Skip to main content

Full text of "Reports of Cases Argued and Determined in the Supreme Court of Tennessee"

See other formats


Google 



This is a digital copy of a book that was preserved for generations on Hbrary shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for informing people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http : //books . google . com/| 



mniwn 



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 — S io*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, 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,