
meaningless and misleading, not to say frivolous.
For almost the same reasons are the other infe-
18P— 40
626 JACKSON :
The Judges* Cases.
rior Judges protected from legislative interference.
They are to be men of the same age, the same
term of service, with the same unchangeable com-
pensation, and elected by the same voters in the
same district or circuit where they serve. Art. VI.,
Sec. 4t. The word ''district," it must be remem-
bered, was once (and then) used for the county or
counties embraced in a section where one Court was
held for one or more counties. Hence our old
statutes referred to a chancery district, one of them
providing that certain bills should be filed in the
chancery ''district," etc. The manifest constitu-
tional object was to permit the establishment of
Courts for any circuit, division or district composed
of one or more counties, or specific territory, and
then make their existence during a term equally in-
violable for such term, and to secure both and in
the same way the compensation of the Judge was
to be unchangeable, not during any "term of serv-
ice," but "during the time for which he was
elected." To this conclusion this Court came in the
case of State v. Leonard, 2 Pickle, 485, and we
used language there which we thought could by no
possibility be misconstrued. In this connection we
said:
"The Constitution, in fixing the terms of the
Judges of inferior Courts elected by the people, at
eight years, intended not only to make the judiciary
independent, and thereby secure to the people the
corresponding consequent advantages of Courts free
APRIL TERM, 1899. 627
The Judges' Cases.
from interference and control, and removed from all
necessity of being subservient to any power of the
State, but intended also to prevent constant and
frequent experimenting with Court systems, than
which nothing could be more injurious or vexatious
to the public.
<^It was intended when the Legislature established
an inferior Court, that it should exist such a length
of time as would give opportunity for mature ob-
servation and appreciation of its benefits or disad-
vantages, and that the extent of its duration might
discourage such changes as were not the result of
most mature consideration. Realizing that a change,
if made so as to constitute an inferior Court, would
fix that Court in the system for eight years, a
Legislature would properly consider and maturely
settle the question as to the propriety and desir-
ability of such change or addition to our system,
and conscious of the impropriety and the hazard of
leaving the judicial department of the government at
the mercy and whim of each recurring Legislature,
itself elected but for two years, the framers of the
Constitution wisely guarded against these evils by
the section referred to. Properly construed and en-
forced it is effectual for that purpose. Disregarded
or impaired by such interpretation as leaves it to
exist in form, without force or substance, and we
have all the evils and confusion of insecure, chang-
ing and dependent Courts, frequent and constant exper-
imenting with systems, provided in haste, tried in
628 JACKSON :
The Jad^es* Cases.
doubt, and alx)lished before their merits or demerits
are understood. It would be a mortifying reflection
that our organic lawmakers intended any such
result in their avowed effort to make a government
of three distinct and independent departments,- and
still more humiliating if we were driven to the con-
clusion that, while they did not intend it, they had
been so weak and inapt in phraseology adopted as
to have accomplished it." When a Court whose
Judge is elected by the people of one or more coun-
ties in a district or circuit is constituted by the
Legislature, and an election had, and the officer
commissioned and qualified, it is not in the power
of the Legislature to take from him the power and
emoluments of office during the term of eight years
by devolving them intact upon another, or other-
wise. If it can abolish in this way the office
of County Judge, it can abolish the office of any
inferior Judge, as all are protected, or not pro-
tected, by the clause of the Constitution referred to
(Art. V). For the honor of the framers of our
Constitution, the best interests of our people, the
independence of the judiciary, and the security and
order of our Court system against rash and constant
experiments of legislation, it affords us much satis-
faction to give the Constitution its plain, natural,
and unobscure effect to invalidate legislation of this
character, and to be able to say that nothing as
yet decided by our Court stands as an obstacle in
the way of our doing so. But if there were, it
APRIL TERM, 1899. 629
The Judg^es' Cases.
would afford us pleasure to remove it."' State v.
Leonardy 2 Pickle, 485.
The cases supposed to stand in the way were
Coleiuan v. Camphell and HaUey v. Gainex^ and,
after saying that we did not wish to be understood
as assenting to the correctness of the conclusion
reached in them, and rejecting their reasoning, we
showed that, though erroneous, they did not need
to be in terms overruled, because the exact question
of the Leonard case was not decided there, but we
wholly repudiated them, and gave the Constitution
an opposite construction.
Giving the Constitution this construction harmon-
izes the entire section quoted, makes the judiciary
department in fact, and not merely in fiction, inde
pendent, and harmonizes all the other cases before
and since on this subject. See Smith v. Nonaant^
5 Yer., 270; Pope v. Phifer, 3 Heis., 682; State
V. McKee^ 8 Lea, 128; Crass v. Mei'Gei\ 16 Lea,
486; Pembo v. Moloney ^ 8 Pickle, 68; State^ ex reh^
V. Cummins^ 15 Pickle, 674.
It had been before, as was in the Leonard case,
decided, that when the Constitution fixed a term, if
the Legislature created the oflSce and abridged the
term, that part of the Act creating the office was
valid, but the abridgment was void. Bretcer v.
Davis, 9 Hum., 208; Keys v. Masoii, 3 Sneed, 9.
This was repeated in the Leonard case. It was
l)efore this, but later than the Coleman case, de-
cided that a legislative Act which might destroy a
630 JACKSON :
The Judges' Cases.
Judge's right to hold his office was inoperative,
although the Judge was neither a Circuit Judge nor
Chancellor. State^ ex reL^ v. Ridley^ MS., Nashville.
And yet later it was, we thought, affirmatively
and forever settled in the case of State v. Cummins^
15 Pickle, 674, where we held that if the Consti-
tution merely named an officer (as Sheriff) without
defining his duties, it was impossible to destroy his
office, or take from him the substantial emoluments
and functions of the office and confer them upon an-
other on any pretext whatever. This case proceeds
upon the same grounds and cites the same authori-
ties which controvert the view of the Court in
Coleman v. Campbell and Hahey v. Gaines.
It should be noted here that all the cases in this
Court have gone upon the theory generally .recog-
nized in the American Courts, that when the Legis-
lature makes or creates an office without a tenure,
or independently of constitutional provision, it can
abolish it, or change its tenure or its compensation
at pleasure, but that when it creates a constitutional
office, that is, one directed or authorized under the
Constitution or recognized by it, and for which the
Constitution has provided a tenure, the Legislature
cannot abolish the office, abridge its term, or de-
stroy its substantial functions or emoluments. 12
Am. & Eng. Enc. L., 18, 19. We quote in full:
''It is a general rule that when an office is
created by statute it is wholly within the control of
the Legislature creating it. The length of term and
APRIL TERM, 1899. 631
The Judges' Cases.
mode of appointment may be altered at pleasure,
and the office may be abolished and the compensa-
tion taken away from the incumbent, unless forbid-
den by the Constitution. There is no vested right
in an office against the public. The Legislature
may abolish a judgeship where the right to the
office is not secured by the Constitution. Nor do
public offices constitute contracts, protected as such
from violation. And even though a Judge^s office
be created by the Constitution, if his tenure and
compensation are left to the Legislature they may
control and alter in these respects, saving that they
cannot virtually abolish the office as under pretense
of reducing or taking away compensation. The
Legislature in such cases is moreover bound to re-
spect an intendment of the Constitution that Judges
shall be elected. It cannot, in effect, do away with
this right of the people by making terms of unrea-
sonable length. The Legislature has no more power
to enlarge a judicial term fixed by the Constitution
than it has to abridge the same.
''Abolition or change of Courts: The tenure of
the office, as has been already stated, does not rest
on contract, and is not protected by the contract
provision in the United States Constitution. The
General Assembly cannot, directly or indirectly,
abolish any 'constitutional office' — that is, one whose
tenure is defined by the Constitution; but it may,
directly or indirectly, abolish any ' legislative office ' —
that is, one created by the General Assembly itself.
632 JACKSON :
The Judg'ea^ Cases.
But the power of the Legislature to alter the terri-
torial jurisdiction of Justices of the Peace necessarily
arose from the power to create new counties; and
out of the legislative power to reorganize and regu-
late the Courts grows the power to divide a judi-
cial district or to diminish the aggregate duties by
creation of an assistant. But the Legislature can-
not take away altogether the authority of a Judge,
the grant and tenure of whose office are fixed by
the Constitution. Modifying a judicial office in re-
gard to titles and duties and continuing the former
official in the new Court, is not depriving the officer
of his office." Citing cases from Virginia, Louis-
iana, Illinois, New York, Pennsylvania, Arkansas,
Minnesota, Ohio, Wisconsin, Nevada, Iowa, Michigan,
Missouri, Massachusetts, and North Carolina.
Nothing is better settled in this State at this
time than this proposition. It is equally well settled
that the Legislature may, as in the Sheriff's case we
held [State v. Cummins)^ diminish or increase the
duties, and in the case of Circuit, Chancery, and
other established inferior Courts it may diminish or
increase the jurisdiction, enlarge or contract the ter-
ritory of their work, but it cannot destroy either
the officer or the office in toto^ and it cannot,
therefore, abolish a circuit or chancery division, be-
cause that would destroy the Judge. The line must
be drawn somewhere. We undertook to draw it in
the Cummins case. We had before decided that
duties could be changed and compensation could be
APRIL TERM, 1899. 633
The Judges* Cases.
changed. The Constitution said the oflSce must exist.
It gave no salary and defined no duties. If the
line was not properly drawn, the constitutional office
meant nothing, because we had held it might be
made to carry limited or enlarged burdens and be
compensated by greater or less fees. If we said it
should carry no burden, discharge no duty, and re-
ceive no compensation, the constitutional office was a
farce which construction had destroyed. There must
be a line, a reasonable line, drawn somewhere, which
permitted the law to regulate the office but recog-
nized and continued its constitutional existence. We
drew the only one possible.
It applies in the same way to the Judges. The
legislation has been the same. The Constitution is
even more specific as to them, for it directs the
vesting of jurisdiction, and requires a fixed territory
for service and an unchangeable compensation. The
rule is the same — must necessarily be the same; leg-
islation may increase or diminish the jurisdiction of
constitutional Judges; it may add territory or take
it away, but it cannot take all jurisdiction or all
territory away. Enough must be left to preserve the
substantial jurisdiction and functions of the office.
Nothing less than this is reasonable to the law;
nothing more is agreeable to the Constitution. To
show how clear this is from another standpoint, we
consider what appears in the Constitution as to the
Supreme Court and our construction of it. The
Constitution says our jurisdiction shall be appellate
684 JACKSON :
The Jndgen' Cases.
only, ' < under such restrictions and regulations as
may be from time to time prescribed by law."
Art. VI., Sec. 2.
Under this clause we have recognized the right
of the Legislature to take from us and confer on
other Courts (notably the Court of Chancery Ap-
peals) certain jurisdiction. But we did not mean,
the Constitution could not mean, that the Legislature
could take it all away. If so, there need be no
Supreme Court. Here, too, the line must be drawn.
We must have jurisdiction. The Legislature may
reasonably limit; it cannot, therefore, destroy. If
so, it can destroy this Court. The Cummins case
declares the sound principle on which all constitu-
tional offices must be sustained, and upon it the
Courts with all others. There is no principle of
general law proportioned according to name or im-
portance of the office. One rule must prevail. We
had in this State two cases apparently to the con-
trary, Coleman v. Campbell (1876) and IlaUey v.
Gaines (1879). During the reconstruction period,
from 1865 to 1870, an Act was passed creating
certain Courts and another abolishing them. These
cases arose on construction of the last Act. They
in principle were contrary to preceding cases cited
in this opinion, and the reasoning upon which they
were based was directly rejected and repudiated in
the Leonard case already quoted. In the Leonard
case the Court announced that it was not necessary
to overrule them, as the Leonard case was not the
APRIL TERM, 1899. 686
The Judges' Cases.
same, but every line of it was in hostility to the
theory on which they were based, and in conclusion
of that case it was announced that if it had been
the same they would have been overrule<l. They
were not in terms overruled then, because, not be-
ing identical with the case considered, they could
not be, but their doctrine was repudiated, as it has
been throughout the United States whenever similar
constitutional provisions were involved. See cases
cited in reference to 12 Am. & Eng. Enc, pp. 18,
19, from many States. And see, especially. Com-
monwealth v. Oamhle (Pa.), 1 Am. Rep., 422; Reed
V. Stmulter (128 Pa.), 5 L. R. A., 617, 634;
Faiit V. Gibba^ 64 Miss., 396; State^ ex reLj v.
Friedly (Ind.), 21 L. R. A., 634; Foster v. Jones^
62 Am. Rep., 638; Pe^^ple v. Dubois, 23 111., 647;
Attorney-general v. Jochiin^ 23 L. R. A., 703; State
V. Messmore^ 14 Wis., 177; Ex parte Meredith (Va.),
778; Hoke v. Henderson^ 26 Am. Dec, 676; King
V. Hunter (N. C), 6 Am. Rep., 764; State v. De-
Gunther (Wis.), 7 Am. Rep., 89, note; 7 Lawson's
Rights & Remedies, Sec. 3817, note; Throop on
Public OflScers, Sees. 19, 20 (Mr. Throop cites a
Louisiana case as authority to the contrary in Sec.
iO— State V. Wilts, 11 La., 438— but this ruling is
reversed — 38 La., 861 — as appears by citation in Ig
Am. & Eng. Enc. L., p. 19, note 4); Cooley on
(Jon. Lim (6th Ed.), p. 80.
All the cases, so far as they are to be found
not herein cited, will be found in notes to sections
636 JACKSON :
The Judges' Cases.
in 12 Am. & Eng. Enc. L., cited, and in the briefs
of counsel and citations of the Courts and in notes
to cases referred to in American Decisions and Law-
yers' Reports Annotated. It is confidently asserted
that no direct case can be found, outside of Ten-
nessee, on precisely similar constitutional provisions,
going as far to sustain legislative action in abolish-
ing Courts as the Tennessee cases of Coleman v.
Campbell and Halsey v. Gaines.
As supposed to the contrary of this great weight
of authority four cases are cited. They are Aikeman
V. Edwards^ 30 L. R. A., p. 149; Crazier v. Lyons ^
72 Iowa, 401; Va7iBure7i Co. Sup. v. MattoXj 30
Ark., 566; Iloke v. Hetiderson^ 25 Am. Dec, 627.
In the case of Aikeman v. Edwards^ 30 L. R.
A., the question as to the power of the Legislature
to interfere with a judicial tenure of office was not
involved. Butler and Greenwood Counties composed
the said twenty-sixth judicial district. The Legislature
transferred these counties to the thirteenth district,
thereby indirectly abolishing the twenty-sixth district.
The Act providing for transfer of jurisdiction also
provided that it should not be construed so as to
deprive any Judge of his salary. After the passage
of this Act, Aikeman was nominated in a party
convention as a candidate for the office of Judge of
the said twenty-sixth district, which had been abolished
by said transfer of its jurisdiction. A certificate of
his nomination was given him by the chairman and
secretary of the convention, which was by him pre-
APRIL TERM, 1899. 637
The Judf^es* Cases.
sented to the Secretary of State, with the request
to file the same. This request was refused by the
Secretary of State, on the ground that the said two
counties composing the twenty-sixth district had been
by said Act transferred to the thirteenth district.
Thereupon, Aikeman sued out a writ of mandamus
to compel the issuance of the certificate. The re-
lator had no claim or right to the office. His con-
tention was based upon the broad proposition that the
Legislature had no power to abolish a circuit by
transferring its jurisdiction to another circuit, and
that, this being so, the office of Judge of said cir-
cuit was still in existence. Upon this contention he
claimed the right to become a candidate.
The salary of the Judge incumbent having been
preserved by the Act, and said incumbent Judge
making no contention, the sole question before the
Court was whether the Legislature had the power,
under the Constitution, to abolish said circuit, by
transferring the counties composing it to another
circuit. The Court, in its opinion, distinguished the
aase from one involving the right of an incumbent
Judge, saying: '^ We might say, in this connection,
that the plaintiff in this does not claim any vested
right in an office, and that no question is presented
by the record before us as to the right of the Leg-
islature to deprive a district Judge of the compen-
sation allowed by law. In the Act under considera-
tion, the Legislature has seen fit to provide that
the Act shall not be construed to deprive any Judge
638 JACKSON :
The Judgfes' Gases.
of his salary for the fall term for which he was
elected. The claim of the plaintiff in this case rests
on the broad proposition that the Act in its entir-
ety is void. We need not discuss the question,
argued at some length in the brief, whether there
can be a Judge without a district, or without a
Court over which to preside, as the plaintiff in this
case has no interest in that question. '' 30 L. K.
A., 153, 154.
The Act in question abolished four districts by
transferring their jurisdiction to other districts. As
is shown in the opinion of the Court, this was done
upon economical grounds, and to dispense with ex-
travagant and useless Courts. The fact that, under
these circumstances, the Legislature reserved to the
Judges of the abolished Courts their salaries for
their full terms of office, furnishes the evidence that
the Legislature considered that the Act would be
unconstitutional unless such reservation was made.
The Constitution referred to in this case provided
that Judges should hold their offices for a term of
four years. But it must be admitted that the opin-
ion of the Court indicates that it intended to maintain
the view for which it is cited. We have pointed
out, however, the facts and different constitutional
provisions.
The case of Crazier v. Lyons^ 72 Iowa, 401, has
no bearing upon the question in the case at bar.
The Constitution of Iowa (1857) provided that the
judicial power should be vested in a Supreme Court,
APRIL TERM, 1899. 639
The Judges* Cases.
District Court, and such other Courts inferior to the
Supreme Court as the General Assembly may from
time to time establish. It further provided for a
fixed term of ojffice as to the Judges of the Su-
preme Court and District Court, and for an undi-
minished compensation during the term for which
they were elected. It further provided for the re-
organization by the Legislature of judicial districts
and an increase of Judges of the Supreme Court,
but that this should be done so as not to remove
a Judge of said Court from office. As to inferior
Courts which were not embraced in the classes of
Courts before named, said Constitution contained no
provisions for a fixed tenure of office, nor for an
undiminished compensation during continuance in office,
nor any prohibition against removal from office. In
law the prohibition in said Constitution against re-
moval from office of one class of Judges conferred
the implied power to remove the other class — the
Judges of the inferior Courts constituting said class.
It will be seen from said Constitution that the class
of Courts designated in the same as inferior Courts
were intended to be creatures of the Legislature,
subject to its will, and for this reason no constitu-
tional limitations were thrown around such Courts.
It is obvious, from the terms of said Constitution,
that no question of legislative interference with a
constitutional tenure of office arose in said case.
Iowa Const., Art. V., p. 382.
The case of VanBxLveii Cminty Supers, v. Mattox^
640 JACKSON :
The Judg'es^ Cases.
80 Ark., 566, was grounded upon express provisions
of the Arkansas Constitution, and is not in point.
The Constitution of Arkansas (1868) provider, n Sec.
6, Art. VII., as follows: *'The inferior Courts of
the State, as now constituted by law, except as here-
inafter provided, shall remain with the same juris-
diction as they now possess, provided that the Gen-
eral Assembly may provide for the establishment of
such inferior Courts, changes of jurisdiction, or abo-
lition of existing inferior Courts, as may he deemed
requisite. The Judges of the inferior Courts herein
provided for, or of such as may hereafter be estab-
lished by law, shall be appointed by the Governor,
by and with the advice and consent of the Senate,
for the term of six years, and, until such time, the
General Assembly shall not interfere with the term
of oflSce of any Judge." Hough Amer. Const., Vol.
1, p. 101. In this case an inferior Court was
abolished by an Act of the Legislature, and the
Judge of the Court instituted a mandamus proceed-
ing to compel the payment of his salary. The Court
holding adversely to the contention, said: '* Where
the Court is abolished, as was the case in this in-
stance, there was no longer an office to fill, no offi-
cer, no service to render, and no fees due." It
will be seen that said Constitution expressly conferred
upon the Legislature the power to abolish inferior
Courts. The constitutional limitation upon the Leg-
islature that it should not interfere with the term
of office of a Judge is to be construed in connec-
APRIL TERM, 1899. 641
The .Judges' Cases.
tion with the provision conferring the power to abol-
ish. This limitation was construed by the Court
— that while the office existed only during this time,
the term of office should not be interfered with.
It is therefore evident that the Court based its con-
clusion upon the theory that said limitation did not
control the provision conferring the express power
to abolish, and that the limitation was subordinate
to this provision. So, therefore, the case is grounded
on an express constitutional provision conferring upon
the Legislature the power of abolition, this power
of abolition necessarily carrying with it the power
of deprivation of office.
The case of Hoke v. Henderson^ 25 Am. Dec,
677, involved the tenure of office of a clerk — an
office recognized by the Constitution of the State,
but as to which there was no tenure of office pre-
scribed in that instrument, such tenure being left
to the will of the Legislature. 25 Am. Dec, 684.
Chief Justice Ruffin, in that case, said: <^ There is
no reason why a public office should not be given
during good behavior. The services are what con-
cern the country, and they may be expected to be
best done by those whose knowledge of them from
time and experience is most extensive and exact.
Some offices can, under the Constitution, be granted
or conferred for no other term but that of good
behavior. Such is the provision respecting the office
of a Judge and Justice of the Peace. Certainly
tiiat is not introduced solely for the benefit of the
18 P— 41
642 JACKSON :
The Judges' Cases.
persons holding those offices, but upon the great
public consideration that he who is to decide contro-
versies between the powerful and the poor, and es-
pecially between the government and an individual,
should be independent, in the tenure of his office,
of all control and influence which might impair his
impartiality, whether such control be essayed through
the [frowns of a bad man or through the adulation
of an artful one, or such influence be produced by
the threats of the government to visit nonconformity
to its will by depriving him of office or rendering
it no longer a means of livelihood. For these rea-
sons the* Constitution has fixed the tenure of the
judicial office to be during good behavior. The peo-
ple have said that the liberty and safety of the
citizen required that it should not be held upon any
other tenure. Q It is clear, therefore, that our ances-
tors did not f entertain the notion that such a tenure
was not' [consistent with our Constitution generally.
It is '^ true that|<it does not put clerks upon the same
basis. There was not the same reason for it. The
public^ interest did not require that any law should
be laid' [down to the Legislature as to the tenure of
those [offices, but it was left to their discretion as
expediency might, from time to time, require it to
be altered." 25 Am. Dec, 694, 696.
Notwithstanding these declarations of the Court in
that case, it is cited in the brief of the Attorney-
general, in this, as sustaining his contention, that
the Judges of our inferior Courts are mere legisla-
APRIL TERM, 1899. 643
The Judges' Cases.
tive creatures, to be dealt with as the Legislature
pleases. In bis brief he sets out a quotation, taken
from an isolated portion of the case, which he itali-
cizes. It is as follows: *'So also it is yielded, for
the like reason, that the office itself, when it ceases
to be required for the benefit of the people, may
be abolished. There is no obligation on the Legis-
lature or the people to keep up an useless office,
or pay an officer who is not needed. He takes the
office with the tacit understanding that the existence
of the office depends on the public necessity for it,
and that the Legislature is to judge of that."
As this quotation omits the language of the Court
immediately following the same, we add this lan-
guage to the quotation, viz.: **But, while these
postulates are conceded, the conclusion drawn from
them cannot be admitted. They are, that there
cannot be private property in the public offices, and
if there be that the officer may be discharged at
the discretion of the Legislature. Neither of these
propositions is believed to be correct." 25 Am.
Dec., 693.
The language quoted from that case in the brief
of the Attorney-general, was, as will appear from
an examination of the case, intended to apply only
to offices which were subject to legislative will, and
not fo offices the tenures of which are constitution-
ally defined. On the contrary, the case expressly
declares that the Legislature is powerless to inter-
fere with offices the tenure of which is constitution-
644 JACKSON :
The Judges^ Cases.
ally prescribed. The case is a direct authority
against the proposition contended for, and sustains
the view herein taken, and so is the case of State
V. Jordan^ 33 S. E. Rep., 139, subsequently de-
dided in the same State.
Having shown that the two Tennessee cases (out
of line with former and subsequent cases on the
same principle), directly against the holding in Pope
V. Phyfer^ 3 Heis., 682, repudiated by three cases
since, precisely in point (State, ex rel., v. Ridley,
State, ex reh, v. Leonard, State, ex rel», v. Cum-
mins), never should have been controlling, 1 wish
to present the original question against the merit of
these opinions per se, and in this connection I would
refer, first, to their inherent want of weight, by
reason of the fallacious doctrine upon which they
are rested. It is, first, the assumption that *' what-
ever the Legislature could establish it could de-
stroy." The authorities already cited and quotations
made wholly overturn this assumption. It is clear
that when a thing is established by the Liegislature,
and exists only by virtue of that authority, the
authority may be withdrawn and the thing itself
destroyed. It is equally clear in reason, and we
think we have demonstrated it to be so in author-
ity, that when it is established by virtue of consti-
tutional direction, and to exist and take power and
duration, with unchangeable salary, from the Consti-
tution, it is imbedded in the Constitution and beyond
legislative control. This principle is enunciated and
APRIL TERM, 1899. 645
The Judges^ Cases.
argued, we may say established, in so many of the
cases cited that to repeat them here would be not
only superfluous but inexcusably tedious.
The second fallacy upon which it was based was
the lack of independence of the judicial department.
The republican form of government, which we,
in common with other States, had adopted, in theory
embraced three independent departments, the legisla-
tive, executive, and judicial, each supreme in its
own sphere and independent of the others. This
theory had been assumed to be correct, and this
condition of independence actually existing in fact
from the adoption of our earliest Constitution, until
the case of Hahey v. Gaines^ in 1879, when it was
announced, in words, by this Court that the inde-
{)endence of the judicial department was only *'a
fiction of law," and that it could not exist without
the assent of the Legislature. We quote the lan-
guage of the opinion on this point: <^Much has
been said as to the necessity of maintaining the
independence of the judiciary, especially to maintain
the Courts free from legislative interference. There
are provisions of the Constitution intended to pro-
mote, in some degree, their independence, and those
provisions should be upheld, but independence in
fact is *a fiction of law.' While the Legislature
cannot rightfully subvert the judicial department, it
possesses many powers against which the Courts have
no protection except the integrity of the Legislature
itself and of the people. The taxing power belongs
646 JACKSON :
The Judges' Cases.
to the Legislature, and if that body refuses to levy
the necessary taxes to support the government, the
Courts would be powerless." Ualsey v. Gaines^ 2
Lea, 826.
This fallacious argument, based on supposed revo-
lutionary action of the Legislature, is so fully met
and overthrown by Chief Justice Ruffin, in the case
of Iloke V. Hendei'son^ 25 Am. Dec, 698, that we
cannot forbear quoting. He said:
"The argument is, therefore, unsound in this,
that it supposes (what cannot be admitted as a sup-
position) the Legislature will designedly violate the
Constitution in utter disregard of their oaths and
duty. To do indirectly, in the abused exercise of
an acknowledged power, not given for, but perverted
to, that purpose, that which is expressly forbidden
to be done directly, is a gross and wicked infrac-
tion of the Constitution, and the more so becaiic>e
the means resorted to deprive the injured person,
and are designed to deprive him, of all redress, by
preventing the question becoming the subject of
judicial cognizance. But that is not the only test
of the constitutionality of an Act of the Legisla-
ture. There are many laws palpably unconstitutional
which never can be the subjects of legal controver-
sies. Not to allude to the causes which have been
recently the themes of the bitterest political contro-
versies, several instances of much simplicity may be
adduced from our State government. The Constitu-
tion of this State provides that the Governor, At-
APRIL TERM, 1899. 647
The Judges' Oases.
torney-general, Treasurer, and other officers shall
be elected by the General Assembly by ballot, and
that certain of them shall have adequate salaries
during their continuance in office. Suppose the
Legislature to refuse to elect these officers or to
^ive them salaries, or, after assigning them salaries
in a statute, to refuse to levy taxes or to collect
a revenue to pay them. All these would be plain
breaches of constitutional duty, and yet a Court
could give no remedy, but it must be left to the
action of the citizens at large to change unfaithful
for more faithful representatives. Yet no one will
say that the Legislature can by law remove the
Governor, or a Judge, or any other head of a de-
partment, because they can unconstitutionally refuse
to provide salaries for them and the Courts cannot
compel the raising of such salaries. Nor can it]; be
said because there cannot be such compulsion, that,
therefore, the law is constitutional. All that can
be said is that such is the imperfection of all
human institutions, that it is not possible to antici-
pate and provide against all vices of the heart more
than all errors of the head, and that after every
precaution much reliance must be placed in the in-
tegrity of our fellow-men, and that such confidence
is liable to be abused. But I think it may safely
be assumed, as is done in the Constitution, with all
the responsibilities of the legislative representatives
to their constituents under frequent elections, with
all the clear declarations of the rights of the citizens
648 JACKSON :
The Judges' Cases.
in that instrument, with the division of the powers
of government made in it, whence arise the powers
and the. duties of the judiciary to ascertain the
conformity of a statute with the Constitution, that
with all these guards against abuse, the danger of
a willful and designed violation is never to be ap-
prehended. No arguments, therefore, in favor of
the necessity of executing a particular Act, appar-
ently inconsistent with the Constitution, can be
drawn from any supposed ability of the Legislature
to effect the same end by indirect means which are
beyond the cognizance and control of the judiciary."
The Halsey case had been preceded, in 1875, by
that of State^ ex rel, Coleman^ v. Campbell (MS.
Jackson, now reported in 3 Shannon, 355), in which
it had been held that a Court, Circuit or Chan-
cery, established under the Constitution, might be
abolished by the Legislature. The first named case
was never published until after the present contro-
versy arose, but the last referred to and was based
upon it, going no further in fact, but broadly an-
nouncing the principle upon which it was based to
be the want of independence of the judicial depart-
ment under our Constitution. These cases were pre-
sented and decided when the question seemed
practicallj' to be of minor importance, because they
involved but the little interest and the few dollars
of the salary of a single Judge, and though appar-
ently earnestly considered and decided after a divis-
ion and dissenting opinion, we think the scope,
APRIL TERM, 1899. 649
The Judges' Cases.
importance, and vicious extent of the ruling was
never properly appreciated by the Court or the bar
at that time, and is hardly so now, when we have
only the destruction of eleven constitutional judicial
offices and officers (counting Judges and< District
Attorneys), before us, and never will be perhaps
until some less envied successors of ours shall have
before them the destruction of the entire judicial
department. We are sure the extent and conse-
quence of such a construction was never contem-
plated then. They were faintly perceived in the
last case, and an intimation given that legislation to
abolish a circuit or division, for the purpose of de-
stroying a Judge, would be unconstitutional, but the
Court dealt with this great question like it was to
be disposed of on fictions, and, if correct, struck a
death blow to the department of the government on
whose security and independence the best interests,
the lives, liberty, and property of the citizens have
always rested in pride, and heretofore in security.
The Legislature, however, never deemed it wise
until recently to follow this invitation and invade
the department which the Constitution made the
permanent administrator of justice. In a minor
case or two, never of consequence and never
noticed until the Leonard case, the Legislature
may have asserted the right so conceded, but
that department seemed not to desire to adopt the
construction given the Constitution. It let Judges
go, as they had always gone, uncontrolled by any
650 JACKSON :
The Judges' Cases.
assumption or assertion of general legislative power
or control. When the Leonard case arose to
again test the power to abolish and establish Courts,
it was upon the passage of a County Court bill
abolishing the Judge of a single county, about which
the majority of the Legislature could care little and
know less. It was a local matter, purely, affecting
only a single officer in one county. Naturally, it
attracted no general notice from the Legislature or
from others. It passed under these conditions. When
it came before this Court, we then recognized in it
a great question, and we treated it as such. We
distinctly and in the most unmistakable terms rejected
and repudiated the principle and the argument on
which the Coleman and the Halsey cases were
founded. We dissented most earnestly from the
statement formulated in the last case, that judicial
independence is a fiction of law, and asserted our
rejection of the whole doctrine of those cases in
terms so clear that we did not think them suscep-
tible of misapprehension or misconstruction, and we
asserted that judicial independence was a constitutional
fact, plainly existent in the Constitution, and not to
be construed away on any pretext whatever. We
asserted that when a Court, under the Constitution,
was created, it was to be for the full constitutional
term, and could not be abolished. We said this was
intended to prevent experimenting with Courts; to
cause the Legislature to be careful in creating them,
because they could not be destroyed sooner. We
APRIL TERM, 1899. 651
The Judjifes' Cases.
said it was to give the people opportunity to try
them on their merits that the term must be so
long. We said it was to make the Judges inde-
pendent of all apprehension of loss of oflSce by leg-
islative or other interference. We said everything
that could be said to mean all this, and thought
nobody could mistake it. We said, additionally, that
while the Coleman and Halsey cases, with which we
did not concur, were not in the way. and could not
be overruled because not so, we would overrule them
if this case had been like them, and they had there-
fore required overruling. There can be no doubt
of what we then said and meant. We are not the
same individuals now, and may not agree, but let
us not find differences which do not exist, and which
all the world will say do not exist. The same is
true of the Cummins case. In principle it is with
the Leonard case, and inconsistent with the other
two. We can make nothing else out of it, and
nothing else can be made out of it. We propose
in this dissent to stand by them. They are right,
and always were, as the others which they repu-
diated never were.
Now, as to the object of making three independ-
ent departments, and of giving fixed tenures and
salaries, it is agreed throughout the United States
that this was to secure judicial independence. On
this question, and its importance, I cannot forbear
some quotations, though, to the legal profession at
least, .they may be regarded as trite and superfluous.
662 JACKSON :
The Judges' Cases.
The subject is well presented in the able brief of
defendant's counsel, in argument and citation, and we
can state it no better than by liberal extracts there-
from:
''To secure the independence of the judicial de-
partment, the Constitution provides that the term
of the service of a Judge should be for eight years,
and that his salary should not be diminished during
his term of office, this being the only method by
which such independence could l>e preserved to those
who exercise the functions of this department. These
constitutional provisions guarding the tenure of office
and salary of the judiciary, were expressly intended
as limitations upon the power of any other depart-
ment to disturb these safeguards of an independent
department. They were intended to be fixed and
unalterable, subject alone to one limitation — that is,
by the removal of a Judge from office for causes
of his own creation, or arising from his personal
condition. This limitation is expressed in the pro-
visions for an impeachment or removal from office
for cause by a two-thirds vote of both houses. To
intefere with the judicial department by any other
mode than under the grant of power to remove
by impeachment or by a two-thirds vote of both
houses, violates the limitations expressed in the pro-
visions securing the judicial tenure of office. There
can be no intermediate ground for implication or
construction.
"The Legislature can only act under this grant
APRIL TERM, 1899. 653
The Judges* Cases.
of power of removal; any other mode is prohibited.
This grant of power of removal by impeachment, or
for cause by two-thirds vote, precludes the idea of
removal by any other method — abolition or reorgani-
zation of Courts or otherwise. If the power of
removal by abolition or reorganization of Courts was
intended, there was no need of these methods of
removal. Removal could be accomplished by the
simple and easier method of a majority vote abolish-
ing or reorganizing Courts, and the establishment of
new Courts or circuits. The constitutionally defined
methods of removal of themselves afford conclusive
evidence of the intendment that no other mode could
be exercised. ' When the means for the exercise
of a granted power are given, no other or different
means can be implied as being more effectual or
convenient.' The granted power must be exercised
in the prescribed manner. Every other mode of
executing the power is prohibited. Norment v. Sviith^
5 Yer., 272; Cooley Const. Lim. (6th Ed.), p. 78.
* * * The affirmation of a distinct policy upon any
specific point in a State Constitution implies the
negation of any power in the Legislature to estab-
lish a different policy. Every positive direction con-
tains an implication against anything contrary to it,
or which would prevent or disappoint the purpose
of that provision.' State v. Ilalleek^ 33 Am. Rep.,
p. 651; Cooley on Con. Lim., 6th Ed., 80.
**That the tenure of office provisions of the Con-
stitution were expressly intended to secure the term
654 JACKSON :
The Judges* Cases.
of office and the Judge the office during the ten-
ure, subject alone to the defined grant of power of
removal, is firmly established in the light of his-
tory and the conditions which led to the establish-
ment of our Federal and State forms of government.
«
When we look to these, we find the full import of
the framers of our organic law 'hammered and
crystallized ' in the few brief words which define
and secure judicial independence by a fixed tenure
of office, and an undiminished compensation during
that tenure.
''The struggle for judicial independence has been a
long and eventful one. In England the appoint-
ment of Judges was a prerogative of the Crown,
and their tenure of office at the pleasuree of the
Crown. Prior to the reign of James II. this pre-
rogative had been abused by the Stuarts to some
extent, but it was abused by James II. so largely
and arbitrarily that it became one of the causes of
the revolution. Macaulay gives this account of his
arbitrary removals of Judges: "Judge after Judge
had been stripped of the ermine for declining to
give decisions opposed to the whole common law
and statute law. Decisions at variance with the
spirit of the Constitution had been obtained from
these tribunals by turning out Judge after Judge
until the bench had been filled with men ready to
obey implicitly the directions of the government."
"These many abuses of power are too numerous
to detail. They were characterized by judicial mur-
APRIL TERM, 1899. 665
The Judges' Cases.
der, emphasized by tyranny, corruption, and oppres-
sion. History was made odious with the bloody
assizes of Jeffreys and the execution of Sydney; with
the revival of the Star Chamber and the oppression
of the Hi^h Commission. The efforts of the King
to secure from his pliant tools upon the High Com-
mission the conviction of the bishops who dared to
disobey his will set England aflame. Then came the
revolution, and with it it was made a part of the
unwritten Constitution of England that the Judges
should hold quamdiu se bene gesaerit — that is, during
life or good behavior, instead of durante placito —
that is, at the discretion of the Crown, and that
they should not be removed from office except upon
the address of two-thirds of both houses of Parlia-
ment. This establishment of the judicial tenure was
first secured, though imperfectly, in the bill of rights
following the revolution; then by the statute of 13
William HI., defining the judicial tenure in the terms
stated, and prohibiting removal from office by the
Crown except upon the addresses of two-thirds of
both houses of Parliament. But, under the laws,
the office of the Judge expired with the demise of
the King. Afterward, by statute in the reign of
George HI., it was provided that the Judges should
hold during good behavior, notwithstanding the de-
mise of the King; and also by this statute their
full salaries were secured during their continuance in
office. In recommending this Act, the King said
'*he looked upon the independence and uprightness
656 JACKSON :
The Judges' Cases.
of the Judges as essential to the impartial adminis-
tratioD of justice; as one of the best securities of
the rights and liberties of his subjects, and as most
conducive to the honor of the Crown." Story on
Const., Sees. 1608, 1623, 1624; Hallum's Const.
His., 391, 401; 12 Green's Hist, of Eng., Haw-
thorne Ed. Nations of the World, 80; 2 Macaulay's
Hist, of Eng., 62-66, 160, 208, 209, 210, 261,
287, 319, 320, 262 et seq., Vol. 4, p. 147; Im-
peachment Williams, 336.
* ' ' In England the complete independence -of the
judiciary has been considered, and has been found
the best and surest safeguard of true liberty, secur-
ing a government of known and uniform laws, act-
ing alike upon every man.' Judge Hopkinson, De-
fense of Chase; note Story Const., Sec. 1619.
* ' ' Indeed, since the independence of the Judges
has been secured by this permanent duration of
office, the administration of justice has, with one
exception, flowed on in England with an uninter-
rupted, pure, and unstained current. It is due to
the enlightened tribunals of that nation to declare
that their bearing, integrity, and impartiality have
commanded the reverence and respect of Europe as
well as America.' Story on Const., Sec. 1608.
' * < Such was the memorable history of the struggle
for the establishment of the independence of Judges
in England, and its engraftment into the unwritten
Constitution of that country. This independence can
now only be terminated by *an address from both
APRIL TERM, 1899. 657
The Judgfes' Cases.
bouses of Parliament, as the most regular, solemn,
and authenticate way by which the dissatisfaction of
the people can be expressed.' Dr. Paley (Story on
Const., note, Sec. 1609).
* ' While the Parliament of England is omnipotent,
the necessity of judicial independence as a protection
of life, liberty, and property, is so firmly imbedded
in the English mind that no Parliament has assumed
to interfere with the tenure of ofBce of a Judge
except upon the gravest of reasons, and only in
matters personal to the Judge. The adequate sala-
ries paid the Judges of England, in view of the
purposes f9r which they are paid — to secure the
best of judicial service — the salaries can have no
place in the consideration of Parliament as a cause
to address to the Crown for removal.
''Arbitrary removal by the King of Judges from
office in the colonies was one of the causes which
led to the declaration of our independence. In that
instrument it is recited: 'He has made Judges de-
pendent on his will alone for the tenure of their
offices, and the amount and payment of their sala-
ries.' In the light of this antecednt history the
Constitution of the United States was framed by the
Convention of 1787. In addition to its intelligence
this body was characterized by thorough knowledge,
informati(7n, and research, as to political economy,
the government of republics, democracies, and the
institutions of the mother country. Its purpose was
to frame a written instrument to control a great
18 P— 42
658 JACKSON :
The Judges' Cases.
people upon the theory of three separate, independ-
ent, and co-ordinate departments of government, the
executive, judicial, and legislative. Judicial inde-
pendence was intended to be secured by the pro-
vision that Hhe Judges of both the Supreme and
inferior Courts shall hold their offices during good
behavior, and shall at stated times receive for their
services a compensation, which shall not be dimin-
ished during their continuance in office.' Art UI.,
Sec. 1. This Convention was held with closed doors,
and there seems to be no record of its debates,
except a few brief minutes of Mr. Yates. After
the formation of the Constitution, it was submitted
to the respective Conventions of the States for adop-
tion. The records of the debates in some of these
Conventions have been preserved, and have been
compiled by Mr. Elliott.
** These debates establish beyond controversy that
said clause of the Federal Constitution was intended
to put the tenure of office of the entire Federal
judiciary beyond any legislative interference what-
ever, except by impeachment. In fact, this was
urged upon the State Conventions as one of the
main reasons why the Constitution should be adopted.
There were objections urged to the provisions as to
the judiciary on other grounds, but none upon the
matter of independence of the judiciary as secured
by a fixed tenure of office. It is clear from these
debates that the Constitution was considered as in-
tending that the tenure of office and salaries of
APRIL TERM, 1899. 669
The Judgfes^ Cases.
Judges should not be disturbed during good behavior,
and that a breach of the condition of good behavior
should only be considered by means of an impeach-
ment. We quote pertinent extracts from the debates
in the State Conventions:
'** MASSACHUSETTS CONVENTION MR. TH ACKER.
* * ' In this proposed form each branch of power is
derived either immediately or directly from the
people. The lower houses are elected directly by
those persons who are qualified to vote for the
Representatives of the State, and at the expiration
of two years these become private men, unless their
past conduct entitles them to a future election. The
Senate is elected by the Legislature of the different
States, and represents their sovereignty.
* * ' These powers are a check on each other, and
can never be made either dependent on one another
or independent of the people. The President is
chosen by the electors, who are appointed by the
people. The High Courts of Justice arise from the
President and the Senate, but yet the ministers of
them can be removed only upon bad behavior. The
independence of Judges is one of the favorable cir-
cumstances to public liberty, for when they become
the slaves of a venal, corrupt Court, and the hire-
lings of tyranny, all property is precarious and per-
sonal security at an end.' Elliott's Debates, Vol.
2, 153, 154.
660 JACKSON :
The Judges' Cases.
'<* CONNECTICUT CONVENTION — MR. EL8WORTH, A MEM-
BER OF THE FEDERAL CONVENTION.
'^*This Constitution defines the extent of the pow-
ers of the general government. If the General Legis-
lature should at any time overlap its limits, the
judicial department is a constitutional check. If the
United States go beyond their powers, if they make
a law which the Constitution does not authorize, it
is void, and the judicial power, the national Judges
who, to secure their impartiality, are to be made
independent, will declare it to be void. On the
other hand, if the States go beyond their limits, if
they make the law which is an usurpation upon the
general government, the law is void, and upright,
independent judges will declare it to be so.' Ibid.j
198, Vol. 2.
^*' 'PENNSYLVANIA CONVENTION — MR. WILSON, A MEMBER
OF THE FEDERAL CONVENTION.
* ' ' Sir, it has often been a matter of surprise, and
frequently complained of even in Pennsylvania, that
the independence of the Judges is not properly se-
cured. The servile dependence of the Judges in
some of the States that have neglected to make
proper provisions on this subject, endangers the
property and liberty of the people, and I apprehend
that whenever it has happened the appointment has
been for a less period than during good behavior —
for if every five or seven years the Judges are
obliged to make court for their appointment to office,
APRIL TERM, 1899. 661
The Judges' Cases.
they cannot be styled independent. This is not the
case with regard to those appointed under the gen-
eral government. For the Judges shall hold their
offices during their good behavior.' Ihid.^ Vol. 2,
446.
*'*Now, I proceed to the judicial department, and
here, Mr. President, I meet an objection I confess
I had not expected, and it seems it did not occur
to the honorable gentleman (Mr. Finley) who made
it, until a few days ago. He alleges that the
Judges, under this Constitution, are not rendered
sufficiently independent, because they may hold other
offices, and though they may be independent as
Judges, yet their other offices may depend upon the
Legislature. I confess, sir, this objection appears to
me to be a little wire drawn. In the first place the
Legislature can appoint to no office, therefore the de-
pendency could not be on them for the office, but
rather on the President and the Senate; but, then,
these cannot add the salary, because no money can
be appropriated but in consequence of a law of the
United States. No sinecure can be bestowed on any
Judge but by the concurrence of the whole Legis-
lature and the President, and I do not think this
an event likely to occur.' Ihld.^ Vol. 2, p. 476.
*'« VIRGINIA CONVENTION-REDMOND RANDOLPH, A MEM-
BER OF THE FEDERAL CONVENTION.
*''If Congress wish to aggrandize themselves by
oppressing the people, the judiciary must first be
662 JACKSON :
The Judges* Cases.
corrupted; no man says anything against them; they
are more independent than in England.'
** < VIRGINIA CONTINUED — PENDLETON.
' * ' It will make no difference as to the principles
on which the decisions will be made, whether it will
come before the State Court or Federal Court.
They will be both equally independent, and ready
to decide in strict conformity to justice. I believe
the Federal Courts will be as independent as the
State Courts. I shall no more hesitate to trust my
liberty and property to the one than to the other.
Whenever, in any country in the world, the Judges
are independent, there property is secure. The ex-
istence of Great Britain depends on that purity with
which justice is administered.
^^'This clause also secures an important point —
the independency of Judges both as to tenure of
office and fixing salary. I wish the restraint had
been applied to increase as well as to diminish.'
Ihid., Vol. 3, pp. 290, 472.
* * ' VIRGINIA CONTINUED — JOHN MARSHALL.
^* 'Gentlemen have gone on the idea that the Fed-
eral Courts will not determine the causes which may
come before them with the same fairness and im-
partiality with which the other Courts decide. What
are the reasons of this supposition ? Do they draw
them from the manner in which the Judges are
chosen, or the tenure of their office? What is.it
APRIL TERM, 1899. 663
The Judgres' Cases.
that makes us trust our Judges? Their independ-
ence in office and manner of appointment. Are not
the Judges of the Federal Court chosen with as
much wisdom as the Judges of the State gov-
ernment? Are they not equally, if not more,
independent? Though it may not in general be
absolutely necessary, a case may happen, as has
been observed, in which a citizen of one State ought
to be able to recur to this tribunal to recover a
claim from the citizen of another State. What is
the evil which this can produce? Will he get more
than justice there? The independence of the Judges
forbids it. But, says the honorable member, laws
may be executed tyrannically. Where is the inde-
pendence of your Judges? If a law be exercised
tyrannically in Virginia, to what can you trust; to
your judiciary? What security have you for justice;
their independence? Will it not be so in Federal
Courts?' Vol. 3, pp. 501, 502, 505, 508.
''* VIRGINIA CONTINUED — MR. MADISON, A MEMBER OF
THE FEDERAL CONVENTION.
'^* Having taken this general view of the subject,
I will now advert to what has fallen from the hon-
orable gentleman who presides. His criticism is that
the judiciary has not been guarded from an increase
of the salary of the Judges. I wished myself to
insert a restraint on the augmentation, as well as
diminution, of their compensation, and supported it
in the Convention. But I was overruled. I must
664 JACKSON :
The Judges' Cases.
take the reasons which were urged. They had great
weight. The business must increase. If there was
no power to increase their pay according to the in-
crease of business, during the life of the Judges, it
might happen that there would be such an accumu-
lation of business as would reduce the pay to a
most trivial consideration.' Ihid.^ Vol. 3, p. 489.
' ' * VIRGINIA CONTINUED MR. HENRY.
"'I consider the Virginia judiciary as one of the
best Q barriers against strides of power; against the
power which, we are told by the honorable gentle-
men, has threatened the destruction of liberty.
Pardon me for expressing my extreme regret that
it is in their power to take away that barrier.
Gentlemen will not say that any danger can be ex-
pected from the State Legislatures. So small are
the barriers against the encroachments and usurpa-
tions Jof Congress, that when I see this latter barrier,
the independency of the Judges, impaired, I am per-
suaded I see the prostration of all our rights. In
what situation will your Judges be when they are
sworn to preserve the Constitution of the State and
of the • general government? If there be a concur-
rent dispute between them, which will prevail?
They cannot serve two masters struggling for the
same object. The laws of Congress being paramount
to those of the States, and to their Constitutions
also, whenever they come in competition, the Judges
must decide in favor of the former. This, instead.
APRIL TERM, 1899. 665
The Judgfes' Cases.
of relieving or aiding me, deprives me of my only
comfort, the independency of the Judges. The
judiciary are the sole protection against a tyrannical
execution of the laws. But if b)'^ this system we
lose our judiciary, and they cannot help us, we
must sit down quietly and be oppressed.' Ibid.^
Vol. 3, p. 691.
'*' VIRGINIA CONTINUED MR. GRAYSON.
■
* * ' Something has been said of the independency
of the Federal Judges. I will only observe that it
is on as corrupt a basis as the art of man can
place it. The salaries of the Judges may be aug-
mented. Augmentation of salary is the only method
that can be taken to corrupt a Judge.' Ihid,^
Vol. 3, pp. 511, 512.
< « ' VIRGINIA CONTINUED — MR. GEORGE NICHOLAS.
* ' * It has been observed, sir, that the Judges ap-
pointed under the British Constitution are more inde-
pendent than those to be appointed under the plan
on the table. This, sir, like other assertions of
honorable gentlemen, is equally groundless. May
there not be a variety of pensions granted to the
Judges in England so as to influence them, and
cannot they be removed by a vote of both houses
of Parliament? This is not the case with our Fed-
eral Judges — they are to be appointed during good
behavior, and cannot be removed, and at stated
666 JACKSON :
The Judges* Gases.
times are to receive a compensation for their serv-
ices.' Ihid.y Vol. 3, p. 626.
** 'NORTH CAROLINA CONVENTION — MR. STEELE.
*''WilI the members of Congress deviate from
their duty without any prospect of advantage to
themselves? What interest can they have to make
the place of elections inconvenient? The judicial
power of the government is so well constructed as
to be a check. There was no check in the old
confederation. Their power was, in principle and
theory, transcendent. If the Congress make laws
inconsistent with the Constitution, independent Judges
will not uphold them, nor will the people obey
them.' Ihid., Vol. 4, pp. 93-94.
*«'The intention of permanency in the judicial ten-
ure of office is also conclusively shown by articles of
Alexander Hamilton in advocacy of the adoption of
the Federal Constitution by States. These articles
of Mr. Hamilton (a member of the Convention)
published in the Federalist^ set out the intention of
the Convention in adopting the judicial tenure of
office clause, and in them he shows conclusively that
this clause was framed expressly to secure the Fed-
eral judiciary from any interference, direct or indi-
rect (except by impeachment), on the part of any
co-ordinate department of the government. These
articles (approved by Story) are too lengthy to quote
in full, and we therefore refer the Court to them
for the full context, all bearing with great force
APRIL TERM, 1899. 667
The Judges' Cases.
upon the question of judicial independence. Mr.
Hamilton says:
'' * According to the plan of the Convention, all
the Judges who may be appointed by the United
States are to hold their offices during good behavior,
which is conformable to the most approved of the
State Constitutions, among the rest, that of this State.
The standard of good behavior for the continu-
ance in office of the judicial magistracy is certainly
one of the most valuable of the modern improve-
ments in the practice of government. In a mon-
archy it is an excellent barrier to the despotism of
the prince; in a republic it is a no less excellent
barrier to the encroachments and oppressions of the
representative body. And it is the best expedient
which can be devised in any government to secure
a steady, upright, and impartial administration of
the laws.
' < * Whoever attentively considers the different de-
partments of power, must perceive that in a govern-
ment in which they are separated from each other,
the judiciary, from the nj\ture of its functions, will
always be the least dangerous to the political rights
of the Constitution, because it will be least in a
capacity to annoy or injure them. The executive
not only dispenses the honors, but holds the sword
of the community; the Legislature not only com-
mands the purse, but prescribes the rules by which
the duties and rights of every citizen are to be reg-
ulated; the judiciary, on the contrary, has no influ-
668 JACKSON :
The Judges' Cases.
ence over either the sword or purse; no direction
either of the strength or the wealth of society, and
can take no active resolution whatever. It may
truly be said to have neither force nor will, but
merely judgment, and must ultimately depend upon
the aid of the executive for the efficacious exercise
even of this faculty. This simple view of the mat-
ter suggests several important consequences. It
proves incontestably that the judiciary is, beyond
comparison, the weakest of the three departments of
power; that it can never attack with success either of
the other two, and that all possible care is requisite
to enable it to defend itself against their attacks.
" ' It proves, in the last place, that as liberty can
have nothing to fear from the judiciary alone, but
would have everything to fear from its union with
either of the other departments; that as all the
effects of such an union must ensue from a depend-
ence of the former on the latter, notwithstanding a
nominal and apparent separation; that as from the
natural feebleness of the judiciary it is in continual
jeopardy of being overpowered, awed, or influenced
by its co-ordinate branches; that as nothing can con-
tribute so much to its firmness and independence as
permanency in office, this quality may, therefore, be
justly regarded as an indispensable ingredient in its
constitution; and, in a great measure, as the citadel
of the public justice and of the public security, the
complete independence of the Courts of justice is
peculiarly essential in a limited Constitution.
APRIL TERM, 1899. 669
The Judges' Cases.
^''If, then, the Courts of justice are to be con?
sidered as the bulwarks of a limited Constitution
against legislative encroachments, this consideration
will afford a strong argument for the permanent
tenure of judicial offices, since nothing will contrib-
ute so much as this to that independent spirit in
the Judges which must be essential to the faithful
■
performance of so arduous a duty.
'''This independence of the Judges is equally-
requisite to guard the Constitution and the rights of
individuals from the effects of those ill humors which
the arts of designing men, or the influence of par-
ticular conjunctures, sometimes disseminate among the
people themselves, and which, though they speedily
give place to better information and a more delib-
erate reflection, have a tendency in the meantime to
occasion dangerous innovations in the government and
serious oppressions of the minor party in the com-
munity, for it is easy to see that it would require
an uncommon portion of fortitude in the Judges to
do their duty as faithful guardians of the Constitu-
tion where legislative invasions of it had been
instigated by the major voice of the community.
"'That inflexible and uniform adherence to the
rights of the Constitutions and of individuals, which
we perceive to be indispensable in the Courts of
justice, can certainly not be expected from Judges
who hold their offices by temporary commission.
' ' ' There is yet a further and weighty reason for
the permanency of judicial offices, which is deducible
670 JACKSON :
The Judges' Cases.
from the nature of the qualifications they require.
It has been frequently remarked, with great propri-
ety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advan-
tages of a free government. To avoid arbitrary
discretion in the Courts, it is indispensable that they
should be bound down by strict rules and prece-
dents, which serve to define and point out their duty
in every particular case that comes before them, and
it will readily be conceived, from the variety of con-
troversies which grow out of the folly and wicked-
ness of mankind, that the records of these precedents
must unavoidably swell to a very considerable bulk,
and must demand long and laborious study to ac-
quire a competent knowledge of them. Hence it is
that there can be but few men in the society who
will have sufiScient skill in the laws to qualify them
for the station of Judges; and making the proper
deductions for the ordinary depravity of human
nature, the number must be still smaller of those
who unite the requisite integrity with the requisite
knowledge. These conditions apprise us that the
government can have no great option between fit
characters, and that a temporary duration in ofiSce,
which would naturally discourage such characters
from quitting a lucrative line of practice to accept
a seat on the bench, would have a tendency to throw
the administration of justice into hands less able and
less well qualified to conduct it with ability and
dignity.
APRIL TERM, 1899. 671
The Jadgfes* Cases.
'''Upon the whole, there can be no room to doubt
that the Convention acted wisely in copying from
the models of those Constitutions which have estab-
lished good behavior as the tenure of judicial offices
in point of duration, and that so far from being
blamable on this account, their plan would have been
inexcusably defective if it had wanted this important
feature of good government. The experience of
Great Britain is an illustrious comment on the excel-
lence of the institution." Federalist, Nos. 78 and
79, p. 362 to 371.
''Another evidence of this purpose of the Federal
Constitution is to be found in the rejection, by the
Convention framing the same, of two propositions.
One of these propositions was to make the Judges
removable by the President upon the application of
the Senate and House of Representatives; the other
to authorize the removal of Judges on account of
their disability to discharge the duties of their offices.
That these propositions were rejected for the reason .
that they might effect judicial independence is shown
by Mr. Story in his work on Constitutions. Story
on Con., Sees. 1622, 1623, 1624, 1625, 1626.
*'The judicial tenure of office clause in the Consti-
tution of 1796 is to be interpreted in connection
with antecedent history. It was in the light and
knowledge of the fierce struggle which took place
in England to secure judicial independence; of the
solemn protest of the Declaration of Independence
against the interference of the King with the tenure
672 JACKSON :
The Judges' Cases.
of officials, the colonial Judges and their salaries;
and of the history of the formation and adoption
of the Federal Constitution and the engraftment into
the same of a fixed tenure of office paramount
(except by im))eachment) to any legislative will, that
the first Constitution of the State was framed in
1796. This Constitution provided that Judges should
'hold their offices "during their good behavior/
The meaning of these words is to be interpreted
in the light of the history and conditions preceding
the formation of the Constitution. So interpreted,
it seems beyond controversy that this provision was
intended to secure to the Judges a tenure of office
safe from any legislative interference or abridgment,
direct or indirect, except for causes for which the
Judge might become responsible by breaching the
condition of good behavior, this being provided for
by impeachment. Cooley on Cons. Lim., 6th Ed.,
p. 80.
*'lt is evident that the judicial tenure of office
provided for in the Constitution of 1796 was modeled
after the Federal Constitution, and was intended to
bear the same meaning and construction.
' ' Under these conditions, and with these preceding
events in the knowledge of the Convention, it seems
wholly unreasonable to suppose this tenure of office
clause was intended to be in any way abridged or
limited by the clause in said Constitution providing
that the judicial power of the State ' shall be vested
in such superior and inferior courts of law and
APRIL TERM, 1899. 673
The Judges' Cases.
equity as the Legislature shall from time to time
direct and establish.' If the tenure of office clause
in said Constitution of 1796 was intended to be
paramount to said last clause, the tenure of office
clause in the Constitution of 1870 must also be con-
strued as paramount to the clause providing that
the Legislature shall < ordain and establish inferior
courts. '
'*The Convention of 1796 framed an organic law
(said by Jefferson to be 'the least imperfect and
most republican' of any then framed) to govern
a free people. Its every intent and purpose must
have been to erect every barrier to oppression and
to provide every possible safeguard for the protec-
tion of the people. With the dangers which attended
a judiciary dependent upon the King, and the pro-
test of the Declaration of Independence in its
knowledge, it seems incredible that this Convention
intended to submit judicial independence to abridg-
ment and destruction by legislative will, thus trans-
ferring dominion from an executive power to a
legislative power — a change from one to many
masters. The authority of said Convention given to
the Legislature to 'ordain and establish courts,'
viewed in the light of history, could not have been
intended to permit the destruction of the judicial
tenure expressed in terms, and thus by a mere im-
plication permit the power to interfere with judicial
independence by the abolition of courts.
''Story, Tucker, and Kent fully sustain the con-
is P— 43
674 JACKSON :
The Judges* Cases.
tentions we make. These masters of constitutional
law forcefully, clearly, and exhaustively give conclu-
sive reasons why the judicial tenure of office
expressed in the terms 'during good behavior,'
expressly protect against all legislative interference
except by impeachment. They are too lengthy to
quote in full; only extracts can be given, and the
Court cited to the full version. 1 Kent's Com., 13
Ed., 293 to 295; Story Const., Sees. 1607 to 1613.
''Mr. Kent, after referring to the importance of
judicial independence, so that the Judges might stand
against all improper influences, says:
" ' To give them the courage and the firmness to
do it, the Judges ought to be confident of the
security of their salaries and station. The provision
for the permanent support of the Judges is well
calculated, in addition to the tenure of their office,
to give them the requisite independence. It tends
also to secure a succession of learned men on the
bench, who in consequence of a certain undiminished
support, are enabled and induced to quit the lucra-
tive pursuits of private business for the duties of
that important station." 1 Kent, 294-5.
"JMr. Story:
"'The reasons in favor of the independence of
the judiciary apply with augmented force to repub-
lics, and especially to such as possess a written
Constitution with defined powers and limited rights.
It is obvious that, under such circumstances, if
the tenure of office of the Judges is not permanent,
APRIL TERM, 1899. 675
The Judges' Cases.
they will soon be rendered odious, not because they
do wrong, but because they refuse to do wrong;
and they will be made to give way to others who
shall become more pliant tools of the leading dema-
gogues of the day. There can be no security for
the minority in a free government, except through
the judicial department.
''*In the next place, the independence of the judi-
ciary is indispensable to secure the people against the
intentional as well as unintentional usurpation of the
executive and legislative departments. It has been
observed with great sagacity that power is perpetu-
ally stealing from the many to the few; and
the tendency of the legislative department to ab-
sorb all the other powers of the government has
always been dwelt upon by statesmen and patriots
as a general truth, confirmed by all human expe-
rience.
'''Thus, in the free government of Great Britain,
an Act of Parliament, combining as it does the
will of the Crown and of the Legislature, is abso-
lute and omnipotent. It cannot be lawfully resisted
or disobeyed. The judiciary is bound to carry it
into effect at every hazard, even though it should
subvert private rights and public liberty. But it is
far otherwise in a republic like our own, with a
limited Constitution, prescribing at once the powers
of the rulers and the rights of the citizens. This
very circumstance would seem conclusively to show
that the independence of the judiciary is absolutely
C76 JACKSON :
The Judges* Cases.
indispenBable to preserve the balance of such a Con-
stitution. In no other way can there be any prac-
tical restraint upon the acts of the government, or
any practical enforcement of the rights of the citi-
zens.
'''Does it not follow that to enable the judiciary
to fulfill its functions it is indispensable that the
Judges should not hold their offices at the mere
pleasure of those whose acts they are to check, and
if need be to declare void? Can it be supposed
for a moment that men holding their offices for the
short period of two or four or even six years,
will be generally found firm enough . to resist the
will of those who appoint them and may remove
them?
"'The truth is, that even with the most secure
tenure of office during good behavior, the danger is
not that the Judges will be too firm in resisting public
opinion and in defense of private rights or public
liberties, but that they will be too ready to yield
themselves to the passions and politics and preju-
dices of the day. In a monarchy the Judges in
the performance of their duties with uprightness and
impartiality, will always have the support of some of
the departments of the government, or at least of
the people. In republics they may sometimes find
the other departments combined in hostility against
the judicial; and even the people for a while, under
the influence of party spirit and turbulent factions,
ready to abandon them to their fate. Few men
APRIL TERM, 1899. 677
The Judgfes* Cases.
possess the firmness to resist the torrent of popular
opinion, or the content to sacrifice present ease and
public favor in order to earn the slow rewards of
a conscientious discharge of duty, the sure but dis-
tant gratitude of the people, and the severe but
enlightened award of posterity.
*''The considerations above stated lead to the con-
clusion that in republics there are in reality stronger
reasons for an independent tenure of oflSce by the
Judges, a tenure during good behavior, than in a
monarchy. Indeed, a republic with a limited Con-
stitution, and yet without a judiciary sufficiently in-
dependent to check usurpation, to protect public
liberty, and to enforce private rights, would be as
visionary and absurd as a society organized without
any restraints of law.
'«*In human governments there are but two con-
trolling powers — the power of arms and the power
of laws. If the latter are not enforced by a judi-
ciary above all fear and above all reproach, the
former must prevail, and thus lead to the triumph
of military over civil institutions. The framers of
the Constitution, with profound wisdom, laid the
cornerstone of our national republic in the perma-
nent independence of the judicial establishment. Upon
this point their vote was unanimous.
< * ' The main security relied on to check an irreg-
ular or unconstitutional measure, either of the execu-
tive or the legislative department, was, as we have
seen, the judiciary. To have made the Judges,
678 JACKSON :
The Judg'es' Cases.
therefore, removable at the pleasure of the President
and Congress, would have been a virtual surrender
to them of the custody and appointment of the
gurdians of the Constitution. It would have been
placing the keys of the citadel in the possession of
those against whose assaults the people were most
strenuously endeavoring to guard themselves. It
would be holding out a temptation to the President
and Congress, whenever they were resisted in any
of their measures, to secure a perfect irresponsibility
by removing those Judges from office who should
dare to oppose theiiv will. Such a power would have
been a signal proof of a solicitude to erect defenses
round the Constitution for the sole purpose of sur-
rendering them into the possession of those whose
acts they were intended to guard against. Under
such circumstances, it might well have been asked
where could resort be had to redress grievances or
so overthrow usurpations ?
«^<The next clause of the Constitution declares
that the .Judges of the Supreme and inferior Courts
shall, at stated times, receive for their services a
compensation which shall not be diminished during
their continuance in office. Without this provision
the other, as to the tenure of office, would have
been utterly nugatory, and, indeed, a mere mockery.
" * It is almost unnecessary to add that although
the Constitution has, with so sedulous a care, en-
deavored to guard the judicial department from the
overwhelming influence or power of the other co-
APRIL TERM, 1899. 679
The Judges' Cases.
ordinate departments of the government, it has not
conferred upon them any inviolability or irresponsi-
bility for an abuse of their authority. On the con-
trary, for any corrupt violation or omission of the
high trusts confided to the Judges, they are liable
to be impeached (as we have already seen), and,
upon conviction, removed from office. Thus, on the
one hand, a pure and independent administration of
public justice is amply provided for, and, on the
other hand, an urgent responsibility secured for
fidelity to the people.' Story Const., Sees. 1610,
1612, 1613, 1614, 1619, 1621, 1624, 1628, 1635.
' * He further says, quoting from Mr. Justice Wil-
son: ^In the United States this independence extends
to Judges in Courts inferior as well as supreme.
This independency reaches equally their salaries and
their commissions. In England the Judges of the
superior Courts do not now, as they did formerly,
hold their commissions and their salaries at the
pleasure of the Crown, but they stilt hold them at
the pleasure of the Parliament; the judicial subsists,
and may be blown to annihilation, by the breath of
the legislative department. In the United States
the Judges stand upon the sure basis of the
Constitution, the judicial department is independ-
ent of the department of the Legislature.
No Act of Congress can shake their commis-
sion or reduce their salaries. The Judges, both
of the supreme and inferior Courts, shall hold
their offices during good behavior, and shall, at
680 JACKSON :
The Judges' Cases.
stated times, receive for their services a compensa-
tion which shall not be diminished during their con-
tinuance in oflSce.' Story Const, Sec. 1632.
' < See also the remarks of Judge Hopkinson upon
the independence of the judiciary, made in defense of
Mr. Chase upon his impeachment (Story Const., Sec.
1619, note 3), and see Mr. Tucker's views, expressed
in his Commentaries on Blackstone, in which he
says, among other cogent expressions: ^This abso-
lute independence of the judiciary, both of the ex-
ecutive and the legislative departments, which I
contend is to be found both in the letter and spirit
of our Constitutions, is not less necessary to the
libertyjand security of the citizen and his property
in a republican government than in a monarchy.
Such an independence can never be perfectly attained
but by a constitutional tenure of office, equally in-
dependent of the frowns and smiles of the other
branches of the government. And herein consists
one of the greatest excellencies of our Constitution,
that no individual can he oppressed whilst this branch
of the government remains independent and uncor-
rupt, it being a necessary check upon the encroach-
ments or usurpation of power by either of the
other. And as from the natural feebleness of the
judiciary, it is in continual jeopardy of being over-
powered, awed, or influenced by its co-ordinate
branches, who have the custody of the purse and
the sword of the confederacy, and as nothing can
contribute so much to its firnmess or independence
APRIL TERM, 1899. 681
The Judg'es' Cases.
as permanency in office; this quality, therefore, may
be justly regarded as an indispensable ingredient in
the Constitution, and in a great measure as the
citadel of the republic, justice, and the public se-
curity.' 1 Tuck. Black. Com. App., 354:-356 to 360.
''* Whatever, then, has been said by Baron Mon-
tesquieu, De Lolme, Judge Blackstone, or any other
writer, on the security derived to the subject from
the independence of the judiciary of Great Britain,
will apply at least as forcibly to that of the United
States. We may go still further. In England the
judiciary may be overwhelmed by a combination
between the executive and the legislative. In America
(according to the true theory of our Constitution)
it is rendered absolutely independent of, and superior
to the attempts of both to control or crush it: first,
by the tenure of office, which is during good behavior;
these words (by a long train of decisions in England,
even as far back as Edward III.) in all commissions
and &;rants, public or private, importing an office or
estate for the life of the grantee, determinable only
by his death or breach of good behavior. Secondly,
by the independence of the Judges in respect to their
salaries, which cannot be diminished.' Story on
Cons., Sec. 1620, note 2; Sec. 1627, note 1.
But it is said by the majority that if the Cole-
man and Halsey cases in Tennessee, the cases re-
ferred to, be not overruled in terms, they are
stare decisis^ and should be adhered to. The
answer to that, in the first place, is that they have
682 JACKSON :
The Judges* Cases.
not beeD adhered to. The Leonard case and the
Curnmins case directly overturn them — that is, they
repudiate them in principle. It is not necessary that
they be declared overruled. It is sufficient if
later cases be inconsistent with them in principle.
In some Courts this is the only practice of overrul-
ing. It is so in the Supreme Court of the United
States. That Court never says it overrules a
case. It merely proceeds on an antagonistic princi*
pie to decide some other. But the cases never
were stare decisis. *' Erroneous decisions under the
Constitution as to the tenure of a Judge's office will
be overruled as not within the doctrine of stare
decisis^ which does not apply to questions of con-
stitutional law." 12 Am. & Eng. Enc. L., 18. I
quote literally; the cases are cited in the notes.
But it is said some other statutes like this in ex-
ceptional cases may have been passed. To this I
wish to answer in the language of a great Judge
of this State deciding a similar case. He said:
' ' It is said by counsel that the Legislature has
passed many statutes similar to this, and various
cases are referred to. I acknowledge the force of
the authority of adjudication upon analogous cases.
It sometimes presents a forcible and conclusive argu-
ment. But it is a sufficient answer to the argument
upon this point to say that the cases and decisions
referred to, though analogous, were not made in this
precise case, and I can never follow precedent in the
line of analogy when it leads to an infraction of the
APRIL TERM, 1899. 683
The Judf^es* Cases.
Constitution. Hence the necessity of a frequent re-
aurrence to first principles. If we follow precedent
and move on according to the analogy of cases, we
shall be led from step to step until the Constitution
itself will be lost amid the subtleties of the law.
When precedent is established in the construction of
statute or common law, I concede the propriety of
following it, unless flatly absurd or unjust. But
every Judge, and other public oflBcer, when called on
to do an official act, must judge of the Constitu-
tion for himself, for no precedent however grave
and no adjudication however respectable can war-
rant a violation of that sacred instrument." Bank v.
Cooper, 2 Yer., 622.
This was the language of a Judge who, in utter-
ing it, denied his right to sit upon another Court
and take another salary.
The truth is, the judiciary is marked for sacrifice.
The Constitution established three, and only three,
great departments — the legislative, the executive, and
the judicial. The other two have remained intact.
Other departments, boards, bureaus, and commissions,
with consequent great expense, have been grafted on
the government. Schools, asylums, and State insti-
tutions generally, have called for more and more.
Tax-bearing has become a grievous burden, and the
people are to be taught that the judicial department
is its cause. The attention of the country is turned
to the Courts, and the abolition of one of the con-
stitutional departments demanded. Three departments
684 JACKSON :
The Judges' Cases.
are too many for the Constitution. Five or six
may not be for government, but three are too many
there. One mast, therefore, be destroyed. The
judicial is singled out for destruction. If this Act
is valid it is gone, and with what resultant benefits
to the people? The saving of one and a half cents
each to our population, or of five cents annually to
each voter of the State, and not the hundredth part
of a cent on the taxable valuation of its property.
This, it would seem, is a poor return for the de-
struction of constitutional Courts, and constitutional
Judges and District Attorneys, and confusion of
public business and the general impediment of public
justice, and the deprivation of eleven citizens of con-
stitutional rights they had spent their lives in acquir-
ing fitness lo exercise and years of struggle in
acquiring the positions from which they are ejected.
No other constitutional department has ever been as-
sailed or impaired. The executive has been fostered
and protected. The legislative has been honored and
preserved. No legislative representative has ever
been denied his legal tenure of office, and in all the
legislative redistricting the membership has been in-
creased, but never has one been denied the right to
his office during his constitutional tenure. We sol-
emnly protest against this invasion of the judicial
department as the establishment of a ruinous prece-
dent, and that this Court should be constrained to
lend its sanction to that destruction and see prostrate
before it the wreck of its department.
APRIL TERM, 1899. 685
The Judjfes' Cases.
It is finally said, however, we have a legislative
precedent in the Federal Government of long stand-
ing, and it should be looked to. In 1801 the
Federal Congress created sixteen circuit judgeships.
The Act passed to enable him to do so, and Mr.
Adams made the appointments of the Judges on the
last day of his term. When Mr. JeflFerson came in,
with the Congress of 1802, attention was called to
this Act in his message, and ready partisans offered
bills to repeal it. It was repealed during the ses-
sion of 1802 by a partisan vote, after one of the
greatest debates ever made in Congress, in which
the notable device of ''taking the office from the
Judge," when the Constitution did not permit you
to "take the Judge from the office" was invented.
It worked, and served its purpose, and the Courts
were never invoked to test its constitutionality. It
made a bad precedent, which no Congress has fol-
lowed, and the invalidity of it, in consequence of
the indisposition of the Judges at that early day
to enter into a struggle with the other departments
of the government, and who retired without contest,
was, therefore, never embalmed in judicial records.
But it was in judicial disesteem and disapprobation.
It was condemned by all the great Judges and law
authors. I append a few of them, worthy to be
perpetuated, and which should always be recalled
whenever and wherever a controversy on the same
question arises.
Mr. Story, speaking of it, says: ''But, unfortu-
686 JACKSON :
The Judges* Cases.
nately, a measure was adopted, in 1802, under the
auspices of President Jefferson, which, if its constitu-
tionality can be successfully vindicated, prostrates in
the dust the independence of all inferior Judges,
both as to the tenure of their office and their com-
pensation for services, and leaves the Constitution a
miserable and vain delusion. In the year 1801 Con-
gress passed an Act reorganizing the judiciary and
authorizing the appointment of sixteen new Judges,
with suitable salaries, to hQl<l the Circuit Courts of
the United States in the different circuits created by
this Act. Under this Act the Circuit Judges re-
ceived their appointments and performed the duties
of their offices until the year 1802, when the Courts
established by the Act were abolished by general
repeal of it by Congress, without in the slightest
manner providing for the payment of the salaries
of the Judges, or for any continuation of their
offices. The result of this Act, therefore, is (so
far as it is a precedent) that notwithstanding the
judicial tenure of office of the Judges of the inferior
Courts is during good behavior, Congress may at
any time, by a mere act of legislation, deprive them
of their offices at pleasure, and with it take away
their whole title to their salaries. How this can be
reconciled with the terms or the intent of the Con-
stitution is more than any ingenuity of argument
has ever, as yet, been able to demonstrate. The
system fell, because it was unpopular with those
who were then in possession of power, and the vie-
APRIL TERM, 1899. 687
The Judges* Cases.
tims have hitherto remained without indemnity from
the justice of the government.
<'Upon this subject a learned commentator has
spoken with a manliness and freedom worthy of
himself and of his country. To those who are alive
to the just interpretation of the Constitution; those
who, on the one side, are anxious to guard against
the usurpation of power injurious to the State, and
those who, on the other side, are equally anxious to
prevent a prostration of any of its great departments
to the authority of the others, the language can
never be unseasonable, either for admonition or in-
struction, to warn us of the facility with which
public opinion may be persuaded to yield up some
of the barriers of the Constitution under temporary
influences, and to teach the duty of an unsleeping
vigilance to protect that branch which, though weak
in its powers, is yet the guardian of the rights and
liberties of the people. It was supposed," says
the learned author, * ^ that there could not be a
doubt that those tribunals in which justice is to be
dispensed according to the Constitution and laws of
the confederacy; in which life, liberty, and property
are to be decided upon; in which questions might
arise as to the constitutional powers of the execu-
tive, or the constitutional obligation of an Act of
the Legislature, and in the decision of which the
Judges might find themselves constrained, by duty
and by their oaths, to pronounce against the author-
ity of either, should be stable and permanent, and
688 JACKSON :
The Judges* Cases.
not dependent upon the will of the executive or
Legislature, or both, for their existence; that, with-
out this degree of permanence, the tenure of office
during good behavior could not secure to that de-
partment the necessary firmness to meet unshaken
every question, and to decide as justice and the
Constitution should dictate, without regard to
consequences. These considerations induced an
opinion, which, it is presumed, was general, if not
universal, that the power vested in Congress to erect
from time to time tribunals inferior to the Supreme
Court, did not authorize them at pleasure to de-
molish them. Being built upon the rock of the Con-
stitution, their foundation was supposed to partake
of its permanency, and to be equally incapable of
being shaken by the other branches of the govern-
ment. But a diflFerent construction of the Constitu-
tion has lately prevailed. It has been determined
that a power to ordain and establish, from time to
time, carries with a discretionary power to discon-
tinue and demolish; that although the tenure of office
be during good behavior, this does not prevent the
separation of the office from the officer by putting
down the office, but only secures the officer his sta-
tion upon the terms of good behavior, so long as
the office itself remains. Painful, indeed, is the re-
mark that this interpretation seems calculated to
subvert one of the fundamental pillars of free gov-
ernment, and to have laid the foundation of one of
the most dangerous political schims that has ever
APRIL TERM, 1899. 689
The Judges^ Cases.
happened in the United States of America." Sto-
ry's Const., Sees. 1633-4.
The commentator here referred to was Mr.
Tucker, who, in his commentaries, says: *'The Act
gave rise to one of the most animated debates to
be found in the annals of Congress, and was re-
sisted by a power of argument and eloquence which
has never been surpassed. These debates were col-
lected and printed in a volume at Albany, in 1802,
and are worthy of the most deliberate perusal of
every constitutional lawyer. The Act may be as-
serted, without fear of contradiction, to have been
against the opinion of a great majority of all the
ablest lawyers at the time, and probably now, when
the passions of the day have subsided, few lawyers
will be found to maintain the constitutionality of the
Act. No one can doubt the perfect authority of
Congress to remodel their Courts, or to confer or
withdraw their jurisdiction at their pleasure. But
the question is whether they can deprive them of
the tenure of their office and their salaries after
they once become constitutionally vested in them."
See Tuck. Black Comm., 22-25.
The judiciary is the weakest of all the depart-
ments of the government. ^'The legislative is the
greatest and the overruling power in all free gov-
ernments. It has been generally recognized by the
students of our constitutional law that the dan^rer to
judicial independence lies in the legislative depart-
ment. The safeguards against legislative power are
18P— 44
690 JACKSON :
The Judges* Cases.
only two — tenure of office and a fixed compensation
while in office. Destroy these, especially the first,
and the inevitable result is judicial dependence, with
its evils." Story Const., Sees. 631-54:2.
This danger must have been known and recog-
nized by the authors of our Constitutions. There-
fore every constitutional limitation upon legislative
power must be given the fullest force and expres-
sion, and must have been so intended. It is argued
that, prior to the Constitution of 1870, our Court,
though not deciding the question, has used expres-
sions which acquiesce in the power of the Legisla-
ture to deprive a Judge of his office by the abolition
of his Court. This proposition cannot be maintained.
No case can be found prior to the Constitution of
1870 which invoked any judicial declaration, either
directly or indirectly, as to the legislative power to
abridge or terminate a judicial tenure of office. The
cases in which expressions have been used as to the
power of the Legislature to abolish Courts in no-
wise involved the tenure of office of a Judge.
The Legislature has the power to add to or with-
draw a part of the territory or jurisdiction of an
inferior Court, provided the office of the Judge is
left intact. It may also abolish an inferior Court,
to take effect at the end of the judicial term of
office. The expressions used in the case relied on
to show such acquiescence are referable to the legis-
lative power of reorganization or abolition, when
such action may be legitimately exercised without
APRIL TERM, 1899. 691
The Judg^es' Cases.
interference with any constitutional limitation, but the
legislative power to abolish a Court so as to destroy
the tenure of office of the Judge is a different
question. We refer to the cases above, upon which
said claim is based. They are three in number,
viz.: In the case of the Bank v. Cooper (1831) the
Court used the expression that the Legislature may
abolish a Court. In that case no question of the
judicial tenure of office was in issue, nor anything
to direct the attention of the Court to the same,
the question involved being the constitutionality of
an Act constituting existing Judges a special tribu-
nal for the disposition of suits commenced by the
Bank of Tennessee. 2 Yer., 600, 601. But in
this very case there are words used by the Court
which of themselves carry the implication that the
legislative department could not interfere with the
judicial department, so as to affect the independency
of this department. The Court says: '<The framers
of the Constitution never dreamed of admitting the
arbitrary exercise of power of any department of
the government. The legislative, executive, and
judicial departments are three lines of equal length,
balanced against each other, and the framework be-
comes stronger the more its parts are pressed." If
the tenure of office is destroyed, that destroys the
triangle.
In the case of Miller v. Coulee (1858), 5 Sneed,
the Court held as unconstitutional an Act transfer-
ring cases from the Chancery Court to the Supreme
692 JACKSON :
The Judges' Cases.
Court, when thev had been twice continued on
account of the incompetency of the Chancellor. The
Court, in holding that the Supreme Court was an
appellate Court established by the Constitution, uses
these words: *'The people have trusted to this de-
partment supreme judicial power, and placed it and
its jurisdiction beyond the legislative power. Neither
one can interfere with or control the other in the
proper discharge of its functions. Under the old
Constitution this was not so. This department was
by that entirely the creature of the Legislature."
Thp Legislature may destroy its judicial creation by
the exercise of power not limited by the Constitu-
tion, and in this sense inferior Courts are its
creatures, but this does not mean that in the exer-
cise of legislative power a constitutional office may
be destroyed and its incumbent removed from office.
5 Sneed, 432.
In Moore v. State (1857), the question was whether
the Legislature had the power to create the office
of County Judge for particular counties without the
law applying to all the counties in the State. In
deciding this case the Court used this language: '*It
was with the Legislature to determine how many
and what kinds of Courts are required for the ad-
ministration of justice, and what shall be the char-
acter and limits of the jurisdiction of each." The
expression ' * to determine how many Courts are re-
quired in the administration of justice, and what
shall be the character and jurisdiction of each," is not
APRIL TERM, 1899. 693
The Judges' Cases.
to be construed as meanino^ that the Le^^islature had
the power to lessen the number of Courts by abolish-
ing the same, when to do so would operate to abridge
the tenure of ofSce. None of said cases bear the
construction that the Legislature may exercise the
power of abolition or reorganization of Courts where
the tenure of office of the incumbent would thereby
be affected. 5 Sneed, 510, 611.
But there are cases in Tennessee, decided prior to
the Constitution of 1870, which substantially declare
that the Legislature has no power to abridge the
terui of office of a Judge or a constitutional officer,
and as we have seen, there are four decided since,
declaring that the Legislature has no power to de-
stroy a constitutional Court [Pope v. Phifer^ 3 Heis.,
683), or a constitutional Judge (State v. Ridley^
State V. Leonard^ 2 Pickle, 485), or a constitutional
officer [State v. Curnmins^ 10 Pickle, 667).
The Constitution of 1834 provided Justices of
the Peace should be elected for the term of six
years. Davis in 1852 was elected a Justice of the
Peace, to fill a vacancy occasioned by resignation
from office of an incumbent whose term would have
expired on February 2, 1854. On that day Davis
ran for Justice of the Peace and was defeated. In
1833 an Act had been passed providing in case of
vacancies an election should be held to "fill out the
time for which his predecessor was elected, and no
longer." Davis, though defeated in said election,
claimed the office; that said Act was void under said
694 JACKSON :
The Judges* Cases.
Constitution providing his term of office as a Justice
of the Peace should be for six years, and that the
Legislature had no power to shorten the term by
said Act. The Court so held, saying, with refer-
ence to the Constitution: ''The term is there fixed
at six years, under all circumstances and without
exception, and no power is given to the Legislature
to abbreviate it, but only to provide for the mode
and manner of keeping the office filled. This is the
extent of the power delegated, and it does not reach
the term of service; that is unalterably fixed at six
years ' by the highest law, and it is not competent
for the Legislature to shorten any more than it is
to lengthen it." This case was decided in 1855.
Kei/s V. Masoriy 3 Sneed, 8, 10.
If a constitutional term of office cannot be short-
ened by the Legislature in advance of the term, can
it shorten it after the term begins ? ' ' It is not
competent for the Legislature to shorten the term
of an office prescribed by the Constitution, and any
enactment to that effect is void." Rambo v. Malo-
neyy 8 Pickle, 68; Breioei' v. Davu<^ 9 Hum., 213;
Poioera v. Hurst^ 2 Hum., 24.
In 1827 an Act was passed providing that the
Governor should appoint a special Judge to hold
Courts in case the regular Judge should, on account
of disability, be unable to hold his Courts. The
Supreme Court (1833) held this Act unconstitutional,
on the ground that the Constitution of 1796 having
provided the tenure of office of Judges should be
APRIL TERM, 1899. 695
The Judg'es' Cases.
- - - I, ■ ^ —
'* during good behavior," said Act was in violation
of this constitutional provision, and that the Legis-
lature was by the same prohibited from interfering
with this tenure. The Court says: *'Why was it
provided by the Constitution that the Judges
appointed should hold their respective offices
during their good behavior ? Our Declaration of
Independence tells us, when enumerating the usurpa-
tions of the British King authorizing the sepa-
ration, ^ he has made Judges dependent on his will
alone for the tenure of their offices, and the amount
of their salaries.' Of course dependent upon
his pleasure, and subject to be used as instruments
so long as they were obedient, and, when they were
otherwise, subject to be turned off and more pliant
ones put in place. Were this commission sanctioned,
we might presently fall on the old evil. The Leg-
islature has just as little right to change the ap-
pointing power of one of its own members."
Here we have an express judicial declaration that
the constitutional tenure of office shall not be inter-
fered with, even though the public interest required
it. Smith V. Norment, 5 Yer., 273, 274.
These two cases expressly decide the tenure and
term of office fixed by the Constitution to be unalter-
able constitutional limitations, which prohibit any leg-
islative violation of the limitations. The case of Pope
V. Phyfer^ 3 Heis., 682, expressly decided that the
Legislature could not abolish a constitutional Court.
The office of Judge of an inferior Court, the Judges
696 JACKSON :
The Judges' Cases.
selected to exercise and enforce the judicial power in-
vested in the Court, and the term of office, are all
constitutional creations which form a constitutional
part of the Court, and are not subjj^ect to legislative
control other than by a constitutional grant of power
authorizing legislative control. In the absence of any
constitutional limitation, the Legislature would have
the power to create Courts, to abolish such Courts,
abridge terms of office, and deprive Judges of their
offices. Therefore, whenever such legislative power is
made the subject of constitutional provisions, such
provisions are necessarily to be construed as intended
to be a limitation upon or regulation of the legisla-
tive power. In such cases, to qualify or abridge such
limitation requires a constitutional grant of power.
The Legislature, under the Constitution, has the
power to ordain and establish inferior Courts — that
is, to designate the same, and define their jurisdiction,
and regulate the salary of the incumbent previous to
his incumbency. But when this power is exercised —
the power to either create the office of Judge, or fix
the term of office, or to designate the mode of selec-
tion of the incumbent, or to regulate his salary dur-
ing his incumbency, or to invest him with judicial
power — all these are constitutional creations, and de-
rive their existence solely from the Constitution.
These constitutional creations are guarded by ex-
press provisions of the Constitution limiting legisla-
tive power, viz.: (1) Term of office shall be eight
years. (2) The Judge shall hold the office for
APRIL TERM, 1899. 697
The Judges* Cases.
eight years. Shall hold his office until his successor
is elected or appointed and qualified. (3) His salary
shall not be diminished during his continuance in
office. Const., Art. VI., Sec. 4-7; Art. VII., Sec. 6.
These limitations on legislative power were made a
part of the Constitution to secure judicial indepen-
dency. ''When once we know the reason which
determined the will of the lawmakers, we ought to
interpret and apply the words used in a manner
suitable and consistent to that reason, and as will
be best calculated to effectuate the intent." Cooley
Const. Lira. (6th Ed.), p. 80.
The intention of these provisions is not disputed,
but they are sought to be evaded on the theory
that they were not intended to cover cases of the
abridgment of the term of office, or destroying the
office, or depriving the Judge of his office and dimin-
ishing his salary, where the same is effected by abol-
ishing a Court. The proposition is, that while a
Judge cannot, by an Act, be constitutionally removed
from office, the office may be, by an Act, consti-
tutionally removed from a Judge, and that, by re-
moving the office from the Judge, no constitutional
limitation is violated. If this be true, these consti-
tutional creations, which form a constituent part of
the Court, are made subservient to legislative control,
implied from the power to designate and establish
Courts, the judicial powers of which, with the office
of Judge, his term of office, and his compensation,
are derived from the Constitution.
698 JACKSON :
The Judgres* Cases.
'*An Act repealing in toto a statutory provision
for the salary of an Assistant Clerk of a separate
orphan's Court, appointed by the Clerk of such Court
pursuant to authority conferred upon him by the State
Constitution, without making other provisions for such
salary, is unconstitutional, its effect being to abolish
the office of Assistant Clerk. '^ The Legislature can-
not, except by constitutional authority, remove a con-
stitutional officer, *' because the power to remove is
limited to the power to create." The proposition
contended for, if sustained, not only deprives a con-
stitutional officer of his salary, but also of his office.
Reed v. SfnouUei' (Pa.), 6 La. Ann., 517, 518; At^
toniey -general^ ex reh Jochim^ 25 L. R. A., 703.
The constitutional clause providing that inferior
Courts should be '^ordained and established" by the
Legislature, was intended to meet conditions which
might arise and require the establishment of tribunals
• necessary to the administration of justice. It was
impracticable, in framing a Constitution, to create
such Courts and define their jurisdiction. These
were the reasons for leaving this matter to the Leg-
islature. But in doing so it was not intended to
make Courts created by the Legislature, under said
provisions, sole creatures of the Legislature, which it
might at its pleasure, and without regard to consti-
tutional limitations, destroy, under the theory that
the power to create conferred the power to destroy.
The Legislature cannot confer judicial power upon
a Court. When it creates a Court it is the Con-
APRIL TERM, 1899. 699
The Judg^es' Cases.
stitutioD which invests the Court and Judge with
judicial power, and makes the Court a constitutional
tribunal. As soon as the Court thus becomes a con-
stitutional tribunal, the Constitution intervenes and
imposes a barrier to any legislative interference with
the term of office, its tenure, or the salary of the
Judge, and this barrier is intended to be a prohi-
bition of any legislative exercise of power, except
by the constitutional grant of the power of removal
by impeachment, or a two-thirds vote for cause.
If this is not the correct theory of our Constitu-
tion, the provisions securing the independency of the
Judge, and the constitutional grant of the power to
remove Judges by methods expressed in the Constitu-
tion, are all made subordinate by implication to a
clause which was merely intended to provide for
needs which might arise in the administration of
justice, and not intended to be construed as con-
ferring the power to abolish Courts when such exer-
cise of power would operate to destroy prescribed
constitutional limitations.
Regretting our inabilty to avoid the result reached
in this case, Judge Beard and I dissent from the
views of the majority, and respectfully but earnestly
insist that they are in error.
700 JACKSON :
Railroad v. Neely.
Railroad v, Neely.
{Jackson. May 24, 1899.)
1. New Trial. Refu8al o/, error, when.
That there are some substantial facts to support it does not
justify a trial Judge in refusing to set aside a verdict with
which he is not satisfied on the facts.
Case cited and approved: Railroad v. Brown, 96 Tenn., 559.
2. Sa&tb. RvXe of Supreme Court
The rule thai; a verdict will not be disturbed upon the facts, if
there is any evidence to support it, is one that prevails in this
Court, but not in the lower Courts.
Cases cited and approved: Tate v. Gray, 4 Sneed, 592: England v.
Burt, 4 Hum., 400; Nailing v. Nailing, 2 Sneed, 631; Vaulx v.
Herman, 8 Lea, 683; Turner v. Turner, 85 Tenn., 389; Railroad
V. Roddy, 85 Tenn., 403.
FROM MADISON.
Appeal in error from Circuit Court of Madison
County. A. H. Mumford, Judge.
Hays & Biggs for Railroad Co.
S. J. Everett for Neely.
Caldwell, J. R. B. Neely brought this action
against the Nashville, Chattanooga & St. Louis Rail-
way Co. to recover from it 1^15,000, as damages
APRIL TERM, 1899. 701
Railroad v. Neely.
for personal injuries alleged to have been by it
wrongfully and negligently inflicted upon him while
rightfully and cautiously disembarking from one of its
passenger trains, at the end of his journey thereon.
The jury trying the case returned a verdict for
$7,600. The plaintiff remitted $5,600. The Court
pronounced judgment for $2,000, and the defendant
appealed in error.
The bill of exceptions contains the following
statement, namely: ''The defendant moved the Court
for a new trial upon the several grounds set out
in the entry on the minutes, and, after argument
of counsel, the Court stated that he was satisfied
that the verdict of the jury was excessive, and
that the verdict should be set aside upon that
ground; and that it was unnecessary to consider
the ground that the verdict was not supported by
the testimony and was contrary to the law and
evidence. Thereupon the plaintiff requested the Court
to state what amount he thought would not be
excessive, when the Court stated that, if the plain-
tiff was entitled to any amount, he was not en-
titled to more than $2,000, but that there could
be no doubt but that $7,600 was excessive. Where-
upon counsel for plaintiff stated that he would remit
$6,600 of the verdict, making it $2,000. The Court
then overruled the motion for a new trial, statmg
that the facts in the case were considerably viixed^
but that it was a I'ule of his to rarely invade tlie
province of the jury in setting aside their verdicts^
702 JACKSON :
Railroad v. Neely.
if there were any aiihstantial facts to support the
same, ' '
The concluding part of this recital, which we
have italicized, discloses erroneous action on the part
of the Court. It shows a misconception of the
respective functions of the Court and jury in regard
to the evidence, and gives unwarranted weight to
the verdict. It was incumbent on the trial Judge,
in passing upon the motion for a new trial, to
weigh the evidence for himself, and decide whether
or not the verdict, when reduced to $2,000, was
warranted thereby; and it would not have been an
invasion of ''the province of the jury" for him to
have done so. It was his province, and his alone,
to decide that question. The case had passed from
the jury, and had reached that stage in which the
Judge must approve or disapprove the verdict; and,
''in discharging that exclusive and independent duty,
he must, unavoidably, determine for himself, after
giving all due weight to the verdict of the jury,
whether or not the evidence introduced was sufficient
to sustain that verdict." Railroad v. Brovm^ 96
Tenn., 559.
His Honor seems to have gone far enough, in
his consideration of the evidence, to conclude that
there were some "substantial facts to support" the
verdict, and, deeming that sufficient, he considered
the evidence no further. That was a misapplication
of a familiar rule, of long standing in the practice
of this Court, but wholly inapplicable in nisi prius
APRIL TERM, 1899. 703
Railroad v, Neely.
Courts. Indeed, that rule, as here applied, is based
upon the fact that both the trial Judge and the jury
have carefully weighed the evidence, and that, while
doing so, they have had more favorable opportunities
of ascertaining the truth than this Court can have.
Tate V. Gray, 4 Sneed, 692; England v. Burt, 4
Hum., 400; Nailing v. Nailing, 2 Sneed, 6315
Vaulx V. Herman, 8 Lea, 683; Turner v. Turner, 85
Tenn., 389; Railroad v. Roddy, 85 Tenn., 403.
The rule is applicable only when the trial Judge
has concurred in the finding of the jury, and is
never to be applied to a mere verdict.
Reverse and remand.
704 JACKSON :
Rttilroad r. Tieroan.
Railroad v. Tiernan.
{Jackson. May 24, 1899.)
1. Railroads. Fencing track.
The fences aloD^ a railroad right of way, to meet the require-
ments of the statute on that subject, must be up to the
standard at all points, including' those at which gates are
maintained. (Post, p. 706.)
Act construed: Acts 1891, Ch. 101.
Cases cited and approved: Polk v. Lane, 4 Yer., 36; Smith v.
Jones, 95 Tenn., 342.
Cited and distinguished: Railroad v. Hughes, 94 Tenn., 450.
2. Same. Same.
The mere erection by a railroad company of a fence, which
originally conforms to the standard fixed by the statute on
that subject, does not afford it perpetual immunity from lia-
bility for stock killed on the track, but to continue its im-
munity the company is bound to exercise ordinary care to keep
the fence, including the gates, in good repair and closed at all
points. {Post, p. 707.)
Act construed: Acts 1891, Ch. 101.
3. Same. LUibility for killing stock.
Since the passage of the railroad ** fencing Act " of ISQl, it is not
essential, in order to exonerate it from liability for the killing
of live stock on a lawfully fenced track, that a railroad com-
pany shall show, in addition to the fencing of its track, that it
has complied with all the requirements for the prevention of
accidents on unfenced tracks. {Post, pp. 707, 708.)
Act construed: Acts 1891, Ch. 101.
Code construed: i 1574 (S.), § 1298 (M. & V.), § 1166 (T. & S.).
APRIL TERM, 1899. 705
Railroad v. Tiernan.
Cases cited and* approved: Railroads v. Crider, 91 Tenn., .489;
Railroad v. Russell, 92 Tenn., 108; Railroad v. Stonecipher, 95
Tenn., 313;oSmith v, Jones, 95 Tenn., 342.
FROM MADISON.
Appeal in error from Circuit Court of Madison
County. Levi S. Woods, Judge.
McCoRRY & Bond for Railroad.
Caruthers & Mallory for Tiernan.
Caldwell, J. A train of the Mobile & Ohio
Railroad Co. ran upon and killed a mare and colt
belonging to John Tiernan. He sued the company
for damages and obtained verdict and judgment for
$100. The company appealed in error.
At and near the place of collision the road of
the company passed over the land of one Taylor.
The track was fenced on both sides, and gates were
put in for the convenience of Taylor, the owner of
the land. The testimony submitted to the jury was
conflicting as to the character and legal sufficiency
of certain portions of the fence, and it failed to
show with certainty the precise point at which the
mare and colt entered the inclosure. Several objec-
tions are urged against the charge and rulings of
the Court below. All of these have been consid-
ered, and, without mentioning them in detail or
18 P— 45
706 JACKSOJN :
Railroad v. Tiernan.
stating the contentions made on either side with
respect to them, we are content to give our con^
elusions in brief form as to the most important
questions raised.
1. The trial Judge, after defining the requisites
of a lawful fence, rightly instructed the jury, that,
to render the inclosure legally sufficient, the gates,
forming parts of it, ^'must be as substantial as
other portions of the fence, for the purpose of
keeping out stock."
Clearly, a gate that is less effective in turning
away stock than the whole fence is required to be,
does not meet the demands of the law. A fence,
like a chain, is no stronger than its weakest part.
2. He also rightly said to the jury, that, if the
proof showed that the inclosure was insufficient ''at
any place along, at, or near where the animals
were killed, and where stock were likely to enter,
then the company would be * responsible, " though
the proof should not show the point at which these
particular animals entered.
This instruction, like the preceding one, lays
down the correct proposition that the inclosure, to
meet the statutory requisites of a lawful fence, must
be up to the standard at all points. It is in ac-
cord with Polk V. Lane^ 4 Yer., 36, approved in
Smith V. Jones^ 95 Tenn., 342. The present case
is not analogous to that of Railroad v. Hughes^ 94
Tenn., 450, nor is the foregoing proposition incon-
sistent with anything said in that case.
APRIL TERM, 1899. 707
Railroad v. Tieman.
3. Again, the jury was rightly charged, in sub-
Btanee, that if a third person left one of the gates
open, and the mare and colt entered through it
while so open, the company would be responsible,
if it knew, or by the exercise of ordinary care
could have known, that the gate was open, and that
it would not be responsible if it did not have, or
by the exercise of ordinary care could not have had,
such knowledge. This instruction is entirely correct
and is fair to both sides. The mere erection of
an inclosure, sufficient in the first instance, did not
afford the company perpetual immunity; but, to con-
tinue its protection against liability, the company
was bound to exercise ordinary care to keep the
inclosure in good repair and closed at all points —
the gates as well as other parts of the fence.
4. But the trial Judge committed error against
the company in that part of his charge in which
he said: '*If the jury should be of opinion that the
track was properly fenced, and that the animals got
into the inclosure and upon the track and were
killed, then the railroad company would be responsi-
ble for running its engine upon them, unless it can
show, by a preponderance of the evidence in the
case, that it used all the statutory precautions '^ laid
down in Subsec. 4 of § 1166 of the Code (M. &
v., §1298; Shannon, §1574), in reference to a look-
out on the locomotive and the sounding of the
whistle, putting down of brakes, and the employ-
ment of every possible means to stop the train when
708 JACKSON :
Railroad v. Tiernan.
animals appear upon the track. This instruction was
erroneous, in that it imposed upon the company the
burden of showing an observance of ''all the statu-
tory precautions," even though it might appear to
the jury that the company at the time of the col-
lision had its track inclosed by a lawful fence.
That part of the charge relating to the observance
of statutory precautions should have been omitted
altogether, and the liability or nonliability of the
company should have been made to turn upon the
absence or presence of a lawful inclosure of the
track. The ''fencing act" (Ch. 101, Acts 1891)
greatly modifies and in a large measure supersedes
the previously existing law. Railroads v. Cridei^ 91
Tenn., 489; Railroad v. Russell^ 92 Tenn., 108.
The second section of that Act makes railroad com-
panies absolutely liable for injury caused to live
stock by moving trains upon unfenced tracks, and
the third section gives them complete exoneration
from liability for such injury upon fenced tracks.
The nonliability in the latter case is as complete as
the liability in the former. Railroad v. Russelly 92
Tenn., 111. Since the passage of that Act, proof
with reference to the observance or nonobservance
of the "statutory precautions" referred to is irrel-
evant in actions like the present one. 7i., 110;
Railroad v. Stonecipher^ 96 Tenn., 313.
The effect of the charge of the learned Circuit
Judge was to give the plaintiff the benefit of two
independent remedies (one under the Code and the
APRIL TERM, 1899. 709
Railroad v. Tiernan.
other under the Act of 1891) in the same action,
and to allow the railroad company no escape what-
ever, except upon proof of full compliance with both
laws at the same time. A result so unequal and
partial was not contemplated by the Legislature and
should not be approved by the Courts. 92 Tenn.,
113, 114,
Reverse and remand for a new trial.
710 JACKSON :
Medlin v. Balch.
Medlin V. Balgh.
(Jackson. May 27, 1899.)
1. Damages. For detention of cow.
One who detains another's milch cow that has broken into
his premises is liable for the damag'es resulting from such
detention.
2. Verdict. Not excessive.
A verdict of three dollars for the unlawful detention of a milch
cow, for a short period, is not so excessive as to evince preju-
dice or passion, or to indicate that anything was allowed for
the owner's mental anguish over his loss.
FROM MADISON.
Appeal in error from Circuit Court of Madison
County. Levi S. Woods, Judge.
Hays & Biggs for Medlin.
W. G. TiMBERLAKE for Balch.
Wilkes, J. Mr. Balch^s milch cow, in some
unaccountable way, broke into a lot where Mr.
Medlin kept his cattle. The cow not coming up to
be milked at her accustomed time, Mr. Balch in-
quired for her, and hired a man to look for her, and
APRIL TERM, 1899. 711
Medlin v. Balch.
advertised for her in the Jackson Sun, The adver-
tisement appears to have been inserted in the Sun
under the idea that it was constructive notice to the
world. Mr. Medlin saw the cow in his pen, but
supposed Mr. Pope, his partner, had bought her.
Mr. Pope saw the cow in the yard, and supposed
that Mr. Medlin had bought her. In the mean-
time neither of them appears to have looked at the
Sim, After some two or three days, in a con-
ference between the two, it was ascertained that
neither had bought the cow. Mr. Medlin then tried
to find the Ranger, to post the cow, but the Ranger
was out on the range, and appears to have been as
hard to find as was the owner of the cow. In the
meantime Mr. Balch and his family were suffering
for milk, and he was in great mental anxiety for
his cow. Some two weeks afterwards a gentleman
called at the yard and demanded the cow, but Mr.
Medlin refused to deliver her except on an order
from Mr. Balch. It seems fairly inferable, from
this fact, that Mr. Medlin had heard she was Mr.
Balch's cow. On production of Mr. Balch^s order
the cow was delivered. Mr. Medlin met Mr. Balch
a short time afterwards and explained to him that
he had kept the cow up to find out who she be-
longed to. This does ' not appear to have satisfied
Mr. Balch, and he sued Mr. Medlin for damages
before a Justice of the Peace for meddling with his
cow. The Justice, after mature deliberation, gave
a judgment for the plaintiff, and the defendant ap-
712 JACKSON :
Medlin v, Balch.
pealed to the Circuit Court. The case was there
tried before the Court and a jury, and, after a full
hearing, there was a judgment in faror of the
plaintiff for three dollars and the costs. The judg-
ment was not an excessive one, but the costs had
come to be a matter of more consequence than
either the damages or the cow, and so the defend-
ant promptly appealed to this Court, and assigns
quite a number of errors.
The case was elaborately presented by two of the
ablest counsel of the Jackson bar in arguments that
were extended, learned, and exhaustive, at least to
the Court, and, after mature deliberation and earnest
consultation, this Court has reached a conclusion.
The trial Judge charged the jury, in substance, that,
so long as Mr. Medlin believed his partner had
bought the cow, he was not in error in keeping her
in his yard, but when he found out that his partner
had not bought her, and that she was somebody's
milch cow that had got into his lot, he ought to
have turned her out and let her go home to her calf,
and in that way she would have reached her owner.
The trial Judge seems to have proceeded on the
idea that the cow would find her owner more
promptly than Mr. Medlin would, and we are of
opinion that this was good common sense, and he
was not in error in this view of the case. Common
sense is always good law, but law is not always
common sense. The jury gave a verdict for $3.
We do not consider this so excessive as to evince
APRIL TERM, 1899. 713
I
Medlin v. Balch.
prejudice or passion, and we will not disturb it on
this ground. The advertisement and hire of man to
make a search were legitimate items to look to in
fixing the damages. Nothing seems to have been
allowed for Mr. Balch's mental anguish.
The defendant asked the Court to give some
additional charges to the jury, but we think (1)
that they are not good law, and (2) the Judge
charged the jury correctly, and the jury charged
defendant enough for this kind of a case, when the
amount of costs is considered.
The judgment is affirmed.
714 JACKSON :
Hamilton v. Henney Buggy Co.
Hamilton v. HENNEr Buggy Co.
{Jackso7i. May 30, 1899.)
1. Replevin. Proper judgment on the several Ixytids.
A judgment of this Court upon affirming a judgment of the Cir-
cuit Court, which atarmed a judgment of a Justice of the
Peace for defendant in replevin, will, if all the bonds are in
the penalties required and sufficient, be against plaintiff and
his original sureties for double the value of the property, to be
satisfied by its return, and for the damages and cost, and also
against the sureties on appeal from the Justice to the Circuit
Court for the same measure of relief, and against the sureties
for the appeal to the Supreme Court only for costs and dam-
ages, consisting of interest on the recovery, but the judgment
against the sureties on the Justice's appeal bond must be lim-
ited to cost if the bond is so limited, and the recovery on the
original replevin bond must be limited to the amount of its
penalty.
Code construed: §{ 5152, 5144 (S.); U 4133, 4126 (M. & V.); U 3397,
3390 (T. & S.).
2. Same. Same. Acts 1885 construed.
Acts 1885, Ch. 59, does not affect or contemplate any change in
the form or substance of an original judgment for defendant
in replevin. That Act simply contemplates and provides for
a supplemental judgment, not extinguishable, in whole or in
part, by return of the property for any part of the original
judgment that may remain unsatisfied upon the return of the
first execution thereon.
Act construed: Acts 1885, Ch. 59.
Cases cited: Nighbert v. Hornsby, 100 Tenn., 82.
FROM SHELBY.
Appeal in error from the Circuit Court of Shelby
County. Levi S. Woods, J.
APRIL TERM, 1899. 715
HsmiltOD V. Hennej 'Bviggy C!o.
1 - - - .
J. E. Pope and Eli Friedloeb for Haaiilton.
Caruthers Mallory for Buggy Company.
Snodgrass, Ch. J. This is a replevin suit in
which there was judgment below for defendant. On
appeal here the judgment was affirmed, and the
question arises as to what is the proper judgment
here against principal and sureties below and sureties
on appeal to this Court.
This suit commenced before a Justice of the
Peace, and proper judgment therein by him to be
rendered is provided for in § 3397 of the Code (M.
& v., §4:133; Shannon, §6152). This section, it will
be seen, contemplates judgment for the property,
and, if plaintiff fails to deliver it up, further judg-
ment for double the value of the property. This
did not necessitate two judgments. Construction has
made the form of it to be that '* defendant recover
of plaintiff and his sureties $ — (double the value of
the property replevied), but to be satisfied by a return
of the property;" and also for damages for detention,
and cost. The latter, of course, not to be satisfied
otherwise than by payment. And, accordingly, exe-
cution runs. In cases of replevin originating in the
Circuit Court, judgment in favor of defendant was
provided for in §3390 of the Code (M. & V.,
§4126; Shannon, §5144). It was for return of
the property, or on failure, that the defendant re-
cover the value of the property, with interest thereon,
and damages for any detention. There is, therefore,
716 JACKSON :
Hamilton v. Henney Bug'g-y Co.
under this section, a judgment for the value of the
property, to be satisfied by its return, and, further,
for the interest and damages, not to be satisfied
except by payment.
It will be observed, however, that in both these
sections of the Code no provision was made for any
judgment not in this alternative form, so that from
term to term of Court executions might run always,
at least in part extinguishable, by a return, however
late, of the property. The Legislature deemed this
an omission needing to be supplied, and the Act of
1885, Ch. 69, was passed for this purpose. It in
terms amended the last section cited (Sec. 3390) by
providing that if such alternative judgment was ren-
dered, and execution issued thereon and was returned,
showing that the property had not been returned
and the execution had not been satisfied in whole
or in part, the defendant was then entitled to a
final judgment against the plaintiff and his sureties
for the whole of the original judgment, or so much
of it as remained unsatisfied, in dollars and cents,
and not to be thereafter extinguishable in whole or
in part by a return of the property. This was the
object and entire scope of the Act of 1885.* It
made no chancre in the form or substance of an
original replevin judgment, and was not intended to
do so.
In the case of Xi(jhhert v. Hornahy^ 16 Pickle,
82, it was expressly decided that judgment of the
Justice and Circuit Court thereon must be as before
' APRIL TERM, 1899. 717
Hamilton v. Henney Baggy Co.
this Act. It was said in that case that "judgment
for the penalty of the bond, without reference to
the vahie of the property, is allowable only after
the plaintiff has failed to return the property, and
the writ of Ji. fa, so showing has been returned
unsatisfied, in whole or in part." This was correct
so far as it refers to such execution returned wholly
unsatisfied, if the Act applies to a replevin suit
originating before a Justice, because it was spoken
of a Justice's judgment, or in cases originating be-
fore a Justice, which, as we have seen, is for
'* double" the value of the property, and "double"
the value of the property is the penalty of the
bond by statute. It would, therefore, follow that
if in $uch a case a Ji. fa. had been issued and re-
turned, showing the proi)erty adjudged to defendant
was not delivered, and the execution in whole unsat-
isfied, the final judgment would follow uncondition-
ally for double the value of the property, which
would be the penalty of the bond. But, if the
execution was returned in part satisfied, this judg-
ment would be for such double value or penalty,
less the amount collected on the execution. This
Act was discussed in that case, but was not ap-
plied, as the case was not one calling for its
application. The statute in terms applies only to
judgments rendered in cases originating in the Cir-
cuit Court. Whether it must be also applied to
cases appealed there from Justices we nee<l not now
decide, as we are not called upon to apply it at
718 JACKSON :
Hamilton v. Henney Buggy Go.
all. The judgment rendered in the Circuit Court
was not the second or absolute one authorized by
the Act, and, therefore, the Act can have no ap-
plication.
As to the judgment to be rendered here: It is
the same as the Circuit Court (in case of appeal
from a Justice of the Peace) should have rendered
against plaintiff and his original sureties — for double
the value of the property (to be satisfied by its
return), and for the damages and costs, and, also,
against sureties on appeal from the Justice to Circuit
Court for the same, and against sureties on appeal
to this Court only for costs and damages, consisting
of the interest on the recovery. There is no statute
requiring bond for more than damages and cost on
appeal to this Court in replevin suits. This is all
upon the assumption that the bonds of this record
are in the penalties required, and sufficient; but we
find no appeal bond from the Justice in the record.
There is a recital in the judgment of the Circuit
Court of an appeal bond, but only for costs. The
penalty of the original bond was only $300. The
property was proven to be of the value of $175.
So, as against the sureties on Justice's appeal bond,
the judgment must be limited to costs of the appeal
to the Circuit Court, and, as against those on the
original replevin bond, the recovery must be limited
by amount of its penalty. Judgment will be accord-
ingly entered.
APRIL TERM, 1899. 719
Whitelaw Furniture Co. v. Boon.
Whitelaw Furniture Co. v. Boon.
(Jackson. May 27, 1899.)
Evidence. BvaxLen of proof.
The burden is upon the seller, who, having under a condition of
the contract of sale, reclaimed the property on account of the
buyer's failure to pay the full price, is afterwards sued by the
latter for that part of the purchase money paid before reclama-
tion, to prove, in order to protect himself, strict compliance
with the provisions of Acts 18S9, Gh. 81, with reference to the
advertisement and resale of the property.
Act construed: Acts 1889, Ch. 81.
Code construed: { 3669 (S.).
Cases cited: 32 Ala., 557; 35 Ark., 430; 50 Ga., 103; 53 Iowa, 84.
FROM MADISON.
Appeal in error from Circuit Court of Madison
County. Levi S. Woods, Judge.
W. G. TiMBERLAKE for Whitelaw Furniture Co.
Hunter Wilson for Boon.
Beard, J. The Circuit Judge in this case
charged the jury that where a vendor in a condi-
tional sale has reclaimed property from his vendee,
because of the failure of the latter to pay the full
purchase money as provided in the contract of such
sale, and is afterwards sued by the vendee for that
part of the purchase money paid before reclamation,
720 JACKSON :
Whitelaw Furniture Co. v. Bood.
that the burden of proving a compliance with the
requirements of Sec. 4, Ch. 81, of the Acts of
1889 (§ 3669 of Shannon's Code), was upon the de-
fendant. Upon regaining possession of property so
sold, the statutory duty of within ten days there-
after advertising the same for sale in the man-
ner prescribed by the Act, is imperative, and a
failure to discharge this duty in any important
particular makes the vendor so reclaiming liable to
the original purchaser for the part of the considera-
tion theretofore paid. Whether he has complied
with the provisions of the statute in making this
sale is peculiarly within the knowledge of the origi-
nal vendor. He knows better than any one when
and where he posted the notices announcing the sale,
and whether it occurred at the time and place desig-
nated in the notices, and in placing this burden on
him the Court only applies the rule uniformly
adopted in cases where defendants are prosecuted for
selling liquor without license. In such cases, that
the defendant has a license is a fact lying particu-
larly within his own knowledge, and as proof of it
can easily be made by him, the duty of furnishing
it is imposed upon him, rather than proof of the
negative upon the prosecutor. Farrell v. State^ 33
Ala., 557; Wlllianu v. State^ 36 Ark., 430; Conyers
V. State, 50 Ga., 103; NocJc^r v. Peoples, 91 111.,
468; State v. Miller, 63 Iowa, 84.
There was no error in the action of the trial
Judge and his judgment is affirmed.
APRIL TERM, 1899. 721
Smith V. State.
Smith v. State.
{Jackson. May 27, 1899.)
JuBT. Incompetent juror.
A juror is not competent to serve in the Criminal Court of a
county if he has within two years served as a juror in the Cir-
cuit Court of that county.
Code construed: 3{5793, 5799, 5800, 5821 (S.); §{4756, 4763,4764,
4785 (M. A v.); li 3981, 3988, 3989, 4010 (T. A S.).
Case cited and approved: State v. Qoodwin, 13 Lea, 238.
FROM MADISON.
Appeal in error from Criminal Court of Madison
County. John M. Taylor, Judge.
J. M. Troutt for Smith.
Attorney-general Pickle for State.
Wilkes, J. Defendant is convicted of receiving
stolen goods, and sentenced to six months' confine-
ment in the county jail, and has appealed and as-
signed numerous errors. Only one of these need
be mentioned.
After the defendant had exhausted all of his
challenges, E. S. Harris was tendered to him as a
18 P— 46
!
722 JACKSON :
Smith V. State.
competent juror. On his examination on his twr
direj Mr. Harris stated that he had served on the
regular jury in the Circuit C!ourt of Madison County,
as one of that body, within twelve months next
before the time he was offered on this trial. De-
fendant challenged him for this cause. The Court
disallowed the challenge, and Mr. Harris served upon
the jury. Defendant excepted to the ruling of the
Court, and assigns it as error. This assignment is
well made. Under the statute (Shannon, § 6793) it
is provided that the County Court shall appoint
jurors for the next term of the Circuit Court, but
no person shall be summoned or serve on the venire
who has served on a venire for a period of two
years preceding. By § 6799 it is provided that no
Court shall appoint any person to serve as a juror
more than one time in each period of two years,
either on the original panel or to fill a vacancy
therein. By § 6800 it is provided, that, if any juror
is appointed in violation of these provisions, the
Court shall discharge him and appoint a juror in
his stead free from exception, and, by § 6821, this
previous service is made ground for challenge. If,
therefore, this juror had been offered in a cause
pending in the Circuit Court, in which he had pre-
viously served, he would have clearly been incom-
petent. Does it alter the case that he is offered
in the Criminal Court of the same county instead of
the Circuit Court? It was held in State v. Good-
win, 13 Lea, 268, that a juror who had served
APRIL TERM, 1899. 723
Smith V, State.
upon a panel in the Circuit Court of Shelby County
could not be compelled to serve another term, within
twelve months, in the Criminal Court of the city
and county. In like manner, and on the same
principle, such prior service is good ground for
peremptory challenge, and the trial Judge was in
error in selecting the juror and requiring him to
serve over defendant's exception. See, in accord,
Corvossin v. Raymond^ 23 Col., 113.
The judgment is reversed, and the cause remanded
for a new trial.
724 JACKSON :
Ward V, State.
Ward v. State.
(Jacksmi. June 8, 1899.)
1. Plea in Abatbmknt. ^rUntnjG^B required.
The ^eate»t strictneaa is required in pleas in abatement, and
no intendment is made in their favor. They must contain a
full and positive averment of all material facts. (PosU VP'
726, 727.)
Case cited and approved: Grove v. Campbell, 9 Yer., 7.
2. Same. Not sutMenU when.
A plea in abatement to an indictment for forgery is fatally
defective, for want of certainty in its averments, which alleges
that defendant had been extradited, and was still held, under
another charge of forgery pending in the same Court, without
stating the name that had been forged or identifying the
indictment that had been the basis of the extradition other-
wise than by a general reference to the records of the Court,
in which numerous indictments for forgeries were pending
against defendant. (Post, PP- 726, 727.)
3. ExTBADiTiON. Defendant not entUled to henejUs of, when.
'Although the extradition of a ptlrty has been agreed upon by
the two countries, still, if he is not delivered in accordance
with that arrangement, but is caught by the accredited agent
of this country at a port in a neighboring State, on board an
American ship, sailing under an American flag, while volun-
tarily making his way back to this country, he is not entitled
to any of the benefits of extradition. {Post^ pp. 726, 727.)
4. Chabob of Coubt. Not part of record.
The Court's charge and the requests for further instructions,
though copied into the transcript, are not part of the record
unless they are, by some appropriate language, made part of
the bill of exceptions. {Post, pp. 727, 728.)
6. JuROB, Opinion.
Although a juror states he has no opinion in the particular case
on trial, he is nevertheless Incompetent if he had formed and
APRIL TERM, 1899. 726
Ward V. State.
expressed an opinion adverse to defendant from an attentive
reading of a newspaper report of the evidence delivered on a
former trial of defendant on a similar charge, which included
an accurate report of material evidence to be used in the pend-
ing case, introduced on the former trial to show scienter.
{Postj pp. 728-737,)
Cases cited: Woods v. State, 99 Tenn., 186; Spence v. State, 15
Lea, 539.
6. Same. Same.
And, in such case, it is error for the Court to refuse to permit
counsel to examine the juror touching such newspaper report.
(Po8t, pp. 72&-737.)
7. Same. Challetiges.
This Court will reverse for the error of compelling the defend-
ant to take an incompetent juror, over his objection and offer
to challenge for cause, when it appears that defendant ex-
hausted his full number of peremptory challenges on other
objectionable jurors. (Post, VP' 728-737. )
FROM SHELBY.
Appeal in error from the Criminal Court of Shelby
County. L. P. Cooper, J.
George B. Peters for Ward.
Attorney-general Pickle and M. R. Patterson
for State.
Beard, J. This indictment contains two counts.
The first charges Ward with forging S. C. Toof's
name on a check, and the second with passing this
check, knowing the indorsement of Toof's name was
726 JACKSON :
Ward V, State.
forgery. He was found guilty under the second
count, and his term in the penitentiary fixed at five
years. When called to answer the indictment, the
plaintiff in error filed a plea in abatement, in which
he averred that he was extradited from Spanish
Honduras, under a proper process of extradition by
an agent of the United States, for the "offense of
forgery alleged to have been committed by him in
Tennessee; . that an indictment was found against him
in the Criminal Court of Shelby County for the
forgery for which he was extradited, as appeared
from the record from said Court, which is asked
to be considered as a part hereof, and the same is
now pending and has never been tried." He then
avers that he cannot be tried on the present indict-
ment until he is tried for the offense for which he
was extradited. After certain other pleadings, the
trial Judge struck out this plea, and, we think,
properly. The greatest strictness is required in pleas
in abatement, and no intendment is made in their
favor. '^They must contain a full and positive
averment of all material facts." 1 Enc. Plead. &
Prac, 23; 9 Yer., 10. Tested by this well-estab-
lished rule, this plea was fatally defective. It leaves
blank the name of the party for forgery of which
Ward was indicted, and also fails to identify in any
way the indictment which was the basis of the
extradition.
The plaintiff' in error contents himself with refer-
ring to the "record of the Criminal Court for this
APRIL TERM, 1899. 727
Ward V. State.
indictment, and, when found, asks that it be con-
sidered'^ as a part of this plea. This vital defect
is sufScient answer to the error assigned to this
action of the trial Judge; but another answer,
equally conclusive, is furnished by the record, and
that is, that plaintiff in error was never extradited
in the sense of the rule invoked by his counsel.
While it is true that this government did ask, on
the ground of international comity, the authorities of
Spanish Honduras to deliver Ward for extradition,
and though those authorities indicated to our Minis-
ter resident at the capital of Spanish Honduras
their willingness to surrender Ward to an accredited
agent of the United States, and this agent did
bring Ward back, yet the facts are that the agent
found Ward outside of Spanish Honduras, at a port
in a neighboring State, on board an American ship,
sailing under an American flag, returning, as Ward
says, '* voluntarily to this country." This is clearly
a case falling within the rule announced in Ke?' v.
Illinois, rather than that enforced in United States
V. Raii^ch, 119 U. S., 407.
Numerous errors are assigned upon the charge of
the trial Judge, and upon his refusal to grant cer-
tain special requests submitted by the attorneys of
the plaintiff in error. Many interesting questions
have been argued at the bar growing out of these
assignments, but they are not considered or deter-
mined by us, as neither charge nor request are
properly brought into the bill of exceptions. At
728 JACKSON :
Ward V. SUte.
the conclusion of the evidence used in this case
is found the usual statement, ''this was all the evi-
dence in the case," and, on the next succeeding page,
begins, without any introductory clause to identify
it, what purports to be the charge, simply begin-
ning, *' Gentlemen of the jury." This is not suf-
ficient. There must be something to make cer-
tain the charge as that of the Court in the par-
ticular case, such as the formula given by Judge
Caruthers in his History of a Lawsuit, <^and here-
upon the Court charged the jury as follows," or
some equivalent thereof. It is the duty of the trial
Judge, in signing the bill of exceptions, to identify,
by his signature, or in some other unmistakable
form, the charge which he gives, and the special
requests he acts upon, and make them a part of
the bill of exceptions by proper indorsement, or else
see that they are embodied in the bill of exceptions,
and thus leave nothing open to conjecture on the
record.
The serious error, however, in this case arises
upon the action of the Court with regard to one
Holden, tendered as a juror. On his voir dire he
was examined upon the question of opinion and
prejudice, and he stated that he had been a close
reader of the Appeal, containing report of proceed-
ings of the former trials of Ward for forgery, and
had formed an opinion that he was guilty of felo-
niously using Mr. Toof's name, and that it was only
reasonable that he should have the same opinion
APRIL TERM, 1899. 729
Ward V. State.
Btill; but that as to this case he had no opiDion.
The attorney of Ward then proposed to submit to
the juror a copy of the Commercial- Appeal of the
second of November, containing a report of the tes-
timony of Mr. Toof in one of those former trials.
This, upon the objection of the Attorney- general,
was refused by the trial Judge, who pronounced the
juror competent, and, thereupon, the prisoner, through
his counsel, peremptorily challenged. Having ex-
hausted all of his challenges, he sought to chal-
lenge two other objectionable jurors presented to
him, but the trial Judge declined to permit him to
do so. The plaintiff in error is in this record in
a condition to complain of the action of the Court
below.
The Commercial' Appeal presented by the pris-
oner's counsel contained a full report of Mr. Toof's
testimony. Among other matters testified about by
this witness were a series of checks given by one
Pollard, to the order of S. C. Toof, on the Union
& Planters' Bank, of which the check which is the
basis of indictment and conviction was one, and he
pronounced them all forgeries. In addition, in that
case, as he does in this, he gave a reason why his
name was a forgery — that at the date of this check
he was in Cuba, and could not, therefore, have in-
dorsed it.
We think, in view of the fact that Holden had
stated positively that he had read closely the report
of these trials in the Appeal^ that, for the purpose
730 JACKSON :
Ward V. (itate.
of testing his qualification to sit in this case, the
prisoner's counsel was entitled to examine him on
that report. In addition, it is clear the opinion
which this juror had formed was a disqualifying
one, and that he could not qualify himself by say-
ing that he could give the prisoner a fair trial. An
opinion formed from a personal knowledge of the
facts, or from hearing witnesses state them, or from
reading in any newspaper a report of the statements
of actual witnesses, is a disqualifying one. Woods v.
/State^ 15 Pickle, 186; Spence v. State^ 15 Lea, 539.
Holden fell within the rule which disqualifies, and
the trial Judge was in error in forcing the prisoner
to challenge him peremptorily. For this reason, the
cause is reversed.
PETITION TO REHEAR.
We have been asked by the State's representa-
tives to reconsider our former holding as to the
action of the trial Judge in pronouncing one Holden
a competent juror, and thus forcing the defendant
to exhaust upon him one of the peremptory chal-
lenges.
In disposing of this case, we held him to be a
disqualified juror upon the ground that he had
formed an opinion that the accused was guilty of
forgery, from what Holden characterized as a close
reading by him of the reports of a former trial of
Ward as they appeared in the Comfiiercial- Appeal.
APRIL TERM, 1899. 731
Ward V, State.
It is true that these reports were of a trial for
another forgery than that charged in the present
case; and it is also true that this would not • have
been a disqualifying opinion, formed, as it was, in
another and a collateral case, except that the check,
the alleged forgery of the name of S. C. Toof
upon which is the basis of the indictment in this
case, was made a subject of investigation and tes-
timony in that case. This check was issued by
one Pollard for the proceeds of a note discounted
for Ward, payable to the order of Mr. Toof, on
the Union & Planters' Bank, and, as claimed by
the State, uttered by Ward after he had feloniously
placed the name of the payee upon it. A copy of
the Commercial- Appeal newspaper, containing a most
elaborate and detailed reproduction of testimony de-
livered by Mr. Toof as a witness in that case, then
in process of trial, was brought into the bill of
exceptions, and constitutes a part of the record in
this cause. The newspaper report of his testimony
as to the Pollard notes and checks (for there were
many of them, including the one in question) was
as follows: '<The State then showed the Pollard
paper to witness, who said he was in Cuba when
it was made. It purports to have been made in
Memphis. Other Pollard notes were shown. Wit-
ness said his signature appearing on these notes
was not genuine, and he got no money from them.
The money on these notes was given by Pollard in
the shape of checks, payable to S. C. Toof. Wit-
732 JACKSON :
Ward V, State.
ness said he had indorsed none of these checks,
and did not draw or receive the money on them.
His signatures thereon were forged. He never saw
the checks until after Ward's flight. Witness did
not do business with the bank where they were
cashed, but Ward did."
That this report was accurate is shown by its
complete correspondence with what Mr. Toof testified
in this case as to those same notes and checks. He
repeats in this what he had so positively sworn in
the former case — that all the indorsements on these
notes and checks of his name w«re forgeries — and
states here, as he did there, as a confirmatory reason
for his swearing as to the indorsement complained
of in this case, that he was in Cuba when it was
made. It is upon the reading of this testimony,
and that of other witnesses to the fact, that Holden,
as he confessed, had formed an opinion << adverse
to the defendant" — an opinion which he says he had
'* expressed several times; a good many times," and
that he '^had this opinion still." It is certain that,
if Holden had been present in court at the delivery
of this testimony, or if, in conversation with him,
Mr. Toof had made a similar statement to that re-
ported in the newspaper, his opinion of Ward's
guilt, formed therefrom, would have disqualified him
from sitting on the jury in the present case, and
this disqualification could not be removed by a mere
statement that he had no opinion in this case.
While opinions resulting from nmiors, whether
APRIL TERM, 1899. 733
Ward 17. State.
repeated from mouth to mouth or found in news-
papers, will not disqualify, it is otherwise as to
opinions based on the statement of witnesses to the
fact, no matter when made or how reported. As
was said in Spence v. The State^ 15 Lea, 639,
*' Newspaper reports, to disqualify a juror, must be
such as fall within the disqualifying sources of in-
formation and purport to be detailed by those who
professed to know the facts. Any other statement
would only amount to rumor, whether in parol or
printed." In Woods v. State^ 99 Tenn., 182, it was
said: '<An impartial jury is one composed of twelve
impartial men. The presence of one partial man in
a jury destroys the impartiality of the body and
makes it partial. Ellis v. State^ 92 Tenn., 100.
Any disqualification which makes one member partial
brings the jviry, as such, within the prohibition of
the fundamental law, impairs one of the highest and
most sacred rights of the accused, and vitiates any
verdict of guilty in which the partial member may
participate. A man who has prejudged the case
upon its real facts is necessarily partial, and, there-
fore, incompetent to sit as a juror at the trial. An
opinion as to the guilt or innocence of the accused,
however, is not always a disqualification. Those opin-
ions which are based upon personal knowledge of
the facts of the case, or upon a statement of the
facts made by the witnesses themselves, or by others
who have heard the witnesses relate them, disqualify."
And such is the holding of many of the Courts.
734 JACKSON :
Ward V. State.
Among the cases announcing this rule of disqualifi-
cation, are Brcnon v. State^ 70 Ind., 576; State v.
Jacl'san^ 37 La. Ann., 768; State v. Cidton^ 82 Mo.,
623; Rose v. State (Wash.), 26 Pac. Rep., 214;
Mai7^ V. State, 71 Miss., 716.
But it is said that the copy of the Commercial-
Appeal containing the report was not sufficiently
identified. The paper was offered, and the attorney
of the prisoner insisted upon submitting it to Holden
for the purpose of examining him with regard
thereto. From this, however, he was erroneously,
but peremptorily, cut off by the trial Judge, upon
objection by the Attorney-general. No question was
made as to the identity of the newspaper or the
authenticity of the report. No such question was
suggested in the Court below, but evidently it was
excluded upon the argument presented in this Court,
that to permit this report to be read by the juror
was to create a disqualification, when none then
existed, an argument made in the teeth of the fact
that the hostile opinion which had disqualified him
was formed from reading the report.
Before concluding, it is not improper to say that,
unless this Court is prepared to disregard its plain
and unmistakable duty to see that all defendants
charged with crime, however great or small, shall
have a fair and impartial trial, the chief factor in
which is an unprejudiced jury, the conclusion here-
tofore announced should be maintained. The law
allowing the challenges was not made by us, but
APRIL TERM, 1899. 735
Ward i;. State.
by the Legislature. The statute giving the de-
fendant a certain number of peremptory challenges
not only is a permission to him to exercise the
right, but it is a mandate to us and inferior Courts,
which compels their allowance. If, therefore, one
charged with crime has been made to exhaust his
peremptory challenges on incompetent or disqualified
jurors, who should have been excluded for cause,
this statutory right has been taken away from him,
and, unless it is within the power of this Court to
authorize such a deprivation, we cannot do so. It
is not only not permitted to us to do this, but the
legislative grant to him is of a right that neither
this nor any other Court in this State can take away.
This Court is given jurisdiction to see, among
other things, that citizens arraigned for crime are
fairly tried under the law and acccording to its
forms and directions. We make neither, nor have
we the authority to change either. We can no
more deny a defendant, guilty or innocent, one right
than another. If we should have the power to say,
because we might at any time think a defendant
guilty, that he would be deprived of one constitu-
tional or statutory privilege, we could say that he
should be deprived of others or of all such privi-
leges. If we have the power to say he might be
forced to trial before a partly prejudiced or incom-
petent jury, we could say he might be tried before
one wholly prejudiced or incompetent, or without a
jury at all. If we could say that he could be
736 JACKSON :
Ward V. State.
tried with one less challenge than the statute allows,
we could say that be could be tried with two less,
or without any. We have no such power, and it
is mere mockery to talk of this Court denying a
defendant any legal right of the character indicated,
or refusing to see that he was not allowed such
right in a trial below, and at the same time de-
nominate it a revising Court, constituted wholly to
see that cases and individuals are tried below under
and according to the form of law.
The power to try criminals is vested in Courts
solely because persons, charged as such, can there
be surrounded by the safeguards of law, and have
punishment meted out to them only when their
guilt has been established, after an open and fair
prosecution, met by an open and fair defense. It
is not merely a question of guilt or innocence of
the accused. If so, the proceedings of a mob,
which visits swift punishment without any of the
protective forms of law, upon guilty persons, are
correct, because a merited result is speedily and
economically reached. Organized society, however,
has always agreed that this cannot he allowed, but
that the accused must be properly charged, be given
full opportunity and facilities for defense, have a
fair trial by an impartial jury, according to fixed
rules, and be convicted only when his guilt is made
out beyond all reasonable doubt. The mob, by an
enlightened public opinion, is condemned because of
its disregard of all these. But what could be justly
APRIL TERM, 1899. 737
Ward V. State.
said of Courts which would do likewise, and how
much less culpable would they be if they so nearly
approached the methods of a mob as to refuse the
accused- any one of the vital demands essential to
a fair trial, and execute or condemn according as
they might will in a particular case? Compared to
such conduct in Courts, mob violence is praiseworthy,
for the mob, at least, has no trust to trample on or
judicial oaths to violate, or judicial order and pro-
priety to outrage. If any Court should knowingly
lend itself to the punishment of any citizen not
properly tried and convicted, it would fall to the
level of the unlicensed mob, to the ruin of its own
influence and to the shame of the country. To the
honor of our Courts, superior and inferior, they
have never done any such shameless work, and, as
long as they remain honest, will not do so.
Petition dismissed.
18P— 47
k
INDEX.
ABANDONMENT.
PAOB.
Facts that do not constitute abandonment of alley 495
ABATEMENT.
1 . Strictness required in plea 724
2. Pleading^ extradition ineffectual 724
ABOLITION.
1. Of Courts; statutes effecting* sustained as constitutional.. 510
2. Of Courts; deprives Judg>e of official character and power
and of his salary 510
ACTIONS.
1. Not maintainable ag-ainst owner of premises on which
pond is situated for drowning of boy while playing
therein, when 211
2. Joint, maintainable by the several owners of a block for
rents and profits 274
3. Chancery practice prevails in equity cause removed from
law Court 395
4. On covenants of deed, several rules as to stated 428
5. To enforce lien for taxes unavailing, when 428, 429
6. Brought in time to enforce lien for taxes ineffectual if not
prosecuted with due diligence ..428, 429
ACTS CONSTRUED.
Barbering on Sunday — Act constitutional and valid. Acts
1891, Ch. 114 103
Conditional sale — Rights of parties. Acts 1889, Ch. 81 719
Corporate stocks — Leviable under execution. Acts 1875, Ch.
140; Acts 1889, Ch. 267 66
Courts — Abolition of , sustained. Acts 1899, Chs. 64. 155 510
Descent and distribution — Inheritance by illegitimates.
Acts 1866-67, Ch. 36, Sec. 10 455
Husband and wife — Wife liable for contracts. Acts 1897,
Ch. 82 207, 208
Limitations, Statute of. See T(txation.
(739)
740 INDEX.
ACTS CONSTRUED— Cwitmued—
Railroads— Fencing Act. Acts 1891, Ch. 101 704
Replevin — Judgment on bond. Acts 1885, Ch. 59 714
Taxation— Bar of statute of limitations. Acts 1885, Ch. 24.428, 429
Taxation — Privilege in lieu of all other taxes. Acts 1897, Ch.
2, Sec. 6; Acts 1893, Ch. 84, Sees. 4, 5; Aets 1679, Ch. 84,
Sec. 7 336
Tax title— Deed void. Acts 1844, Ch. 92 241
ADMINISTRATION.
See Administrator.
ADMINISTRATOR.
1. Administrator can maintain bill to enjoin execution sale
of his intestate^s assets, when 67
2. Administrator cannot enjoin sale of valuable painting for
want of market ., 67
3. Powers under will survive to, when 383
ADULTERY.
See Husband and Wife.
ADVERSE POSSESSION.
See Limitations, Statute of,
ALLEY.
1. Abandonment of, what essential to constitute 495
2. Created by recitals of deed, when 495
3. Not abandoned or lost by mere nonuser 495
AMENDMENT.
Of answer properly refused, when 345
ANCESTOR AND HEIR.
See Mortgages and Deeds of Trust; Res Adjudicata.
ANIMAL.
See Damages: Negligence: Railroads.
ANSWER.
1. Amendment of, properly refused, when 345
2. Defense of usury made by 467
INDEX. 741
APPEAL BOND.
See Replevin.
ATTORNEY.
See Power of Attorney.
BARBER.
1. Legislature has power to forbid and punish barbering- on
Sunday 103
3. Special statute prohibiting and punishing barbering on
Sunday not vicious class legislation 103
BASTARD.
See Descent and LHstritontiotu
BENEVOLENT ASSOCIATIONS.
See Insurance, Life,
BEQUEST.
See Wills,
BILL IN EQUITY.
Quia timet maintainable by warrantor, not in possession, to
prevent cloud on title or remove it 95
BILL OF EXCEPTIONS.
1. When and when not essential in equity causes 395, 396
2. Deed and records used on hearing of equity cause must
be made part of record by bill of exceptions, when 396
3. Cannot be amended or supplied in Supreme Court. 396
4. Court's charge not part of, when 724
BILL OF LADING.
See Comnum Carrier.
BILLS AND NOTES.
1. Extinguished by intermarriage of parties to 439
2. Defense of usury made by answer 467
BOND.
See RepleHn.
742 INDEX.
BOUNDARY.
See Deeds.
BROTHER AND SISTER.
See Descent and Distribution.
BUILDING AND LOAN ASSOCIATIONS.
Method of aacertaioing' amount due on mortgage of, declared
in Harg-o case, reaffirmed 462
BURDEN OF PROOF.
See Evidence,
CARRIER.
See Common Carrier,
ATHOLIC KNIGHTS.
See Insurance, Ldfe.
CHANCERY COURT.
See Courts; Bemx)val of Judges.
1. Will not enforce title based on Sheriff^s deed, when ..158, 159
2. Will enjoin keeping* of house of ill fame to detriment of
value and rental productiveness of neig^hborin^r properties
used for residence and business purposes. .- 178, 179
3. Will enjoin nuii»ance, without previous judgement at law,
when 178
4. Jurisdiction of, not affected by g>iving like powers to the
Law Courts 178, 179
CHANCERY PLEADING AND PRACTICE.
See Answer; BUI; Cross Bill.
1. Prevails in equity cause removed from Law Court 395
2. Equity cause heard by Supreme Court de novo, without
presumption in favor of decree below 395
3. Cross bill determined in advance of hearing* of ori^nal
cause, when 451
.CHARGE OF COURT.
1. Special requests must be justified by state of the plead-
ing's 1
2. Refusal to charg>e doctrine as to sudden emergency not
error, when ._ 1
INDEX. 743
CHARGE OF COURT— Ccmtinued—
3. Putting hypothetical case oot erroneous 2
4. Defining* contributory neglig>ence that defeats a fellow-
servant's action 2
5. As to distinction between personal and official neg>ligence
of vice-principal essential, when 16
6. Should declare whether parties were fellow-servants
where facts are undisputed 17
7. Refusal to give requests not error, unless they were pre-
ferred at the proper time 313
8. As to duty of motorman to avoid collision with child play-
ing in street 320
9. As to sympathy of jury improper, but not erroneous,
when 320
10. As to duty of driver of vehicle to pedestrians at crossings. 409
11. Not made part of record, when 724
CHARTER.
See Registration,
CHILDREN.
See NegligeTice.
CIRCUIT COURT.
See Courts: Removiil of Judges,
CLASS LEGISLATION.
See Barbering on Sunday,
CLOUD ON TITLE.
1. Warrantor not in possession can maintain bill to prevent
or remove — 95
2. Enjoined or removed, though created by void instrument 95
3. Facts that fail to show such title as will enable the holder
to maintain bill to remove cloud 241
CODE CONSTRUED.
Rule for construction of Code provisions stated 157
Chancery practice — Prevails in equity case transferred from
Law Court. { 6074 (S.); J 5008 (M. & V.); { 4236 (T. AS.).. 395
744 INDEX.
CODE COSSTRVEU—Crmtinued—
Conditional sale— Rights of parties. { 3669 (S.) 719
Corporations — Registration of great seal annexed to charter.
J2026(S.); 51693(M. A V.) 462
Descent and Distribution — InheritaDce by illegitimates.
{4169 (S.); ?3274(M. A V.); {24230 (T. & S.) 455
Elminent Domain — Statute of limitations. { 1867 (S.); { 1572
(M. & v.); {1348(T. AS.) 274
Execntion^Issnance of. {{ 4732-4734 (S.); {{ 3718-3720 (M. A
v.); {{ 3002-30055 (T. A 8.) 47,48
Execution — Issned after debtor *s death leviable on his per-
sonalty. {4731 (S.); { 3717 (M. A v.); { 3001 (T. A S. )' fd
Execution — Leviable on corporate stocks. {2066 (S.); { 1714
(M. A v.); {1487(T. AS.) 66
Husband and wife— Divorce. {{ 4201, 4213 (S.); {{ 3306, 3318,
(M. AV.); {{2446, 2460 (T. AS.) 148
Judgment lien. {{4712, 4713, 4732-4734 (S.); {{3698, 3699,
3718-3720 (M. A V.); {{2984, 2985, 3002-3004 (T. A S.) 47
Juror — Service within two years. {{ 5793, 5799, 5800, 5821
(S.); 4756, 4763, 4764, 4785 (M. A V.); 3981, 3988, 3989, 4010
(T. AS.) 721
Limitations. Statute of — Seven years* possession. {4456 (S.);
{3459 (M. A v.); {2763 (T. A S.) 328
Pleading and Practice — Inconsistent pleas allowed. { 4628
(S.); {3617(M. A v.); { 2907 (T. A S.) 396
Railroads — Statutory precautions. {1574 (S.); {1298 (M. A
v.); {1166 (T. AS.) 704
Recoupment. See Set-off.
Replevin— Judgment for defendant. {5144 (S.); {4126 (M.
A v.); {3390 (T. A S.) 303
Replevin— Judgment on bond. {{ 5152, 5144 (S.); §{ 4133, 4126
(M. A v.); {{3397, 3390 (T. A S.) 714
Set-off— Must be specially pleaded. §4639 (S.); { 3628 (M. A
v.); 2918 (T. AS.) 282
Supreme Court — Will not remand cause for proof. { 4905
(S.); {3889 (M. A V.); {3170 (T. A S.) 439, 440
Supreme Court — Question made for first time in. §{ 4553-
4560 (S.) - 395
COLLATERAL SECURITY.
Diversion of, not permitted, when 467
M^^^m ma^
INDEX. 745
COLOR OF TITLE.
Deed covering- several adjoining tracts, good color of title
for the entire body, when 328
COMMON CARRIER.
1. Cannot limit its common law liability by bill of lading
issued after shipment had begun 298
2. Must afford shipper fair and reasonable opportunity to
elect between limited and common law liability 298
COMPENSATION.
See Judges.
CONDITIONAL SALE.
See Sale.
CONSTITUTIONAL LAW.
In General —
1. Classification not arbitrary, but natural and reasonable
under barbering Act 103
2. Proper office of journal of Convention in construing
Constitution 511
3. iStare dectoto applicable to construction of Constitutions. 511
4. Legislature's power unlimited within its proper sphere. 511
5. Particular clause violated must be pointed out 511
6. Statute not declared void on general grounds 511, 513
Clauses Construed —
Art. I. , § 8. Barbering on Sunday 103
Art II., J17. Title and subject of Act Ill, 112
Art. II., §17. Repealing clause 336
Art. III., J 6. Pardoning power _ 9
Art. VL, {Jl, 4,7. Abolition of Courts 510
Art. VI., §6. Removal of Judges 510
Acts Held Constitutional —
Acts 1891, Ch. 114. Barbering on Sunday 103
Acts 1893, Ch. 11. Railroad terminal facilities 111-113
Acts 1899, Chs. 64, 155. Abolition of Courts 510
CONSTRUCTION.
See CmxMltutlon: Deeds; Mortgages mul Deeds of Trust;
Statutes; WUls.
746 INDEX.
CONTEMPT.
1. Governor may remit fine and imprisonment for 9
2. Meanin^^ of term " after conviction '* 9
CONTRACT,
See Rescission.
CONTRIBUTORY NEGLIGENCE.
See Negligenee.
CONVEYANCE.
See Deeds.
CORPORATIONS.
See Municipal CorporatUms.
1. Misnomer of, as vendor does not vitiate deed for land,
when 40
2. Deed of, valid without corporate seal, when 41
3. Stocks of, leviable under execution, when 66
4. Created ^^ by special law," when 66
5. Sale of stock of, enjoined until title is cleared up, when.. 67
6. Judicial notice not taken of foreign character of, when.. 67
7. Railroad terminal Act construed and passed upon 111-113
8. Not degraded from its public character because inspired
by motives of private gain 112
9. Registration of facsimile of great seal attached to charter
sufficient, when 462
10. Method of ascertaining amount due on building and loan
mortgage 462
COUNTY.
Statute of limitations runs against, when 395
COUNTY COURT.
Has jurisdiction to remove trustee appointed by deed or will, 157
COURTS.
See the several titles.
1. Do not take judicial notice of foreign character of corpo-
ration, when 67
2. Abolition of, not forbidden by Constitution ._- 511
3. Abolition of, deprives Judge of official character and pow-
ers and of salary 511
INDEX. 747
COVENANTS.
1. Of seizin and against incumbrances breached at once if
incumbrance exists at date of deed 428
2. Of general warranty not breached until eviction 428
3. Burden upon party suing on and averring incumbrance
to show it valid and subsisting 428
4. Tax lien negligently prosecuted not an incumbrance
within the covenants of a deed 428, 429
COVERTURE.
See Husband and Wife.
CARS.
See Datnages.
CREDITORS.
See Partnership.
CRIMINAL EVIDENCE.
See Evidence.
CRIMINAL LAW.
See Murder; Nuisance; Pardon; Self-defense.
CRIMINAL PLEADING AND PRACTICE.
1. Meaning of term *' after conviction" with reference to
executive's power to pardon 9
2. Verdict imposing punishment in excess of maximum fixed
by statute void, and affords no basis for plea of former
con viction 141
3. Plea of extradition in abatement bad 724
CROSS BILL.
Determined in advance of original cause, when 45 1
DAMAGES.
1. For property taken by city for public use; rule stated 131
2. Inflation of value from unlawful use not considered in*
estimating damages for same when taken for public use. 131
3. Special, to be recovered must be averred in. libel case 289
4. Insufficient averment of special, in libel case 289
748 INDEX.
DAMAGES— Cowlfnu€d—
5. Punitive, allowed against telephone company for cutting*
tree, when - .-. 313
6. Punitive, allowed, when; general rule 313
7. Pecuniary ability of wrongdoer provable to enhance pu-
nitive 313
8. Judgment sustained, though in excess of amount laid in
summons 395t
9. For illegal detention of cow 710
#
DECLARATION.
1. Averment of special damages in libel case insufficient 289
3. Damages recovered greater than amount laid in summons,
but less than amount averred in declaration, sustained.. 395
DECREE.
See Judgment.
DEED.
See Mortgages and Deeds of Trust; Power of Attorney; Re-
scission.
1. Misnomer of corporation as vendor does not vitiate, when, 40
2. Of corporation valid without seal, when 41
3. When a deed does and when it does not create a valid re-
mainder or executory devise 157
4. Example of deed that gives absolute estate to first taker
and cuts off remaindermen 158
5. Of Sheriff based on levy in bulk on two adjoining lots,
void 158
6. Of Sheriff not enforced in equity when grossly inadequate
price was paid 158, 159
7. Tax deed held invalid 241
8. Question for Court whether calls extend to river 274
9. A call for a creek control s a call for course 328
10. Covering several tracts constitutes color of title for the
whole 328
1 1. Not part of record in Supreme Court, when 396
12.' Actions on covenants of, lie, when 428
13, Not essential to revestiture of title on satisfaction of mort-
gage 439
14. Creates alley by recitals and calls of 495
■OT^M
INDCX. 749
DBBSD OF TRUST.
See Mortgages and Deeds of Tnisi.
DEMURRER.
1. Bad, as speaking, when 67
2. Bad, to administrator's bill to enjoin execution sale of his
intestate's property, when _ 67
3. Judicial notice of foreign character of corporation not
taken upon 67
4. To evidence admits what 307
DEMURRER TO EVIDENCE.
See Demurrer.
DESCENT AND DISTRIBUTION.
1. By illegitimates, defined generally 455
2. Illegitimates inherit equally with legitimates the estate
of a deceased legitimate brother 455
DIVORCE.
See Hvsband aiid Wife.
EASEMENT.
1. Facts that do not constitute abandonment of alley 495
2. Alley created by recitals and calls of deed 495
3. Alley not lost by mere nonuser 495
EJECTMENT.
Title held insufficient to support 241
ELECTJllC STREET RAILWAYS.
See Street Rail/roads,
EMINENT DOMAIN.
1. Right to exercise may be conferred on railroad terminal
company Ill, 112
2. Courts ultimately determine what is a public use for
which private property may be taken Ill
3. Legislature determines conclusively whether right of emi-
nent domain shall be exercised for a public use Ill
4. Public use defined Ill, 112
750 INDEX.
EMINENT DOMAIN— Ccmtinued—
5. Incidents of a public use that do not defeat its public
character 112
6. Measure of damages for property taken by city for public
use 131
7. Unlawful use of property that enhances its value not con-
sidered in estimating damages for taking it for public
use - 131
8. Temporary possession and use of property by city not an
exercise of 274
EMPLOYER AND EMPLOYE.
See Master and Servant,
ENGINEER.
See Master and ServarU,
EQUITY.
See Chancery Court; Maacims.
ERROR.
See New Trial; Supreme Court,
ESTATES.
See Life Estate; Remainderman.
ESTOPPEL.
1. Firm creditor not estopped to impeach fraudulent dispo-
sition of partnership assets, when 358
2. To deny liability on accepted order 370
EVIDENCE.
1. Inexperience not proof of incompetency of servant 17
2. Of the particular facts of a previous difficulty admissible
in homicide cases 33
3. Of defendant's confessions after difficulty admissible 141
4. Not sufficient to establish existence of marriage 148
5. Opinions not admissible, when 211
6. Insufficient to make out title to land _- 241
7. Practice of admitting incompetent experimentally, repro-
bated 248
index: 751
EVIDENCE— Co?itt?uted—
8. Post litem statement of defendant in libel case not admis-
sible, when 248
9. Proof of truth of libel admitted only under plea of justifi-
cation 248
10. Hearsay competent on question whether party acted
wisely, prudently, etc 255
11. Time and manner of introduction of, discretionary with
Court 255
12. Interest goes alone to credibility pi witness 255
13. Demurrer to, admits what 307
14. Proof of use of runaway horse, neg-liifence presumed 307
15. Of pecuniary ability of wrongdoer admissible to enhance
punitive damages 313, 314
16. Not part of Supreme Court record, when 396
17. Burden on plaintiff to show defendant's contributory neg-
ligence - 409
18. Burden on party to show incumbrance valid and subsist-
ing that is relied on as breach of covenant 428
19. Sufficient to support verdict, when 474
20. Statement of motorman as to accident not part of res ges-
UCy when 474
21. Burden upon seller to show compliance with conditional
sales Act 719
l^iXECUTION.
1. Presumed to have been legally and regularly issued 47
2. When legally and regularly issued 47, 48
3. Issued after, but tested before, debtor's death, leviable on
his personalty _ 66
4. Leviable upon all corporate stocks 66
'5. Levy in bulk upon two adjoining lots void l.'»8
6. On judgment for defendant in replevin quashed, when... 303
7. Judgment not impeachable on motion to quash execution 303
8. Stayor's obligation defined 359
9. Sale of land under, set aside, when 359
EXECUTORS AND ADMINISTRATORS.
See Administrator,
EXECUTORY DEVISE.
See WilU.
752 INDEK.
EXEMPLARY DAMAGES.
See Damages,
EXPERTS.
See EirideTice,
EXPRESS COMPANIES.
1. Imposition of pririleg-e lax for State, in lieu of all other
taxes, deprives municipality of power to impose priviles^e
tax thereon 339
2. Not liable for privileg>e on vehicles imposed by city, when. 337
EXTRADITION.
1. Plea setting up, insufficient when 724
2. Defendant not entitled to benefits of, when 724
FELLOW-SERVANT.
See Mcuter and Servant
»
FENCES.
See Railroads.
FINE.
See Contempt.
FIRE INSURANCE.
See Ijisurance, Fire.
FOREIGN CORPORATIONS.
See Corporations.
FORMER CONVICTION.
See Criminal Pleading and Practice.
FRAUD.
1. Not predicated of mere failure to fulfill promise 486
2. Rescission for, must be promptly applied for 40, 486
3. Upon rescission for, parties must be put in stain quo 486
4. Party attacking conveyance for, must prove his own
debts 486
iifDKX. 733
FRAUDULENT CONVEYANCE.
See Fraud.
GENERAL ISSUE.
Recoupment and set-off not provable under 283
GOOD WILL.
Forced sale or transfer of, not made, when 375
GOVERNOR.
Has power to pardon contempt and to remit fine and impris-
onment imposed therefor - 9
GREAT SEAL.
See RegistraMon,
HEARSAY.
See Evidence,
HIGHWAY.
See Public Roads; Streets.
HOMICIDE.
See Mv/rder.
HORSE.
See Negligence.
HOTEL.
1. Proprietor not liable for loss of boarder's goods by theft. 415
2. Person is boarder, not a gn est, when 415
HUSBAND AND WIFE.
1. Acts and conduct held InsufBcient to establish relation of. 148
2. Divorce of innocent party to illegal marriage allowed by
statute 148
3. Adulterer denied divorce 148
4. Wife liable for rent of her storehouse 207, 208
5. Intermarriage extinguishes wife's liability on her pre-
existing note to husband 439
18 P— 48
754 INDEX.
ILLEGITIMATES.
See Descent and DigtnUnUion.
IMPRISONMENT.
See Contempt.
INFANT.
See Negligence,
INHERITANCE.
See Descent and Distribution
INJUNCTION.
1. Not maintainable by administrator to prevent sale under
execution of his intestate's assets, when _.. 67
2. Maintainable to prevent nuisance — e. g.^ house of ill fame —
to detriment of adjoining properties 178, 179
3. Extent and effect of 359
INNKEEPER.
See HoteL
INNOCENT PURCHASER.
See Partnership; Mills.
INSURANCE.
FlRK —
1. Contract limitation not part of policy of reinsurance,
when 264
2. Contract limitation in policy of reinsurance begins to
run, when 264
3. Policy of, construed most strongly against maker 264
Life —
1 . False statements of applicant that do not avoid policy . 255, 345
2. False statement as to applicant's age avoids policy, when, 345
3. False statement as to age does not avoid policy, when. . 346
INTEREST.
See Usury.
^"^^^^HBMHHi ■ ^M* ■ •«■
INDEX. 755
JOURNALS.
Of ConBtitutioiial ConveDtion, use of in oonstruction of Con-
stitution , 511
JUDGES.
1. Hemoval of, by concurrent resolution, when and for what
reasons allowable 610
2. Deprived of office and salary by abolition of Court 510
JUDGMENT.
1. Adjud^rin^ fine and imprisonment in contempt case is a
*' conviction," after which Governor may g^ant pardon.. 9
2. Lien of, strictly construed 47
3. Lien of, lost by failure to bring suit to enforce in time. .. 47
4. Against ancestor, binds heir 158
5. For defendant in replevin case, correct, and not impeach-
able on motion to quash execution 303
6. Execution variant from, in replevin 303
7. Stayor's obligation defined 359
8. For damages exceeding amount laid in summons sustained 395
9. In replevin, what proper _ 714
JUDICIAL NOTICE.
Not taken of foreign character of corporation, when 67
JURISDICTION.
See varions tUUs of Courts,
JUROR.
1. Incompetent for having served within two years 781
2. Error to force incompetent when full number of chal-
lenges are exhausted 724, 725
3. Disqualified by opinion formed from newspaper report,
when 724, 725
4. Error in not permitting examination of 725
LACHES.
In .prosecution of tax lien postpones the lien, when 428
756 INDBX.
LAND LAW.
1. Pfeois that do not proTe title 241
9, Deed covering' sereral tracts conatitutea color of title for
the whole 338
LANDLORD AND TENANT.
Wife becomes tenant of a storehouse, and liable for the
rents, under Acts 1807, Ch. 83, when 307, 308
LEGISLATURE.
See ConstUutUnial Law,
LEVY.
See Bxecuticn.
LIBEL AND SLANDER.
1. Defendant's po&t {item statements inadmissible, when 348
3. Truth of charge not a defense, unless justification is
pleaded 248
3. Words held not actionable per «e 389
4. Ptifalieaiion held insmfOeient 389
5. Averment of special damages held insnfficient 380
LICENSE.
See Rents a/iid Profits,
LIEN.
See Judgment; Lis Pendens; Limery Stable; Partnership;
ToxotiOTi.
LIFE ESTATE.
Party named as life tenant takes entire estate, when 578
LIFE INSURANCE.
See Insurance^ Life,
LIMITATIONS, STATUTE OF.
1. Contract limitation in policy of reinsurance construed
and applied 364
3. Does not run against owner of property occupied by city
temporarily, when 874
INDiCX. 757
LIMITATIONS, STATUTE OF—ConHnued—
3. Adverse posMMion for Reveo years wiihiii deed -em bracing
several distinct tracta, its effect 328
4. Runs against county's action to recover a debt 305
T). JBars enforcement of tax lien, when 438, 439
6. Bars action, though brought in time, unless it is prose-
cuted with due diligence 428
LIS PENDENS.
Suit brought in time must be prosecuted with diligence es-
sential to save a lis jyendens lien 428
LIVERY STABLE.
Keeper of, loses his lien by demanding too much of owner
of animal 426
MARRIAGE AND DIVORCE.
See Husband and Wife,
MARRIED WOMAN.
See Husband and Wife.
MASTER AND SERVANT.
See Libel and Slander.
1. Knowledge of fellow-servant's incompetency that consti-
tutes contributory negligence that defeats action :. 1, 2
2. Sastaining dual character of fellow-servant and vice prin-
cipal 16, 17
3. Engineer is fellow-servant of adjuster of machinery , when, 16
4. Question of fellow-servant one for the Court to determine,
when 16, 17
5. Master's liability for injury inflicted by a fellow- servant
defined 17
6. Mere inexperience not evidence of incompetency 17
MAXIMS.
1. Nullum tempus occurrtt regi 395
2. He who seeks equity must do equity 439
MEASURE OF DAMAGES.
See Damages.
758 INDEX.
MISNOMER.
1^ Of corporation as vendor does not vitiate deed 40
2. Not available when made in Appellate Court for first time, 40
MISREPRESENTATION.
See Fraud; Insurance, lAfe.
MORTGAGES AND DEEDS OF TRUST.
1. Extinguished by intermarria^fe of parties to 439
2. Upon satisfaction of, title revests without reconveyance. 439
3. Heir takes title free from mortgage of ancestor, when 439
4. Method of ascertaining amount due on building and loan
mortgage 462
5. Application of proceeds, how made 467
MUNICIPAL CORPORATION.
1. Measure of damages for private properly taken for use of, 131
2. Liable for using private property as dumping ground 274
3. Power of, to impose privilege tax repealed by general rev-
enue Act, when _ 336
4. Cannot impose privilege tax on vehicles of an express com-
pany that pays a State privilege tax in lieu of all other
taxes 337
MURDER.
See Evidence,
1. Facts that do not support verdict for murder in second
degree 33
2. Right of son to defend father 33
NEGLIGENCE.
1. Contributory, that defeats servant's action for injury 1, 2
2. Of fellow-servant, when it does and when it does not ren-
der master liable 16, 17
3. Owner of premises not liable for drowning of boy playing
in pond thereon 211
4. Liability of owner of dangerous premises for injury to
trespassing children defined 211
5. Presumed, from use of a runaway horse, when 307
6. Of motorman in charge of car that collides with child 320
INDEX. 769
NEOLIG ENCE— Conttrwied—
7. Burden on plaintiff to show defendant's contributory
negligence 409
8. Of driver of vehicle at street crossing 409
9. Essential to render innkeeper liable for boarder*s goods
lost by theft 415
10. Delay in applying for rescission on account of fraud will
defeat the action 40, 486
11. Of railroad company in fencing track and killing stock .. 704
NEW TRIAL.
Granted, When —
1. Third verdict set aside, when 16
2. For error in Court's charge 16, 248, 409
3 . For refusing challenge of juror for cause 724, 725
Not Qrakted, When —
1. Upon Court's charge 1,2,211, 313, 320
2. Upon the evidence 211,474, 700, 710
3. On rulings on evidence 211, 255
NOTES
See Blll8 and Notes.
NUISANCES.
1. House of ill fame, injurious to adjacent properties, en-
joined, when 178
2. Equity's jurisdiction to abate, not affected by granting
same power to Law Courts 178
3. Enjoined without previous judgment at law, when 178
4. Enjoined at suit of citizen though likewl»e indictable 179
5. Not enjoined at suit of citizen unless he can aver injury
special and peculiar to himself 179
6. Enjoined, when injurious to property, though owner does
not personally occupy it 179
7. Both residence and business properties will be protected,
but the former more readily 179
OFFICE.
See Judges.
OPINIONS.
See Evidetice; Instirance, Life.
760 iKPSX.
PARDON.
1. Goyernor may remit fine and impriaonment for con-
tempt of Court 9
2. Meaning of term ** after conviction " as affects the pardon-
ing* power 9
PARENT AND CHILD.
Child's right to defend parent defined 33
PARTIES.
•Remaindermen not necessary, when 156
PARTNERSHIP.
1. Creditor's lien defeated by act of partners in dividing firm
assets 358
3. Purchaser of firm assets not innocent, when 358
3. Firm creditor not estopped to assail fraudulent disposition
of firm assets, when 358
4. Sale of good will of firm 375
PLEA.
See Abatement.
1. Several inconsistent pleas may be relied on 396
2. Pleading covenants performed does not debar denial of
making of the covenants 896
PLEADING AND PRACTICE.
See Extrdditlon; Oeneral l8»ue; LU>el; Plea; Recoupment;
Set-off.
POND.
See Negligence.
POSSESSION.
1. Not essential to maintain bill to remove or prevent cloud
on title 95
2. Under deed covering several tracts 338
POWER OP ATTORNEY.
Authorizing sale of land not revocable after sale is made ... 29
IVDEX. 761
PRESUMPTIONS.
1. Obtaining in construction of wills 77, 78
2. Obtaining in favor of constitutionality of statutes 511
PROCB8S.
See EaxcutUni.
PUBLICATION.
See Libel and Slander.
PURLIC ROADS.
1. Use of crosHings by street railways 474
8. Right toalley 495
PUBLIC USE.
See Eminent Domain.
QUESTION FOR COURT.
1. Construction of deed is , 274
2. Fellow-servant is 16, 17
QUIA TIMET.
Bill to prevent clouding title lies, when 95
RAILROAD.
1. Railway terminal company charged with public use and
invested with right of eminent domain Ill
2. Railway terminal Act of 1893, Ch. 11, valid Ill, 112
3. Railway terminal company may incidentally maintain
restaurant, hotel, and news stand 112
4. Duties and liability as to killing of live stock on fenced
track, defined 704
RAILROAD TERMINAL COMPANY.
See Railroad.
RECORD.
See Bill of Exceptions.
RECOUPMENT.
Not available under general issue, but must be specially
pleaded 282
762 INDEX.
REGISTRATION.
Of great seal attached to charter sufficient, when 462
RBMAINDBR.
RemaindermeD not essential parties, when 158
REMOVAL.
1. Of Judgpes by concnrrent resolution, when proper 510
2. Of Judge effected by abolition of his Court 510
RENTS AND PROFITS.
1. Recoverable by tenants in common of a block of buildings, 274
2. Recovery of, against city occupying private property 274
REPEAL.
See Statutes.
REPLEVIN.
1. Judgment in, allowing interest on value of property, cor-
rect 303
2. Judgment in, not impeachable on motion to quash execu-
tion - 303
3. Execution on judgment for defendant quashed, when ' 303
4. Horse recoverable of liveryman, if he claims lien for too
much 426
5. Proper judgment on several successive bonds 714
RES ADJUDICATA.
Adjudication against ancestor binds heir 158
RESCISSION.
1. Of deed for fraud must be asked promptly 40, 486
2. Not adjudged for mere breach of promise 486
3. Parties must be put in 8tatu grtto 486
RES GESTiE.
See Evidence.
RESOLUTION.
See Judges; Removal.
INDEX. 763
RIGHT OF WAY.
See Alley.
ROADS.
See PiLblic Roads.
SALES.
1. For taxes invalid, when 341
2. Of good will of firm 375
3. Conditional; vendee's right to recover price paid 719
SELF DEFENSE.
Right of son to defend father defined 33
SET-OFF.
Must be specially pleaded 282
SHERIFF.
1. Deed void, when based on levy in bulk of two lots 158
2. Deed, not enforced in equity, when 158, 159
SLANDER.
See Libel and Slander.
STATUTES.
1. Railway Terminal Act construed and held constitu-
tional Ill, 112
2. Rule as to title and subject illustrated 112, 113
3. Rule for constrnction of statutes with reference to
Code 112, 113
4. Imposing privilege tax for State in lien of all others de-
feats municipal tax 336
5. General repealing clause is a brutum fiilrnen 336
6. Intended as revenue Act will not be held exercise of police
power to save from repeal 337
7. Abolishing Courts sustained 510
STATUTE OF LIMITATIONS.
See LimitatUynSt Stxttute of.
STAY OF EXECUTION.
Stayor's obligation defined 359
764 IKPBX.
STREETS.
See Alleys.
1. Duty of driver of vehicle at crossings 409
2. Duty of motorman to avoid collision with child playing on, 320
3. Rights and duties of street railway companies at crossings, 474
STREET RAILWAYS.
1. Duty of motorman to child playing on street 320
2. Right to use of track defined 474
3. Motorman *8 statement not part of res gestce, when 474
STOCK AND STOCKHOLDERS.
See Corporalions.
SUNDAY.
Barbering on, may be prohibited and punished 103
SUPREME COURT.
In General —
1. Objections made for first time in this Court disregarded, 40
2. Reprobates experimental admissions of incompetent evi-
dence 248
3. Indulges no presumption in favor of Chancellor*s decree, 395
4. Will not consider deeds and records unless embodied in
bill of exceptions 396
«
5. Cannot amend or supply record of lower Court 396
6. Will not remand for proof, when -- 439
Will Rbvebsk.
1. For error in Court's charge .._ 16, 248
2. For rulings on evidence _ 248
3. Upon the facts, when 700
4. For rulings as to juror 721.724, 725
Will Not Reverse.
1. Upon Court's charge 1,2,211,320, 409
2. Upon the facts 33,211,474,700, 710
3. Upon rulings on evidence 265, 719
4. Upon pleadings and process 289, 896, 451
SURETIES.
See ColUiteral Security.
TAXATION.
1. Tax sale and deed held inTslid t4\
2. State tax in lieu, prevents city imposing privilege tax 336
3. General revenue Act repeals taxes imposed for city pur-
poses, when 336
4. Revenue statute not treated as exercise of police power,
when. 337
5. Express companies not liable for tax on their vehicles,
when - - - 337
6. Lien for, lost by laches in prosecution of suit to en-
force 428, 429
TAX DEED.
See Taxation.
TAX SALE.
See Taxation,
TELEPHONE COMPANY.
See Damages,
TENANTS IN COMMON.
Owning block, can maintain joint action for its use 274
TRESPASS.
See Negligence.
TRIAL.
See New Trial.
TRUST DEED.
See Mortgages and Deeds of H^ist,
TRUSTEE.
See Mortgages and Deeds of Trust.
1. Appointed by deed or will removable by County Court- _ . 157
2. Has no discretion but to convey upon written request of
beneficiary 158
3. Parties named as remaindermen not necessary parties to
proceedings to remove 158
766 INDEX.
USURY.
Defense of, may be made by answer of surety 467
VARIANCE.
Between recovery and summons not material, when 395
VEHICLES.
See TaaxUion,
VENDOR AND VENDEE.
See Power of Attorney; Rescission,
1. Vendor who has .warranted title, though he has surren-
dered possession, may maintain bill to prevent cloud on
title 95
3. Law as to actions on covenants of deed defined 428
3. Rights of , under conditional sales defined 719
VERDICT.
1 . For murder in second degree not sustained 33
2. Void, affords no basis for plea of former conviction 141
3. Not set aside on a mere question of credibility of witness, 474
4. Rules as to setting aside, on the facts 700
5. Not excessive, when 710
WAIVER.
See Livery Stable; Alleys.
WAYS.
See Public Roads; Streets.
WIFE.
See H'lisband aiid Wife. •
WILLS.
See Tnistee.
1. Bequest absolute, when 77
2. Intention of testator expressed in will is the intention
that controls 77
3. Bequests treated as separate and independent, when 77
4. Presumption is against restrictions or limitations upon
legacy 78
INDEX. 767
WILLS— Co?iWnt*«d—
5. The law favors the heir 78
6. Construed as gfiving first taker an absolute estate 157, 158
7. County Court has power to remove trustee appointed by
will 157
8. Under which surviving^ executrix may execute power of
sale 383
9. Powers coupled with trust or interest survive 383
10. Discretionary powers that survive to representative 383
11. Rightful execution of powers presumed in favor of inno-
cent purchaser 383
WITNESS.
1. Interest of, goes to credibility, not competency 255
2. Credibility of, a question for the jury 474
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