Google

This is a digital copy of a book that was preserved for general ions on library shelves before il was carefully scanned by Google as part of a project

to make the world's books discoverable online.

Il 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 diflicult to discover.

Marks, notations and other marginalia 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 have taken steps to
prevent abuse by commercial parlies, including placing technical restrictions on automated querying.
We also ask that you:

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

+ Refrain from 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 attribution The Google "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 b<x>k 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 il can be used in any manner
anywhere in the world. Copyright infringement liability 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 hooks while helping authors ami publishers reach new audiences. You can search through I lie lull text of this book on I lie web
at |http : //books . qooqle . com/|

HARVARD

( t ' i o

>»

REPORTS OF CASES

ARGUED AND DETERMINED

IN THE

y.'iu-*-')'

SUPREME COURT OF TENNESSEE

.1

FOR THB

MIDDLE DIVISION

DECIMB11 TMM, I9IO.

WESTERN DIVISION

APKIL TXBM, I9I I.

CHARLES T. CATES, JR

ATTORNEY-GENERAL AND REPORTER.

VOL. XVI.

E. W. STEPHENS, PUBLISHER,
COLUMBIA, MISSOURI.
1918.

Entered according to Act of Congress, in the year 1912, by

E. W. STEPHENS,
In the office of the Librarian of Congress, at Washington, D. C.

MAR 1 1 191?

JUDGES OF THE SUPREME COURT

OF TENNESSEE.

STATE AT LARGE.

GRAFTON GREEN.
•A. S. BUCHANAN.

WESTERN DIVISION.

M. M. NEIL.

lODDLE DIVISION.

D. L. LANSDEN.

EASTERN DIVI8ION.

JOHN K. SHIELDS, Ch. J.

ATTORNEY-GENERAL AND REPORTER

CHARLES T. CATES, JB.,

Knoxville, Tenn.

COURT OF CIVIL APPEALS

OF TENNESSEE.

EASTERN DIVISION.

§ H. N. CATE.
H. Y. HUGHES.

MIDDLE DIVISION.

Il

| S. F. WILSON,

j JOS. C. HIGGINS.

■ WESTERN DIVISION.

f FRANK P. HALL.

•Mr. Justice W. D. Beard died December 7, 1910, and Mr. A. S. Buchanan
i, by the governor, appointed at his successor.
§Judge H. N. Cate was, by the governor, appointed to succeed Judge John M.
Taylor, who died on the 17th day of February, 191 1.

. 24 Tetan.J (III)

CLERKS OF THE SUPREME COURT

OF TENNESSEE.

S. E. CLEAGE
JOE J. ROACH
T. B. CARROLL

Knoxville
Nashville
Jackson

CHANCELLORS

OF TENNESSEE.

Hal H. Haynes
H. GK Kyle
T. M. McConnell
*A. H. Roberts
W. 8. Beabden
J. W. Stout
John Allison

E. L. Bullock
C. P. McKinney

F. H. Heiskell
Francis Fentress
Will D. Wright
V. C. Allen

1st Division

2nd Division

3rd Division

4th Division

5th Division

6th Division

7th Division

8th Division

9th Division

10th Division

10th Division

11th Division

12th Division

Bristol

Rogersville

Chattanooga

Livingston

Shelbyville

Cumberland City

Nashville

Jackson

Ripley
Part I Memphis
Part II Memphis
Knoxville
Dayton

•Holds Circuit Court of Fentress County.

(IV)

[124.Tenn.

CIRCUIT JUDGES

OF TENNESSEE

Dana Harmon

G. Mo. Henderson

E. M. Webb

S. C. Brown

C. £. Snodgrass

M. M. Allison

Ewin L. Davis

Jno. E. Richardson

W. L. Cook

Thomas E. Matthews 10th Circuit

M. H. Meeks

W. Bruce Turner

N. R. Barham

■

Thos. E. Harwood
Jos. E. Jones
J. P. Young
Walter Malone

1st Circuit
2nd Circuit
3rd Circuit
4th Circuit
5th Circuit
(>th Circuit
7th Circuit
8th Circuit
9th Circuit

Greeneville
Rutledge
Knoxville
Harriman
Crossville
Chattanooga
Tullahoma
Murfreesboro
Charlotte
Nashville

2nd Circuit Court Nashville
11th Circuit Columbia

12th Circuit Lexington

13th Circuit Trenton

14th Circuit Dresden

15th Circuit 1st Div., Memphis
15th Circuit 2d Div., Memphis
Alfred B. Pittm an 15th Circuit 3d Div., Memphis
H.W. Laughlin 15th Circuit 4th Div., Memphis
S. J. Everett 16th Circuit Jackson

'Douglas Wikle Circuit of Williamson Co., Franklin

CRIMINAL JUDGES

OF TENNESSEE

A. B.Neil for Davidson County Nashville

Jesse Edtngton for Shelby County Div. I. Memphis
James W. Palmer for Shelby County Div. II. Memphis
T. A. R. Nelson for Knox County .... Knoxville
J. M. Gardenhire for 5th Circuit . % . . . Carthage
S. D. MoReynolds, for 6th Circuit . . Chattanooga
C. W. Tyler, for Montgomery County . . Clarksville

* Holds Chancery Court of Williamson County.

124 Tenn.] (V)

ATTORNEYS-GENERAL

OF TENNESSEE

D. A. Vines
W. H. Buttram
R. A. Mynatt
T. M. Peace
W. R. Officer
M. N. Whitaker
W. W. Fairbanks
W. S. Faulkner
John B. Bowman

A. B. Anderson
Horace Frierson

B. J. Howard
T. C. Rye

D. J. Caldwell
Z. N. Estes, Jr.
Jno. A. Tipton
Jno. L. Neeley, for

1st Circuit
2d Circuit
3rd Circuit
4th Circuit
5th Circuit
6th Circuit
7th Circuit
8th Circuit
9th Circuit
10th Circuit
11th Circuit
12th Circuit
13th Circuit
14th Circuit
15th Circuit
16th Circuit
Williamson County,

Johnson City

Hunts ville

Knoxville

Madisonville

Livingston

Chattanooga

McMinnville

Lebanon

Waverly

Nashville

Columbia

Jackson

Paris

Union City

Memphis

Covington

Franklin

ASSISTANTS TO ATTORNEY-GENERAL

AND REPORTER

OF TENNKSSEE.
Walteb W. Faw . . . Franklin, Tenn.
Robert T. Shaknon . . . Nashville, Tenn.

ASSISTANTS TO ATTORNEYS-GENERAL

OF TENNESSEE.

M. GK Lyle, for Montgomery County . . . Clarksville
J. Washington Moore, for Davidson County, Nashville
T. Pope Shepherd, for Hamilton County, Chattanooga
W. R. Harrison, for Shelby County . . . Memphis
Harry T. Holman, for Shelby County . . . Memphis

Xen Hicks 2d Circuit Clinton

J. R. Mitchell 5th Circuit Crossville

Lawson M. Myers 7th Circuit Pikeville

(VI) [124 Tenn.

CASES REPORTED.

I

A.

Amnions v. Coker .676

Ashby v. State 684

B.

Baker, Board v 39

Bank, Lee v 682

Bank v. Russell 618

Bank & Trust Co. v. Hotel Co 649

Blackwell v. Railroad 516

Board v. Baker 39

Box Co. v. Ferguson 433

Bradford v. Leake 312

C.

Caldwell v. Insurance Co 693

Chairs v. State 630

Chappie v. State 105

Coal Co., Hitt v 334

Coker, Amnions v 676

Confectionery Co., Insurance Cos. v 247

i Crenshaw v. Moore 628

E.

Ewing, Hotel t 536

» P.

Ferguson, Box Co. v 433

Fisher v. Insurance Co 460

Folk, State, ex rel., v 119

Folk, Surety Co. v 139

G.

Gamble v. Rucker 415

Gibbons, Hitt v 334

16 Cates] (vii)

viii CASES REPORTED. [124 Tenn.

H.

Hagan v. Trust Co 93

Hager, Whltworth v 355

Hall v. State 235

Hill v. Hotel Co 376

Hltt v. Coal Co 334

Hitt v. Gibbons 334

Hoffman, Newsum v 369

Hosiery & Yarn Co. v. Napper 155

Hotel Co., Bank & Trust Co. v 649

Hotel v. Ewing 536

Hotel Co., Hill v 376

Hughey v. Warner 726

I.

Insurance Co., Caldwell v 593

Insurance Cos. v. Confectionery Co 247

Insurance Co., Fisher v 450

Iron & Coal Co. v. Schwoon 176

J.

Jackson v. Manufacturing Co 421

Jordan v. State 81

K.
Key y. Norrod 14$

L.

Leake, Bradford v 312

Lee t. Bank 582

Lee, State, ex rel., v 385

Leech v. State 74

M.

Manufacturing Co., Jackson v 421

Marley, Scott v 388

Marshall, State v 230

Miller v. State 293

Moore, Crenshaw v 528

Morris v. Railroad 524

Murphy v. Sullivan 429

16 Cates] CASES REPORTED. ix

N.

Napper, Hosiery ft Yarn Co. v 155

Newsum v. Hoffman » 369

Norrod, Key v 146

P.

Pencil Co. v. Railroad 67

Pharr v. Stevens 669

Pollard, State, ex reL, v 127

Powers, State, ex reL, v 663

R.

Railroad, Blackwell v 516

Railroad, Morris v 524

Railroad, Pencil Co. v 57

Railroad v. Ray 16

Railroad, State v 1

Ray, Railroad v 16

Rucker, Gamble v 415

Russell, Bank v 118

S.

Sadler v. State 50

Schwoon, Iron ft Coal Co. v 176

Scott v. Marley 388

Smithson v. State 218

State, Ashby v 684

State, Chairs v 630

State, Chappie v 105

State ex reL, v. Folk 119

State, Hall v 235

State, Jordan v , 81

State, ex reL, v. Lee 385

State, Leech v 74

State v. Marshall 230

State, Miller v 293

State, ex reL, v. Pollard 127

State, ex reL, y. Powers 653

State y. Railroad 1

State, Sadler v 50

State, Smithson v 218

Stevens, Pharr v 669

Sullivan, Murphy v 429

Surety Co. v. Folk 139

T.

Trust Co., Hagan v 93

W.

Warner, Hughey v 725

Whltworth v. Hager 355

TENNESSEE CASES CITED.

A.

Abston, Hughes v., 105 Tenn., 70 375

Adamson v. Hurt, 3 Shannon's Cases, 424 24

Aiken v. Suttle, 4 Lea, 138 351

Ailor, Norton v., 11 Lea, 565 363

Alexander, Thompson v., 11 Heisk., 313 367

Algood, State v., 87 Tenn., 162, 163 424, 427

Allen v. Bain, 2 Head, 101 375

Allen v. Dodd, 4 Humph., 131 649

Allison v. Davidson, 39 S. W., 905, 908, 909 305, 310

Alston, State v., 94 Tenn., 674 531

Alvi8 v. Oglesby, 87 Tenn., 181 520

Anderson v. Bewley, 11 Heisk., 29, 31 345

Andrews v. Page, 2 Heisk., 634, 638 24

Archibald v. Clark, 112 Tenn., 532 239

Armstrong v. State, 101 Tenn., 389, 391 643

Arnold v. Knoxville, 115 Tenn., 195 569, 571, 576

Association, McCauley v., 97 Tenn., 421 123, 124

Association, Province v., 104 Tenn., 458 124

Association, Setliff v. f 39 S. W., 646 124

Atkins v. State, 119 Tenn., 458, 472 503. 505

Ayers, Railroad v., 16 Lea, 725 470

Ayrs v. State, 5 Cold., 26 Ill

B.

Bain, Allen v., 2 Head, 101 375

Baker v. Compton, 2 Head, 471 643, 644

Baker, State v., 4 Humph., 12 641

Ballard v. Scruggs, 90 Tenn., 588. 520

Bank v. Busby, 120 Tenn., 652 674, 675

Bank v. Guaranty Co., 110 Tenn., 10-19 144

Bank v. Hill, 99 Tenn., 42 375

Bank v. Jefferson, 92 Tenn., 638 672

Bank v. Jones, 1 Swan, 391 642

Bank v. Lumber Co., 100 Tenn., 480 672

Bank, Morgan v., 13 Lea, 241 29

Barr v. Railroad, 105 Tenn., 547 72

Bartee v. Tompkins, 4 Sneed, 623, 634, 636 269

(x) [124 Tenn.

16 Cates] CASES CITED. xi

Barton, Dayton Co. v., 103 Tenn., 604 404

Bateman v. Ryder, 106 Tenn., 712, 715 503

Bates v. Railroad, 90 Tenn., 36 36, 37, 3d

Baugh v. Railroad, 98 Tenn., 120 29

Bayless v. Bayless, 4 Cold., 363 532

Beasley, Insurance Co. v., MS 265, 266, 279

Beaufort v. Collier, 6 Humph., 492 728

Beaumont t. Yeatman, 8 Humph., 542, 548 375

Bedford v. Flowers, 11 Humph., 242 65

Bedord, Talbot v., Cooke, 457 443

Bennett, Insurance Co. v., 90 Tenn., 256 609

Bennett v. Insurance Co., 107 Tenn. 371 482, 485

Bennett v. State, M. & Y., 133, 135 640

Bewley, Anderson v., 11 Heisk., 29, 31 345

Bierce v. James, 87 Tenn., 638 403

Blackman v. Casualty Co., 117 Tenn., 578 617

Blantire v. Whitaker, 11 Humph., 313 208

Blanton, Jackson v., 2 Bax., 63, 66, 67 482, 485

Bleidorn v. Pilot Mountain C. & M. Co., 89 Tenn., 212 209

Bonds v. State, M. & Y., 143 91

Booker, Insurance Co. v., 9 Heisk., 607 727

Borches, Neas v., 109 Tenn., 398 404

Bowman v. Bowman, 3 Head, 48 209, 210

Boyd v. State, 14 Lea, 161 470

Boyer v. Boyer, 1 Cold., 14 634

Bradford ▼. Calhoun, 120 Tenn., 53 328

Bradt, State v., 103 Tenn., 684 427

Brewing Co., Heart v., 121 Tenn., 71 649

Brewing Co., Richi v., 105 Tenn., 651 \ . 665

Brewing Co., State v., 104 Tenn., 715, 728 397, 403, 427, 578, 679

Brien v. Robinson, 92 Tenn., 166 360

Brien, Woodard v., 14 Lea, 523 240, 243

Bright, Hays v., 11 Heisk., 325 728

Brown v. Brown, 6 Humph., 126 728

Brown, Hughes v., 88 Tenn., 589 620

Brown, Irwin v., 3 Shannon's Cases, 310 305, 310

Brown, Johnson v., 2 Humph., 327, 328, 329 267, 277

Branson, Isler ▼., 6 Humph., 278 649

Bruton v. Rutland, 3 Humph., 435 270, 271

Bryant, State v., 10 Yerg., 527 640, 641, 644

Burg, Williams v., 9 Lea, 456 447, 448

Burke v. Ellis, 105 Tenn., 702 36, 37, 38

Burkholtz, Kirk v., 3 Tenn. Chy., 421, 424 210

Burnett v. Maloney, 97 Tenn., 699 573

Busby, Bank t., 120 Tenn., 652 674, 675

Byers v. Railroad, 94' Tenn., 345 470, 471

Byrne, Railroad v., 119 Tenn., 285, 291 125, 427

xii OASES CITED, [124 Tenn.

c.

Cabe, Nichols v., 3 Head, 92 649

Caldwell, Gosling v., 1 Lea, 454 \ . . 727

Calhoun, Bradford v., 120 Tenn., 53 328

Campbell, Grove v.-, 9 Yerg., 7, 10 644

Cannon v. Mathes, 8 Helsk., 504, 519 397, 398

Cannon CO. v. Hoodenpyle, 7 Humph., 145 575

Canopy, Chisholm v., Ill Tenn., 202, 233 100, 101

Cargille, Railroad v., 105 Tenn., 628 36, 37, * 38

Carter, Charles v., 96 Tenn., 614 65

Cartmell v. McClaren, 12 Helsk., 41, 42, 43 271, 273

Cash v. State, 10 Humph., Ill Ill

Cass v. Richardson, 2 Cold., 28 212

Casualty Co., Blackman v., 117 Tenn., 578 617

Charles v. Carter, 96 Tenn., 614 65

Chase, Clark v., 5 Sneed, 636 208

Chattanooga v. Railroad, 123 Tenn., 497 527

Cheatham, Hayes v., 6 Lea, 1, 7 170

Cheatham v. Pierce, 89 Tenn., 668, 678 643

Chisholm v. Canopy Co., Ill Tenn., 202, 230 100, 101

Clark, Archibald v., 112 Tenn., 532 239

Clark v. Chase, 5 Sneed, 636 208

Clark, Stuart v., 2 Swan, 17 301, 302, 303

Coal Co. v. Daniel, 100 Tenn., 65 65

Coal Co. v. Parks, 94 Tenn., 263 215

Coal Co. v. Scott, 121 Tenn., 88, 118, 119, 120 215

Coal & Iron Co. v. Coppinger, 95 Tenn., 526 212

Cole, State v., 9 Humph., 628 639

Collier, Beaufort v., 6 Humph., 492 728

Collins, Lea v., 4 Sneed, 393 549

Collins, Railroad v., 85 Tenn., 227 • 65

Combs v. Young, 4 Yerg., 226 533

Compton, Baker v., 2 Head, 471 643, 644

Compton v. Perkins, 92 Tenn., 715 364, 365

Condon v. Maloney, 108 Tenn., 82-98, 99 239, 245, 398, 403

Conley, Railroad v., 10 Lea, 531 % 29

Cook v. State, 90 Tenn., 407 239, 243, 403

Cooper v. Overton, 102 Tenn., 211 86, 37, 38

Copeland v. Cox, 5 Heisk., 171 682

Copeland v. Murphy, 2 Cold., 72 212

Copper Co., Madison v., 113 Tenn., 331-358 662, 666

Copper, Sulphur & Iron Co. v. Fain, 109 Tenn., 56. .266, 271, 278, 279

Coppinger, Coal & Iron Co. v., 95 Tenn., 526 212

Cornwell v. State, M. & Y„ 147 228

Cotton, Manufacturing Co. v., 108 Tenn., 63 522

Cox, Copeland v., 5 Heisk., 171 682

•

16 Cases] CASES CITED. xiii

Creech v. Jones, 5 Sneed, 632 212

Crenshaw, English v., 120 Tenn., 631 631

Crlder, Railroad v., 91 Tenn., 490 403

Crittenden v. Posey, 1 Head, 321 443

Cronan v. State, 113 Tenn., 639 112, 113

Crutcher v. Stump, 6 Hay., 100 446

Cunningham, Wright v., 116 Tenn., 462 691

Curd v. Curd, 9 Humph., 171 329

D.

Daniel, Coal Co. v., 100 Tenn., 66 66

Darby, Gray v., M. ft Y., 396 208

Davidson, Allison v., 39 S. W., 906, 908, 909 306, 310

Davidson Co., Demoville v., 87 Tenn., 215 403

Davidson Co., Nichol v., 8 Lea, 389 580

Davis v. State, 3 Lea, 379 403

Davis v. State, 85 Tenn., 522, 626, 627 Ill

Davis v. Wilson, 85 Tenn., 388 24'

Day, Walker v., 8 Bax., 77-80 271, 274

Dayton Co. v. Barton, 103 Tenn., 604 404

Dean, Lipscomb v., 1 Lea, 646 673

Deason, State v., 6 Bax., 611 641

Debardelaben v. State, 99 Tenn., 649 404*

Deery, McOavock v., 1 Cold., 265 206

Demoville v. Davidson Co., 87 Tenn., 215 403

Dibrell, Gait v., 10 Yerg., 146, 152-155 375

Dickerson v. Rogers, 4 Humph., 181 384

Dickinson v. Mayer, 11 Heisk., 516 580

Dlermeyer, Handworker v., 96 Tenn., 619 728

Dines, State v., 10 Humph., 512 639, 640, 641

Dodd, Allen v., 4 Humph., 131 649

Donaldson, State v., 3 Heisk., 48 233

Dove v. State, 8 Heisk., 349 89

Dow, Mette v., 9 Lea, 96 444, 446

Ducktown, etc., Co. v. Fain, 109 Tenn., 56 266, 271, 277, 278, 279

Dagger v. Insurance Co., 95 Tenn., 245 403

Duncan v. Gibbs, 1 Yerg., 258 204

Duncan, State v., 7 Yerg., 271, 275 ! . . . .640, 641

Dunlap v. Haynes, 4 Heisk., 476, 480 482, 484, 485

Dyer v. State, 11 Lea, 609, 612 641, 644

E.

Edens, Holbert v., 5 Lea, 264 302

Edmonds, Society v., 95 Tenn., 53 672

Elder v. Burrus, 6 Humph., 358 801

xiv CASES CITED. [124 Tenn.

Elliot v. Thompson, 4 Humph., 99 443

Ellis, Burke v., 105 Tenn., 702 <- 36, 37, 38

Ellis v. Ellis, 92 Tenn., 471 26

Emerson, Knox v., 123 Tenn., 409 631

English y. Crenshaw, 120 Tenn., 531 531

Epperson y. State, 6 Lea, 293 641

Exposition Co., Shelby Co. v., 96 Tenn., 653 573

F.

Fain, Ducktown, etc., Co. v., 109 Tenn., 56 .... 266, 271, 277, 278, 279

Falls, Manufacturing Co. v., 90 Tenn., 469 398

Fargason, Lauderdale Co. v., 7 Lea, 153 673

Fauver v. Fleenor, 13 Lea, 623 680

Ferguson, Railroad v., 105 Tenn., 552 300

Fickle, Morrell v., 3 Lea, 79 898

Firby v. State, 8 Bax., 368 91

Flatt v. Stadler, 16 Lea, 371 680

Fleenor, Fauver v., 13 Lea, 623 580

Flowers, Bedford v., 11 Humph., 242 65

Flowers, Halliburton v., 12 Heisk., 25 152

Fogarty v. Stack, 86 Tenn., 610 210

Fogg v. Rogers, 2 Cold., 290 270

Folsom, Hanks v., 11 Lea, 559, 660 205, 210

Forsythe v. Manufacturing Co., 103 Tenn., 498 522

Foster v. Jackson, 8 Bax., 434 65

Foute v. State, 15 Lea, 715 Ill

Fowler v. Nixon, 7 Heisk., 719 209

Fowlkes v. Wagoner, 46 S. W., 586 318

Frazier v. Railroad, 88 Tenn., 140, 156 397, 398

Frazier y. Tubbs, 2 Heisk., 669 443

Freidlander v. Pollock, 5 Cold., 490, 495, 496 643

Furnace Co. v. Railroad, 113 Tenn., 727 398

G.

Gait y. Dibrell, 10 Yerg., 146, 152-165 375

Garber v. State, 4 Cold., 161, 169 228

Gibbs, Duncan v., 1 Yerg., 258 204

Gilbert, Stephens v., 1 Shannon's Cases, 663, 666 644

Gill, Perry v., 2 Humph., 218, 223 728

Goodall, Green v., 1 Cold., 404, 415 345

Gookin v. Graham, 5 Humph., 480 375

Gosling v. Caldwell, 1 Lea, 454 727

Governor v. McEwen, 6 Humph., 241, 263, 264 269

Gracy, Stewart v., 93 Tenn., 315 67

Graham, Gookin v., 5 Humph., 480 375

16 Cates] OASES CITED. xv

Gray v. Darby, M. & Y, 396 208

Green v. Goodall, 1 Cold., 404, 415 345

Green v. State, 88 Tenn., 634, 635 91

Grove v. Campbell, 9 Yerg., 7, 10 644

Grove v. Jenkins, 9 Yerg., 10 643

Gregg, McPhartridge v., 4 Cold., 324, # 326 24

Guaranty Co., Bank v., 110 Tenn., 10-19 144

Galnn v. Spurgin, 1 Lea, 228 580

H.

Hale v. Henderson, 4' Humph., 199. 549

Hale y. Landrum, 2 Humph., 32 682

Hall ▼. State, 3 Lea, 559 Ill

Hall, Woodard v., 2 Tenn. Chy., 164, 166, 167 271, 275

Halliburton v. Flowers, 12 Helsk., 25 152

Hallum, Harrison v., 5 Cold., 625 271,272

Hamblen Co., Railroad v., 115 Tenn., 526 134

Hampton v. State, 8 Humph., 69 Ill

Hamrico v. Laird, 10 Yerg., 222 728

Handworker v. Diermeyer, 96 Tenn., 619 728

Hankins, Jenkins v., 98 Tenn., 549 29

Hanks v. Folsom, 11 Lea, 559, 560 205, 210

Harbison v. Iron Co., 103 Tenn., 421 404,579

Hardin v. Williams, 5 Heisk., 385 682

Harris, Miller v., 9 Bax., 101 270

Harris, Railroad v., 99 Tenn., 684 404

Harris, "Webster v., Ill Tenn., 668, 676 302, 578

Harrison v. Hallum, 5 Cold., 525 271, 272

Hayes v. Cheatham, 6 Lea, 1, 7 170

Haynes, Dunlap v., 4 Heisk., 476, 480. 482, 484, 485

Haynes, Railroad v., 112 Tenn. 712... 72

Hays v. Bright, 11 Heisk., 325 728

Heart t. Brewing Co., 121 Tenn., 71 549

Henderson, Hale v., 4 Humph., 199 549

Henley ▼. State, 98 Tenn., 667 403

Hicks v. Tredericks, 9 Lea, 491 212

Hlgden, Trabue v., 4 Cold., 620, 623, 624 642, 643

Hill, Bank v., 105 Tenn., 70 375

Holbert v. Bdens, 5 Lea, 264 302

Holland, Lally v., 1 Swan, 396 375

Holohan, Hotel Co. v., 112 Tenn., 214 382

Hoodenpyle, Cannon Co. v., 7 Humph., 145 575

Hopkins v. Lane, 9 Yerg., 79 447

Hopkins, Pullen v., 1 Lea, 741 212

Hotel Co. ▼. Holohan, 112 Tenn., 214 382

Hughes v. Abston, 105 Tenn., 70 375

xvi OASES CITED. {124 Tenn.

Hughes v. Brown, 88 Tenn., 589 620

Hughes v. Tennison, & Tenn. Chy., 641-643 271,276

Humes, McGuffey v., 85 Tenn., 26 445

Hunter v. O'Neal, 4 Bax., 494 208

Hurst, Wright v., 122 Tenn., 656 209

Hurt, Adamson v., 3 Shannon's Cases, 424 24

Hyman v. State, 87 Tenn., 109 126

Hyman v. State, 87 Tenn., 109 427

I.

Insurance Co. v. Beasley, MS 265, 266, 279

Insurance Co. v. Bennett, 90 Tenn., 256 509

insurance Co., Bennett v., 107 Tenn., 371 482,486

Insurance Co. y. Booker, 9 Heisk., 607 727

Insurance Co., Dugger v., 95 Tenn., 245 403

Insurance Co. v. Insurance Co., 11 Humph., 1, 34, 35 271

Insurance Co., Johnson v., 119 Tenn., 598, 609 615, 617

Insurance Co. v. Morton-Scott-Robertscn Co., 106 Tenn., 572 616

Insurance Co. v. Trabue, MS 266, 279

Irwin v. Brown, 3 Shannon's Cases, 310 305, 310

Iron Co., Harbison v., 103 Tenn., 421 404,679

Iron & Coal Co. v. Schwoon, 16 Cates, 176 350

Isler v. Brunson, 6 Humph., 278 649

J.

Jackson v. Blanton, 2 Bax., 63, 66, 67 482, 485

Jackson, Foster v., 8 Bax., 434 65

Jackson v. McDonald, 2 Shannon's Cases, 556 24, 25

Jackson, State v., 2 Shannon's Cases, 611 641, 644

James, Bierce v., 87 Tenn., 538 403

Jefferson, Bank v., 92 Tenn., 538 672

Jenkins, Grove v., 9 Yerg., 10 643

Jenkins v. Hankins, 98 Tenn., 548 29

Jetton v. State, Meigs, 192 638

Jdhnson v. Brown, 2 Humph., 327, 328, 329 267, 277

Johnson v. Insurance Co., 119 Tenn., 598, 609 615, 617

Johnson, Railroad v., 16 Lea, 387. 26

Johnson, Railroad v., 114 Tenn., 632 28, 171

Johnson, Vance v., 10 Humph., 214 208

Jones, Bank v., 1 Swan, 391 642

Jones, Creech v., 6 Sneed, 632 212

Jones y. State, 6 Humph., 435 638, 639

K.

Kelly v. State 7 Bax., 84 Ill

Kennedy v. Montgomery Co., 98 Tenn., 179 135

16 Gates] OASES CITED. xvii

Kennedy, Railroad v., 90 Tenn., 185 532

Key v. Key, 3 Head, 449 443

King v. State, 3 Heisk., 148, 153 638

King v. State, 91 Tenn., 648 89

Kirk v. Burkholtz, 3 Tenn. Chy., 421, 424 210

Knights of Pythias v. Steel,, 107 Tenn., 1, 7, 11 508

Knox v. Emerson, 123 Tenn., 409 531

Knoxville, Arnold v., 115 Tenn., 195 669, 571, 576

Kobbe v. Land Co., 117 Tenn., 315 346

L.

Laird, Hamrico v., 10 Yerg., 222 728

Lally v. Holland, 1 Swan, 396 375

Lamont v. Railroad, 9 Heisk., 59, 60 71, 72

Lancaster v. State, 91 Tenn., 267 699

Land Co., Kobbe v. 117 Tenn., 315 345

Landrum, Hale v., 2 Humph., 32 682

Lane, Hopkins v., 9 Yerg., 79 447

Langford, McColgan v., 6 Lea, 108, 116, 117 170

Lanier, West v., 9 Humph., 762 212

Lauderdale Co. v. Fargason, 7 Lea, 153 173

LawlesB v. State 4 Lea, 173, 176, 177 Ill

Lea v. Collins, 4 Sneed, 893 549

Lea, Overton v., 108 Tenn., 505 318

Lea, Slattery v., 11 Lea, 9, 12 170

Leath, Murdock v., 10 Heisk., 173 345

Leeper v. State, 103 Tenn., 600 404

Lerch, McLean v., 105 Tenn., 693 580

Lewis, State v., 87 Tenn., 119, 121 66

Lindamood, Railroad v., Ill Tenn., 457 65

Lipes v. State 16 Lea, 125 470

Lipscomb v. Dean, 1 Lea, 546 573

Love v. Shields, 3 Yerg., 405 208

Lowry v. State, 113 Tenn., 220 113,117

Loyd, Nichols v., Ill Tenn., 145 692

Luehrman v. Taxing District, 2 Lea, 426 398

Lumber Co., Bank v., 100 Tenn., 480 672

Lynn v. Manufacturing Co., 8 Lea, 29 681

M.

•

Maddox, State v., 1 Lea, 671 641

Madison v. Copper Co., 113 Tenn., 331-358 662, 666

Maguinay v. Saudek, 5 Sneed, 147 363

Malone v. Searight, 8 Lea, 91 170

Maloney, Burnett v., 97 Tenn., 699 573

xviii OASES OITED. [124 Tenn.

Maloney, Condon v., 108 Tenn., 82-98, 99 239, 245, 398, 403

Manufacturing Co. v. Cotton, 108 Tenn., 63 522

Manufacturing Co. v. Falls, 90 Tenn., 469 398

Manufacturing Co., Forsythe v., 103 Tenn., 498 522

Manufacturing Co., Lynn v., 8 Lea, 29 681

Marsh v. Maywood, 6 Humph., 210-213 666

Martin, State v., 3 Shannon's Cases, 479 641

Mathes, Cannon v., 8 Helsk., 504, 519 397, 398

Mathewson v. Spencer, 4 Sneed, 383 345

Matthewson ▼ Spencer, 3 Sneed, 513 345

May v. Wright, 1 Ov., 387 443

Mayer, Dickinson v., 11 Heisk., 516 580

McBroom v. Whitfield, 108 Tenn., 422 ' 580

McCauley v. Association, 97 Tenn., 421 123, 124

McClaren, Cartmell v., 12 Heisk., 41, 42, 43 271,273

McCblgan v. Langford, 6 Lea, 108, 116, 117 170

McConnell State v., 3 Lea, 333 424

McCorkle, Wilkins v., 12 Tenn., 688 204, 348

McCormack v. Murfree, 2 Sneed, 46 682

McDaniel, Stroud v., 12 Lea, 619, 620 345

McDonald, Jackson v., 2 Shannon's Cases, 556 24, 25

McEwen, Governor v., 5 Humph., 241, 263, 264 269

McGavock v. Deery, 1 Cold., 265 205

McGuffey v. Humes, 85 Tenn., 26 445

McKamy, Parks v., 3 Head, 297 549

McLean v. Lerch, 105 Tenn., 693 580

McMurry v. Milan, 2 Swan, 176 682

McNew v. Walker, 3 Humph., 185 446

McPhartridge v. Gregg, 4 Cold., 324, 326 24

McTigue v. State, 4 Bax., 313, 314 Ill, 639

Mette v. Dow, 9 Lea, 96 444, 445

Milan, McMurry v., 2 Swan, 176 682

Miller v. Harris, 9 Bax., 101 270

Montgomery Co., Kennedy v., 98 Tenn., 179 135

Morgan v. Bank, 13 Lea, 241 29

Morrell v. Fickle, 3 Lea, 79 398

Morris, Stratton v., 89 Tenn., 497, 534 10, 579

Morton-Scott-Robertson Co., Insurance Co. v., 106 Tenn., 572, 616

Moses v. Wallace, 7 Lea, 419 443,446

Moses, Wrompelmeir v., 3 Bax., 467, 470 643

Murdock v. Leath, 10 Heisk., 173 * 345

Murfree, McCormack v., 2 Sneed, 46 682

Murphy, Copeland v., 2 Cold., 72 212

Murphy v. State, 114 Tenn., 531 239

16 Cates] CASES CITED. xix

N.

Neas v. Borches, 109 Tenn., 398 404

Newman v. Scott Co., 5 Sneed, 700 575

Nichol v. Davidson Co., 8 Lea, 389 580

Nichols v. Cabe, 3 Head, 92 549

Nichols v. Loyd, 111 Tenn., 145 692

Nixon, Fowler v., 7 Heisk., 719 209

Norman, Railroad v., 108 Tenn., 331 72

Norton ▼. Ailor, 11 Lea, 565 363

O.

Oglesby, Alvis v., 87 Tenn., 181 520

O'Neal, Hunter v., 4 Bax., 494 208

Overton, Cooper v., 102 Tenn., 211 36, 37, 38

Overton v. Lea, 108 Tenn., 505 318

P.

Page, Andrews v., 2 Heisk., 634, 638 24

Palmer v. State, 121 Tenn., 465, 490 639

Pardue v. State, 4 Bax., 10 112

Parham v. State, 10 Lea, 498..' Ill

Parks, Coal Co. v., 94 Tenn., 263 215

Parks v. McKamy, 3 Head, 297 549

Pencil Co. v. Railroad, 124 Tenn., 57 611

Pennel y. State, 122 Tenn., 622, 631 641, 644, 645, 693

Perkins, Compton v., 92 Tenn., 715 364,365

Perry v. Gill, 2 Humph., 218, 223 728

Persons v. State, 90 Tenn., 291 501, 503

Peterson v. State, 104 Tenn., 127, 131 239, 244, 398

Phelan, Wllliford v., 120 Tenn., 589, 597 728

Pierce, Cheatham v., 89 Tenn., 668, 678 643

Pilot Mountain C. & M. Co., Bleldorn v., 89 Tenn., 212 209

Pollock, Freidlander v., 5 Cold., 490, 495, 496 643

Pooley y. Webb, 3 Cold., 603 728

Posey, Crittenden v., 1 Head, 321 443

Post v. Railroad, 103 Tenn., 184, 216 658

Province v. Association, 104 Tenn., 458 124

Pugn, Stone Co. v., 115 Tenn., 688 36, 37, 38

Pullen v. Hopkins, 1 Lea, 741 212

R.

Railroad v. Ayers, 16 Lea, 725 470

Railroad, Barr v., 105 Tenn., 547 72

Railroad, Bates v., 90 Tenn., 36 36,37, 38

Railroad, Baugh v., 98 Tenn., 120 29

Railroad, Byers v., 94 Tenn., 345 470, 471

Railroad v. Byrne, 119 Tenn., 285, 291 125. 427

xx CASES CITED. [124 Tenn.

Railroad v. Cargille, 105 Tenn., 628 36,37, 38

Railroad, Chattanooga v., 123 Tenn., 497 527

Railroad v. Collins, 85 Tenn., 227 66

Railroad v. Conley, 10 Lea, 531 29

Railroad v. Crider, 91 Tenn., 490 403

Railroad, Frazier v., 88 Tenn., 140, 156 397, 398

Railroad v. Ferguson, 105 Tenn., 552 300

Railroad, Furnace Co. v., 113 Tenn., 727 398

Railroad v. Hamblen Co., 115 Tenn., 526 134

Railroad v. Harris, 99 Tenn., 684 ". 404

Railroad v. Haynes, 112 Tenn., 712 72

Railroad v. Johnson, 16 Lea, 387 26

Railroad v. Johnson, 114 Tenn., 632 28, 171

Railroad v. Kennedy, 90 Tenn., 185 532

Railroad, Lamont v., 9 Heisk., 59, 60 71, 72

Railroad v. Lindamood, 111 Tenn., 457 65

Railroad v. Norman, 108 Tenn., 331 72

Railroad, Pencil Co. v., 124 Tenn., 57 611

Railroad, Post v., 103 Tenn., 184, 216 658

Railroad v. Reagan, 96 Tenn., 128 169

Railroad, Saunders v., 99 Tenn., 135 72

Railroad, Seymour v., 117 Tenn., 98 28

Railroad v. Simmons, 107 Tenn., 392, 396 28

Ransom v. State, 116 Tenn., 355, 361 638, 639, 640, 641, 644, 645

Railroad, Watson v., 9 Heisk. 255 67

Railroad v. Wilson, 88 Tenn., 316 168, 169

Railroad v. Wilson, 108 Tenn., 618 72

Rains, Yerger v., 4 Humph., 259 549

Ray v. State, 108 Tenn., 282, 298-301 28, 228

Read, Trigg v., 5 Humph., 549 612,613

Reagan, Railroad v., 96 Tenn., 128 169

Reeves v. Reeves, 11 Heisk., 669, 674, 675 351

Reeves v. Reeves, 5 Lea, 644-653 329

Rhinehart v. State, 122 Tenn., 698 28

Rhodes v. Summerhill, 4 Heisk., 204 649

Rice v. State, 3 Heisk., 215, 222 Ill

Richardson, Cass v., 2 Cold., 28 212

Richi v. Brewing Co., 105 Tenn., 651 665

Ricks, Ex parte, 7 Heisk., 364 24

Rivers v. State, 117 Tenn., 235 641, 644, 645

Robinson, Brien v., 92 Tenn., 166 360

Rogers, Dlckerson v., 4 Humph., 181 384

Rogers, Fogg v., 2 Cold., 290 270

Rogers v. Simpson, 10 Heisk., 655, 657 271, 273

Runnels, State v., 92 Tenn., 320 360

Rutland, Bruton v., 3 Humph., 435 270,271

Ryder, Bateman v., 106 Tenn., 712, 715 603

16 Cates] OASES CITED. xxi

s.

Samuelson v. State, 116 Tenn., 486 396

Sanderlln v. Sanderlin, 1 Swan, 441 362

Saudek, Maguinay v., 5 Sneed, 147 363

Saunders v. Railroad, 99 Tenn., 135 72

Schwoon, Iron & Coal Co. ▼., 16 Cates, 176 350

Scobey v. Waters, 10 tea, 562, 563 727

Scott, Coal Co. v., 121 Tenn., 88, 118, 119, 120 215

Scott v. Wagstaff, 120 Tenn., 258 520

Scott Co., Newman v., 5 Sneed, 700 575

Scruggs, Ballard v., 90 Tenn., 588 520

Searight, Malone v., 8 Lea, 91 170

Seifreid v. State, 2 Tenn. Chy., 17, 23 205,206

Setliff v. Association, 39 S. W., 546 124

Settle v. Settle, 10 Humph., 504 643

Seymour ▼. Railroad, 117 Tenn., 98 28

Shaw v. Wilkins, 8 Humph., 652 443

Shelby Co. v. Exposition Co., 96 Tenn., 653 573

8hields, Love v., 3 Yerg., 405 208

Sigler ▼. State, 7 Bax.,'496 302, 304

Simmons, Railroad v., 107 Tenn., 392, 396 28

Simpson, Rogers v., 10 Heisk., 655, 657 271, 273

Singleton, Whiteside v., Meigs, 224 208

Slattery v. Lea, 11 Lea, 9, 12 170

Sraartt v. State, 112 Tenn., 539, 546 644

Smithwick, Telephone & Telegraph Co. v., 112 Tenn., 463, 470. . 28

Snider v. Yates, 64 L. R. A., 353 372

Snyder v. Yates, 112 Tenn., 309 374, 375

Society v. Edmonds, 95 Tenn., 53 672

Speck v. State, 7 Bax., 46 233

Spencer, Mathewson v., 4 Sneed, 383 345

Spencer, Matthewson v., 3 Sneed, 513 345

Spurgin, Guinn v., 1 Lea, 228 ■ 580

Stack, Fogarty v., 86 Tenn., 610 210

Stadler, Flatt v., 16 Lea, 371 580

Standard Oil Co. v. State, 117 Tenn., 676 482

State v. Algood, 87 Tenn., 162, 163 424,427

State v. Alston, 94 Tenn., 674 531

State, Armstrong v., 101 Tenn., 389, 391 643

State, Atkins v., 119 Tenn., 458, 472 503, 505

State, Ayrs v., 5 Cold., 26 Ill

State v. Baker, 4 Humph., 12 641

State, Bennett v., M. & Y., 133, 135 640

State, Bonds v., M. & Y., 143 91

xxii CASES CITED. [124 Tenn.

State, Boyd v., 14 Lea, 161 470

State v. Bradt, 103 Tenn., 584 427

State v. Brewing Co., 104 Tenn., 715, 728.... 397, 403, 427, 578, 579

State v. Bryant, 10 Yerg., 527 640, 641,644

State, Cash v., 10 Humph., Ill Ill

State v. Cole, 9 Humph., 628 639

State, Cook v., 90 Tenn., 407 , 239, 243, 403

State, Cornwell v., M. & Y., 147 228

State, Cronan v., 113 Tenn., 539 112, 113

State, Davis v., 3 Lea, 379 403

State, Davis v., 85 Tenn., 522, 526, 527 Ill

State v. Deason, 6 Bax., 511 641

State, Debardelaben v., 99 Tenn., 649 404

State v. Dines, 10 Humph., 612 639, 640, 641

State v. Donaldson, 3 Helsk., 48 233

State, Dove v., 3 Helsk., 349 89

State v. Duncan, 7 Yerg., 271, 275 640, 641

State, Dyer v. f 11 Lea, 509, 512 641,644

State, Epperson v., 6 Lea, 293 641

State, Firby v., 3 Bax., 358 91

State, Foute v., 15 Lea, 715... Ill

State, Garber v., 4 Cold., 161, 169 228

State, Green v., 88 Tenn., 634, 635 $1

State, Hall v., 3 Lea, 559 Ill

State, Hampton v., 8 Humph., 69 Ill

State, Henley v., 98 Tenn., 667 403

State, Hyman v., 87 Tenn., 109 125, 427

State v. Jackson, 2 Shannon's Cases, 611 641, 644

State, Jetton v., Meigs, 192 638

State, Jones v., 6 Humph., 435 638, 639

State, Kelly v., 7 Bax., 84 Ill

State, King v., 3 Heisk., 148, 153 638

Slate, King v., 91 Tenn., 648 89

State, Lancaster v., 91 Tenn., 267 699

State, Lawless v., 4 Lea, 173, 176, 177 Ill

State, Leeper v., 103 Tenn., 600 404

State v. Lewis, 87 Tenn., 119, 121 56

State, Lipes v., 15 Lea, 125 470

Slate, Lowry v., 113 Tenn., 220 113, 117

State v. Maddox, 1 Lea, 671 641

State v. Martin, 3 Shannon's Cases, 479 641

State v. McConnell, 3 Lea, 333 424

State, McTigue v., 4 Bax., 313, 314 Ill, 639

State, Murphy v., 114 Tenn., 631 239

State, Palmer v., 121 Tenn., 466, 490 639

16 Cates] CASES CITED. xxiii

State, Pardue v., 4 Bax., 10 112

State, Parham v., 10 Lea, 498 Ill

State, Pennel v., 122 Tenn., 622, 631 641, 644, 645, 693

State, Persons v., 90 Tenn., 291 501, 603

State, Peterson v. t 104 Tenn. 127, 131 239, 244, 398

State, Ransom v., 116 Tenn., 355, 361.... 638, 639, 640, 641, 644, 645

State, Ray v., 108 Tenn., 282 298-301 28,228

State, Rhinehart v., 122 Tenn., 698 28

State, Rice v., 3 Heisk., 215, 222 Ill

State, Rivers v., 117 Tenn., 236 641, 644, 645

State t. Runnels, 92 Tenn., 320 360

State, Samuelson y., 116 Tenn., 186 396

State, Seifreid v., 2 Tenn. Chy., 17, 23 206,206

State, Sigler v., 7 Bax., 496 302, 304

State, Smartt v., 112 Tenn., 639, 646 644

State, Speck v., 7 Bax., 46 233

State, Standard Oil Co. v., 117 Tenn., 676 482

State, Stuart v., 1 Bax., 181 89

State, Sutton v., 96 Tenn., 696 240, 243

State t. Swafford, 1 Lea, 274 641

State, Taylor v., 3 Heisk., 460 .110, 111

State v. True, 116 Tenn., 294, 309, 311 133, 135

State, Turner vr, 89 Tenn., 547, 558, 659 639, 640

State, Turner v., Ill Tenn., 593-602 239

State, ex rel., v. Turnpike Co., 2 Sneed, 88 691

State, Wallace v., 2 Lea, 29, 31 639, 640, 641

State v. Ward & Briggs, 9 Heisk., 105 71

State, Ward v., 102 Tenn., 724 644

State, Wilcox v., 94 Tenn., 106, 112 501, 503

State, Williams v., 12 Lea, 211, 212 698

State v. Willis, 11 Humph., 222 641

State v. Willis, 3 Head, 157 638, 640

State v. Yardley, 95 Tenn., 646, 554 397, 398

State, Younkins v., 2 Cold., 221 698

Steel, Knights of Pythias v., 107 Tenn., 1, 7, 11 508

Stephens v. Gilbert, 1 Shannon's Cases, 663, 666 644

Stephenson v. Walker, 8 Bax., 289 345

Stewart t. Gracy, 93 Tenn., 315 67

Stipe y. Stipe, 2 Head, 169 446

Stone Co. v. Pugh, 116 Tenn., 688 36, 37, 38

Stratton v. Morris, 89 Tenn., 497, 634 10, 579

Stroud v. McDaniel, 12 Lea, 619, 620 345

Stuart v. Clark, 2 Swan, 17 301, 302, 303

Stuart v. State, 1 Bax., 181 89

Stump, Crutcher v., 5 Hay., 100 446

Summerhill, Rhodes v., 4 Heisk., 204 649

xxiv OASES CITED. [124 Tenn.

Suttle, Aiken v., 4 Lea, 138 351

Sutton v. State, 96 Tenn., 696 240, 243

Swafford, State v., 1 Lea, 274 641

Swiney v. Swiney, 14 Lea, 316, 323 206

T.

Talbot v. Bedord, Cooke, 457 443

Taxing District, Luehrman v., 2 Lea, 426 398

Taylor v. State, 3 .Heisk., 460 110, 111

Telephone & Telegraph JCo. v. Smithwick, 112 Tenn., 463, 470.. 28

Tennison, HugheB v., 3 Tenn. Chy., 641-643 271,276

Thompkln8, Bartee v., 4 Sneed, 623, 634, 636 •.. 269

Thompson v. Alexander, 11 Heisk., 313 367

Thompson, Elliott v., 4 Humph., 99 443

ThKrston v. University, 4 Lea, 513, 515-520 206, 207

Trabue v. Higden, 4 Cold., 620, 623, 624 642, 643

Trabue, Insurance Co. v., MS 266, 279

Tredericks, Hicks v., 9 Lea, 491 218

Trigg y. Read, 5 Humph., 549 612, 613

True, State v., 116 Tenn., 294, 309, 311 133, 135

Trust Co. v. Weaver, 92 Tenn., 66 360

Tubbs, Frazier v., 2 Heisk., 669 443

Turnerv. State, 89 Tenn., 547, 558, 559 : 639, 640

Turner v. State, 111 Tenn., 593-602 239

Turnpike Cases, 92 Tenn., 369 403

Turnpike Co., State, ex rel., v., 2 Sneed, 88 691

U.
University, Thurston v., 4 Lea, 513, 515-520 206, 207

V.

Vance v. Johnson, 10 Humph., 214 208

Vincent v. Vincent, 1 Heisk., 343 363

W.

Wagoner, Fowlkes v., 46 S. W. f 586 318

Wagstaff, Scott v., 120 Tenn., 258 620

Walker v. Day, 8 Bax., 77-80 271,274

Walker, McNew v., 3 Humph., 185 446

Walker, Stephenson v., 8 Bax., 289 .345

Wallace, Moses v., 7 Lea, 419 443, 446

Wallace v. State, 2 Lea, 29, 31 639, 640, 641

Ward v. State, 102 Tenn., 724 644

Ward & Briggs, State v., 9 Heisk., 105 71

Waters, Scobey v., 10 Lea, 562, 563 727

16 Cates] OASES CITED. xxv

Watson v. Railroad, 9 Helsk., 255 67

Weakley v. Woodard, 2 Tenn. Chy. App., 589, 690 728

Weaver, Trust Co. v., 92 Tenn., 66 860

Webb, Pooley v., 3 Cold., 603 728

Webster v. Harris, 111 Tenn., 668, 676 302, 678

West v. Lanier, 9 Humph., 762 212

Whlrley t. Whiteman, 1 Head, 610 36, 38

Whitaker, Blantire v., 11 Humph., 313 208

Whiteman, Whlrley v., 1 Head, 610 36, 38

Whiteside v. Singleton, Meigs, 224 208

Whitfield, McBroom v., 108 Tenn., 422 580

Wilcox v. State, 94 Tenn., 106, 112 601,503

Wilkins y. McCorkle, 112 Tenn., 688 204, 348

Wilkins, Shaw v., 8 Humph., 652 443

Williams v. Burg, 9 Lea, 456 447, 448

Williams, Hardin v., 5 Helsk., 385 682

Wiliams v. State, 12 Lea, 211, 212 698

Williford v. Phelan, 120 Tenn., 589, 597 728

Willis, State v., 11 Humph., 222 641

Willis, State v., 3 Head, 157 638, 640

Wilson, Davis v., 85 Tenn., 383 24

Wilson, Railroad v., 88 Tenn., 316 168, 169

Wilson, Railroad v., 108 Tenn., 618 72

Woodard v. Brien, 14 Lea, 523 240, 243

Woodard, Weakley v., 2 Tenn. Chy. App. 589, 590 728

Woodward v. Hall, 2 Tenn. Chy., 164, 166, 167 271, 275

Wright v. Cunningham, 116 Tenn., 452 691

Wright v. Hurst, 122 Tenn., 656 209

Wright May v., 1 O v., 387 443

Wrompelmeir v. Moses, 3 Baz., 467, 470 643

T.

YaTdley, State v., 95 Tenn., 646, 654 397, 398

Tates, Snider v., 64 L. R. A., 353 372

Tates, Snyder v., 112 Tenn., 309 374,375

Teatman, Beaumont v., 8 Humph., 642, 548 875

Yerger v. Rains, 4 Humph., 259 649

Young, Combs v., 4 Yerg., 226 533

Younklns v. State, 2 Cold., 22l 698

OTHER CASES CITED.

ALABAMA

Bayzer v. McMillian Mill Co., 395 301

Blackmail y. Mauldin, 164 Ala., 337 309

Pritchett v. State, 22 Ala., 39 227

Smith v. Railroad, 75 Ala., 449 15

ARKANSAS

Austin v. State, 14 Ark., 561 227

Johnson v. Elder, 92 Ark., 30 215

Lumber Co. v. Lesh, 73 Ark., 16 372,373

Railroad v. Law, 68 Ark., 218 73

Sweeden v. Atkinson Improv. Co., 27L.R.A. (N. S.), 124 36

CALIFORNIA

Cahill ▼. Stone Co., 19 L. R. A. (N. S.), 1095-1165 35

Johnson v. Mining Co., 127 Cal., 4 \ 15

People v. Mill Co., 107 Cal., 221 301

Slocum v. Irrigation Co., 122 Cal., 555 „ 16

CONNECTICUT

Walling v. Potter, 35 Conn., 183 381

Wilmot v. McPadden, 79 Conn., 367 35

FLORIDA

Gladden v. State, 13 Fla., 623 647, 648

Kitrol v. State, 9 Fla., 9 648

Tervin v. State, 37 Fla., 396 648

Woodward v. State, 33 Fla., 508 64*

GEORGIA

Bines v. State, 68 L. R. A., 33, 73, 74, 75 698, 699

Bundrick v. State, 125 Ga., 753 234

Coweta Co. v. Railroad, 4 Ga. App., 94 73

Pope v. State, 124 Ga., 801 234

Taylor v. Sutton, 15 Ga., 103 319,.

Wilder v. Holand, 102 Ga., 44, 45 322

(xxvi) [124 Term.

16 Gates] OASES CITED. xxvii

ILLINOIS

Adam v. Arnold, 86 111., 185 627

Annitage Hereschell Cb. v. Potter, 93 111. App., 602 873

Baumgartner y. Bradt, 207 111., 345, 348, 349, 350 288

Billings v. People, 189 111., 472 634, 635

Lawrence t. Smith, 163 111., 149, 166 822

People v. Rose, 174 111., 310 143

Potter v. Clapp, 203 111., 592 418

Eailroad v. Jenks, 64 Dl. App., 91 36

Railroad v. McLaughlin, 47 111., 265 34, 35

Waller v. Chicago, 11 111. App., 209 623

Willis y. Watson, 4 Scam., 65 r . .320, 322

INDIANA

Bedford Quarries Co. v. Bough, 168 Ind., 671 15

Bouldin v. Mclntire, 119 Ind., 574 418

Cheek v. State, 35 Ind., 492 226

Railroad v. Champion, 32 N. E., 874 471

IOWA

Dickinson v. Bentley, 80 Iowa, 482 488

Hart v. Railroad, 69 Iowa, 485 73

Parsons t. Grand Lodge A. O. U. W„ 108 Iowa, 6 418

Smith v. Fuller, 138 Iowa, 91 .*... 418

State v. Kimball, 29 Iowa, 267 54

KANSAS

Bank v. Massey, 48 Kan., 762 372

Gardom v. Woodard, 44 Kan., 768 227

Handley y. Harris, 48 Kan., 606 372

Lyon v. Lash, 79 Kan., 342 418

Railroad v. Henigh, 23 Kan., 347 35

KENTUCKY

Brown y. Railroad, 136 Ky., 798 35

Clarkson v: Clarkson, 71 Ky., 656 320, 322

Hermes v. Coal Co., 134 Ky., 300 35

Murray v. Preston, 106 Ky., 561 301

Railroad v. Mulvey, 136 Ky., 223 35

Scott's Adm'r v. Scott, 77 S. W., 1122 418

Shepherd v. Commonwealth, 119 Ky., 931 227

Shipp y. Commonwealth, 124 Ky., 643 227

Swartwood v. Railroad, 129 Ky., 247 35

Tabor v. Mclntire, 79 Ky., 505-509 320, 322

Todd v. Gentry, 109 Ky., 704 322, 323

xxviil CASES CITED. [124 Tenn.

LOUISIANA

Mager's Succession, 12 Rob., 584 : 320

Layre v. Fasco, 5 Rob. (La.), 9 320

MAINE

Bank v. Stone, 50 Me., 595, 599 487

Foster v. Searsport Spool & Block Co., 79 Me., 508 307

Garaage v. Harris, 79 Me., 536 665

Lancey v. Clifford, 54 Me., 487 ... 307

Pearson v. Rolfe, 76 Me., 380 307

Wilson v. Wilson, 38 Me., 18 319

MASSACHUSETTS

Claflin v. U. S. Crelt System Co., 165 Mass., 501 143

Mahoney v. Fitzpatrick, 133 Mass., 151 626,627

Rice ▼. Railroad, 12 Allen, 141 48

Richards v. Barlow, 140 Mass., 218 627

Stults v. Silva, 119 Mass., 137 626

Tool v. Crafts, 193 Mass., 110 674

MARYLAND

Rourke # v. Bonne, 94 Md., 472, 477 322

Charles Simon's Sons Co. v. Md. Telephone & Telegraph Co., 99

Md., 141, 180 288

MICHIGAN

Gilbert t. Showerman, 23 Mich., 448 663

Scofleld v. City of Lansing, 17 Mich., 159, 161-163 286, 288

MINNESOTA

Fegelson v. Insurance Co., 94 Minn., 486 286

State y. Knife Falls Boom Corporation, 96 Minn., 194, 199 284

MISSISSIPPI

Ballard v. Oil Co., 81 Miss., 507 15

Blumer v. Ulmer, 44 South, 161 285

Railroad v. Beardsley, 79 Miss., 417 418

State v. Bacon, 77 Miss., 366 54

Tisdale v. Insurance Co., 84 Miss., 709 266, 285

Tribette v. Railroad Co., 70 Miss., 182 277, 278

16 Cates] CASES CITED. xxix

MISSOURI

Bank v. Morris, 114 Mo. f 225 372, 373

Barney v. Railroad, 126 Mo., 372 34!

Cutter v. Waddingham, 22 Mo., 206-248 64

Hanson t. Neal, 215 Mo. f 256, 271 284

Kelly v. Benas, 217 Mo., 1 35

Maier v. Brock, 222 Mo., 74 418

Oreratreet v. Moser, 88 Mo. App., 72..., 381

MONTANA
In re Rash's Estate, 21 Mont, 170 418

NEBRASKA

Bank v. Bauman, 87 Neb., 25 873

Pullman Palace Car Co. v. Lowe, 28 Neb., 239 381

• NEW HAMPSHIRE

Pickering v. Pickering, 15 N. H., 218 319

Wells v. Anderson, 69 N. H., 561 822

NEW JERSEY

Card v. Wllkins, 61 N. J. Law, 296 169

Den v. Mugway, 15 N. J. Law, 330-331 ! 319

Insurance Co. v. Landau, 56 N. J. Eq., 513 266, 286

State v. Zellers, 7 N. J. Law, 220, 230 226

NEW YORK

Fellows v. Fellows, 4 Cow., 682 268

Freeman v. People, 4 Denio, 9 89

Gallagher v. Crooks, 132 N. Y., 338 322

Gastenhofer v. Clair, 10 Daly, 265 382

Groth v. Washburn, 34 Hun, 509 523

Hogeboom v. Hall, 24 Wend., 146 319

In re Commissioners' Estate, 47 App. Div., 120, 62 N. Y. Supp.,

188 .' 319

Jackson v. Jackson, 7 Johns, 214 320

Maxson v. Railroad, 112 N. Y., 559 523

Messman v. Engenberger, 46 App. Div., 46, 61 N. Y. Supp., 556. . 319

Morgan v. King, 35 N. Y., 454 301

O'Neill v. Railroad, 60 N. Y„ 138 67

Parker v. Grant, 1 Johns Chy., 630 614

Partridge v. Eaton, 63 N. Y., 482 301

Wintermute v. Clark, 5 Sandf., 447 381

xxx CASES CITED. [124 Tenn.

NORTH CAROLINA

Anderson v. Doak, 32 N. C., 295 373

Basnlght v. Railroad, 111 N. C., 692 67

Briscoe v. Henderson Lighting ft P. Co., 148 N. C, 396 35

Burke Co. v. Lumber Co., 116 N. C, 371 307

Cain y. Davie Co., 86 N. C, 8 677

Hornthal v. Burwell, 109 N. C, 10 372

Rouse v Wooten, 140 N. C, 657 674

State v. Pool, 74 N. C, 402 301

Wells v. Railroad, 51 N. C, 47 67

NORTH DAKOTA
In re Hogan, 8 N. D., 301 143

OHIO

Kanaga v. Taylor, 7 Ohio St., 134 % 373

Railroad v. Harvey, 77 Ohio St, 235 35

Walker v. Board of Public Works, 16 Ohio, 640 301

OKLAHOMA
Moran v. Territory, 14 Okla., 544 234

OREGON

Megginson v. Megginson, 21 Ore., 387 418

Philadelphia Fire Association v. Allesina, 45 Ore., 154, 158 292

PENNSYLVANIA

Blankenburg v. Black, 200 Pa., 629 288

In re Thewlis' Estate, 217 Pa., 807 .' 418

In re Tucker's Estate, 209 Pa., 521 320, 323

Locke's Appeal, 72 Pa., 491 396

McMellen v. Union News Co., 144 Pa., 332 169

Moers v. Reading, 21 Pa., 202 396

Railroad & Coal Co. v. Ingham, 36 Pa., 194 301

Sullivan v. Straus, 161 Pa., 145 320, 323

Thompson v. Railroad, 218 Pa., 444 .36

RHODE ISLAND

Brown v. Tilley, 25 R. I., 579 288

Choquet, Deahy v., 28 R. I., 338 674

Deahy v. Choquet, 28 R. I., 338 674

Whippier. Guile, 22 R. I., 676 279, 288

16 Cates] CASES CITED. xxxi

SOUTH CAROLINA

Scott v. Cohen, 2 Nett & McC. (S. C.), 293 320

State v. Gillis, 73 S. C, 318 699

TEXAS

State v. Foster, 9 Tex., 65 648

Wlngo ▼. Rudder (Tex. Civ. App.), 120 S. W., 1073 418

UTAH
Edgar t. Railroad, 32 Utah, 330 71

VIRGINIA

Almond ▼. Wilson, 76 Va., 613, 623, 624 288

Boisseau v. Aldridges, 5 Leigh, 222 321, 322

Coffman v. Coffman, 85 Va., 459 '. 321, 323

Johnson ▼. Black, 103 Va., 477 288

Richardson v. Commonwealth, 76 Va., 1007 64

WASHINGTON

Griffith t. Holman, 23 Wash., 347 300

Jones v. Fish 6 Oil Co., 42 Wash., 332 372, 373

Olson v. Gill Home Invest. Co., 58 Wash., 151 ...35, 36

Sloan v. West, 50 Wash., 86 418

WEST VIRGINIA
Gaston v. Mace, 33 W. Va., 14 307

WISCONSIN

Allen ▼. Weber, 80 Wis., 531 301

Bank t. McGeoch, 73 Wis., 332 627

Kimball Co. v. Mellon, 80 Wis., 133 627

Shakman v. U. S. Credit System Co., 92 Wis., 366 143

Yearly Meeting y. Babler, 115 Wis., 289 627

UNITED STATES SUPREME COURT

Bitterman v. Railroad, 207 U. S., 205, 226 284

Bulkley v. United States, 19 Wall., 37 99

Carter v. Texas, 177 U. S., 442 645, 646

Connolly v. Union Sewer Pipe Co., 184 U. S., 640 12

Dowell, Mitchell ▼., 105 U. S., 430 665

French v. Asphalt Co., 181 U. S. t 324 677

Gains ▼. Ctoew, 2 How., 619 269

Garrison t. Insurance Co., 60 U. 8., 312 266

xxxii CASES CITED. [124 Tenn.

Hale v. Allinson, 188 U. S., 56, 77 266, 267

Hamilton v. Insurance Co., 186 U. S., 242 616

Howard v. Stillwell & Bierce Mfg. Co., 139 U. S., 199 100

Hulbert v. Chicago, 202 U. S„ 275 648

Insurance Co. v. Boon, 95 U. S., 130 71, 72

Insurance Co. v. McGrew, 188 U. S., 291 648

Kramer v. Conn, 119 U. S., 356 665

La Amistad de Rues, 5 Wheat., 385 99

Layton v. Missouri, 187 U. S., 356 648

Mitchell v. Dowell, 105 U. S., 430 6G5

Orr v. Hodgson, 4 Wheat., 453 613

Parish v. United States, 100 U. S., 500, 507 99

Railroad v. Ellis, 165 U. S., 155, 157 11, 15

Railroad v. Howard, 13 How., 307 100

Railroad y. Kellogg, 94 U. S., 469 72

Smith v. Condry, 1 How., 28 99

Smyth v. Ames, 169 U. S., 466, 517, 618 283

Soon Hing v. Crowley, 113 U. S., 709 11

Tarrance v. Florida, 188 U. S., 619 646

Telegraph Co. v. Hall, 124 U. S., 444, 454, 456 100

The Amiable Nancy, 3 Wheat, 546 99

The Anna Maria, 2 Wheat, 327 99

Tullls v. Railroad, 175 U. S., 348 15

United States v. Behan, 110 U. S., 338, 345, 346, 347 100

UNITED STATES CIRCUIT COURTS OF APPEALS

Insurance Co. v. Schmidt, 99 C. C. A., 296 279

Chemical Co. v. Insurance Co., 51 C. C. A., 22 266, 279

Curran v. Campion, 29 C. C. A., 26 289

Ex parte Moran, 75 C. C. A., 396 233, 234

Greene v. Bentley, 62 C. C. A., 60 373

Guarantee Co. v. Trust Co., 26 C. C. A., 146 143

Kelley y. Boettcher, 29 C. C. A., 14 289

Mill Co. v. Standard Oil Co., 11 C. C. A., 253 72

Pacific Coast S. S. Co. v. Bancroft- Whitney Co., 36 C. C. A.,

135 482, 483

Railway v. Ellis, 4 C. C. A., 454, 456 483

Railroad v. Smith, 63 C. C. A., 1 288, 289

Shapard v. Hynes, 104 Fed., 449, 45 C. C. A., 271 372

Society, etc., v. Allen, 33 C. C. A., 282, 284 488

Wyman v. Bowman, 62 C. C. A., 189, 195, 196 280

UNITED STATES CIRCUIT COURTS

Bracken v. Rosenthal, 151 Fed., 136-138 282

A. B. Dick Co. v. Belke & Co., 86 Fed., 149 487

16 Cates] CASES CITED. xxxiii

Fidelity ft Deposit Co. v. Fidelity Trust Co., 143 Fed., 152, 156,

157 288

Fuller t. Insurance Co., 36 Fed., 469 266

Pennsylvania Co. v. Bay, 150 Fed., 770, 773, 774 282

Railroad v. Caffrey, 128 Fed., 770, 774, 775 288

Robertson v. Insurance Co., 68 Fed., 173, 175 292

Suelling v. Richard, 166 Fed., 635, 636 282

The Schooner Lively, 1 Gall., 316, 325 99

DISTRICT OF COLUMBIA CASES

Cherokee Nation v. Sou. Kan. Ry. (D. C), 33 Fed., 916 665

Risely v. Utica (D. C), 173 Fed., 602, 606, 507 282

ENGLISH CASES

Appleton v. Chapel Co., 45 U J. Ch. Rep. (N. S.), 276 278

Blatch v. Archer, Cowp., 63, 65 483

Campbell v. Macky, 1 Mylne & Craig, 603 272

Ellord v. Landoff, 1 B. & B., 230, 231 614

Fettiplace v. Gorges, 1 Ves. Jr., 46 727

Fettiplace v. Gorges (1789), 1 Brown Chy., 6-8 727

Fulwood's Case, 4 Co., 65 533

Hall t. Railroad, 12 Am. and Eng. R. R. Cas., 41 658

Kensington v. White, 3 Price, 164 286

Sexton v. Davis, 18 Ves., 79 272

Taylor v. Meads, 4 De Gex, Jones ft Smith, 597, 605 727

Ward v. Greenville Township, 32 Can. S. C, 510 807

CASES

AKGUED AND DETERMINED

INTHC

SUPEEME COURT OF TENNESSEE

FOR THE

MIDDLE DIVISION.

NASHVILLE, DECEMBER TERM, 1910.

[(Continued from Volume 123 Tenn.y

State v. Nashville, Chattanooga & St, Louis Rail-
way Company.

(Nashville. December Term, 1910.)'

L CORPORATIONS. 8tatute in terms applying to corporations,
joint stock companies and associations applies to corporations
only, and not to Individuals or firms.

Tbe statute (Acts 1887, ch. 208), making it unlawful for any
corporation, joint stock company, or association to discharge
any employee, or to threaten to do so, for voting or not voting
at any election, for or against any candidate or measure, or for
trading or not trading with any particular person or class of
persons, or to notify any employee, by general or special
notice, directly or indirectly, secretly or openly, not to trade
with any particular person or class of persons, under pen-
alty of being discharged; and providing that any violation

(i)

TENNESSEE REPORTS. [124 Tenn

State v. Railroad.

shall be a misdemeanor, and Imposing a fine upon such offend-
ing corporation, joint stock company, or association, and fur-
ther providing that any officer or agent of such corporation,
joint stock company, or association who shall make or exe-
cute any notice, order, or threat so forbidden shall be guilty
of a misdemeanor, and, on conviction, shall be punished by
both fine and imprisonment, includes and applies to corpora-
tions only, and not to individuals or firms. The terms "joint
stock company" and "association," are used as synonymous
with the word "corporation," and are surplusage. There are
no such corporate bodies as a joint stock company or asso-
ciation known to the laws of this State. (Post, pp, 5-9.)
Acts cited and construed: Acts 1887, ch. 208.

2. CONSTITUTIONAL LAW. Statute forbidding corporations to
do things that Individuals and firms may do Is unconstitutional
as arbitrary and vicious class legislation, when.

The statute whose provisions are stated in the preceding head-
note is unconstitutional because it is arbitrary and vicious
class legislation under the State constitution (art 1, sec. 8,
and art 11, sec. 8), in that it prohibits corporations and their
agents from doing certain things under severe penalties, which
does not apply to firms or individuals doing the same thing.
(Post, pp. 7-13.)

Acts cited and construed: Acts 1887, ch. 208.

Constitution cited and construed: Art. 1, sec. 8; art 11, sec.
8.

Cases cited and approved: Stratton v. Morris, 89 Tenn., 534;
Soon Hing v. Crowley, 113 TJ. S., 709; Railroad v. Ellis, 165
IT. S., 155; Connolly v. Union Sewer Pipe Co., 184 U. S., 540.

3. 8AM E. Same. Such statute is also unconstitutional, as de-
nying corporations the equal protection of the laws.

Tho statute mentioned in the preceding headnotes is also un-
constitutional, because it denies corporations the equal pro-

16 Cates] DECEMBER TERM, 1910. 3

State t. Railroad.

tection of the laws, is violation of the fourteenth amendment
to the federal constitution. (Post, pp. 7-15.)

Constitution cited and construed: TJ. S. Const., 14th am.

Case cited and approved: Connolly v. Union Sewer Pipe Co.,
184 TJ. S., 540.

4. 8AM E. Classification In legislation must not be mere arbi-
trary selection, and must be natural and reasonable.

The general assembly may enact laws containing reasonable
and proper classification of the objects of the legislation, but
the classification must not be a mere arbitrary selection. It
must have some basis which bears a. natural and reasonable
relation to the object sought to be accomplished,, and there
must be some good and valid reason why the particular indi-
vidual or class upon whom the benefit is conferred, or who
are subject to the burden imposed, not given to or imposed
upon others, should be so preferred or discriminated against.
(Post, pp. 9, 10.)

5. 8AM E. Same. Propriety and necessity of classification In
legislation must be disclosed by what.

There must be reasonable and substantial differences in the

situation and circumstances of the persons placed in different
classes which disclose the propriety and necessity of the
classification. (Post, p. 10.)

6. 8AME. Classification in legislation that Is a denial of the
equal protection of the law to one class and the grant of an
immunity to another class.

If legislation arbitrarily confers upon one class benefits, from
which others in a like situation are excluded, it is a grant of
a special right, privilege, or Immunity, prohibited by the con-
stitution, and a denial of the equal protection of the laws to
those not Included; and if the legislation, without good reason
and just basis, imposes a burden upon one class which is not
imposed upon others in like circumstances or engaged in the
same business, it is a denial of the equal protection of the laws

I TENNESSEE REPORTS. [124 Tenn.

State v. Railroad.

to those subject to the burden and a grant of an Immunity to
those not subject to it, (Post, p. 10.)

Cases cited and approved: See citations under headnote 2.

7. SAME. Same. Classification of corporations and Individuals
as employers that is valid, or that Is Invalid as a denial of
the equal protection of the laws, when.

Where the classification of corporations or of employers is nat-
ural and reasonable, and based upon some distinctive differ-
ence in the business of the several classes, a difference peculiar
to and inhering in its very nature, it is valid; but legislation
that affects certain acts of corporations, and does not affect
similar acts by individuals and firms, as where the applica-
tion of the statute is made to depend solely upon the fact
whether the employer is a natural or artificial person, be-
tween which, within the constitutional provisions invoked
there is no distinction, is class legislation, and denies to cor-
porations the equal protection of the laws. (Post, pp. 13-15.) .

Cases cited and approved: Railroad v. Ellis, 165 U. S., 155,
157; Tullis v. Railroad, 175 U. S., 348; Ballard v. Oil Co., 81
Miss., 507; Smith v. Railroad, 75 Ala., 449; Quarries Co. v.
Bough, 168 Ind., 671; Johnson v. Mining Co., 127 Cal., 4; Slo-
cum v. Irrigation Co., 122 Cfcl., 555.

FROM MAURY.

Appeal in error from the Circuit Court of Maury
County. — Sam Holding, Judge.

Attorney-General Cates, for State.

Hatcher & Hatcher, for Railroad.

16 Gates] DECEMBEE TERM, 1910. 5

State v. Railroad.

Mr. Chief Justice Shields delivered the opinion of
the Court.

This case involves the constitutionality of chapter
208 of the published acts of the general assembly of
Tennessee for the year 1887, which act is in words and
figures, as follows :

"An act to prevent joint-stock companies, associations,
and corporations organized or chartered under the laws
of this State, from impairing or infringing upon the
rights, privileges, and liberties of their servants and
employees.

"Section 1. Be it enacted by the general assembly of
the State of Tennessee, that it shall be unlawful for any
joint-stock company, association, or corporation, organ-
ized, chartered, or incorporated by and under the laws
of this State, or operated or doing business in this State
under its laws, either as owner or lessee, having persons
in their service as employees, to discharge any employee
or employees, or to threaten to discharge any employee
or employees in their service for voting or not voting in
any election, State, county, or municipal, for any person
as candidate or measure submitted to a vote of the peo-
ple ; or to threaten to discharge any such employee or em-
ployees for trading or dealing or for not trading or deal-
ing as a customer or patron with any particular mer-
chant or other person or class of persons in any business
calling, or to notify any employee or employees, either by
general or special notice, directly or indirectly, secretly
or openly given, not to trade or deal as customer or pa-

TENNESSEE KEPORTS. [124 Tenn.

State y. Railroad.

tron with any particular merchant or person or class
of persons, in any business or calling, under penalty
of being discharged from service of such joint-stock com-
pany, corporation or association doing business in this
State as aforesaid.

"Sec. 2. Be it further enacted, that any joint-stock
company, association, or corporation organized, char-
tered, or incorporated under the laws of this State,, or
operated in this State, violating any of the provisions of
the foregoing section, shall be guilty of a misdemeanor ;
and on conviction shall pay a fine of not less than one
hundred dollars and not more than one thousand dollars,
for each offense for which convicted.

"Sec. 3. Be it further enacted, that any person acting
as an officer or agent of any joint-stock companies, asso-
ciations, or corporations of the kind and character, here-
inbefore described, or for any one of them, who makes
or executes any notice, order, or threat, of the kind and
character hereinbefore forbidden, shall be guilty of a mis-
demeanor, and, on conviction, shall pay a fine of not
less than one hundred dollars and not more than five
hundred dollars, and he imprisoned in the county jail
not less than ten days nor more than three months."

The defendant in error, a corporation incorporated
and organized under an act of the general assembly of
this State, passed previous to the adoption of the consti-
tution of 1870, was indicted under the first section of this
act, and charged with having threatened to discharge a
certain one of its employees for trading or dealing as a

16 Cates] DECEMBER TERM, 1910.

State v. Railroad.

customer with a certain merchant named. It appeared
and moved the court to quash the indictment upon the
ground that the statute in question was unconstitutional
and void because violative of article 1, section 8, of the
constitution of Tennessee, ordaining that "no man shall
be disseized of his freehold, liberties or privileges . . .
or deprived of his life, liberty or property but by the
judgment of his peers or the law of the land ;" and of ar-
ticle 11, section 8, of the same constitution, ordaining that
"the legislature shall have no power to ... pass
any law granting to any individual or individuals, rights,
privileges, immunities, or exemptions other than such as
may be by the same law extended to any member of the
community who may be able to bring himself within the
provisions of such law," and of the fourteenth amend-
ment of the federal constitution, ordaining that "no
State shall deprive any person of life, liberty or property
without due process of law, or deny to any person within
its jurisdiction the equal protection of the law;" and
also because the act contains two subjects, and violates
article 2, section 17, of the constitution of this State.

This motion was sustained, and from the judgment of
the circuit court, quashing the indictment, the State has
prosecuted an appeal in the nature of a writ of error to
this court, and assigned errors.

In the view we have taken of this statute, it is only
necessary to consider the contention that the statute
is arbitrary and vicious class legislation, and a denial
of the equal protection of the law.

8 TENNESSEE REPORTS. [124 Tenn.

State r. Railroad.

It is obvious from a reading of the statute, chapter
208, Acts 1887, that it only includes and applies to cor-
porations created and organized under the laws of Ten-
nessee, and foreign corporations doing business in this
State under its laws, and the officers and agents of such
corporations. The terms "joint-stock company" and
"association" are used as synonymous with the word
"corporation," and are surplusage. There are no such
corporate bodies as a "joint-stock company" or "associ-
ation" known to the laws of this State, and it is clear
from the whole act that it was the intention of the legis-
lature to include corporations only, whether domestic
or foreign. This is shown by the punishment provided
for a corporation violating the act, and that for an officer
or agent violating it. Joint-stock companies, associa-
tions, and corporations are only punished by fine, be-
cause they cannot be imprisoned, while the officer or
agent is punished by both fine and imprisonment. If
unincorporated .bodies were meant by "joint-stock com-
pany" and "association," there would not have been this
discrimination; but the individuals composing a joint-
stock company or association would also have been
punished as individuals who are merely officers or
agents. Certainly a more severe punishment would not
have been denounced against the agent than the prin-
cipal.

There is no mention in the statute of firms and part-
nerships, which are composed of individuals associated
together for business purposes, or of individuals, and in

16 Cates] DECEMBER TERM, 1910. 9

State t. Railroad.

no view of the statute can it be made to apply to
natural persons doing business as partners or indi-
viduals. We therefore have a statute which prohibits
corporations and their agents from doing certain things
under severe penalties, which does not apply to firms or
individuals doing the same thing. The discriminatory
effect of this statute is illustrated in brief of counsel for
the defendant substantially in these words: There is
* dry goods mercantile partnership or firm, dealing in
dry goods, clothing, boots, shoes, notions, etc., and in
the same city a corporation, engaged in precisely the
same business and upon the same scale. If the latter
should "notify" one of its employees "not to trade" with
a certain party, under penalty of being discharged, it
would be subject to the payment of a fine of from f 100
to fl,000, under the first section of the act, and the
officer or agent of that corporation who should thus
notify such employee would be subject, under the third
section of the act, to the payment of a fine of f 500, and
to imprisonment in the county jail for three months.
But if the firm were to say to its employees that they
will not retain in their service any one who "trades or
deals" with the same person, neither the members of it
nor their agents would be subject to the penalties of
this act.

The general assembly undoubtedly has the power, and
is not prohibited by the constitutional provisions re-
ferred to, from enacting laws containing reasonable and
proper classification of the objects of the legislation, but

10 TENNESSEE REPORTS. [124 Tenn.

State v. Railroad.

the classification must not be mere arbitrary selection. It
must have some basis which bears a natural and rea-
sonable relation to the object sought to be accomplished,
and there must be some good and valid reason why the
particular individual or class upon whom the benefit is
conferred, or Who are subject to the burden imposed, not
given to or imposed upon others, should be so preferred
or discriminated against. There must be reasonable
and substantial differences in the situation and circum-
stances of the persons placed in different classes which
disclose the propriety and necessity of the classification.
If legislation arbitrarily confers upon one class benefits,
from which others in a like situation are excluded, it is
a grant of a special right, privilege, or immunity, pro-
hibited by the constitution, and a denial of the equal
protection of the laws to those not included. If the
legislation, without good reason and just basis, imposes
a burden upon one class which is not imposed upon
others in like circumstances or engaged in the same busi-
ness, it is a denial of the equal protection of the laws
to those subject to the burden and a grant of an im-
munity to those not subject to it

In Stratton v. Morris, 89 Tenn., 534, 15 S. W., 95, 12
L. R. A., 70, it is said :

"We conclude, upon a review of the cases referred to,
that whether a statute be public or private, general or
special, in form, if it attempts to create distinctions and
classifications between the citizens of this State, the
basis of such classifications must be natural, and not

16 Cates] DEOEMBEB TERM, 1910. 11

State r. Railroad.

arbitrary. If the classification is made under article 11,
section 8, of the constitution, fop the purpose of con-
ferring some special right, privilege, immunity, or
exemption, there must be some good and valid reason
why that particular class should alone be the recipient
of the benefit. If the classification is made under article
1, section 8, of the constitution, for the purpose of sub-
jecting a class to the burdens of some special disability,
duty, or obligation, there must be some good and valid
reason why that particular class should alone be sub-
jected to the burden. Another essential to the validity
of every legislative classification, whether it be made
under article 11, section 8, or under article 1, section 8,
is that it must not violate any other provision of the
constitution, whether such provision be expressed or
implied."

This is the well-settled rule in this State, and it has
often been announced and applied by this court, in many
cases to be found in our reports.

In fifoon Hing v. Crowley, 113 U. S., at page 709, 5
Sup. Ct., at page 733, 28 L. Ed., 1145, it is said :

"The discriminations, which are open to objection,
are those where persons engaged in the same business
are subject to different restrictions, or held entitled to
different privileges under the same conditions."

In Gulf, C. & 8. F. Ry. v. Ellis, 165 U. S., 155, 17 Sup.
Ct., 257, 41 L. Ed., 666, it is said :

"Classification for legislative purposes must have
some reasonable basis upon which to stand. It must be

12 TENNESSEE REPORTS. [124 Tenn.

State v. Railroad.

evident that differences which would serve for the
classification for some purposes furnish no reason what-
ever for a classification for legislative purposes. The
differences which will support class legislation must be
such as, in the nature of things, furnish a reasonable
basis for separate laws and regulations."

In the case of Connolly v. Union Sewer Pipe Com-
pany, 184 U. S., 540, 22 Sup. Ct, 431, 46 L. Ed., 679, in
which a statute of the State of Illinois was held to
be a denial of the equal protection of the laws, on ac-
count of arbitrary classification, it is said :

"The difficulty is not met by saying that, generally
speaking, the State, when enacting laws, may in its
discretion, make a classification of persons, firms, cor-
porations, and associations, in order to subserve public
objects. For this court has held that classification must
always rest upon some difference which bears a rea-
sonable and just relation to the act in respect to which
the classification is proposed, and can never be made
arbitrary and without such basis. . . . But arbi-
trary selection can never be justified by calling it clas-
sification. The equal protection demanded by the four-

teenth amendment forbids this. ... No duty rests
more imperatively upon the courts than the enforce-
ment of those constitutional provisions intended to se-
cure that equality of rights which is the foundation of
free government. . . . It is apparent that the mere
fact of classification is not sufficient to relieve a statute
from the reach of the equality clause of the fourteenth

16 Cates] DECEMBER TERM, 1910. 13

State t. Railroad.

amendment, and that in all cases it must appear, not
only that the classification has been made, but also that
it is one based upon some good, reasonable ground,
some difference which bears a just and proper relation
to the attempted classification, and is not a mere arbi-
trary selection."

In Sutherland on Statutory Construction (2d Ed., by
Lewis) vol. 1, p. 366, it is said :

"The fundamental rule is that all classification must
be based upon substantial distinctions which make one
class really different from another; and the charac-
teristics which form the basis of the classification must
be germane to the purpose of the law; in othfer words,
legislation for a class, to be general, must be confined to
matter peculiar to the class."

And at page 369 :

"The characteristics, which will thus serve as a basis
of classification, must be of such a nature as to mark
the objects so designated as peculiarly requiring exclu-
sive legislation."

These authorities are conclusive of this case.

Hie statute in question applies to all corporations, re-
gardless of the business which they were incorporated
and authorized to conduct, whether they be quasi public,
as in case of public service corporations, or private cor-
porations, such as those created to conduct a mercantile,
manufacturing, or other business, located at one point
or extending over many counties, with large or small

14 TENNESSEE REPORTS. [124 Tenn.

State v. Railroad.

capital, or having in their service thousands or only a
few employees.

It does not apply to natural persons, either as in-
dividuals or members of a partnership or firm, engaged
in conducting the same business, at the same place, in
the same manner, and with similar employees. New
burdens and restrictions are placed upon corporations,
the property of which belongs to individual share-
holders, which are not placed upon natural persons en-
gaged in the same business, conducted in the same way,
and at the same place. We can see no good reason or
natural and reasonable basis for this discrimination.
None has been suggested or can be suggested, for they
do not exist. The application of the statute is made to
depend solely upon whether the employer is a natural
or artificial person, between which, within the protec-
tion of the constitutional provisions invoked, there is
no distinction. The distinction made is in the character
of the employer, and not in that of the employment or
business conducted.

We are of opinion that for this discrimination this
act is arbitrary and vicious class legislation; that it
denies all corporations doing business in Tennessee the
equal protection of the law, and is in contravention of
the constitution of this State and of that of the United
States, and void. We do not hold that there may not
be a classification of corporations, or of employers, for
that question is not here involved. Where such classifica-
tion is natural and reasonable, and based upon some dis-

16 Cates] DECEMBEB TERM, 1910. 15

State ▼. Railroad.

tinctive difference in the business of the several classes,
a difference peculiar to and inhering in its very nature,
it is valid, and will be sustained.

Gases in which legislation making such classification
has been held to be free from constitutional objection
are : Ballard v. Cotton Oil Co., 81 Miss., 507, 34 South.,
533, 62 L. E. A., 407, 95 Am. St. Rep., 474; Smith v.
L. & N. R. R. Co., 75 Ala., 449; Bedford Quarries Co. v.
Bough, 168 Ind., 671, 80 N. E., 529, 14 L. R. A. (N. S.),
418; Johnson v. Qoodyear Mining Co., 127 Cal., 4, 59
Pac., 304, 47 L. R. A., 338, 78 Am. St. Rep., 17 ; Slocum
v. Bear Valley Irrigation Qo., 122 Cal., 555, 55 Pac,
403, 68 Am. St. Rep., 68; Gulf, C. <& 8. F. Ry. v. Ellis,
165 U. S., 155, 157, 17 Sup. Ct, 255, 41 L. Ed., 666 ; Tul-
lis v. Lake Erie & Western R. Co., 175 U. S., 348, 20
Sup. Ct., 136, 44 L. Ed., 192.

We express no opinion upon the other objections made
to the statute as those we have considered are con-
clusive of the case.

It results there is no error in the judgment of the trial
court, and the same is affirmed.

16 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

Louisville & Nashville Railroad Company v.

A. P. Ray

and

Louisville & Nashville Railroad Company t?.

James L. Ray, by next friend.

(Nashville. December Term, 1910.)

1. CIRCUIT COURT PRACTICE. Judgment Is entered on the
verdict when It Is recorded.

The judgment on the verdict in the circuit court is entered by
the clerk as a matter of course when he records the verdict
{Post, pp. 26, 29.)

Code cited and construed: Sec. 5892, subsec. 3 (S.); sec. 4854,
subsec. 3 (M. ft V.); sec. 4077, subsec. 3 (T. ft S. and 1858).

Acts cited and construed: Acts 1805, ch. 45, sec. 2.

2. NEW TRIAL8. Motion for new trial made within thirty days
after entry of verdict and Judgment suspends Judgment as non-
existent for that purpose.

Where a judgment Is entered on the verdict as a matter of
course at the time of recording the verdict, as required by
statute, leaving no time between the entry of the verdict
and the entry of the judgment thereon, within which time
the motion for a new trial can be made, the judgment Is only
quasi final until after the expiration of the thirty days from
such entry, and if a motion for new trial is made within the
thirty days, the judgment /or the purposes of the motion
and appeal is treated as nonexistent. {Post, pp. 27, 28, 29.)

Code cited and construed: Sec. 5892, subsec. 3 (S.); sec. 4854,
subsec. 3 (M. ft V.); sec. 4077; subsec. 3 (T. ft S.). and 1858).

Acts cited and construed: Acts 1805, ch. 45, sec. 2; Acts 1885,
ch. 85.

3. SAME. Same. Disposition of motion for new trial may be
carried over into the time fixed by law for the next term.

The motion for a new trial is a part of the trial itself, and un-
der the statute (Acts 1899, ch. 40) relating to the disposition

16 Cates] DECEMBER TEEM, 1910. 17

Railroad v. Ray.

of suits pending at or near the expiration of the term of court,
its disposition may be carried over into the time allowed by
law for the next term of the court. (Post, p. 27.)

Acts cited and construed: Acts 1899, ch. 40.

Cases cited and approved: Railroad v. Simmons, 107 Tenn., 392,
396; Ray v. State, 108 Tenn., 282, 298-301; Rhinehart v. State,
122 Tenn., 698.

4. 8AM E. Motion for new trial must be made to review matters
required to be In bill of exceptions.

A motion for a new trial must be made in all cases where it is
desired to review any matters proper to be recorded in a bill
of exceptions. (Post, pp. 27, 28.)

Cases cited and approved: Railroad v. Johnson, 114 Tenn., 632;
Seymour v. Railroad, 117 Tenn., 98.

5. 8AM E. 8ame. Motion for new trial must be acted on by
trial court before supreme court will consider It.

The motion for a new trial must be considered by the trial
court before it can be considered by the supreme court (Tele-
phone ft Telegraph Co. v. Smith wick, 112 Tenn., 463, 470), be-
cause the action of the trial court thereon is an indispensable
prerequisite to the action of the supreme court in the review
of matters proper to go Into a bill of exceptions as indicated
in the preceding headnote, and for the purpose of enabling the
supreme court to say whether the trial court acted correctly
in refusing a new trial, or under Acts 1875, ch. 106 (Railroad
y. Conley, 10 Lea, 531; Morgan v. Bank, 13 Lea, 241; Baugh
v. Railroad, 98 Tenn., 120; Jenkins v. Hankins, 98 Tenn., 548)
granting a new trial. (Post, p. 28.)

Acts cited and construed: Acts 1875, ch. 106.
Cases cited and approved in the body of the headnote not re-
stated here.

6. 8AM E, Appeal Is prosecuted from judgment on verdict after
motion for new trial is overruled, and not from the order on
the motion; extent of review.

An appeal can only be prosecuted from a judgment on a verdict,

when a new trial is refused by the trial court; and, for such
124 Tenn. — 2

18 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

purposes of appeal, the judgment, although previously en-
tered, really Is effective as of the date of the order of the
court overruling the motion for a new trial. The appeal Is
prosecuted from the judgment, and not from the order of the
trial court overruling the motion for the new trial, and brings
up for review all the points made In the motion for the
new trial, and duly assigned for error in the appellate court.
{Post, p. 28.)

7. SAME. Motion for new trial made within thirty days after
judgment may be disposed of after the expiration of the thirty
days, and appeal lies within the thirty days thereafter; case
in judgment.

Where a motion for a new trial is made or filed within the
thirty days from the rendition of the judgment, It may be dis-
posed of after the expiration of such thirty days; as, where
the judgment was entered on the verdict June 3d, 1910; the
motion for the new trial was made or filed June 29th; called
up by the court for hearing July 5th, 1910, and continued until
the 6th, on which latter day it was argued and held under
advisement until July 9th, 1910, when it was overruled, the
court had jurisdiction to dispose of the motion, and an appeal
might be prayed, perfected, and prosecuted from the judg-
ment originally entered, within the thirty days from the over-
rulement of the motion for a new trial. (Post, pp. 22-27.)

Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. & V.).

Acts cited and construed: Acts 1871, ch. 69; Acts 1885, ch. 65.

8. SAME. Same. After overrulement of motion for new trial,
thirty days additional may be allowed to give bond and per-
fect appeal.

Where the motion for a new trial, made or filed within the
thirty days after the entry of the judgment, but disposed of
after that time, is overruled, the court may allow the appel-
lant thirty days additional in which to give bond and perfect
the appeal. (Post, pp. 22, 23, 24, 27.)

Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. ft V.).

Acts cited and construed: Acts 1871, ch. 59; Acts 1885, ch. 65.

16 Gates] DECEMBER TERM, 1910. 19

Railroad v. Ray.

9. APPEAL8. 8tatutes regulating the time for appealing and

making appeal bond or taking the pauper's oath construed.
The object and purpose of Acts 1871, ch. 59, was to confer upon
the circuit courts the power to grant time for the execution of
appeal bonds, a power previously exercised by the chancery
courts, so as to make the rule uniform in both circuit and
chancery courts, but inasmuch aa this act was construed to
mean that the time granted for the execution of the bond
should be computed from the day of the adjournment of the
court, and not from the time when it was granted, Acts 1885,
ch. €5, limiting the time for appealing to thirty days during
the term, and allowing the court to extend the time to give
the appeal bond or to take the pauper's oath, not exceeding
thirty days additional, was passed to meet such hardship
against the Judgment holder and was intended to take the
place of the previous act. {Post, pp. 23, 24.)

Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. ft V.).

Acts cited and construed: Acts 1871, ch. 69; Acts 1885, ch. 65.

Cases cited and approved: McPhartridge v. Oregg, 4 Cold., 3&4,
326; Andrews t. Page, 2 Heisk., 634, 638; Ricks, ex parte, 7
Heisk., 864; Jackson v. McDonald, 2 Shannon's Cases, 656;
Adamson v. Hurt, 8 Shannon's Cases, 424; Davis v. Wilson, 85
Tenn., 383.

10. 8AM E. Same. Limitation of time for appealing by setting
aside the Judgment and entering a new Judgment.
The statute limiting the time for appealing to thirty days can-
not be evaded on the theory that the Judgment is within the
breast of the Judge during the term, and that he can set it
aside after the expiration of the thirty days, and enter a new
judgment from which the appeal can be prosecuted. (Post,
pp. 25, 26.)

Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. ft V.).

Acts cited and construed: Acts 1871, ch. 69; Acts 1885, ch. 65.

Cases cited and approved: Railroad v. Johnson, 16 Lea, 387;
Ellis v. Ellis, 92 Tenn., 471.

20 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

11. NEGLIGENCE. Doctrine of turntable cases Is not applicable
where the person Injured by car moving was not attracted
there by the cars, but by the unloading of a boat.

Where the plaintiff, a boy about twelve years of age, in com-
pany with another boy of about the same age, observing a boat
unloading Its freight at a wharf into box cars of the defendant,
to which wharf there was no land approach except across lots
or along defendant's spur track, crossed the lots to the wharf,
and, after a refusal of permission to stay aboard the boat,
climbed upon defendant's box cars, standing close to the wharf
on the spur track and properly secured by brakes and chocks,
to watch the unloading of the boat into the cars, and while
in this position heard a noise as if the cars were about to
move, and, in Jumping to the ground, broke his leg, it was
held In an action against the defendant railroad company
for this injury* that the doctrine of the turntable cases had
no application, since the plaintiff was not attracted to the
place by the cars, but by the unloading of the boat. {Post, pp.
22, 23, 29-38.)

12. 8AM E. 8ame. Turntable and attractive nuisance theories do
not apply to cars left on commercial railroad to be loaded,
when.

The theory of the turntable cases, or the attractive nuisance
theory, while recognized by the court, does not apply to cars
left standing by a commercial railway upon its spur track to be
loaded in the ordinary course of business, especially where
they are left in charge of a shipper engaged In loading, and
in whose care they are for the time being. (Post, pp. 34, 35.)

Cases cited and approved: Bates v. Railroad, 90 Tenn., 36;
Cooper v. Overton, 102 Tenn., 211, 237; Stone Co. v. Pugh,
115 Tenn., 688; Barney v. Railroad, 126 Mo., 372; Chicago v.
McLaughlin, 47 111., 265; Railroad v. Jenks, 54 111. App., 91;
Railroad v. Henigh, 23 Kan., 847.

Cases cited, approved, and distinguished. Whirley v. White-
man, 1 Head, 610; Railroad v. Cargille, 105 Tenn., 628; Burke
v. Ellis, 105 Tenn., 702.

16 Cates] DECEMBER TEEM, 1910. 21

Railroad v. Ray.

13. SAME. Special Instructions in cases involving turntable and
attractive nuisance theories.

In an action for negligence baaed upon the theory of the turntable
cases, or attractive nuisance theory, the trial judge should give
special instructions, as a matter of law, that the facts stated, if
true, constitute the degree of negligence, or not, as. the case may
be, which would render the defendant liable or not liable in
damages, as the case may be. (Post, pp. 36-38.)

Cases cited, and approved: Whirley v. Whiteman, 1 Head, 624;
Bates v. Railroad, 90 Tenn., 36; Cooper v. Overton, 102 Tenn.,
211; Railroad v. Cargille, 105 Tenn., 628; Burke v. Ellis, 105

. Tenn., 702; Stone Co. v. Pugh, 115 Tenn., 688.

14. SAME. Peremptory Instructions erroneously refused by the
trial Judge may be allowed by court of civil appeals, and the
action dismissed.

Where the trial judge erroneously refuses to give peremptory in-
structions for the return of a verdict for the defendant, there
Is no error in the judgment of the court of civil appeals grant-
ing the peremptory instruction, and dismissing the action.
(Post, pp. 23, 29, 38.)

Cases cited and approved: Bates v. Railroad, 90 Tenn., 36;
Cooper v. Overton, 102 Tenn., 211; Stone Co. v. Pugh, 115 Tenn.,
688.

15. EVIDENCE. Positive evidence is not affected by negative evi-
dence of those whose attention was not called to the matter,

Where there is positive evidence that cars were properly secured
by brakes and chocks, it is immaterial that others did not so
see the same, where it does not appear that their attention
was called to the matter. (Post, p. 32.)

FROM DAVIDSON.

Appeal from the Second Circuit Court of Davidson
County, Tennessee, to the Court of Civil Appeals, and by

22 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

certiorari from the Court of Civil Appeals to the Su-
preme Court. — M. H. Meeks, Judge.

Clauds Waller and Frank Slemons, for Railroad.
Jambs P. Atkinson, for Ray.

Mr. Justice Neil delivered the opinion of the Court.

These two actions were brought in the circuit court of
Davidson county against plaintiffs in error for an in-
jury caused to James L. Ray, a minor about twelve years
of age, as the result of his jumping from a freight car,
the property of plaintiffs in error. The first action was
brought by the father, and the second in behalf of the
boy himself by next friend.

In the first case there was a recovery of f 1,000, and
in the second one of $2,500. The facts will be stated
more at large when we reach the second branch of the
case.

The first point presented is that the motion for new
trial was not disposed of until the expiration of thirty
days from the rendition of the judgments, and therefore
that the matter was coram non judice, when the trial
judge acted upon the motion. The verdict in each case
was rendered on June 3, 1910, and judgment was ren-
dered thereon on the same date. Motion for new trial
was marked "Filed" by the clerk of the trial court on
the 29th day of June, 1910, called up by the court for
hearing July 5, 1910, continued until the 6th, on which

16 Gates] DECEMBER TERM, 1910. 23

Railroad v. Ray.

latter day it was argued and held under advisement
until July 9, 1910, when it was overruled. At the hear-
ing of this motion, defendant in error objected to its
consideration, upon the ground that any action relative
thereto was beyond the power of the court, because the
time for appeal expired after the expiration of thirty
days from the date of the judgment on the verdict, rely-
ing upon Acts 1885, chapter 65, sections 1, 2. Plaintiffs
in error prayed an appeal to the court of civil appeals,
and on that date, July 9, 1910, were granted thirty addi-
tional days to give bond and perfect the appeal. When
the case reached the court of civil appeals, the same
point was there made and overruled. That court then
proceeded to consider the case upon its merits and sus-
tained the motion for peremptory instructions which
had been made in the court below. Thereupon a peti-
tion was filed in this court for the writ of certiorari.

Prior to the act of 1885 was Acts 1871, c. 59, which
was as follows :

"In all cases in the inferior courts of this State,
wherein an appeal to the supreme court may hereafter
be prayed and granted upon the terms now imposed by
law, and the party appealing is a resident of another
county or State, or is unable, by reason of physical in-
ability, to be present, the court granting said appeal,
may, in its discretion, allow the appellant time in no
case exceeding thirty days, in which to give bond or file
the pauper's oath for the prosecution of said appeal,
and such appeal bond approved by the clerk of the court
from which the appeal is taken, or the pauper's oath

24 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

filed with said clerk within the time allowed by the
court, shall render said appeal as effectual as if done
as now required by the law, during the term of court at
which the judgment appealed from was rendered."

Before the act of 1871 the practice in chancery causes
was for the chancellor to grant such length of time as
he might see proper, even beyond the end of the term,
for the execution of a bond for an appeal previously
prayed (McPhartridge v. Gregg, 4 Cold., 324, 326; An-
drews v. Page, 2 Heisk., 634, 638; Adamson v. Hurt, 3
Shan. Cas., 424; Davis v. Wilson, 85 Tenn., 383, 5 S. W.,
285) ; but no such power was recognized as belonging
to the circuit courts (James Ricks, ex parte, 7 Heisk.,
364). To correct this practice, and to make the rule
uniform in both circuit and chancery courts, the act
of 1871 was passed. That act, however, was construed
by this court in Jackson v. McDonald, 2 Leg. Rep., 21,
2 Shannon's Tenn Cases, 556, to mean that the grace
given for execution of the bond should be comput-
ed from the day of the adjournment of the court, and
not from the time at which it was granted. The result
of this construction was that there were frequently
great delays in the prosecution of appeals, and often
they were not prosecuted at all after long indulgence
had been granted under this construction, thereby de-
laying the enforcement of the judgment without any
security to cover contingencies that might arise between
the adjournment of the court and the time allowed.
To meet this hardship, a great hardship, where the terms

16 Cates] DECEMBER TERM, 1910. 25

Railroad v. Ray.

were long, covering several months, as in the cities, the

act of 1885 was passed. It was as follows :

"Section 1. That hereafter when an appeal, or an ap-
peal in the nature of a writ of error, is prayed from a
judgment or decree of an inferior court to the supreme
court, the appeal shall be prayed for and appeal bond
shall be executed, or the pauper's oath taken, within
thirty days from the judgment or decree, if the court
hold so long; otherwise, before the adjournment of the
court; but, for satisfactory reasons, shown by affidavit
or otherwise, and upon application made within the
thirty days, the court may extend the time to give bond
or take the oath in term or after adjournment of the
court; but in no case more than thirty days additional.

"Sec. 2. That in all cases where the appeal has not
been prayed for within the time prescribed in the first
section of this act, the judgment or decree may be exe-
cuted."

This act covers all the ground previously covered by
Acts 1871, chapter 59, and was intended to take its
place, end the two were improperly amalgamated in sec-
tion 4898 of Shannon's Code.

We thus see the evil which was intended to be reme-
died by the act of 1885 and the previous act. There was
no purpose on the part of the legislature to interfere
with the practice upon the subject of motions for new
trial. It was held by this court in the case of Railroad
v. Johnson, 16 Lea, 387, that it could not be evaded on
the theory that the judgment was within the breast of
the judge during the term, and that he could set it

26 TENNESSEE REPORTS. [124 Terin.

Railroad v. Ray.

aside after the expiration of thirty days and enter a new
judgment, from which the appeal could be prosecuted.
It was held in Ellis v. Ellis, 92 Tenn., 471, 22 S. W., 1,
that a motion to set aside a judgment by default could
not be maintained, if made more than thirty days after
the entry of such judgment, under the act of 1885 above
reproduced; but in so doing the court pointedly re-
marked that no application had been made for a new
trial within thirty days from the rendition of the final
judgment, and no sufficient excuse had been given why
the motion was not made within that time. This qualifi-
cation indicated that, if there had been such motion made
within thirty days, it could have been maintained and
acted upon after the expiration of that period. Such, in-
deed, has been the universal practice of the circuit
courts, the understanding of this court, and the view en-
tertained by the bar in general, since the passage of the
act of 1885. The judgment in the circuit court is entered
bv the clerk as a matter of course when he records the
verdict. Shannon's Code, sec. 5892, subsec. 3. At com-
mon law there was always an interval between the entry
of the verdict and the entry of the judgment within
which time the motion for new trial could be made.
There is no interval under our practice. Therefore the
judgment is only quasi final until after the expiration of
thirty days from its entry ; that is, its finality is condi-
tioned upon the absence of the entry of a motion for new
trial within that time, and its subsequent sustainment
by the court; or, we may add, the motion in arrest of
judgment, or motion for a judgment non obstante

16 Cates] DECEMBER TERM, 1910. 27

Railroad v. Ray.

veredicto. In other words, if a motion for new trial is
made within the thirty days, the judgment for the pur-
poses of the motion is treated as being nonexistent. If
the motion for new trial is sustained, the verdict is set
aside and the judgment goes with it; so if a motion in
arrest of judgment is sustained, or a motion for
judgment non obstante veredicto, the provisional entry
of the judgment cannot interfere with any of these
rights of the losing party. To hold otherwise would be
not only to extend the provisions of the act of 1885
very far beyond its purposes, but it would unduly re-
strict the rights of litigants, and impose unwarrantable
burdens upon trial judges who must, in the course of
things, have sometimes several motions for new trial
on hand at the same time in important cases, all re-
quiring time and careful consideration. It would make
it incumbent upon the trial judge to dispose of these
motions within the limited time of thirty days from the
date of the entry of the judgment, even though they did
not come to him until near the expiration of that period,
when it was impossible for him to give due thought
to the disposition of them. As held by the court in
Street Railroad Co. v. Simmons, 107 Tenft., 392, 396, 64
S. W., 705, the motion for new trial is a part of the trial
itself, and may be carried over into the time allowed by
law for the next term of the court, under Acts 1899, c.
40. Ray v. State, 108 Tenn., 282, 298-301, 67 S. W.,
553; Rhinehart v. State, 122 Tenn., 698, 127 S. W.,
445. Such motions must be made in all cases where it
is desired to review any matters proper to be recorded

28 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

in a bill of exceptions (Railroad y. Johnton, 114 Tenn.,
632, 88 S. W., 169 ; Seymour v. Railroad, 117 Tenn., 98,
98 S. W., 174) ; and they must be considered by the trial
court before they can be considered by the supreme
court (Telephone & Telegraph Co. v. Smithwick, 112
Tenn., 463, 470, 79 S. W., 803). The action of the trial
court thereon is an indispensable prerequisite to the
action of the supreme court, for the review of matters
proper to go into a bill of exceptions as above indicated,
for the purpose of enabling the supreme court to say
whether the trial court acted correctly in refusing a new
trial, or under the act of March 24, 1875 (Railroad v.
Conley, 10 Lea, 531; Morgan v. Bank, 13 Lea, 241;
Iiaugh v. Railroad, 98 Tenn., 120, 38 S. W., 433 ; Jenkins
V. Hankins, 98 Tenn., 548, 41 S. W., 1028) grant-
ing a new trial. When a new trial is refused by the
trial court, then only can an appeal be prosecuted from
the judgment. For such purposes of appeal the judg-
ment, although previously entered, really dates as of
the order of the court overruling the motion for new
trial. The appeal is then prayed, and if duly prosecuted
brings up for review all of the points made in the motion
for a new trial, and duly assigned for error in the appel-
late court, and that court thus acquires control of the
judgment entered in the trial court. It is not correct to
say, as held by the court of civil appeals, that the ap-
peal is from the order of the lower court overruling
the motion for new trial. As we have already stated,
when a motion for new trial is made within thirty days
the existence of the judgment is ignored, and upon the

16 Cates] DECEMBER TEEM, 1910. 29

Railroad v. Ray

motion being overruled the judgment for purposes of ap-
peal must be treated as if then entered upon the verdict.
The previous entry is made in obedience to the section of
the Code above referred to (Shannon's Code, sec. 5892,
subsec. 3 ; Acts 1805, c. 45, sec. 2 ) , which was enacted to
prevent the delay in entries of judgment which at com-
mon law sometimes resulted in the failure to make the
entries altogether.

Plaintiffs in error assign as error the refusal of the
trial judge to give a peremptory instruction in their
favor.

The uncontroverted facts are in substance as fol-
lows :

In March, 1909, the minor in question, James L. Bay,
went upon the Woodland street bridge that spans the
Cumberland river between Nashville and East Nash-
ville, in company with a boy about his own age, one
James Gallagher, for the purpose of viewing the waters
of the river ; the river then being at a high stage. While
on the bridge their attention was attracted to the steam-
er Bob Dudley, which was unloading some 250 feet to
the northward. They decided to get a nearer view of
this process, so descended the bridge by steps leading
down to the ground about seventy feet below, then went
through the premises of the Standard Box Company till
they reached a bluff which constitutes the end of Main
street, in East Nashville. They mounted this, and
then descended by a steep path down to the vicinity of
the Byman elevator plant, which was situated about
eighty feet from the river. From this they descended a

30 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

sloping path till they reached the wharf at which the
unloading was in process. At this point the plaintiffs
in error had caused to be located two box cars into which
lumber was being unloaded from boats. Desiring to
get a nearer view of what was going on, and also to se-
cure a ride back across the river, one or both of the boys
went upon the gang plank of the boat and made the re-
quest just indicated. This was refused. Concluding,
then, that they could get a better view of the unloading
of the boat by going upon the box cars, they did so.
After haying reached this elevation, they watched the un-
loading for a time, and, becoming dissatisfied with this
entertainment, began to jump from one of the cars upon
a pile of sand that lay near the car, which they had in-
creased and built up with their own hands for the pur-
pose. They jumped several times, and climbed back
upon the car by its ladder. Tiring of this sport, they
were just about to sit down on the edge of the car, when
they heard a creaking noise under the car they were
on, indicating that it was about to move. Alarmed by
this noise, and fearing that the car would go into the
river, which was within a few feet, they jumped off.
Gallagher escaped without injury, by jumping on the
sand pile; but Ray struck the bare ground and broke
his leg. This was the injury for which he suedL

The place where the injury occurred was a wharf or
landing used by the boats on the river for unloading
freight from time to time which they had for the various
factories in that neighborhood, of which there were a
considerable number. There was a baseball ground about

16 Cates] DECEMBER TERM, 1910. 31

Railroad v. Ray.

one hundred yards away, which was used by small boys,
and in which sport they were sometimes joined by the
railroad employees for a few minutes at a time. It does
not appear, however, that any game was going on near
the period of the accident, or how long prior thereto.
Quite a number of people congregated there from time
to time to watch the unloading of the boats. A con-
siderable number of boys were there also from time to
time, especially near the Ryman elevator, engaged in
picking up corn and other grain to feed to their pigeons.
On one or more occasions it had been thought necessary
by the people engaged in the unloading process to run
the boys away from the cars. It does not appear, how-
ever, that the plaintiffs in error had any knowledge of
this. They were not concerned with the wharf, except
to furnish cars for transportation purposes, which cars
on demand were shunted down on the spur track, which
ran right by the margin of the river, so close that a gang-
way could be constructed, from the boats to the cars,
into which freight could be transferred.

This track was on a grade of 235 feet to the mile.
In order to make the cars stand so that they could be
loaded, it was necessary that the brakes should be set,
and also that the wheels should be chocked or scotched.
The cars were delivered on the spur track at ten minutes
after 7 o'clock on the morning in question. The injury
occurred late in the afternoon. When the cars were
placed at the point indicated, they were secured by the
setting of the brakes and by chocking on the east side.
The west side could not be chocked, because the wheels

32 TENNESSEE REPORTS. [124 Tenn.

-

Railroad v. Ray.

stood in the water at the edge of the river, which was
partly over the track.

The area of land within which the wharf lay may be
roughly described as bounded on the south by the Wood-
land street bridge, on the east by First street in East
Nashville, on the north by the property of the Kirkpat-
rick Company's mills, and on the west by the river. The
Woodland street bridge was 250 feet distant There
was no approach to the wharf from this direction, ex-
cept along the spur track of the railway, or across lots ;
the latter being the course pursued by the boys when
they left the Woodland street bridge. To the north the
country was open up to the Kirkpatrick Company's
mills. There does not appear to have been any wagon
road down to the wharf. It was merely a landing where
freight was loaded into cars standing on the spur track
from boats on the river. Of course, people on foot could
get to it from over the rough way pursued by the boys,
or more easily from the north and east.

It is insisted that the point is disputed whether the
cars were properly secured by brakes and chocks; but
what is said upon this subject in the evidence adverse
to plaintiffs in error simply amounts to statements of
witnesses that they did not see the chocks. A brakeman
of the railway company testified that he put the brakes
on, and another that he saw the brakes put on, and the
latter that he himself put the chocks under the car.
No one disputes this. The fact that others did not see
it would amount to nothing ; it not appearing that their
attention was called to the matter.

16 Cates] DECEMBER TERM, 1910. 33

Railroad v. Ray.

It is a disputed matter as to whether the boys were
ordered off the cars. Some witnesses for the plaintiffs
in error say that they were so ordered ; but the boys say
they were not. There is also a dispute as to whether
the boys interfered with the brakes upon the car. One
witness for the plaintiffs in error testified that he saw
them doing so; but the boys say they did not.

The moving of the cars is accounted for by the witness-
e-s for the plaintiffs in error by testimony to the effect
that loading heavily tends to press the car down upon
the springs, thereby lowering the body of the car, and
loosening to some extent the brake shoe. It is supposed
that something of this kind occurred. The second car
was already loaded with lumber, and the first or upper
car was about half loaded, when the cars began to
move. They ran over only about fifteen feet, and were
stopped by a bumper at the end of the spur track.

In the view that we take of the case, the disputed
points are immaterial.

It may be conceded, as the jury found, that the boys
did not interfere with the brakes, and that they were
not ordered from the cars. However, as to this latter
point there is no evidence to the effect that it was known
by the plaintiffs in error, or any of its agents, that the
boys were on the cars, but only by the boat people en-
gaged in unloading the boats.

The examination of James L. Ray shows that he is a
very bright, alert, and intelligent boy; also well ad-
vanced in his school studies for a person of his age.

124 Tenn. — 3.

34 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

The question to be determined is whether the attract-
ive nuisance theory, or what is generally known as the
law of the "turntable cases," applies to the facts stated.

We are of the opinion that it does not. Aside from
the fact that the cars were properly secured when the
servants of the plaintiffs in error left them in the morn-
ing, and they had no knowledge that boys were occa-
sionally at the place where the cars were, and had been
run away from there a time or two prior to the occasion
in question by the agents of the boat companies while
engaged in unloading, and aside from the fact that
plaintiffs in error's servants knew nothing of the pres-
ence of the boys at the time the defendant in error
James L. Ray was hurt, and aside from the remoteness
of the place where the cars were standing, we think the
law referred to does not apply, because the boys were
not attracted to the spot by the cars, but by the boat,
which was in course of unloading, and only mounted
the cars, after they reached the place, as a vantage
ground for witnessing the process of unloading the boat.
We are also of the opinion that the attractive nuisance
theory does not apply to cars standing upon a commer-
cial railway, left to be loaded, in the ordinary course of
the company's business ; certainly not when they are left
in charge of the shipper, who is engaged in the act of
loading, and in whose care the car is for the time being.
There are authorities which hold that it does not apply
to such cars at all; that is, to standing railroad cars.
Barney v. Hannibal & St. J. R. Co., 126 Mo., 372, 28 S.
W., 1069, 26 L. R. A., 847; Chicago & A. R. Co. v. Mc-

16 Gates] DECEMBER TERM, 1910. 35

Railroad v. Ray.

i»

Laughlin, 47 111., 265 ; East St Louis Connecting B. Co.
v. Jenks, 54 111. App., 91; Central Branch Union P. B.
Co. v. Henigh, 23 Kan., 347, 33 Am. Rep., 167.

In the brief of counsel for plaintiffs in error our at-
tention is called to several cases from other States in
which the whole doctrine expreesed by the attractive
nuisance theory is repudiated, and others in which it
is confined to the specific case of turntables left un-
fastened and unguarded. In addition, we have exam-
ined numerous other cases. A full collection of the au-
thorities, and a discussion of them, may be found in a
note to Cahill v. E. N. & A. L. Stone & Co. (Cal.), 19 L.
R. A. (N. S.), 1095-1165, and the cases reported there-
with — Wilmot v. McPadden, 79 Conn., 367, 65 Atl., 157,
19 L. R. A. (N. S.), 1101; Swartwood v. Louisville &
N. B. Co., 129 Ky., 247, 111 S. W., 305, 19 L. R. A. (N.
S.), 1112, 130 Am. St. Rep., 465; Briscoe v. Henderson
Ughting & P. Co., 148 N. C, 396, 62 S. E., 600, 19 L. R.
A. (N. S.), 1116; Wheeling & L. E. B. Co. v. Harvey,
77 Ohio St., 235, 83 N. E., 66, 19 L. R. A. (N. S.), 1136,
122 Am. St. Rep., 503 ; Thompson v. Baltimore <b Ohio
R. Co., 218 Pa., 444, 67 Atl., 768, 19 L. R. A. (N. S.),
1162, 120 Am. St. Rep., 897. Other cases, since the pub-
lication of that volume, are found in Kelly v. Benas, 217
Mo., 1, 116 S. W., 557, 20 L. R. A. (N. S.), 903; Hermes
v. Hatfield; Coal Co., 134 Ky., 300, 120 S. W., 351, 23 L.
R. A. (N. S.), 724; Brown v. Chesapeake & 0. B. Co.,
135 Ky., 798, 123 S. W., 298, 25 L. R. A. (N. S.), 717;
Covington <& C. B. T. <& B. Co. v. Mulvey, 135 Ky., 223.
122 S. W., 129, 26 L. R. A. (N. S.), 204; Olson v. Gill

36 TENNESSEE BEPORTS. [124 Tenn.

Railroad v. Ray.

Home Invest. Co., 58 Wash., 151, 108 Pac., 140, 27 L. R.
A. (N. S.), 884; Sweeden v. Atkinson Improv. Co.
(Ark.), 125 S. W., 439, 27 L. R. A. (N. S.), 124.

We do not deem it necessary for the purposes of the
present case to enter upon a general discussion of the
subject. We have in our own State six cases: Whir-
ley v. Whiteman, 1 Head, 610 (1858) ; Bates v. Railway
Co., 90 Tenn., 36, 15 S. W., 1069, 25 Am. St. Rep., 665
(1891) ; Cooper v. Overton, 102 Tenn., 211, 52 S. W., 183,
45 L. R. A., 591, 73 Am. St. Rep., 864 (1899) ; Railroad
v. Cargille, 105 Tenn., 628, 59 S. W., 141 (1900) ; Burke
v. Ellis, 105 Tenn., 702, 58 S. W., 855 (1900) ; Stone Co.
v. Pugh, 115 Tenn., 688, 91 S. W., 199 (1905). In WWr-
ley v. Whiteman the court was committed to the doc-
trine. In that case it appeared that a child but little
more than three years of age was injured by some ex-
posed cogwheels, revolving within from ten to twenty
inches from the ground, on the outside of a mill, within
twenty feet of a public street in the city of Nashville, in
an open space, wholly exposed, without any cover, guard,
or inclosure whatever, and that children were accus-
tomed to play about the mill every day. It was shown
that the wheels might have been boxed at very trifling
expense, or an inclosure made around them so as to se-
cure them aginst possibility of injury to any one; also
that on the day in question the mill was left running
with no one to watch, direct, or guard the machinery,
while all of the operatives went to their noon meal, and
that during their absence the injury was inflicted. On
the facts it was held that the owner of the mill was

16 Cates] DECEMBEE TERM, 1910. 37

Railroad v. Ray.

liable. In Bates v. Raihcay, the doctrine was conceded,
but held not to apply to a turntable which was suffi-
ciently fastened to keep it securely in place when un-
molested. In Railroad v. Cargille, it was held to apply
to a turntable which was uninclosed, and wholly unfas-
tened ; and in Burke v. Ellis, to an open flat car loaded
with loose earth, where the child was invited, or at least
permitted, upon the car with the knowledge of the super-
intendent of the company. In Cooper v. Overton, it was
held not to apply to a pond of water formed by recent
rains upon a vacant city lot, the property of a nonresi-
dent owner, the existence of which pond was unknown
to the owner who had his lot viewed by his agent once
every two months, and where it appeared that the water
would not have gathered into a pond except for the un-
authorized act of the city in filling with garbage, un-
known to the owner, the mouth of a drain that ran across
the lot; and that the lot was fifty feet from the nearest
street and the pond had nothing on it to make it attract-
ive for children except a plank, and that the owner of
the lot did not know that the plank was there. It ap-
peared there was a school in the neighborhood, and that
children played upon this lot, occasionally, or from time
to time. It was said that : "The 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 per-
mitted to remain there." lb., 237. In Stone Company v.
Pugh, it was held that it did not apply to a low-hung
wagon, made for hauling heavy stone, driven into the

38 TENNESSEE REPORTS. [124 Tenn.

Railroad v. Ray.

yard of an asylum where a large number of children
were kept, and cared for during the day, the wagon and
team being in charge of a competent driver. In this
case, it was held that Burke v. Ellis should be confined
to its own facts. It should be remembered that while
the doctrine is recognized here, and applied in proper
cases, the recent authorities have shown a disposition to
limit its application. It should further be noted that in
all of the cases the court itself has, in one form or an-
other, determined the classes of cases or subjects to
which the doctrine applies. In Whirley v. Whiteman,
it was said in the opinion that the trial judge should
have "instructed the jury specially, as a matter of law,
that the facts stated, if true, constituted the degree of
negligence which would render the defendants liable in
damages." 1 Head, 624. So, in Burke v. Ellis it was
held that the facts proven made a case for the applica-
tion of the doctrine. Railroad v. Cargille stood on decla-
ration and demurrer. In Bates v. Railroad it was held
that a specific instruction should have been given to the
jury, which instruction really determined whether the
case proven fell within the class of cases covered by the
doctrine. In Cooper v. Overton, it was determined that
the facts which we have recited did not make a case for
the application of the doctrine, and so in Stone Go. v.
Pugh. Such is the state of the law in Tennessee upon
this subject.

On the grounds stated, we are of the opinion there is
no error in the judgment of the court of civil appeals,
granting the peremptory instruction and dismissing the
actions, and the certiorari is therefore refused.

16 Cates] DECEMBER TERM, 1910. 39

Board v. Baker.

Board of Education op Humphreys County et al. v.

J. W. Baker.

(Nashville. December Term, 1910.)

1. DEEDS OF CONVEYANCE. Abandonment Is not proved un-
der condition for reversion for abandonment of the lot for
school and church purposes, when.

Where a lot of ground was conveyed to the school directors of
a certain public school district and their successors in office
for a site for a schoolhouse and church with a reservation
that the title should revert to the grantor in case the use
of the lot for such purpose was abandoned, proof that the

• building erected thereon had been neglected to such an extent
that it was in bad repair and in a very dilapidated condition,
and that sometime prior to the filing of the bill, the public
school was not taught in the building, because of the erection
of a more commodious building in another place, but that its
use was continued for church purposes, and no abandonment
by the public was shown, is insufficient to show an abandon-
ment in the sense of the provision of the deed. (Post, pp.
45, 46.)

2. 8AM E. Contingent right of re-entry is not a grantable right;
what interest Is grantable.

The contingent right of re-entry on account of the abandonment
of the house and lot under a condition in the deed providing
that the title should revert if the property was abandoned
for the purposes of school and church is not a grantable in-
terest in the property; for an interest in land, in order to be
the subject of a valid grant, must exist in possession, rever-
sion, or remainder, or by executory devise or contingent
remainder, and be something more than a bare possibility
of an Interest, which is uncertain. (Post, pp. 46-48.)

40 TENNESSEE EEPORTS. [124 Tenn.

Board v. Baker.

5. 8AM E. For breach of conditions In law, grantor, his heir, or
assignee may enter; but for breach of conditions In deed,
grantor or his heir only, and not his assignee, can enter.

Where there is a breach of the conditions in law, the grantor,
his heir, or assignee, may avail himself of the right to enter;
but a breach of conditions in deed entitles the grantor and
his heirs only, and not strangers taking by assignment or
deed, to enter and defeat the estate of the grantee. {Post,
p. 48.)

4. 8AME. Entry is the only mode of taking advantage of a breach
of a condition in a deed to defeat or forfeit the estate granted.
The only mode of taking advantage of a breach of a condition
in deed, which has the effect to defeat an estate, or to work
a forfeiture thereof, is by entry, which reduces the granted
estate to the same condition and causes it to be held upon
the same terms as if the estate to which the condition is an-'
nexed had not been granted. (Post, p. 48.)

6. SAME. Reversion for breach of conditions In deed must be
made effective by re-entry of grantor or his heir, and Is waived
by grantor's subsequent conveyance, though he had no grant-
able interest.

Where the grantor conveys a lot of ground to the school direc-
tors of a certain public school district and their successors
in office, to be used for a schoolhouse and church only, by
a deed providing that whenever the lot was abandoned for
such purposes, the title should revert to the grantor, the con-
dition for reversion upon abandonment of the particular use
was a condition in deed, available to the grantor and his heirs
only, and the right of entry for breach thereof, was waived
by the grantor's subsequent conveyance of the land to a third
person, though the grantor's right of reversion was not an es-
tate which could be the subject of a conveyance, so that such
subsequent grantee acquired nothing by his deed. (Post, pp.
44, 47-49.)

Cases cited and approved: Rice v. Railroad, 12 Allen (Mass.),
14L

16 Cates] DECEMBER TERM, 1910. 41

Board v. Baker.

6. CHANCERY PLEADING AND PRACTICE. After district
school house and lot it transferred by legislative act to city,
its governing authority may become complainant to pending
ejectment suit, when.

Where a lot of ground was conveyed to the school directors
of a certain public school district and their successors In
office for a site for a schoolhouse and church, and the county
board of education filed a bill in ejectment to recover the lot
from one alleged to be in wrongful possession and to remove,
as clouds upon complainants' title, the deeds under which the
defendant was claiming title, and pending the suit the State
legislature passed an act amending the charter of the munici-
pal corporation In which said lot was situate, so as to estab-
lish for said town a school system under the control of its
board of mayor and aldermen, and transferred all school
property within its corporate limits, including the lot In ques-
tion, to the municipality, after which the said board of mayor
and aldermen filed a petition in the case to be permitted to be
made complainants, with the right to prosecute the suit in
their name, and this was done. {Post, pp. 44, 45.)

FROM HUMPHREYS.

Appeal from the Chancery Court of Humphreys
County. — J. W. Stout, Chancellor. •

Morris & Morris and B. R. Thomas, for complain-
ants.

H. O. Carter and J. F. Shannon, for defendant.

42 TENNESSEE KEPORTS. [124 Tenn.

Board v. Baker.

Me. Justice Lansden delivered the opinion of the
Court.

This is an action of ejectment, brought by the board
of education of Humphreys county to recover a lot
situated in the town of McEwen, the possession of
which was taken by defendant under the following facts :
In 1881, J. N. Simpson conveyed the lot in question to
the school directors of the Sixteenth school district of
Humphreys county upon the following conditions :

"To have and to hold the same unto the school direc-
tors and their successors in office for the purposes and
uses aforesaid, viz., building a schoolhouse and church,
to be used for that purpose only; and whenever the
said lot of ground is abandoned for the purposes of
school and church, then the title is to rerert back to me,
and this shall not be any title to any other person for
other purposes whatever."

On September 23, 1897, Simpson attempted to convey
this lot to the defendant, Baker. This deed was an ordi-
nary deed of conveyance, and referred to the lot con-
veyed as the same "lot given by J. N. Simpson to the
public school directors for school purposes, and used
heretofore for that purpose." On August 2, 1907, Simp-
son made another deed to Baker containing the follow-
ing recital :

"Whereas, on the 18th day of October, 1881, I con-
veved to the school directors of what was then the Six-
teenth school district of Humphreys county, Tennessee,

16 Cates] DECEMBER TERM, 1910. 43

Board v. Baker.

a certain town lot in the town of McEwen, in said
Humphreys county, which deed was duly acknowledged
by me and duly recorded in Book Z, pages 4 and 5, of
the register's office of Humphreys county aforesaid, to
which reference is here made for full description of said
lot and the terms of the deed; and whereas, said deed
provided that said school directors are to build a school-
house and church on said lot to be used for that pur-
pose only, and that when said lot of ground is aban-
doned for the purpose of school and church the title was
to revert back to me; and whereas, on the 23d day of
September, 1897, believing said lot had been abandoned
for school and church purposes, I transferred, sold, and
conveyed to James W. Baker for the consideration of
five hundred dollars the said lot above mentioned, but
since the date of this last deed some question has arisen
as to whether there was abandonment of the same on
the 23d of September, 1897, the date I conveyed the lot
to Baker; and whereas, since then said lot has been
abandoned for school and church purposes for years."
About the date of this last deed, defendant, Baker,
with the consent of one of the old school directors, took
possession of the lot, claiming it under his deeds from
Simpson. Thereupon, the complainants, who are the
county board of education for Humphreys county, and
the county superintendent of public instruction, who is
ex officio secretary of the county board of education,
filed this bill to recover the lot from Baker, alleging
that the public accepted the deed of Simpson and built

44 TENNESSEE REPORTS. [124 Tenn.

Board v. Baker.

a house upon the lot for school and church purposes, and
had continuously used it for such purposes up to a very
recent date before the filing of the bill, when defendant
took possession of the property and nailed up the house.
It was charged that there was no abandonment upon the
part of the public, and for that reason the right of re-
entry had never existed in Simpson, and therefore Baker
could not acquire a right of entry under the deeds to
him from Simpson. It was further charged that Simp-
son, by the execution of the deed to Baker, deprived
himself of all right of re-entry which he had reserved to
himself, although the contingency provided for in the
deeds as conferring that right should have happened.

The defendant answered the bill, and admitted that a
public school and church house was built upon the lot,
and admitted the conveyance to him by Simpson as
charged in the bill, but asserted that by reason of the
right of re-entry reserved by Simpson in his deed to the
school directors the defendant acquired title under the
subsequent conveyance from Simpson, because the con-
tingency provided for in the deed of Simpson to the
school directors had happened, in that the property had
been abandoned for school and church purposes. After
the filing of the bill, the legislature passed an act amend-
ing the charter of the town of McEwen, so as to es-
tablish for said town a school system under the control
of its board of mayor and aldermen, and transferred all
school property within its corporate limits, including
the lot in question, to the municipality. After this was

16 Cates] DECEMBER TERM, 1910. 45

Board v. Baker.

done, the board of mayor and aldermen filed a petition
.in the case to he permitted to be made complainants,
with the right to prosecute the suit in their name, and
this was done. The case was heard by the chancellor
upon the pleadings and proofs, and he declared that
there had been no abandonment of its rights by the pub-
lic at the time of the institution of this suit, and there-
fore the defendant had no right to the possession of the
property at that time, and he allowed a recovery of the
lot by the board of mayor and aldermen, and admitted
them to the possession thereof. He held, however, that
the two deeds from Simpson to defendant, Baker, passed
to Baker "all the rights that Simpson reserved to him-
self in his deed to the school directors in 1881 to re-enter
upon the property whenever it should be abandoned
for school and church purposes." To the first part of
the decree the defendant excepted, and has appealed and
assigned errors; and to the last part, the complainants
excepted, and hara appealed and assigned errors.

Upon the evidence, it can hardly be insisted that there
has been an abandonment of this property for school
and church purposes by the public. The only testimony
which tends to establish an abandonment is to the effect
that the house had been neglected to such an extent that
it was in bad repair and in a very dilapidated condition,
and some time prior to the filing of the bill the public
school was not taught in this house, because of the erec-
tion of a more commodious building at another place
in the town, and the school property that had thereto

46 TENNESSEE REPORTS. [124 Tenn.

Board v. Baker.

fore been used in it was removed to the new building.
It is shown, however, that the house was used for church
purposes by different denominations, and for Sunday
school purposes by the congregation of the Christian
church up to about April before the execution of the
last deed to Baker by Simpson. There is not an intima-
tion in the record that the public has surrendered its
rights in the property by any affirmative act upon its
part. There is nothing to show but what it is intended
at some future time to rebuild or repair the house and
continue to use it for church and school purposes. It is
not necessary that it should be used for the public
schools alone, but under the terms of the grant by Simp-
son to the public it is sufficient that it shall be used by
private schools, and if not used by any school it would
be sufficient if it were used for church purposes only.
The mere fact that the school directors, or other public
officials intrusted with the care of this property, had
neglected to repair it, is not evidence of an abandonment
of its rights by the public. The chancellor so held, and
we agree.

Under the assignment of error made by the com-
plainants, it is proper to determine the effect upon the
reserved right of re-entry in favor of Simpson in his
deed of 1881, which should be given to his subsequent
deeds of 1897 and 1907 to the defendant, Baker. It is
insisted by the complainants that Simpson merely had a
right of re-entry contingent upon the happening of the
bare possibility of the abandonment of the property by

16 Cates] DECEMBER TERM, 1910. 47

Board v. Baker.

the public for the uses to which it was dedicated, and
that, as his conveyance to the school directors divested
him of all interest in the estate conveyed, this contingent
right of re-entry is not a grantable interest in the prop-
erty, and therefore the chancellor was in error in de-
creeing that Baker would become vested with a right of
entry by virtue of his deed from Simpson whenever the
public should abandon the property. We think this con-
tention is sound. It is not every right in real estate
that is the subject of grant. A bare possibility of an
interest, which is uncertain, is not grantable. It must
be an interest in the land existing in possession, rever-
sion, remainder, by executory devise, or contingent
remainder. The rule which passes the after-acquired
title of a grantor under his covenants of warranty to
his grantee is an apparent exception to the general prin-
ciple just stated; but the exception is more apparent
than real. In such case the grantee has his right of
action for a breach of the covenant, and, when the gran-
tor acquires the title after the breach, the grantee has
such an inchoate interest in the title so acquired that it
may well be said that he does not acquire a bare possi-
bility of an interest, which is uncertain, within the
meaning of the rule here stated; but upon his covenant
of title he has a possibility coupled with an interest,
which will cause the after-acquired title to pass to him
immediately upon its acquisition by his grantor. So it
may be said generally that a bare possibility of an in-
terest in lands is not grantable. This is said with re-

48 TENNESSEE REPORTS. [124 Tenn.

Board v. Baker.

spect only to conditions reserved in the deed. There
seems to be a difference between conditions in law and
in deed. If there is a breach of the conditions in law, a
grantor, his heir, or assignee may avail himself of the
right to enter; but conditions in deed are reserved to
the grantor only, and are personal to him and his heirs,
and a stranger cannot take advantage of the breach of
the condition by entering and defeating the estate. It is
a right which cannot be aliened, nor assigned, nor passed
by a grant of the reversion at common law. The only
mode of taking advantage of a breach of a condition in
deed which has the effect to defeat or work a forfeiture
of an estate is by entry, and this is true upon the prin-
ciple that it requires as solemn an act to defeat, as to
create, an estate. When such entry is made, the effect
is to reduce the estate to the same condition, and to
cause it to be held on the same terms, as if the estate to
which the condition was annexed had not been granted.
But, notwithstanding a breach of the condition, the
estate, if a freehold, is only defeated by an entry made,
and until there is a re-entry it loses none of its original
qualities or incidents. The right of re-entry is at the
election of him who has the right to enforce it, and, if he
once dispense with it, he cannot afterwards enter for
a subsequent breach of the condition. Wash. Real Prop.,
vol. 3, pp. 370, 371; Id., vol. 2, pp. 13-15; Rice v. Boston
& W. R. R., 12 Allen (Mass.), 141.

Prom the foregoing principles, it is clear that the con-
veyance by Simpson to Baker was a relinquishment of

16 Cates] DECEMBER TERM, 1910. 49

^—— i ■ ■ ■ i » ii ■

Board v. Baker.

his right of re-entry and an election upon his part not
to exercise it, and yet the interest which Simpson had
in the estate before the breach of the conditions was a
bare possibility coupled with no interest in the land,
and was, therefore, not grantable. The decree of the
chancellor holding to the contrary is reversed, and a
decree will be entered here canceling the deeds of Simp-
son to Baker as clouds upon complainants' title, and
decreeing that the complainants are the owners in fee
and entitled to the immediate possession of the land
fraed for.

Other questions made upon the demurrer and plea of
defendant were disposed of orally.

124 Tenn.

50 TENNESSEE REPORTS. [124 Tenn,

Sadler v. State.

William Sadlbr v. State.
(Nashville. December Term, 1910.)

1. CRIMINAL LAW. Unnecessary presence of grand Jury officer
Is reprehensible, but his casual presence when witnesses are
examined will not vitiate indictment or presentment.

The policy of the statute (Shannon's Code, sec. 7041), prohib-
iting the presence of any officer or person with the grand jury,
"when the question is taken upon the finding of an indictment,"
requires secrecy in the investigations and proceedings of the
grand Jury, and their sessions are not open to the public; and
while it is improper and highly reprehensible for a court offi-
cer unnecessarily to enter or remain in the grand Jury room,
and, for such conduct, he should be rebuked and punished by
the presiding Judge, yet his casual presence during the exam-
ination of witnesses will not vitiate or invalidate the indict-
ment or presentment, unless it is shown that he attempted
to interfere with or influence the grand Jury in its action.
(Pott, pp. 62-54.)

Code cited and approved: Sec. 7041 (S.); sec. 6907 (M. ft V.);
sec. 6082 (T. ft S. and 1858).

Cases cited and approved: State v. Kimball, 29 Iowa, 267;
Richardson v. Commonwealth, 76 Va., 1007; State v. Bacon, 77
Miss., 366.

2. SAM E. Plea In abatement to Indictment or presentment upon
repugnant grounds is bad, if point Is made.

Where the plea in abatement to a presentment is based upon
two grounds, the first of which is that the grand Jury officer
was in the grand Jury room during the examination of wit-
nesses upon whose testimony it is supposed the presentment
was found, and the second of which is that the presentment
purported to have been returned upon the testimony of wit*

16 Cates] DECEMBER TERM, 1910. 51

Sadler y. State,
nesses, when as a matter of fact no witnesses were heard,

*

these two grounds are repugnant to each other, and such
plea is had, if the point is made in the trial court (Post, pp
52, 54.)

3. 8AM E. Same. Repugnant grounds of plea In abatement to in-
dictment or presentment not pointed out or acted on In trial
court may be considered In supremo court.

Where no point was made or action taken in the trial court
on a plea in abatement to a presentment or indictment for
repugnancy between the two grounds relied on, both grounds
may be considered fully in the supreme court (Pout, pp. 54, 55.)

4. 8AME. Presentments may be returned upon personal knowl-
edge of grand jurors or upon testimony of witnesses.

A presentment may be returned either upon the personal knowl-
edge of the grand jurors, or upon testimony of witnesses heard
by them. (Post, p. 65.)

5. 8AME. Presentment does not show that It was found upon
testimony of witnesses, because of indorsed designation of
witness to be summoned for State.

A presentment does not show that it was found upon the testi-
mony of witnesses examined before the grand jury, because
there was indorsed thereon, after the style of the case and
the designation of the offense, these words: "Summon wit-
nesses for the State: Jno. W. Hunter," etc., followed by the
signatures of the attorney-general and the foreman and mem-
bers of the grand jury. (Post, pp. 55, 56.)

Code cited and construed: Sees. 7052, 7054 (S.); sees. 5918,
5920 (M. ft V.); sec. 5092 (T. ft S. and 1858).

- •

Case cited and approved: State v. Lewis, 87 Tenn., 119, 121.

52 TENNESSEE REPORTS. [124 Tenn.

Sadler v. State.

FROM DAVIDSON.

Appeal in error from the Criminal Court of Davidson
County. — W. M. Hart, Judge.

Turkey & Turney and Cherry & Steger, for Sadler.

Assistant Attohnby-General Faw, for State.

Mr. Justice Green delivered the opinion of the Court

The plaintiff in error was convicted of selling intoxi-
cating liquor within four miles of a schoolhouse, was
fined and sentenced to six months in jail, and has
brought his case to this court.

No assignment of error upon the facts is made here,
it being conceded that the evidence is sufficient to sus-
tain the verdict

On the trial below, a plea in abatement was interposed
by the defendant there, which plea was demurred to by
the State, and the demurrer sustained.

Two grounds of the plea in abatement are relied on
as errors here and properly assigned.

The first is that one Will Jones, whom the record
shows to have been appointed grand jury officer, was
present in the grand jury room during the examination
of witnesses from the testimony of whom it is supposed
this presentment was found.

16 Gates] DECEMBER TERM, 1910. 53

Sadler v. State.

The statute on this subject is as follows :

"Whenever required by the grand jury, the prosecut-
ing attorney may attend before it for the purpose of
giving legal advice as to any matters cognizable by them,
but shall not be present, nor shall any other officer or
person, when the question is taken upon the finding of
an indictment. 9 ' Shannon's Code, section 7041.

It will be observed that the prohibition against per-
sons being present in the grand jury room is directed
particularly against their presence "when the question
is taken ;" that is to say, the statute prohibits the pres-
ence of any person when the grand jurors vote on the
finding of an indictment. There is nothing said in re-
spect to the presence of court officers or other persons
during the examination of witnesses.

The policy of the law required that the investigations
of a grand jury should be in secret, and their sessions
are not open to the public. It is improper for a court
officer to unnecessarily enter or remain in the grand
jury room. Such conduct on his part should be rebuked
and punished by the trial judge. While such a course
is highly reprehensible, yet in a case like this, we are not
willing to go to the extent of holding that the casual
presence of a court officer in the grand jury room during
the examination of witnesses should have the effect of
vitiating an indictment or presentment; that is, unless
there is some showing that the officer attempted to in-
terfere with or influence the grand jury in its action.

So far as we know, this court has not expressed itself

54 TENNESSEE REPORTS. [124 Tenn.

Sadler v. State.

on this proposition in any reported case, although there
have been oral opinions on this subject to the effect that
the presence of a grand jury officer in the room during
the examination of witnesses did not vitiate an indict-
ment or presentment.

It has been held by the courts of other States that,
since it is customary to have officers in attendance upon
grand juries, and in the performance of their duties it
is often necessary for such officers to enter the grand
jury room, the mere fact that an officer is present dur-
ing the examination of witnesses "will not vitiate an in-
dictment, in the absence of proof that he influenced or
attempted to influence the jury in making its finding."
20 Cyc, 1341 ; State v. Kimball, 29 Iowa, 267 ; Richard-
son v. Commomoealth, 76 Va., 1007.

It is so held in Mississippi, even though the officer be
present during the deliberations of the grand jury.
State v. Bacon, 77 Miss., 366, 27 South., 563.

We think the principle of these cases is correct, and
accordingly find no error in the action of the criminal
judge in sustaining the demurrer to this ground of the
plea in abatement

The other ground of the plea in abatement, which is
relied on here, is that this presentment purported to
have been returned on the testimony of witnesses, when
as a matter of fact no witnesses were heard.

While, as a matter of course, these two grounds of the
plea in abatement are repugnant, still, as no point was

16 Gates] DECEMBER TEEM, 1910. 55

Sadler v. State.

made or action taken on them in the court below, for
that reason we will here consider them fully.

It should be noticed that the plea does not aver that
the presentment was returned on the testimony of wit-
nesses, but the averment is that the presentment pur-
ports to have been returned on the testimony of wit-
nesses.

Examination of the presentment is therefore neces-
sary.

Hiere is nothing whatever on the face of the pre-
sentment to show whether it was returned on the knowl-
edge of the grand jurors, or whether upon the examina-
tion of witnesses. It is, of course, conceded that present-
ments may be returned either upon the personal knowl-
edge of the grand jurors, or upon testimony heard by
them.

On the back of this presentment, after the style of
the case and the designation of the offense, appears the
following :

"Summon witnesses for the State : Jno. W. Hunter,
at telephone company, Powell Cave." Then appears
the signature of the attorney general, and the signatures
of the foreman and members of the grand jury.

Speaking of an indorsement on a presentment similar
to this, this court said :

"Exactly what office this indorsement was intended to
serve does not clearly appear. Certainly it has no
•technical or fixed legal significance, as relating to a pre-
sentment, and there is no law requiring it

56 TENNESSEE REPORTS. [124 Tenn,

Sadler ▼. State.

"Where witnesses are called and examined by the
grand jury under the inquisitorial power, the fact that
they were sworn by the foreman is required to be in-
dorsed upon the subpoena, and not upon the present-
ment Code [1884], section 5918.

"In the case of an indictment, the names of witnesses
sworn by the foreman of the grand jury are by him to be
indorsed upon the indictment ; but in all cases of present-
ment, the names of witnesses so sworn are to be in-
dorsed upon the subpoena. Code [1884], section 5920.

"So in this case no legal inference is to be drawn from
the indorsement, beyond the fact therein stated. It is
not stated that the witnesses named were examined
upon this presentment, or that it was to any extent
based upon the testimony. The court c|tn indulge no
presumption that such was the fact." State v. Lewis, 87
Tenn., 119, 121, 9 S. W., 427, 428.

Accordingly, upon the authority of this case, it is not
true that this presentment purports to have been found
on the testimony of witnesses.

The presentment showing upon its face, therefore,
that it does not purport to have been found on the tes-
timony of witnesses, the criminal judge properly sus-
tained the demurrer to this ground of the plea in abate-
ment.

The judgment of the court below will be affirmed.

16 Cates] DECEMBER TEBM, 1910. 57

Pencil Co. y. Railroad.

American Lead Pencil Company, v. Nashville,
Chattanooga & St. Louis Railway.

(Nashville. December Term, 1910.)

1. CONTRACT8. Express or Implied, written or oral; meeting
of minds of part lee; mutual, definite; free from fraud or un-
due influence; not against public policy.

While a contract may be either express or implied, or written
or oral, yet it must be created by act of the parties, and must
result from a meeting of their minds in mutual assent to its
terms, and it must be based upon a sufficient consideration;
and it must be mutual, free from fraud or undue influence,
and not against public policy, and sufficiently definite to be en-
forced. (Post, p. 64.)

2. CUSTOM AND U8AQE. Custom la a general rule or law aris-
ing from usage or repetition of acta; usage may exlat with-
out custom, but custom not without usage.

Usage is a repetition of acts, and differs from custom in that
usage is, a fact, while custom is the law or general rule which
arises from such repetition; and while there may be usage
without custom, yet there cannot be a custom without usage
accompanying or preceding it (Post, p. 64.)

Case cited and approved: Cutter v. Waddingham, 22 Mo., 206-
248.

3. SAME. Admissible to explain ambiguity, or as furnishing the
rule where the contract la silent, but not to vary or contra-
dict Its terms.

Where a contract is. indistinct, ambiguous, or uncertain in its
terms, evidence of the usage or custom on the particular point
is admissible, like the general law, to explain the same, and
as furnishing the rule where the contract is silent, but not

58 TENNESSEE REPORTS. [124 Term.

Pencil Co. v. Railroad.

to vary or contradict the written contract, either expressly
or Impliedly. (Post, pp. 64, 65.)

Cases cited and approved: Bedford v. Flowers, 11 Humph., 242;
Charles v. Carter, 96 Tenn., 614.

4. 8AME. Usage cannot make a contract, nor prevent the effect
of settled rules of law.

Usage and custom, in legal contemplation, differ radically in
many respects from a contract, and the distinction between
them is quite apparent; and usage cannot make a contract
where there is no contract, nor prevent the effect of the set-
tled rules of law. (Post, pp. 64, 65.)

m Case cited and approved: Charles v. Carter, 96 Tenn., 614.

5. CHANCERY PLEADING AND PRACTICE. No relief upon
proof of case not alleged In the pleadings; no relief upon proof
of usage or custom not alleged, if no contract.

It is a fundamental principle that the proof must correspond
with the allegations in the pleadings, and relief cannot be
granted upon proof of a case substantially different from the
case made in the pleadings; and a bill seeking relief for the
breach of a contract cannot be sustained upon proof of usage
.or custom, and its breach, where there was no contract, ex-
press or implied. (Post, pp. 61, 62, 65-67, 68, 69.)

Cases cited and approved: Foster v. Jackson, 8 Baz., 434;
Railroad v. Collins, 85 Tenn., 227; Coal Co. v. Daniel, 100 Tenn.,

65; Railroad v. Lindamood, 111 Tenn., 457.

6. SAME. Same. No relief where the bill Is based upon a con-
tract, and the proof shows no contract, but a usage or cus-
tom of inferior employees not known to the principals.

The complainant, in an action against a railroad company for
the destruction of freight by fire while the car was standing
on a siding near complainant's warehouse, alleged that under
the contract between complainant and defendant, whenever
complainant applied for an empty car, defendant was bound
to furnish it as soon as possible, and, upon receipt of notice

16 Gates] DECEMBER TERM, 1910. 59

Pencil Go. v. Railroad.

that the car was loaded and ready for shipment, It was bound
forthwith to remove it from the switch, and promptly start
the same toward its destination; but defendant failed promptly
to remove the car in question from the siding, after receiv-
ing notice that it was loaded, but allowed several freight
trains to pass while it was standing on the siding, and left
it standing there, and that this default on the part of the
defendant was the proximate cause of the loss of the car by
fire. The evidence did not show a contract between the par-
ties whereby defendant was bound to move the car imme-
diately upon notice, but merely a usage to that effect, adopted
by the inferior employees of both parties for their mutual
convenience, not known to either principal, or to any of their
officers clothed with authority to make a contract. Upon these
allegations and upon such proof, it was held that a bill which
grounds the right to recover upon the breach of a contract
cannot be sustained by proof of usage or custom, instead of a
contract, so that proof of the usage was insufficient to sup-
port the allegations of the bill. (Post, pp. 61, 62, 65-70.)

7. COMMON CARRIERS. Liability does not commence while
something remains to be done by the shipper, nor until the
goods are ready for shipment.

A common carrier's risk begins on delivery and acceptance of
the goods by it; and if something remains to be done by the
shipper after the goods are put into the hands of the agent of
the carrier, before they are to be transported, the carrier
does not become liable as carrier until the goods are ready
for shipment (Post, pp. 67-69.)

Cases cited and approved: Watson v. Railroad, 9 Heisk., 255;
Stewart v. Oracy, 93 Tenn., 315; Wells v. Railroad, 51 N. C,
47; Basnlght v. Railroad, 111 N. C, 592; O'Neill v. Railroad,
60 N. Y., 138.

8. SAME. Same. Carrier's liability does not begin before bill of
lading Is signed, where It has not taken possession of the
goods, when.

60 TENNESSEE REPORTS. [124 Tenn.

Pencil Co. t. Railroad.

Where a car was loaded and standing at the shipper's ware-
house on a siding constructed for its convenience, but the
shipper had not, according to its practice, made out a tripli-
cate bill of lading and presented it to the carrier's agent to
be signed, though ample time had elapsed after the car was
loaded and before the fire for the shipper to do so, there was
no constructive delivery of the car to the carrier, so as to
make it liable for the goods upon their destruction by fire.
(Post, pp. 69-71.)

9. 8 AM E. Not liable for goods burned In the car by negligence
of shipper's employee before taken possession by the carrier.

Where a car loaded with freight was, when burned, standing
on a siding near the shipper's warehouse, and the fire was
started by a coal oil stove in the office of the shipper's ware-
house being turned over by one of the shipper's employees,
firing the warehouse, from which the flames spread to the car
and destroyed its contents, the act of the shipper's employee,
chargeable to the shipper, in starting the fire, was the prox-
imate cause of the loss of the goods, which were still in the
possession of the shipper, and not in the possession of the
carrier; and, therefore, the carrier is not liable for the loss
of the goods. (Post, pp. 71-73.)

Cases cited and approved: Lamont v. Railroad, 9 Helsk., 59,
60; State v. Ward, 9 Heisk., 105; Saunders v. Railroad, 99
Tenn., 135; Barr v. Railroad, 105 Tenn., 547; Railroad v. Nor-
man, 108 Tenn., 331; Railroad v. Wilson, 108 Tenn., 618; Rail-
road v. Haynes, 112 Tenn., 712; Railroad v. Kellogg, 94 U. S..
469; Insurance Co. v. Boon, 95 XJ. S., 130; Mill Co. v. Standard
Oil Co., 63 Fed., 400, 11 C. C. A., 253; Edgar v. Railroad, 32
Utah, 330.

10. 8AME. 8ame. Carrier Is not liable for loss caused by shipper's
act.

Even in cases where the relationship of common carrier exists,
the common carrier is not liable for a loss caused by the

16 Cates] DECEMBER TERM, 1910. ' 61

Pencil Co. v. Railroad.

shipper's act, whether that act be one of negligence, misad*
venture, or misfortune. (Post, pp. 71, 73-)

Cases cited and approved: Railroad v. Law, 68 Ark., 218; Hart
y. Railroad, 69 Iowa, 485; Coweta Co. v. Railroad, 4 Ga. App*
94.

FROM DAVIDSON.

Appeal from the Chancery Court of Davidson County.
— John Allison, Chancellor.

Smithson & Armstrong and Vertrbes & Vertrebs,
for complainant.

Frank Slemons and Claude Waller, for defendant.

Mr. Justice Buchanan delivered the opinion of the
Court

The American Lead Pencil Company filed its original
bill in the chancery court of Davidson county against
the Nashville, Chattanooga & St. Louis Railway. This
bill was based on the alleged breach of a contract, and
the alleged loss to complainant of a car load of pencil
and penholder material, the value of which is set out in
the bill to be $2,900 ; 'but the proof shows the value of
the contents of the car to have been $2,451.97.

This car load of material was destroyed by fire on Oc-

62 * TENNESSEE REPORTS. [124 Tenn.

Pencil Co. v. Railroad.

tober 24, 1904, while it was standing on a siding near
the warehouse of complainant in the town of Lewisburg,
Tenn. The car had been placed on the siding by de-
fendant at complainant's request, in order that the ma-
terial might be loaded into the car. The loading was
finished on October 22, 1904, near the hour of noon.

Complainant's contention, averred in the bill, was
that, whensoever complainant should apply for an
empty car in which to ship his products, defendant was
bound to furnish the car under the contract forthwith
and as soon as it could be done, and that, upon receipt
of notice from complainant that said car was loaded
and ready for shipment, the defendant was bound forth-
with to remove the car from the spur track, or siding,
and start the same towards its destination promptly.

Complainant averred in its bill that, when the car load
of material in controversy was loaded and ready to be
moved from the siding, it (the c&mplainant) gave to the
defendant immediate notice thereof, but that the de-
fendant failed to promptly move the car from the siding,
and allowed several of its freight trains to pass and
leave the car standing on the siding, and that this de-
fault on the part of defendant was the proximate cause
of the loss of the car by fire.

»

The fire which consumed the car and its contents
originated in the warehouse office of complainant, as the
result of the accidental overturning of a coal oil heating
stove. This stove was overturned by one of the em-
ployees of the complainant.

16 Cates] DECEMBER TERM, 1910. 63

Pencil Co. v. Railroad.

The defendant answered the bill, and denied the
existence of the contract sued on, and denied all of the
material averments of the bill, and further set up, by
way of defense, the statute of limitations of three years ;
but this defense of the statute of limitations was aban-
doned on the filing of an amended and supplemental bill
by the complainant showing matter in avoidance of the
statute.

Proof was taken on both sides, and on final hearing
the chancellor dismissed the bill, and fnade a memo-
randum of his opinion a part of the record in the cause.

The complainant appealed to this court

After a very careful review of all the evidence in this
cause, we are unable to reach the conclusion that any
contract of like tenor and effect to that averred in the
bill was ever in existence between these parties. No
one of the witnesses who testified in the cause had ever
seen such a contract, or had any knowledge of its exist-
ence. A usage, or course of dealing, of like character to
that which the bill avers was required by the contract,
undoubtedly did exist between the parties, as shown by
the proof, and there was much evidence that this usage
was a custom between the parties, and this usage seems
now to be relied on by the complainant as constituting
the contract set out in the bill.

We cannot bring ourselves to the conclusion that a
bill, which bases the complainant's right to recover upon
the breach of a contract, can be sustained by proof of
a usage, and no proof of a contract, or by proof of a

64 TENNESSEE EEPORTS. [124 Tenn.

Pencil Co. v. Railroad.

custom, and no proof of a contract. A contract is created
by act of the parties. It may be either expressed or im-
plied. It may be either written or oral. It must result
from a meeting of the minds of the parties in mutual
assent to its terms. It must be founded on a sufficient
consideration. It must be mutual, free from fraud or
undue influence, not against public policy, and sufficient-
ly definite. See Cyc, vol. 9, 241, 242, and note 1, p. 141.

Usage and custom, on the other hand, in legal con-
templation, differ radically in many respects from a
contract. Usage is a. repetition of acts, and is dis-
tinguished from custom in that usage is a fact, while
custom is a law. There may be usage without custom,
but there can be no custom without usage to accom-
pany or precede it Usage consists in the repetition of
acts, and custom arises out of this repetition. Esriche
Diet. Jurisprudence, quoted in Cutter v. Waddingham,
22 Mo., 206-248, and cited in Cyc.j vol. 12, p. 1030,
note 1.

Usage, then, as we have seen above, is the germ, which,
by constant repetition, and general use, and great an-
tiquity, develops into custom; and custom, when fully
developed, is a law. The distinction thus drawn be-
tween contract and usage or custom is quite apparent.
Where a contract between parties is shown to have
existed, and is indistinct or ambiguous, or uncertain in
its terms, usage or custom on the particular point will
be accepted, like the general law, not in contradiction
of the stipulations of the contract, but in explanation

1« Cates] DECEMBER TERM, 1910. 65

Pencil Co. v. Railroad.

of what is indistinct in it, and as furnishing the rule
where it is silent. See diaries v. Carter, 96 Tenn., 614,
36 S. W., 396. Usage ought never to be allowed to vary
or contradict the written instrument, either expressly
or by implication. See Bedford v. Flowers, 11 Humph.,
242. But usage cannot make a contract where there is
no contract, nor prevent the effect of the settled rules
of law. See Charles v. Carter, 96 Tenn., 614, 36 S. W.,
396.

It follows from the foregoing that to permit the com-
plainant to maintain its bill based upon the breach of a
contract, by proof of the breach of a usage, is to permit
complainant to profit by a variance between its bill and
its proof. The proof does not connect the defendant
with the loss, if the contract was in fact nonexistent, and
if there was no contract there was no breach, and so,
on the proof, the defendant would stand wholly discon-
nected from the loss of the property.

It is a fundamental principle that the proof must
correspond with the allegations in the pleadings. East
Tenn., etc., B. Co. v. Collins, 85 Tenn., 227, 1 S. W.,
883; East Tenn. Coal Co. v. Daniel, 100 Tenn., 65, 42
S. W., 1062 ; East Tenn., etc., R. Co. v. Lindamood, 111
Tenn., 457, 78 S. W., 99; Foster v. Jackson, 8 Baxt,
434.

In the last-named case, the court said:

"While technical forms in pleadings are not now re-
quired, still the parties should be confined to the case
made in the pleadings; the proof should correspond

124 Tenn. — 5

66 TENNESSEE REPORTS. [124 Tenn.

i. --i *- - i - - — — — — ^ ^^^^_ ^^^^—

Pencil Co. v. Railroad.

with the allegations; the parties ought not to be allowed
to charge one case in their pleadings and prove a case
substantially different; and we think a charge that an
attorney collected the money on a debt due his client
and failed to pay it over is substantially different from
proof that he did not collect the money, but might have
done so with due diligence."

Now, reverting to the case at bar, we think there is •
quite a substantial difference between the averment in
the bill of a loss occasioned by breach of a contract, and
proof of a loss not occurring as a breach of contract at
all, but of a loss occurring, as the complainant claims
under its proof, by breach of a usage, which is a wholly
different and distinct thing in its legal essence from a
contract. We do not mean to be understood in this
opinion as saying that circumstances might not arise
where the courts would hold parties to a usage or to a
custom — to have created by their course of dealing an
implied contract; but under the facts of this case it is
clear that there was no contract between the parties to
this suit, either express or implied.

The parties to this suit are respectively corporations —
one a manufacturing corporation, and the other a rail-
road corporation. It is not shown by the evidence in
this record that the usage, shown to have existed by the
proof, was ever brought to the attention of any officer of
either of these corporations clothed with authority to
make a contract, such as is set out in the bill. The usage
in this case, adopted by the inferior employees of these

16 Cates] DECEMBER TERM, 1910. 67

Pencil Co. v. Railroad.

corporations for the convenience and mutual accommo-
dation of the employees in handling shipments, cannot
be held to have the force and effect and dignity in law
of a solemn contract, either express or implied, between
these corporations.

It follows from these views that there was a fatal
variance between the averments of the complainant's bill
and its proof, on account of which variance there could
be no recovery by the complainant in the court below.

There is another view of the case, however, upon
which we are equally clear that the complainant was
not entitled to a recovery on the proof in this cause, leav-
ing out of view altogether the question of contract.

The risk of a common carrier begins on delivery and
acceptance of the goods. Chitty, Con., 73-78; Mathew
Watson v. Memphis (6 Charleston Ry. Co., 9 Heisk., 255 ;
Stewart, Ralph & Co. v. Oracy & Bro., 9 Pick., 315, 27
S. W., 664.

If something remains to be done by the shipper after
the goods are put into the hands of the agent of the car-
rier before they are to be transported, the carrier does
not become liable as carrier until the goods are ready for
shipment.

See Cyc, vol. 6, p. 414, and authorities cited in note
60; Basnight v. Atlanta & N. C. R. R. Co., Ill N. O.,
592, 16 S. E., 323; 2 Am. & Eng. Ency. of Law, 808;
O'Neill v. Railroad Co., 60 N. Y., 138 ; Wells v. Railroad
Co., 51 N. C, 47, 72 Am. Dec, 556.

68 TENNESSEE REPORTS. [124 Tenn.

Pencil Co. v. Railroad.

Was the delivery to the defendant as a common car-
rier ever completed?

Under the proof in the cause, it appears that the ware-
house of complainant was located about four hundred
feet from the main line of the defendant, and for the
convenience of complainant in 1896 a spur track was

*

built by the defendant from the main line to the ware-
house, and alongside of the same, so that defendant
could switch cars alongside the warehouse, thereby
enabling complainant to make convenient loading of the
car. When complainant had sufficient material to load a
car, it would notify defendant's agent by telephone or
in writing, and a car would be delivered alongside the
warehouse and there loaded by complainant, who would
then notify defendant's agent that the car was ready to
be pulled out, and after that, at convenient time before
the car would leave Lewisburg, complainant would
make out a bill of lading in writing in triplicate, and
take it to the depot and have it signed. This signing of
the bill of lading was usually done after the car was
pulled out on the main line, and always before the car
left Lewisburg; the defendant insisting on this, and re-
fusing to pull the car out of Lewisburg until the bill
of lading was signed. The complainant had scales and
weighed each car, and these weights were required to
be inserted in the bill of lading. No bill of lading was
ever made out by the complainant for tlje car in contro-
versy in this suit. There was ample time on Saturday,

*

the 22d, after the car was loaded, there was ample time

16 Cates] DECEMBER TERM, 1910. 69

«

Pencil Co. \. Railroad.

on Sunday, the 23d, there was ample time on Monday,
the 24th, before the car burned, for the complainant to
have made out this bill of lading, and to have had it sign-
ed by the agent of the defendant ; but this was not done,
and it is admitted by the manager of the complainant,
in charge at the time of the fire, that it was not done-
He also admits that the defendant company always re-
fused to move a car from Lewisburg until the bill of
lading had been signed ; but he claims that the defendant
should have moved the car out onto the main line on
Saturday or Monday, and complainant's contention
is that, if this had been done, the car would not have been
destroyed by the fire which consumed complainant's
warehouse.

It will be noted that two things remained to be done
in order to complete the relationship of shipper and
carrier as to the car in controversy. One of these things
was to be done by the shipper; that is, the preparation
and presentation for signature of the bill of lading. This
was never done by it. One thing also remained to be
done by the carrier to complete the relation, to wit, the
taking of the car into possession. This could have been
done by the carrier in two ways, if it had signed the
bill of lading, which act would have amounted to con-
structive possession, inasmuch as the material was al-
ready loaded into the car, and the car was standing on
the siding accessible to the main track. Or, if the car-
rier had taken actual possession of the car by pulling it
out onto the main track, this would be taking of posses-

70 TENNESSEE REPORTS. [124 Tenn.

Pencil Co. v. Railroad.

sion by the carrier ; but inasmuch as one thing remained
to be done by the shipper, and one thing remained to
be done by the carrier, in order to complete the relation
of carrier and shipper, the conclusion appears that this
relationship did not exist between the parties to this
suit as to the car in controversy. Until these two things
were done, necessary to create the relationship, the pos-
session of the material in the car and the possession
of the car was with the complainant. It was at his ware-
house on a siding constructed for his convenience, and
most assuredly not in possession of the carrier until the
carrier did either one of the two things necessary, as
above shown, to transfer the possession or charge it with
the possession of the car under the law.

Manifestly, on these facts, the complainant could not
base a claim against the defendant under the common
carrier liability as an insurer of the goods. The contro-
versy then narrows to this point. The complainant in-
sists that the defendant caused the loss by not moving
the car promptly when notified. The defendant answers
that it was under no contract obligation to mora the car,
either express or implied, and that the suit is on con-
tract. The complainant then says that, under the usage,
"you are bound to move it promptly." The defendant
replies: "You did not sue on the usage. Violation of
the usage is not the basis of your suit"

On each of these contentions it seems to us that the
defendant has the best of the argument, and when the
point is reached where we can say on this evidence that

16 Cates] DECEMBER TERM, 1910. 71

Pencil Co. v. Railroad.

the relation of carrier and shipper did not exist between
complainant and defendant as to this car, the complain-
ant is deprived of the benefit of all the authorities on
which it bases its contention as to liability of the defend-
ant; for it is believed that no one of the authorities
upon which it relies was based on a state of facts where
the relationship of common carrier and shipper did not
exist. Assuming, then, that this relationship did not
exist, how does the case stand as to the proximate cause
of the loss? The proof is without controversy on this
point. One of the complainant's employees overturned a
coal oil heating stove in the office of complainant's ware-
house. Fire from the stogie ignited the oil. The flames
enineloped the complainant's warehouse, from which they
caught and ultimately destroyed the car load of materi-
al in controversy in this suit.

At the time of the fire, as we have seen, the car was in
the possession of the plaintiff, and not in the possession
of the defendant. The loss occurred before the relation-
ship of carrier and shipper existed. The loss is traceable
directly to the act of one of the complainant's employees,
and the complainant's act is therefore the act which
wrought the destruction of its property. Its act was
the proximate cause of the injury. State of Tenn. v.
Ward & Briggs, 9 Heisk., 105; Lamont drGo. v. N. C.
(0 St. L. Ry. Co., 9 Heisk., 60 ; Edgar v. Rio Grande &
W. Ry. Co., 32 Utah, 330, 90 Pac, 745, 11 L. JR. A. (N.
S.), 738, 125 Am St. Rep., 867; Cooley on Torts (2d
Ed.), 73-76; Aetna Fire Ins. Co. v. Boon, 95 U. S., 130,

72 TENNESSEE REPORTS. [124 Tenn.

Pencil Co. v. Railroad.

24 L. Ed., 398; Milwaukee & St. P. R. R. Co. v. Kellogg,
94 U. S., 469, 24 L. Ed., 256; Goodlander Mill Co.
v. Standard Oil Co., 63 Fed., 400, 11 C. C. A.,
253, 27 L. R. A., 587; Railroad Co. y. Haynes,
112 Tenn., 712, 81 S. W., 374; Memphis St. Ry. Co. y.
Wilson, 108 Tenn., 618, 69 S. W., 265; Nashville St. Ry.
Co. v. Norman, 108 Tenn., 331, 67 S. W., 479; Saunders
v. Railroad Co., 99 Tenn., 135, 41 S. W., 1031 ; Barr y.
ftailway Co., 105 Tenn., 547, 58 S. W., 849.

In the case of Lamont & Co. v. N. C. & St. L. Ry. Co.,
9 Heisk., 59, this court said:

"None of the cases cited in support of this conclusion
go to the extent of holding that the delay to ship or start
goods to their destination within a reasonable time,
after left for transportation, will amount to such neg-
lect as of itself to make the carrier liable for the loss oc-
casioned proximately by the act of God.

"On the contrary, all the cases cited are cases in which
the assumed negligence, or want of due diligence and
care, occurred at the time of the loss, and while the goods
were in transitu."

If mere delay to ship or start goods to their destina-
tion within a reasonable time after they are left for
transportation does not amount to such neglect as will
make the carrier liable for the loss of goods occasioned
proximately by the act of God, it is difficult to see how
we could hold that mere delay on the part of this defend-
ant company to remove this car as promptly as it might
have done, when the car was not in its possession, not in

16 Gates] DECEMBER TERM, 1910. 73

Pencil Co. r. Railroad.

transitu, not covered by a bill of lading, and when the
complainant had not surrendered possession of it, will
amount to an act of negligence by defendant which we
can say was the proximate cause of the loss of the car
by the fire.

Even in cases where the relationship of common car-
rier does exist, the common carrier is not liable
where the loss is caused by the shipper's act, whether
that act be one of negligence, or misadventure, or mis-
fortune.

See Hutchinson on Carriers (1st Ed.), sections 265-
328 ; Elliott on Railroads, sec. 1454 ; St. Louis, I. M. &
8. Ry. v. Law, 68 Ark., 218, 57 S. W., 258; Hart v. Chi-
cago £ N. W. Ry. Co., 69 Iowa, 485, 29 N. W., 597; Cow-
eta County v. Central of Oa. Ry. Co., 4 Ga. App., 94,
60 S. E., 1018; Cyc, Vol. 6, p. 379; Thompson on Neg.,
vol. 5, sec. 6464.

The decree of the chancellor will be affirmed, with
costs.

74 TENNESSEE REPORTS. [124 Tenn.

Leech v. State.

Ollib Leech v. State.
(Nashville. December Term, 1910.)

1. CRIMINAL LAW. Where the accused pleads guilty before a
justice, the justice must proceed under the small offense law,
when applicable, though the grand jury Is In session.

Under the statute (Acts 1899, ch. 16) providing that whenever
any person brought, while the grand jury is in session, before
a justice of the peace, upon a warrant for any criminal of-
fense or misdemeanor, pleads guilty, the accused shall be dealt
with under the small offense law, where that law is appli-
cable, a justice before whom one charged with gaming is
brought must, if the accused pleads guilty, proceed under the
small offense law, though the grand jury is in session, and
it is error to bind him over to the criminal court

Acts cited and construed: Acts 1899, ch. 16.

2. SAME. Same. Plea In bar containing same facts as overruled
plea In abatement amounts to a plea of guilty upon the facts,
when*

Where the accused pleads in abatement to a presentment for a
misdemeanor falling under the small offense law, as gaming,
by a sufficient plea showing that he pleaded guilty before the
justice of the peace, and a demurrer thereto is sustained, and
the accused thereupon files another plea as a plea in bar con-
taining the same facts, the latter plea amounts to a plea of
guilty upon the facts. {Post, pp. 77, 78.)

3. SAME. Same. Same. Remandent for Issue on plea in abate-
ment, and If sustained, case to be remanded to the justice to
proceed under small offense law, when.

Where the accused files a sufficient plea in abatement to a pres-
entment for a misdemeanor falling under the small offense law,
showing that he properly pleaded guilty before the justice of

16 Gates] DECEMBER TEEM, 1910. 75

Leech v. State.

the peace, and that the justice improperly and erroneously
bound him over to the criminal court, and the criminal court
erroneously sustained a demurrer to such plea in abatement,
the supreme court, upon reversing the case, will remand the
cause to the criminal court to the end that an issue may be
made upon the plea in abatement; and directing the criminal
judge, in case the issue is found in favor of the accused, to
remand the cause and direct the return af the papers to the
justice of the peace, with directions to proceed against the ac-
cused under the small offense law. (Po$t, p. BO.)

FROM DAVIDSON.

Appeal in error from the Criminal Court of David-
son County. — A. B. Neil, Judge.

C. H. Rutherford, for Leech.

Assistant Attorney-General Faw, for State.

Mr. Justice Neil delivered the opinion of the Court

On January 9, 1911, a presentment was returned
into the criminal court of Davidson county against the
plaintiff in error for gaming; it being alleged that "he
did play, bet, gamble, and put in hazard upon a certain
game of hazard and address, at dice, money of the value
of fifty cents," etc. There was a second count to the

76 TENNESSEE REPORTS. [124 Tenn.

Leech v. State.

effect that he had encouraged and promoted the game
referred to.

The plaintiff in error then filed his plea in abatement
as follows:

"In this cause comes the defendant in his own proper
person, and for plea to the indictment against Mm in
this cause says :

"That previous to the returning of the indictment
in this case, and previous to the time the witness in
this case went before the grand jury, defendant was ar-
rested upon a warrant issued by Jake Levine, a justice
of the peace of Davidson county, Tennessee. This was
on January 7, 1911, and defendant was taken on said
date before said justice of the peace, and defendant reg-
ularly entered a plea of guilty and submitted to the ju-
risdiction of said justice of the peace, and said case was
set for trial by said justice of the peace for Tuesday,
January 10, 1911. Defendant was committed to jail in
default of bond by said justice, on January 7, 1911, and
was released on January 9, 1911, and on the morning of
January 9, 1911, he again applied to said justice of the
peace to be allowed then and there to plead guilty to said
charge of gaming, but was informed that the case had
been set for 3 o'clock, Tuesday, January 10, 1911, and
that he could do what he desired to do at that time, and
when his hour of trial arrived on January 10, 1911, said
justice of the peace refused to allow defendant to plead
guilty, but proceeded to bind him over to the criminal
court, and upon default of bond he was by said justice

16 Cates] DECEMBER TERM, 1910. 77

Leech t. State.

committed to jail, and in the meantime the indictment
was returned against him in this court.

"Defendant further avers that the grand jury of David-
son county, Tennessee, was not in session on January
7, or 8, 1911, but that it was in session on the 9th and
10th, 1011.

"The offense charged against defendant, to wit, gam-
ing, in the indictment in this case, is the same offense as
charged against him in the warrant sworn out before
said Jake Levine, J. P., and he is only charged with one
offense, and the time and place of said offense alleged
against him in said indictment and said warrant are
one and the same, and defendant is the same person
named and the charged in both said warrant and indict-
ment, and the prosecutors, or State's witnesses, are the
same persons in both said indictment and in said State's
warrant.

"The defendant, therefore, submits that he is already
being held to answer said offense before a tribunal hav-
ing full and ample jurisdiction, authority, and power
to try said offense of gaming upon the defendant's plea
of guilty and, said court having first assumed juris-
diction of the person of the defendant and of the offense
charged against him, that this court has no jurisdiction
whatever over the person of the defendant, and, there-
fore, prays to be hence discharged, with his reasonable
costs in this behalf sustained."

This plea was demurred to by the State, the demurrer
sustained, and the plaintiff in error put to his trial, and

78 TENNESSEE REPORTS. [124 Tenn.

Leech v. State.

he thereupon filed another plea as a plea in bar, contain-
ing the same facte, and which, of course, amounted to a
ple$ of guilty. He was tried before the trial judge without
the intervention of a jury on his said plea of guilty, and
fined ten dollars and costs. Thereupon he appealed to
this court, after his motion for a new trial and his mo-
tion in arrest of judgment had been overruled.

The point of his complaint here is that he should have
been fined by the justice of the peace upon his plea of
guilty, when his case was there, and there should have
been no indictment at all. The difference to him is in
the very large bill of costs which was accumulated
against him, owing to the unnecessary calling and at-
tendance of witnesses, clerk's costs, and other costs;
that is, unnecessary, if his plea of guilty before the jus-
tice of the peace should have been acted on by that offi-
cial.

We think the trial judge committed error in overruling
the plea in abatement.

Chapter 16 of the Acts of 1899 provides that whenever
any person is brought before a justice of the peace of the
State upon any warrant for any criminal offense or mis-
demeanor, if the grand jury of the county where the
offense is charged to have been committed is in session,
the justice of the peace shall not try the case "unless the
defendant plead guilty," but shall, if the offense charged
is bailable, take bond of the defendant in such sum as
the law prescribes for the offense charged for his appear-
ance before the court in charge of or impaneling the

16 Cates] DECEMBER TERM, 1910. 79

Leech v. State.

grand jury from day to day pending an investigation
of the offense by such grand jury. Section 3 provides
that, if the defendant plead guilty to the charge in the
warrant, the proceedings in the case shall then be the
same in all respects as now prescribed by law; that is,
the defendant shall be dealt with under the small offense
law, in cases to which that law is applicable. To the
end that no unnecessary costs may be entailed, sec-
tion 4 provides that the justice of the peace shall, before
issuing subpoena for witnesses or entailing other costs,
require the defendant to plead to the warrant.

Now in the present case it appears that the defendant
below, plaintiff in error here, pleaded guilty before the
justice of the peace ; and it was the duty of that official
to proceed as usual under the small offense law; the
charge being of that character. The fact that the grand
jury was in session did not affect his duty in this regard,
since cases of this character are made an exception under
sections 1 and 3 of the act referred to. Of course, those
sections likewise refer to cases other than those
falling under the small offense law; but in that class
of cases — that is, those other than small offenses — where
the plea of guilty is entered before a justice of the peace,
certainly his duty would be to take bond of the defendant
for the offense charged for his appearance before the
court in charge of or impaneling the grand jury from
day to day, pending an investigation of the offense by
such grand jury, or if the case is not bailable, or the de-
fendant refuse to give bond required, his duty would

80 TENNESSEE REPORTS. [124 Tenn.

Leech r. State.

be to commit him to jail pending the investigation. The
warrant, or the bond, if any be given, should be at once
transmitted to the court.

The cause will be remanded to the criminal court of
Davidson county, to the end that an issue may be made
upon the plea in abatement, and that issue heard. In
case the plea in abatement be found true on the facts,
it will be the duty of the judge of the criminal court
to remand the cause, and have the papers in the case
returned, to the justice of the peace, with directions to
proceed against the plaintiff in error under the small
offense law.

16 Cates] DECEMBER TERM, 1910. 81

Jordan v. State.

Ed Jordan v. State.
(Nashville. December Term, 1910.)

1. CRIMINAL LAW. Appeal doee not lie from Judgment upon
plea of present Insanity adverse to the defendant In a homi-
cide.

The judgment upon the plea of present insanity adverse to the
defendant in a homicide case Is not a final judgment from
which the defendant may appeal, because it is upon a collateral
issue, and not final. (Post, pp. 84, 88.)

2. SAME. Accused cannot be put upon his trial, while Insane.

One charged with crime cannot be required to plead to the in-
dictment, and be put upon his trial, sentenced, or punished
while insane. (Post, pp. 87, 90.)

3. 8AM E. Accused cannot escape trial upon ground of present
insanity, If he can defend rationally.

The accused cannot escape trial upon the ground of present in-
sanity, unless it is such that he cannot conduct his defense
rationally. (Post, pp. 87, 88.)

4. 8AM E. Same. Trial of issue of present Insanity Involves what
The question presented upon the trial of the issue of present

insanity is not the guilt or innocence of the accused, but
whether his mental condition is such that he can conduct his
defense rationally; and the Issue is purely a collateral one.
(Post, p. 88.)

5. 8AM E. 8ame. 8ame. Sanity may be proved by a preponder-
ance upon Issue of present Insanity, and Is not required to be
proved beyond a reasonable doubt.

The rule that the defendant, the presumption of sanity being
overthrown, must be proved to be sane beyond a reasonable
doubt, Is applicable in criminal trials upon the direct issue of

124 Tenn.

82 TENNESSEE REPORTS. [124 Tenn.

Jordan v. State.

the guilt or innocence of the defendant, and not to the deter-
mination of preliminary matters and collateral issues, such as
the issue of present insanity; for in the latter case, sanity may
be proved by a preponderance of evidence. (Post, pp. 86-89, 91.)

Cases cited and approved: Dove v. State, 3 Heisk., 349; Stuart
v. State, 1 Bax., 181; King v. State, 91 Tenn., 648.

6. 8AM E. 8ame. 8ame. 8am e. Practice is not prescribed by stat-
utes; sanity proved by preponderance, and not beyond reason-
able doubt.

The statute (Code of 1868, Sec. 1554, and Acts 1871, ch. 138,
sec. 7), providing that, on a plea of present insanity, the court
shall charge the jury that, if from the evidence they believe
the defendant to be Insane and dangerous to be at large, they
shall so find, does not fix the practice in such cases, because
these provisions are found in chapters of the Code and Acts
relating to the government of hospitals for the insane, and the
particular provisions mentioned are intended to provide for
the admission of parties charged with crime who cannot be
tried because of their insanity, though the language indicates
that the trial is to be by jury, and that only a preponderance
of evidence is necessary to determine the Issue. (Post, pp.
89-91.)

Code cited and construed: Sec. 1554 (T. & S. and 1858). See
sec. 2631 (S.); sec 2065 (M. & V.).

Acts cited and construed: Acts 1871, ch. 138, sec. 7.

7. 8AM E. Plea of present insanity to be sworn to by friend of
defendant, and filed, when.

The proper practice in submitting a plea of present insanity is
to have it verified by the oath of a friend of the defendant,
and filed before the trial upon the indictment. (Post, p. 91.)

Case cited and approved: Oreen v. State, 88 Tenn., 634.

8. 8AM E. Plea of present Insanity to be submitted to a special
Jury, when.

Where, on a plea of present insanity, there is any possible
doubt upon the question of sanity, the issue should be sub-

16 Cates] DECEMBER TERM, 1910. 83

Jordan v. State.

mltted to a jury in the trial court, specially impaneled to try
it (Post, p. 91.)

Case cited and approved: Flrby v. State, 3 Bax., 358.

Case cited and distinguished: Bonds v. State, M. A Y., 143.

9. SAME. Present Insanity of accused may be Investigated and
determined by the supreme court, without a jury, when.

Where it appears to the supreme court that the accused is prob-
ably insane and should not have been tried, or that Judgment
against him should not be executed, that court will investigate
and determine the question of Insanity without a jury, and
make such order as the dictates of humanity and the law re-
quire in the postponement of trial or judgment (Post, p. 91.)

Cases cited and approved: Bonds v. State, M. ft Y., 143; Oreen
v. State, 88 Tenn., 635.

FROM DAVIDSON.

Appeal in error from the Criminal Court of Davidson
County.— A. B. Neil, Judge.

J. B. Newman, J. H. Zarecor, J. B. Garner, and J.
E. Turney, for Jordan.

Assistant Attorney-General Paw, for State.

84 TENNESSEE REPORTS. [124 Tenn.

Jordan v. State.

Mb. Chief Justice Shields delivered the opinion of
the Court.

Ed Jordan, the plaintiff in error, was indicted at the
January term, 1910, of the criminal court of Davidson
county for murder in the first degree, committed upon
the body of Ed Thomasson. He was arraigned on
April 2, 1910, and through his attorneys filed a plea of
present insanity, averring "that the said defendant is
at present insane and incapable of rendering his attor-
neys such assistance as a proper defense to an indict-
ment for murder in the first degree demands," and
issue thereon was joined by the State.

There was a trial upon this issue November 17, 1910,
resulting in a verdict against the contention of the plain-
tiff in error, and the court thereon adjudged "that the de-
fendant is at present sane and should be put upon his
trial upon the indictment herein."

A motion for a new trial was made for the defendant,
and upon it being overruled, a bill of exceptions was
signed and filed, and an appeal in the nature of a writ
of error prayed to this court, which was properly refused
by tlje trial judge, because the judgment entered was up-
on a collateral issue and not final. The case was called
for trial December 6, 1910, and, when called upon by
the court to plead to the indictment, the defendant,
through his attorneys, declined to plead further, and a
plea of not guilty was filed for him by order of the trial
judge. The trial was then proceeded with, and on De-
cember 12, 1910, the jury returned a verdict finding the

16 Cates] DECEMBER TEEM, 1910. 85

Jordan v. State.

defendant guilty of murder in the second degree, and
fixed his punishment at twenty years' confinement in the
penitentiary. A motion for a new trial was overruled,
and judgment entered in accordance with the verdict
of the jury, from which the defendant prayed an appeal
in the nature of a writ of error to this court, which was
granted, and a bill of exceptions preserving the proceed-
ings upon this trial was duly signed and filed.

The transcript before us contains the record upon the
issue of present insanity and that of not guilty ; in other
words, the entire record made in the trial court.

The first and second errors assigned by the plaintiff
in error relate to the trial upon the plea of present insan-
ity, and are as follows :

"The court erred in charging the jury: 'The law
presumes that all persons are of sound mind until the
contrary is made to appear. When, therefore, any per-
son charged with a criminal offense punishable by death
or imprisonment pleads insanity, as in this case, and
presents evidence establishing or tending to establish the
said plea, which evidence is sufficient to rebut and over-
turn the presumption of sanity, then it must be made
to appear to your satisfaction from all the evidence that
the defendant is of sufficient mental capacity to give
sane advice to his counsel involving the charge in the
indictment.'

"The court erred in refusing to charge the jury, as
requested by the defendant, on the trial of the issue of
present insanity, as follows:

86 TENNESSEE REPORTS, [124 Tenn.

Jordan v. State.

" 'The court charges you that you enter upon the in-
vestigation of this case with the presumption that the
defendant is sane, and under this presumption of law
it is not necessary for the State to adduce proof of his
sanity until the presumption is overturned by proof of in-
sanity introduced by defendant. When the proof of
insanity makes an equipoise, the presumption of sanity
is neutralized; it is overturned; it ceases to weigh,
and the burden of proof then devolves upon State
to show the sanity of the defendant beyond a reasona-
ble doubt.'"

These assignments present but one question; that is,
whether upon an issue of present insanity the general
rule that the jury must find in accordance with the pre-
ponderance of the evidence, as in civil cases, or the doc-
trine of reasonable doubt, applicable in criminal cases
upon the trial of the issue of guilt or innocence prevails.
The trial judge charged that if the evidence offered by
the defendant was sufficient to rebut and overturn the
presumption of sanity, then it must appear to the satis-
faction of the jury from all the evidence that the defend-
ant was of sufficient mental capacity to give sane ad-
vice to his counsel involving the charge in the indict-
ment. While counsel for the plaintiff in error insisted,
by a special request, seasonably presented, that he should
charge that, the presumption of sanity being overcome,
the burden was upon the State to show the sanity of the
defendant beyond a reasonable doubt.

The charge of the court was, in substance, that, if the

16 Gates] DECEMBER TERM, 1910. 87

Jordan v. State.

presumption of sanity was rebutted by all the evidence
introduced, the burden was then upon the State to es-
tablish by a preponderance of the proof that the defend-
ant was sane or of sufficient mental capacity to give
advice to his counsel concerning his defense.

By the common law, one who was charged with crime
cannot be required to plead to the indictment, put upon
his trial, sentenced, or punished while insane. The stat-
utes to this effect that have been enacted in some juris-
dictions are only declaratory of the common law. Black.
Com., vol. 4, pp. 24, 396.

It would be inhuman, and to a certain extent a de-
nial of the right of trial upon the merits, to require one
who has been disabled by the act of God from intelli-
gently making his defense to plead or be tried for his
life or liberty. There may be circumstances in all cases
of which the defendant alone has knowledge, which
would prove his innocence, the advantage of which, if
insane to such an extent that he did not appreciate the
value of such facts, or the propriety of communicating
them to his counsel, he would be deprived. It is not,
however, every case of insanity that will incapacitate
one from properly making his defense and prevent him
from being placed upon trial. He may be insane upon
some subjects, yet perfectly sane in regard to all other
matters, and capable of properly advising his counsel.
It may therefore be said that if a person arraigned for
crime is capable of understanding the nature and object
of the proceedings going on against him, if he rightly

88 TENNESSEE EEPORTS. [124 Tenn.

Jordan v. State.

comprehends his own condition in reference to such pro-
ceedings, and can conduct his defense rationally, he is,
for the purpose of being tried, to be deemed sane, al-
though on some other subjects his mind may be deranged
or unsound.

The question presented by the issue is not whether the
defendant can distinguish right from wrong, but is, as
explained by the trial judge in another part of his
charge, whether he is at the time of the investigation in-
capable, because of unsoundness of mind, of rendering
his attorneys such assistance as a proper defense to an
indictment preferred against him demands. The guilt
or innocence of the defendant is in no way or to no ex-
tent involved in the issue. The inquiry is not as to his
mental status at the time the crime was committed,
which may be months or years before, but the condition
of his mind at the time the inquiry is being made. The
object of it is solely to determine whether he has mind
and discretion which would enable him to appreciate the
charge against him, the proceedings thereon, and enable
him to make a proper defense.

It is a proceeding preliminary to the trial upon the
guilt or innocence of the defendant, and the only effect
it can have on such trial is to postpone it, in the event
the issue is found for the defendant.

It is purely a collateral issue, similar to those in-

»

volved upon an* application for continuance, or the
qualification of a talesman when that jury is being im-
paneled. It is also somewhat analogous to cases where

16 Cates] DECEMBER TERM, 1910. 89

» " — ^— — — — — —— — — ^— — — — — — — —

Jordan v. State.

the question of the admission of evidence is presented
and tried by the presiding judge, such as the competency
of dying declarations and of secondary evidence of the
contents of lost documents. In all these cases, although
the question may arise in a criminal case, the determina-
tion is controlled by the preponderance of the proof.
Peremptory challenges are not allowed in the trial of
this issue, because they are only given where the trial
is upon the indictment. Freeman v. People, 4 Denio
(N. Y.), 9, 47 Am. Dec, 216.

The rule that the defendant, the presumption of sanity
being overthrown, must be proven to be sane beyond a
reasonable doubt, is applicable in criminal trials upon
the direct issue of the guilt or innocence of the defend-
ant Stuart v. State, 1 Baxt, 181; Dove v. State, 3
Heisk., 349 ; King v. State, 91 Tenn., 648, 20 S. W., 169.
But it has never been applied in the determination of
preliminary matters and collateral issues in such cases.
Public policy forbids that it be extended to such mat-
ters; for it is evident that, if it was, it would greatly
embarrass the enforcement of the criminal law with that
'speed and certainty which its administration demands.

Counsel for State have called our attention to Code
1858, section 1554, and to chapter 138 of the Acts of
1871; section 7 providing: ".That when the plea of
present insanity is urged in behalf of any person charged
with a criminal offense punishable by imprisonment or
death, the court shall charge the jury that if from the
evidence they believe the defendant to be insane, and

90 TENNESSEE REPORTS. [124 Tenn.

" I

Jordan v. State.

that it would endanger the pieace of the community to
set him at liberty, they shall so find." The statute then
proceeds to provide that in case a defendant is found to
be insane upon such inquiry that he shall be committed
to the hospital for insane until he shall have recovered,
when he shall again be delivered to the authorities of the
State to be tried for the offense of which he is charged.

It is suggested that the rule to be observed in such in-
quiries is here fixed by statute. We do not think that
such was the intention of the general assembly, because
these provisions are found in chapters of the Code and
acts concerning the government of the hospitals for the
insane in this State, and the sections referred to were
only intended to provide for the admission of parties
charged with crime who were found to.be insane and
for that reason should not be tried. However, the lan-
guage of these sections shows a legislative recognition
that only a preponderance of evidence is necessary to
determine the issue of sanity in such proceedings, as
well as that the trial should be had by jury, as the law
in such proceedings.

While the insanity of the defendant prevents him
from being required to plead, be tried, sentenced, or
punished, if existing at the time of such proceedings,
yet he is not to be discharged, but kept in custody under
proper orders of the court until it shall be ascertained
that he has recovered from his infirmity, when the trial
shall be had, judgment entered, or sentence executed.
The statutes referred to only provide for the detention

16 Cates] DECEMBER TERM, 1910. 91

Jordan v. State.

of defendants in certain cases in the hospital for the
insane.

We think the charge of the trial judge upon the weight
of evidence to control the jury in trying the issue of
present insanity was in all things correct, and that there
was no error in his refusing the request presented for
the defendant.

The issue of present insanity was presented and tried
in all respects in accordance with the correct practice
in such cases. The plea contained the proper averments,
was verified by the oath of a friend of the defendant,
and filed before trial upon the indictment. Green v.
State, 88 Tenn., 634, 14 S. W., 489.

The issue thus made was submitted to a jury specially
impaneled to try it. Firby v. State, 3 Baxt, 358.

In Bonds v. State, Mart. & Y., 143, 17 Am. Dec, 795,
the trial judge disposed of a plea of present insanity
after trial and verdict of guilty ; but, where there is any
possible doubt upon the question of sanity, we think that
in the trial court the issue should be submitted to a jury.

In this court, however, where it is made to appear to
the court that the plaintiff in error is probably insane
and should not be tried, or judgment against him exe-
cuted, the court will investigate and determine the ques-
tion of sanity without a jury, and make such order as
the dictates of humanity and the law require in the post-
ponement of trial or judgment. Bonds v. State, Mart. &
Y., 143, 17 Am. Dec, 795; Green v. State, 88 Tenn.,
635, 14 S. W., 489.

92 TENNESSEE REPORTS. [124 Tenn.

Jordan v. State.

The assignments of error in regard to matters arising
upon the second trial have been considered and over-
ruled in the memorandum opinion also filed.

There is no error in the record, and the judgment is in
all things affirmed.

16 Cates] DECEMBER TERM, 1910. 93

Hagan v. Trust Co.

A. M. Hagan v. Nashville Tbust Company et al*
(Nashville. December Term, 1910.)

1. DAMAGES. Lost profits are recoverable for breach of con-
tract, unless speculative, remote, or not contemplated.

Profits lost by the wrongful breach of the contract upon the part
of the defendant will be allowed in ascertaining the damages
for such breach, unless they are speculative, remote, or not
contemplated by the contract. (Post, pp. 98-103.)

Cases cited and approved: Chisholm v. Canopy Co., Ill Tenn.,
202; Howard v. Manufacturing Co., 139 U. S., 199.

2. BROKERS. Same. Commission contract' fixing rate for all
sales made within a certain period, when breached, entitles
the agent to such commissions on sales made within that time,
though made by others, when.

Under a contract allowing a real estate broker a fixed rate of
commission on all sales of land made with five years, con-
strued to embrace all sales made within that time whether
made by him or not, which commissions were to compensate
him for other valuable services not requiring his whole time or
any certain part of it, the broker is, upon the wrongful breach
of the contract by the other party, entitled to commission on
all sales made within that period, though they were effected
by the combined efforts of nearly all the real estate agents
in the city of Nashville, especially where such broker was
ready at all times to go forward with his part of the contract
and to fulfill the obligations imposed upon him thereby; for

•As to loss of profits as element of damages for breach of con-
tract, see notes in 63 L. R. A., 34; 3 L. R. A. (N. S.), 709; 8
Lu R. A. (N. S.), 255; 4 L. R. A. (N. S.), 740; 18 L. R. A. (N. &),
613; 19 L. R. A. (N. 8.), 155.

, 94 TENNESSEE REPORTS. [124 Tenn.

Hagan y. Trust Co.

such damages are not speculative or remote, and were con-
templated by the contract (Post, pp. 95, 96, 99-103.)

Cases cited and approved: Chisholm v. Canopy Co., Ill Tenn.,
202, 230.

3. DAM AGE 8. Speculative at time of suing, but becoming ascer-
tainable and fixed before the trial, are recoverable for wrong-
ful breach of contract.

Where the profits were speculative damages at the time of the
filing of the bill, but became ascertainable and fixed, before
the trial by the expiration of the time fixed for the perform-
ance of the contract, such profits are recoverable for the
wrongful breach of the contract by the other party. (Post,
pp. 97, 100, 101, 103.)

4. BROKERS. Real estate agent Is not entitled to commissions
on Improvements erected on land sold by the owner, where not
contemplated In the contract, when.

A real estate broker, employed at a fixed rate of commission, to
sell lands and houses for a fixed term, is not entitled, upon a
wrongful breach of the contract by the landowner, to recover
commissions upon the value of the Improvements erected upon
the land sold by the owner because such damages were not
within the contemplation of the parties when the contract was
made. (Post, pp. 96, 96, 104.)

FROM DAVIDSON.

Appeal from the Chancery Court of Davidson County.
-John Allison, Chancellor.

Parks & Bell, for complainant.
Vebtbebs & Vertrees, for defendants.

16 Cates] DECEMBER TERM, 1910. 95

Hagan r. Trust Co.

Mr. Justice Gbeen delivered the opinion of the Court.

The Belmont Land Company was the owner of a tract
of land in the suburbs of Nashville, which it wished to
develop and put on the market.

The Land Company entered into an arrangement with
the Nashville Trust Company, by which the latter was to
finance the improvement and marketing of this prop-
erty.

The Nashville Trust Company was appointed the
agent and attorney in fact for the Land Company, with
full authority in the premises.

In order to sell this property to advantage, it was
thought necessary to open up streets or avenues through
it, to build sidewalks, and to erect houses and make
other improvements.

The Nashville Trust Company, wishing an agent to
superintend this work, as well as to push the sales of the
property, entered into negotiations with A. M. Hagan, a
real estate agent of the city of Nashville.

As a result of negotiations, on July 15, 1901, the Trust
Company and Mr. Hagan entered into a contract where-
by the latter agreed, for a term of five years, to advertise
said property at the expense of the owners, to solicit
buyers and customers, to make sales of lands and houses,
and to superintend, under the directions of the Trust
Company, the construction of roads, houses, and other
improvements that the said Trust Company might see
proper to make on the said property.

96 TENNESSEE REPORTS. [124 Tenn.

Hagan v. Trust Co.

The contract then provided :

"For the services as agent, as aforesaid, the said party
of the second part (Hagan) is to be paid two and one-
half (2y 2 %) per cent, on all sales made of said prop-
erty."

At the beginning of negotiations between Mr. Joseph
Thompson, the president of the Nashville Trust Com-
pany, and Mr. Hagan, it was proposed to Mr. Hagan by
written contract that he receive for his services as agent
a commission of 2V 2 per cent, "on all sales made by him
of said property;" but this was declined, and the con-
tract made as above set out.

This contract, as has been stated, was dated July 15,
1901, and by its terms was to continue five years. The
parties operated under this contract for about two years.
Mr. Hagan did not make as many sales as the Land Com-
pany thought he should have done. The property was
not at that time selling rapidly.

Some correspondence was had between Mr. Hagan
and the officers of the Land Company relative to a
change of the provisions of this contract. Nothing re-
sulted from these negotiations, however.

So it turned out that, about two years from the date of
the execution of the contract, the Land Company, being
dissatisfied with Mr. Hagan's services, discharged him.

Mr. Hagan insisted that he was ready at all times to
go forward with his part of the contract and to fulfill
the obligations imposed on him thereby. This is not
seriously controverted. The Land Company does not

16 Cates] DECEMBER TERM, 1910. 97

Hagan v. Trust Ooi

impeach the willingness of Mr. Hagan, but it questions
his efficiency.

After being discharged, Mr. Hagan brought suit
against the Land Company for damages, on September
21, 1904. The contract between him and the company ex-
pired, according to its terms, on July 15, 1906. The hear-
ing of this cause was delayed nearly two years after the
time fixed for the expiration of the contract. The decree
below was pronounced on April 27, 1908.

It is, therefore, seen that at the date of the trial before
the chancellor, the time for the completion of the original
contract had long since expired. The chancellor had an
account taken of all sales made by the company within
the five years, and allowed the complainant a recovery
of 2V2 per cent, on such sales, less some credits by com-
mission already paid him. The amount of the com-
plainant's decree was $1,945.44.

After Mr. Hagan was discharged, the Land Company
put this property in the hands of nearly all the real
estate agents in Nashville, and the sales afterwards
made by it were accomplished as the result of the com'
bined efforts of all these agents.

The chancellor's decree, therefore, allowed to the com-
plainant a commission of 2y 2 per cent, on the sales made
as a result of the efforts of practically all the real estate
men in Nashville.

This seems a hard decree, and we have given it much
consideration.

We think, from an examination of the record, that the

124 Tenn.— 7

98 TENNESSEE REPORTS. [124 Tenn.

Hagan v. Trust Co.

Land Company breached its contract with Mr. Hagan,
and that he is entitled to damages; but for the Land
Company, in the language of its counsel, "it is further
insisted that, even if he were discharged wrongfully, he
can recover nothing from the defendant, by way of
damages on account of the breach of the contract, more
than merely nominal damages, because such damages as'
he claims are speculative, uncertain, and contingent, and
are not expressly stipulated or provided for in the con-
tract, and because the uncertainty as to the amount is
not removed by the terms of the contract itself." •

(1) We may say here that we agree almost entirely
with appellant's counsel in the statement of the law con-
tained in his brief. He has set out clearly and forcibly
the correct rules to be deduced from Tennessee decisions.
The difficulty arises in the application of these prin-
ciples to the facts of this case.

A much quoted epitome of the law on this subject is
the expression of Mr. Justice Lamar, speaking for the
supreme court of the United States, with which our
own cases are in accord. The language is as follows :

"The authorities, both in the United States and Eng-
land, are agreed that, as a general rule, subject to certain
well established qualifications, the anticipated profits
prevented by the breach of a contract are not recoverable
in the way of damages for such breach ; but in the appli-
cation of this principle the same uniformity in the de-
cisions does not exist. In some cases, of almost exact
analogy in the facts, the adjudications of the court* in

16 Cates] DECEMBER TERM, 1910. 99

Hagan v. Trust Oo.

the different States are directly opposite. The grounds
upon which the general rule of excluding profits, in esti-
mating damages, rests are ( 1 ) that in the greater num-
ber of cases such expected profits are too dependent upon
numerous uncertain and changing contingencies to con-
stitute a definite and trustworthy measure of actual
damages; (2) because such loss of profits is ordinarily
remote, and not, as a matter of course, the direct and
immediate result of the nonfulfillment of the contract;
(3) and because most frequently the engagement to pay
such loss of profits, in case of default in the perform-
ance, is not a part of the contract itself, nor can it be
implied from its nature and terms. Sedgwick on Dam-
ages (7th Ed.), vol. 1, p. 108; The Schooner Lively, 1
Gall., 315, 325 [Fed. Cas. No. 8,403], per Mr. Justice
Story ; The Anna Maria, 2 Wheat., 327, 4 L. Ed., 252 ;
The Amiable Nancy, 3 Wheat, 546, 4 L. Ed., 456; La
Amistad de Rues 5 Wheat., 385, 5 L. Ed., 115 ; Smith v.
Condry, 1 How., 28, 11 L. Ed., 35; Parish v. United
States, 100 U. S., 500, 507, 25 L. Ed., 763, 766; Bulkley v.
United States, 19 Wall., 37, 22 L. Ed., 62. But it is
equally well settled that the profits which would have
been realized had the contract been performed, and which
have been prevented by its breach, are included in the
damages to be recovered in every case where such profits
are not open to the objection of uncertainty or of remote-
ness, or where from the express or implied terms of the
contract itself, or the special circumstances under which
it was made, it may be reasonably presumed that they

100 TENNESSEE REPORTS. [124 Tenn.

Hagan v. Trust Co.

were within the intent and mutual understanding of
both parties at the time it was entered into. United
States v. Behan, 110 U. 6., 338, 345, 346, 347 (4 Sup. Ct,
81) 28 L. Ed., 168, 170 171; Western U. Teleg. Co. v.
Hall, 124 U. S., 444, 454, 456 (8 Sup. Ct, 577), 31 L. Ed.,
479, 483; Philadelphia, W. <& B. R. Co. v. Howard, 13
How., 367, 14 L. Ed., 157." Howard v. Stillwell and
Bicrce Mfg. Co., 139 U. S., 199, 11 Sup. Ct, 500, 35 L.
Ed., 147.

See review of the Tennessee cases by Mr. Justice Neil
in Chisholm v. Canopy Co., Ill Tenn., 202, 77 S. W.,
1062.

From the statement of the law as contained in Howard
v. Stillwell-Bierce Manufacturing Company, supra, it
will be seen that profits are to be allowed in ascertaining
damages for breach of contract, unless they fall under
one of three heads mentioned; that is, unless they are
speculative, remote, or not a part of the contract.

Are these profits decreed to Hagan speculative?

They are not. They are capable of precise ascertain-
ment. He was to be allowed a fixed commission on all
sales made of this land within the five years, and the
amount brought by the land sold during that period
was shown at the hearing. These profits were specula-
tive at the date of the filing of this bill ; but the trial was
delayed until after the time fixed for the performance of
the contract, and at that time proof could be adduced,
and was adduced, to establish with certainty and to the
dollar the exact amount of two and one-half per cent, on
all the sales during the five years. This practice is

16 Gates] DECEMBER TERM, 1910. 101

Hagan r. Trust Co.

allowable, under the authority of the cases referred to
by Mr. Sutherland in his work on Damages (volume 1,
sec. 120).

The damages claimed are not remote, and it is not so
insisted.

The question then remains as to whether this contract
contains or implies an engagement to pay such loss of
profit in case of a breach by the defendants.

In referring to the rule of law relied on by the defend-
ants here, that where two parties have made a contract,
which one of them has broken, the contract itself must
give the measure of damages, otherwise the damages can
only be nominal — referring to this, Mr. Justice Neil ob-
serves:

"This is merely a brief statement of the rule in Hadley
v. Baxendale, that 'where two parties have made a con-
tract, which one of them has broken, the damages which
the other party ought to receive in respect of such breach
should be either such as may fairly and reasonably be
considered as arising naturally (i e., according to the
usual course of things) from such a breach of the^con-
tract itself, or such as may reasonably be supposed to
have been within the contemplation of both parties at
the time they made the contract as the probable result
of the breach of it/ The contract thus gives the measure
of damages upon the first branch of the rule by the mere
statement of its terms, its subject-matter, and the obliga-
tions of the parties." Chisholm v. Canopy Co., Ill
Tenn., 202, 230, 77 S. W., 1062, 1069.

102 TENNESSEE REPORTS. [124 Tenn.

Hagan v. Trust Co.

Under the terms of this contract, Hagan obligated
himself to solicit buyers, make sales, superintend, and
perform other services set out in the contract.

For these services the Land Company agreed to pay to
him two and one-half per cent on all sales made of said
property. This was the obligation it assumed.

This contract did not provide that Hagan should give
his whole time to the company's service, nor that he
should have commissions merely on sales made by him.
So that, until Hagan himself breached the contract, the
company, by this writing, obligated itself for five years
to pay him this per centum on all sales made of this
land. As long as Hagan stood ready to comply with his
obligations, the company could not, by repudiating its
obligations, escape the liability imposed upon it by the
contract.

So, we are forced to the conclusion that this contract
itself contained the measure of Hagan's damages in case
of default by the company.

If the company had employed him on a salary for five
years, to devote such of his time as was necessary to the
development of this property, and had then breached its
contract, Hagan standing ready to perform it, it cannot
be doubted that under such a contract the measure of
Hagan's damages would have been his salary for the un-
expired term of the contract following the breach. So,
when he was to be paid commission on all sales made
within five years for like services, he is entitled, upon
the company's default, to recover commissions on sales

16 Cates] DECEMBER TERM, 1910. 103

Hagan v. Trust Co.

made, after his wrongful discharge, during the re-
mainder of the term ; he standing ready to perform his
part of the contract.

The only difficulty that could arise in the latter case
would be the uncertainty of the amount of the sales and
the consequent commissions. This difficulty does not
arise here, however, since the trial of the cause was de-
layed until after the expiration of the five-year term, and
the amount of the sales was definitely shown.

This is not like the cases of traveling salesmen selling
on commission and wrongfully discharged before the ex-
piration of their contracts, to which we have been re-
ferred. In those cases commissions were to be paid on
sales made by the drummers themselves.

Here, by the very terms of the contract, the commis-
sion was to be paid Hagan on all sales, whether made
by himself, by other real estate agents, or by the com-
pany's officers.

We are prevented from considering whether Hagan
could have made as many sales as all the other real
estate agents combined, who were employed by the com-
pany to handle this property. We do not think he
could ; but that makes no difference here ; for, under the
terms of his contract, he was to have commissions on all
sales, whether made by him or not. So, the element of
uncertainty that would enter into a suit brought by him
for damages for wrongful discharge, had he only been
promised the exclusive right to make these sales and

104 TENNESSEE REPORTS. [124 Tenn.

Hagan v. Trust Co.

commissions on such sales made by him/ is entirely re-
moved by this contract.

. This contract is unusual, and perhaps improvident;
but it is very plain. While its enforcement may seem
hard, there is no escape from its provisions.

Mr. Hagan also appealed from the chancellor's decree,
and assigns as error that the chancellor did not allow
him commissions on the improvements put upon the
property sold by the Land Company.

Without discussing this contention at length, we con-
clude, after a full examination of the record, that such
damages as these ought not to be allowed here. We do
not think they were within the contemplation of the par-
ties.

As intimated before, we are not disposed to extend
this contract any further than its provisions require.
The result is that the judgment of the court below will
be affirmed. The costs below will be paid as adjudged
by the chancellor, and the costs of this court will be
equally divided between the parties.

16 Cates] DECEMBER TERM, 1910. 105

Chappie y. State.

John Chapplb et al. v. State.
(Nashville. December Term, 1910.)

1. INDICTMENTS. Words "said defendant*" in second count
refers to persons named as Indicted in first count.

Where the two counts of an indictment are framed together, and
the whole signed by the district attorney-general, and the first
count mentions the names of the persons indicted for burglary
and larceny, and the second count charges "said defendants"
with receiving the same goods as stolen property, the words
"said defendants" in the second count refer to the defendants
named in the first count,. and charged them with the offense
alleged in the second count. {Post, pp. 108, 109.)

2. CRIMINAL LAW. Verdict of guilty will be applied to the re-
spective counts under which the evidence Is sufficient to con-
vict the respective defendants.

A general verdict of guilty upon a trial under an indictment
charging two defendants with burglary and larceny in one
count, and with receiving stolen property in another count,
will be held to convict the defendants respectively under the
counts sustained by the evidence as against each defendant,
that is, one defendant may be held to be convicted under the
first count where the evidence is sufficient to convict him un-
der the first count, but not under the second count; and the
other defendant may be held to be convicted under the second
count where the evidence Is sufficient to convict him under the
second count, but is insufficient to convict him under the first
count; and the failure to designate, in the verdict, the particu-
lar count or counts under which each defendant is found guilty
is not prejudicial to them. {Post, pp. 109-111.)

Code cited and construed: Sec. 7190 (S.); sec. 6056 (M. & V.);
sec. 6217 ( T. & S. and 1858).

106 TENNESSEE REPORTS. [124 Term.

Chappie v. State.

Cases cited and approved: Taylor v. State, 3 Heisk., 460; Par*
ham v. State, 10 Lea, 498.

3. 8AM E. Game. Reversal and arrest of Judgment where proof
shows verdict not to be applicable to any valid count.

Where the proof Is fully set out in the bill of exceptions, and
it is clear upon the facts that the verdict is not responsive to
any valid count of the indictment, the conviction must be re-
versed, and the judgment must be arrested. (Post, p. 111.)

Case cited and approved: Rice v. State, 3 Heisk., 215, 222.

4. INDICTMENTS. Joinder of counts for larceny and receiving
stolen property.

Cpunts for larceny and for receiving stolen property may be
joined in the same indictment (Post, p. 111.)

Cases cited and approved: Hampton v. State, 8 Humph., 69; Cash
v. State, 10 Humph., Ill; Ayrs v. State, 5 Cold., 26; McTigue
v. State, 4 Bax., 313; Kelly v. State, 7 Bax., 84; Hall v. State,
3 Lea, 569; Lawless v. State, 4 Lea, 173, 176, 177; Foute v.
State, 15 Lea, 715; Davis v. State, 85 Tenn., 522, 526, 527.

5. 8AM E. One indicted for burglary with intent to steal, and
for larceny, may be convicted of the larceny, though not con-
victed of the burglary.

One indicted for burglary with intent to Bteal, and for larceny,
may be convicted of the larceny, though there can be no con-
viction for the housebreaking, because of a variance between
the indictment and the proof as to the ownership of the house.
Such conviction 1b authorized by the statute (section 6540 of
Shannon's Code) providing that one indicted for burglary may
be convicted under the statute (sections 6535, 6536, and 6539
of Shannon's Code) defining burglary and housebreaking, with
intent to commit a felony, and further providing that one so
indicted, where another felony is included in the charge, may
be convicted of such felony. {Post, pp. Ill, 112.)

16 Gates] DECEMBER TERM, 1910. 107

Chappie r. State.

Code cited and construed: Sees. 6535, 6636, 6539, 6540 (S.); sees.
6436, 6437, 5439, 6440 (M. * V.); sees. 4672, 4673, 4674, 4676
(T. & S. and 1858).

Cases cited and approved: Pardue v. State, 4 Baz., 10; Cronan
v. State, 113 Tenn., 639.

6. LARCENY. No fatal variance In Indictment charging the sto-
len property to be that of a certain person and the proof that
It belonged to him and others as partners.

The variance between an indictment charging the larceny of cer-
tain property as that of a person named, and the proof that the
property belonged to him and certain others as partners, is
not a fatal variance in law, and does not invalidate the con-
viction. (Post, pp. 112, 113, 117.)

Case cited and approved: Lowry v. State, 113 Tenn., 220.

7. BURGLARY AND HOUSEBREAKING. Variance between in-
dictment and proof as to ownership of the building is fatal to a
oonvistlon.

The variance between the Indictment charging the burglary and
housebreaking of a building of a certain person, and the proof
that the building belonged to him and certain others as part-
ners, is fatal under the common law, which requires, in an
indictment for burglary, a precise averment of the names of
each of the several owners of the building burglarized or bro-
ken into, and in the case of partners, the names of all the
owners must be alleged; and this common law rule has not
been changed by statute in this State. (Post, pp. 111-113.)

Case cited and approved: Cronan v. State, 118 Tenn., 539.

8. CRIMINAL LAW. Under Indictment for burglary and larceny,
it is reversible error to refuse to charge special requests as
to ownership of the goods, when not charged In the general
charge.

Where the indictment for burglary and larceny charged that a
certain person owned the building burglarized and the goods

• •

108 TENNESSEE REPORTS. [124 Tenn.

Chappie t. State.

stolen, and the only evidence on the subject left the question
in doubt as to whether the goods belonged to the person named
and others as partners, or to a corporation in which he or they
owned stock, and the trial judge only submitted the issue as
to the burglary or housebreaking, about which there was a fa-
tal variance between the Indictment and proof as to the owner-
ship of the building, the refusal to charge the special requests
of the defendants on the subject of the ownership of the goods
was reversible error. {Port, pp. 111-118.)

FROM MAURY.

Appeal in error from the Circuit Court of Maury
County. — Sam Holding, Judge.

J. L. Jones, for Chappie and Dawson.
Assistant Attorney-General Faw, for State.

Mr. Justice Neil delivered the opinion of the Court.

The plaintiffs in error were indicted in the circuit
court of Maury county under the following indictment :

"State of Tennessee, Maury County. Circuit Court,
November Term, A. D. 1909. The grand jurors for the
State of Tennessee, good and lawful men, duly elected,
impaneled, sworn, and charged to inquire for the body
of the county of Maury aforesaid, upon their oaths afore-

16 Cfctes] DECEMBER TERM, 1910. 109

Chappie y. State.

L

said present that John Chappie and W. A, Dawson,

heretofore, on the day of August, 1909, in the

said county of Maury aforesaid, unlawfully, feloniously,
and burglariously broke and entered the millhouse of
W. B. Long in the nighttime, with intent then and there
to commit a felony, to wit, a larceny ; and then and there
feloniously and unlawfully did steal, take, and carry
away nine sacks of flour, worth one dollar each, the per-
sonal property of the said W. B. Long, with intent to de-
prive him of the value of the same, against the peace and
dignity of the State.

"Second Count And said grand jurors on their said
oaths further present that on said day and said year, in
said county, said defendants unlawfully and feloniously
did receive said flour with intent to deprive the true
owner thereof; and that the same had been feloniously
taken and stolen from, and was the personal property of,
the said W. B. Long, and that said defendants well knew
the same to have been so obtained, against the peace and
dignity of the State.

"J. B. Garner,

Attorney-General."

The plaintiffs in error were convicted, and have ap-
pealed to this court, and assigned errors.

One of the errors assigned is on the refusal of the trial
judge to quash the second count in the indictment. It
is said that that count does not charge that John Chap-
pie and W. A. Dawson received the flour knowing it to
be stolen, but merely that "defendants" received flour,

110 TENNESSEE REPORTS. [124 Tenn.

m

Chappie r. State.

*

and that their names are not mentioned in this count at
9 all, and at no other place are they called "defendants,"
and that the first count is not referred to.

This is an erroneous view. The two counts are framed
together, and the whole signed by the attorney-general
for the district The first count mentions their names,
and the use of the words "said defendants" in the second
count clearly refers thereto; likewise the expression
"said grand jurors;" also "said flour;" likewise "said
W. R Long/ 9 and the mention of the flour in both counts
as the property of W. B. Long.

It is said that the verdict of the jury is a nullity. It
reads as follows: "We, the jury, find the defendants
guilty, and assess the punishment of defendant John
Chappie at three years' hard labor in the state penitenti-
ary, and the defendant W. A. Dawson at six months' hard
labor in the county workhouse." The objection stated
is that the verdict does not show of what the jury find
the defendants guilty, nor does it state that the jury
find them "guilty as charged."

In section 7190 of Shannon's Code, it is provided :

"A general verdict of guilty will be sustained if there
is any one good count in the indictment sustained by
proof, although the other counts may be fatally defect-
ive."

It has been held that where both counts are good, and
there is no evidence to sustain one of the counts, a gener-
al verdict upon a correct charge will be applied to the
count which is sustained by the evidence. Taylor v.

16 Cates] DECEMBER TERM, 1910. Ill

Chappie v. State.

State, 3 Heisk., 460. This ruling has bet'n extended to
a case where the charge was not correct on a count as to
which there was no evidence. Parham v. State, 10 Lea,
498. The underlying reason is that the court can see
that the merits have been reached without any real
prejudice to the rights of the defendant. In a case, how-
ever, where the proof is fully set out in the bill of ex-
ceptions, if it be clear upon the facts that the verdict
is not responsive to the valid count, the presumption
would fail, and, upon such a conviction, the judgment
should be arrested. Rice v. State, 3 Heisk., 215, 222.
Counts for stealing and for receiving stolen goods are
constantly united in the same indictment. Hall v. State,
3 Lea, 559 ; Hampton v. State, 8 Humph., 69, 47 Am.
Dec. 599; Cash v. State, 10 Humph., Ill; Ayrs v. State,
5 Cold., 26 ; Foute v. State, 15 Lea, 715 ; Davis v. State,
85 Tenn., 522, 526, 527, 3 S. W., 348; Laicless v. State, 4
Lea, 173 176, 177. See, also, Kelly v. State, 7 Baxt, 84,
and McTigue v. State, 4 Baxt., 313.

It is clear that the jury intended to find John Chap-
pie guilty under the first count, and W. A. Dawson
under the second count, as there was evidence to convict
John Chappie under the first count, and none against
him under the second count, and evidence to convict W.
A. Dawson under the second count, and none to con-
vict him under the first count.

It is insisted that there was a variance between the
indictment and the evidence. The variance is averred to
consist in this, viz. : That the evidence showed that the

112 TENNESSEE BEPORTS. [124 Tenn.

Chappie v. State.

house broken into belonged to a corporation bearing the
name of Webster-Locke Milling Company. The only
evidence upon this subject is contained in the testimony
of 0. C. Wells, the miller of the concern. He says that
the Webster-Locke Milling Company was a corporation,
and that it was operated and controlled by Horton, Meff-
ord and W. B. Long. Again he says in his testimony : "The
property was the property of W. B. Long, the prosecutor,
and his partners, Horton and Mefford, and they had it
under control, and owned the flour in the mill." How-
ever, if it be conceded that there could be no conviction
for housebreaking because of this variance, yet there
could properly be a conviction under that part of the
first count which charges a larceny.

Section 6540 of Shannon's Code provides : "Any per-
son indicted for burglary may be convicted under either
of the preceding sections of this article; and any per-
son indicted under these sections, where another felo-
ny is included in the charge, may be convicted for such
felony." The previous sections referred to are section
6535, which defines burglary, section 6536, which defines
the offense of breaking into a mansion house by day with
intent to commit a felony, and 6537, which refers to the
breaking into any other kind of a house of another with
intent to commit a felony, and section 6539, which is an
extension of the three preceding ones just referred
to. The same rule is laid down in Pardue v. State, 4
Baxt., 10, and Cronan v. State, 113 Tenn., 539, 82 8. W.,

477.

Although the charge is that the personal property sto-

16 Gates] DECEMBER TERM, 1910. 113

Chappie r. State.

len belonged to W. B. Long, and the evidence is that it
belonged to W. B. Long and two other persons as his
partners, this is not a variance in law. Lowry v. State,
113 Tenn., 220, 81 S. W., 373. There is a variance so
far as concerns the charge in the first count upon the sub-
ject of housebreaking, which (Cronan v. State, supra)
comes under the generic name of burglary.

"The common law requires, in an indictment for bur-
glary, a precise averment of the names of each of the
several owners of the building burglariously entered.
In the case of partners, as in that of others previously
mentioned, where the ownership is in more than one,
the common law, requiring all the owners to be averred,
also holds, though there are departures therefrom, under
statutes." Ency. PL & Pr., vol. 3, pp. 760, 761.

This common law rule has not been charged by stat-
ute in Tennessee; but, as stated, the plaintiff in error
Chappie could be properly convicted of the crime of lar-
ceny, as charged in the first count. As to this, as we
have already pointed out, there is no variance as there
is evidence to the effect that the property stolen, the
flour, belonged to Long and his partners. Lowry v.
State, supra.

The plaintiff in errror offered the following special
requests, among others, after the regular charge had been
giv«n to the jury, viz. : Nos. 3 and 5 :

"(3) The jury are instructed that if the proof shows
that the property alleged to be stolen in this cause was
owned by the Webster-Locke Milling Company, a corpo-

124 Tenn.— 8

114 TENNESSEE REPORTS. [124 Tenn.

Chappie v. State.

ration, and that W. B. Long, the prosecutor, only had
stock in the corporation, then the defendants cannot be
convicted of stealing."

"(5) The jury are instructed that if the property al-
leged to be taken was the property of the Webster-Locke
Milling Company, a corporation, or they have a reason-
able doubt of this, then they should acquit the defendant
Dawson, although they may believe that W. B. Long
was a stockholder in said corporation and owned stock
in the some."

The portions of the charge bearing upon these requests
are as follows :

"These defendants are jointly indicted. There are two
counts in the indictment. In the first count these de-
fendants are indicted for housebreaking and larceny,
and in the second count for the crime of receiving stolen
goods.

"The statute provides that :

"'Whoever shall enter into the business house, out-
house, or any other house of another, other than a man-
sion house, with intent to commit a felony, shall be im-
prisoned in the penitentiary for not less than three nor
more than fifteen years.'

"It is insisted by the State that the defendant John
Chappie broke into the mill house of W. B. Long and
stole some flour therefrom, and that the other defendant,
W. A. Dawson, received said flour so stolen, knowing
it to have been so stolen, with intent to deprive the owner
thereof.

16 Cates] DECEMBER TERM, 1910. 115

Chappie y. State.

"If you are satisfied of this beyond a reasonable doubt,
the defendant John Chappie would be guilty of house-
breaking under the first count, and the defendant W. A.
Dawson would be guilty of the crime of receiving sto-
len goods under the second count.

"In order to convict the defendant of housebreaking,
it is not necessary to show that he actually broke some-
thing to enter the mill house.

"If you are satisfied beyond a reasonable doubt that
the defendant John Chappie sprung a lock, or forced
the lock, or forced open the door in any way, and enter-
ed the mill with the intent to feloniously take and carry
away the flour of W. B. Long, then the defendant is
guilty of housebreaking.

"The indictment states that the mill and flour were
owned by W. B. Long. It is sufficient, however, if the
proof shows that the partnership of which W. B. Long
was a member were the owners, or were the lessees of
the mill and owners of the flour.

"If you find that the defendant John Chappie broke
and entered this mill house and stole some flour there-
from as above set out, and you should further find that
the defendant W. A. Dawson fraudulently received said
flour, knowing it to have been so stolen, and with intent
to deprive the true owner thereof, then said Dawson
would be guilty under the second count.

"If you find the defendant John Chappie, guilty of
housebreaking, you will fix the punishment at some
period of time not less than three nor more than fifteen
years.

116 TENNESSEE REPORTS. [124 Tenu.

Chappie v. State.

"If you find the defendant, W. A. Dawson, guilty of the
crime of receiving stolen goods under the second count,
and the value of the property so received does not exceed
the value of thirty dollars, then his punishment would
be fixed at not less than one nor more than five years in
the penitentiary ; or you may commute this punishment
to a term in the workhouse not exceeding twelve months.

"If you find the defendants guilty, you would simply
say : 'We find the defendants guilty as charged in the
indictment;' and you would fix their punishment under
the instructions just above given.

"If you have a reasonable doubt of their guilt, you
would simply say : 'We find the defendants not guilty/

"You may convict both of the defendants or acquit
both, or convict one and acquit the other, just as the
proof may warrant under the law.

"You are the judges of the law as well as of the facts
of the case under the instructions of the court; the court
being a witness to you of the law.

"The defendants plead not guilty. Therefore, before
you would be warranted in convicting them, you must
be satisfied of their guilt beyond a reasonable doubt. By
reasonable doubt does not mean any doubt that may of
possibility arise in your minds, but it means a doubt en-
gendered by the whole proof in the case, which prevents
your minds from resting easily and quietly upon the con-
clusion of the guilt of the defendants.

"You start into the investigation of the case with
the presumption that the defendants are innocent and
of good character, and this presumption stands for them

16 Cates] DECEMBER TERM, 1910. 117

Chappie y. State.

until it is overturned by competent and credible testi-
mony."

It is perceived that the trial judge did not charge the
jury at all upon the only ground on which, as we have
held, there could have been a conviction under the first
count — that is, larceny — but upon the subject of house-
breaking, as to which there was a clear variance between
the indictment and the evidence. It is apparent, there-
fore, that it was very important to the prisoners, now
plaintiffs in error, that the jury should have been prop-
erly instructed upon the subject of reasonable doubt
as to the ownership of the property. The only evidence
introduced in the court below upon the subject — that
of the witness Wells — leaves the question in grave doubt
as to whether the property belonging to W. B. Long and
his partners, Horton and Mefford, as personal property,
or to the corporation. In this view, the trial judge com-
mitted error in refusing to charge the said special re-
quests, Noa 3 and 5. The other requests wese properly
refused, because, if given, they would have misled the
jury in respect of the rule laid down in Lowry v. State,
supra, to the effect that there may be a conviction al-
though the indictment charges the ownership of personal
property stolen in one person, and the proof on the trial
was that it belonged to that person and others as part-
ners.

We cannot say that the errors committed by the trial
judge are immaterial ; indeed, they were quite material.
A proper charge might have resulted in an acquittal,
instead of a conviction.

118 TENNESSEE REPORTS. [124 Tenn.

Chappie y. State:

Probably this whole matter might have been cleared
up by evidence introduced at the trial ; but as such evi-
dence was not offered, if it was in existence, nothing is
left for this court to do but to reverse the judgment, and
remand the case for new trial.

16 Cates] DECEMBER TERM, 1910. 119

State, ex rel., y. Folk.

State, em rel. Standard Trust Company, v. Reau E.

Polk, as State Treasurer.

{Nashville. December Term, 1910.)

1. BUILDING AND LOAN ASSOCIATIONS. Mutuality It their
distinguishing characteristic and the essential law of their
existence as defined by statutes and decisions.

Building and loan associations, as created and defined by stat-
ute and as defined by judicial decisions, are mutual, and mu-
tuality is their distinguishing characteristic and the essential
law of their existence; and the term "building and loan
associations," used in the title or caption of a legislative act,
will be given the legal significance that attached to euch term
under the law at the time it was so used, and the term in-
cludes associations doing a building and loan business based
upon the principle of mutuality between the association and its
members, and in which membership is obtained through the
ownership of its shares of stock, with equal privileges and
opportunities of obtaining loans of its funds granted to every
shareholder upon reasonable terms prescribed for the regula-
tion of all members. {Post, pp. 121, 123-125.)

Cases cited and approved: McCauley v. Association, 97 Tenn.,
421; Province v. Association, 104 Tenn., 458; Setliff v. Asso-
citatlon, 39 S. W., 546.

2. CONSTITUTIONAL LAW. New subject of legislation in
amendatory act not Included In title of amended act, whose
title Is not enlarged In amendatory act, Is unconstitutional.

The first section of Acts 1897, ch. 126, undertaking to amend Acts
1895, ch. 114, sec 2, by providing that the business of building
and loan associations "need not necessarily be mutual," is un-
constitutional because it introduces into the original act a new

120 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Folk.

subject of legislation, not within the purview of its title,
which provided "for the examination and supervision of build-
ing and loan associations," and which is not enlarged in the
title of the amendatory act, in violation of the constitutional
provision (art. 2, sec. 17) requiring the subject of legislation
to be expressed in the title. (Post, pp. 122-126.)

Acts cited and construed: Acts 1896, ch. 114, sec. 2; Acts 1897,
ch. 126, sec. 1.

Constitution cited and construed: Art 2, sec. 17.

Cases cited and approved: Hyman v. State, 87 Tenn., 109; Rail-
road v. Byrne, 119 Tenn., 286.

3. INJUNCTION. Not granted against State treasurer, because
It Is assumed that the department of government represented
by his office will observe the law when It Is ascertained.

Where, in a suit by a corporation against the State treasurer, it
is determined that a certain statute, under the provisions of
which the treasurer claimed the power to exercise jurisdiction
over its business, and forbade it to do business in this State
until it came within and submitted to the Jurisdiction of the
office of the such treasurer, is invalid, an injunction will not be
granted restraining the treasurer from interfering with the

' business of the corporation, as it will be assumed by the court
that the department of government represented by such of-
ficer will observe the law when it is ascertained. (Post, p.
126.)

FROM DAVIDSON.

Appeal from the Chancery Court of Davidson County.
— John Allison, Chancellor.

Burkett & Mansfield and Chambliss & Chambliss,
for complainant.

Attorney-General Cates, for defendant

16 Gates] DECEMBER TERM, 1910. 121

State, ex rel., v. Folk.

Mb. Justice Landsden delivered the opinion of the
Court

It is not necessary to state this case any further than
to say that the relator, the Standard Trust Company,
is a Delaware corporation, with its principal place of
business in the city of Birmingham, Ala., and is engaged
in selling to the public what it denominates a "home-pur-
chasing contract." This contract is similar in its terms
and conditions to the business ordinarily done by build-
ing and loan associations organized under the laws of
this State, as defined in section 2 of chapter 114 of the
Acts of 1895. But the relation between the relator and
purchasers of its contract is not mutual.

The relator filed a copy of its charter with the secreta-
ry of state on January 15, 1908, and paid to that official
a privilege tax of $150 and a filing fee of $ 20, and, as-
suming that this entitled it to transact business in Ten-
nessee, it opened an office in the city of Memphis, and
commenced soliciting business. Soon thereafter the de-
fendant, acting under chapter 114, Acts of 1895, as
amended by chapter 126, Acts of 1897, sought to and did
exercise jurisdiction over the business of the relator, and
forbade it to do business in this State until it came with-
in and submitted to the jurisdiction of the office of the de-
fendant, as prescribed by the statutes above mentioned.
The relator, after much correspondence with the defend-
ant, filed a petition with him praying that a license be
issued to it to do business in this State ; but, for reasons
not necessary here to be stated, this was refused, and the

122 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Folk.

relator ordered to cease soliciting business in this State.
Thereupon this bill was filed, and, among other things,
alleged that chapter 126 of the Acts of 1897, amenda-
tory of chapter 114, Acts of 1895, is unconstitutional and
void, because this amendment introduces a new subject
of legislation into the original act that is not covered
by its title.

Chapter 114, Acts of 1895, is entitled: "An act to
provide for the examination and supervision of building
and loan associations doing business in the State of Ten-
nessee." Section 2 thereof is as follows : "That the name
'building and loan association' as used in this act, shall
include all corporations, societies, organizations or asso-
ciation doing business in this State under a building
and loan charter, or engaging in a building and loan
business." Chapter 126, Acts of 1897, amended the fore-
going section so as to make it read as follows: "That
the name of 'building and loan association/ used in this
act, shall include all corporations, societies, organiza-
tions or associations doing business in this State under
a building and loan charter, or engaged in a building
and loan business, or engaged in seeking investments
from the citizens of the State by selling forms of stock,
debentures, certificates, etc., on plans similar to building
and loan associations, but which need not necessarily be
mutual."

It is conceded that the latter act is amendatory only,
although its title is broad enough to include original
legislation upon the subject therein indicated. The ques-

16 Cates] DECEMBER TERM, 1910. 123

State, ex rel., v. Folk.

tion for determination is whether the amendment to sec-
tion 2 of the original act of 1895, above set out, intro-
duces into the original act a new subject of legislation,
so as to make the amendatory act invalid, as violative
of article 2, section 17, of the constitution of this State,
which provides as follows : "No bill shall become a law
which embraces more than one subject, that subject to
be embraced in the title."

We think there can be no doubt but that the substitu-
tion of section 1 of the act of 1897 for section 2 of the
act of 1895 will make the body of the latter act, when
so amended, broader than its caption. Its caption is
limited to the examination and supervision of building
and loan associations, and section 2, as originally passed,
defined such associations as those "doing business in this
State under a building and loan charter, or engaged
in a building and loan business." The amended section
extends the provisions of the act so as to include all "cor-
porations, societies, organizations or associations doing
business in this State under a building and loan charter,
or engaged in seeking investments from citizens of the
State by selling forms of stock, debentures, certificates,
etc., on plans similar to building and loan associations,
but which need not necessarily be mutual."

The distinguishing characteristic of building and loan
associations in the law of this State is that they are mu-
tual. In McCauley v. Building <& Saving Association,
97 Tenn., 421, 37 S. W., 212, 35 L. R. A., 244, 56 Am. St.
Rep., 813, it is said that : "It is only so far as they serve

124 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Folk.

these purposes, and are confined to the objects necessari-
ly involved therein, that tbe acts of building and loan
associations fall properly within the powers granted
to them. As soon as they transgress their limits, they
are acting ultra vires."

In Province v. Bldg. & Loan Ass*n, 104 Tenn., 458, 58
S. W., 265, it is said : "The theory on which associations
like the present are organized, and the rule of law as ap-
plied to them by all the cases, is that they are mutual in
their character, and the members share in common gains
and losses."

"Strict mutuality and equality of benefits and obliga-
tions must be kept the groundwork and basis of these
associations, and, if they are not so founded, they are
not truly building and loan associations entitled to the
protection given such associations by the statutes*"
McCauley v. Building & Saving Association, supra.

"Membership in a building and loan association is ac-
quired by the ownership of stock." Setlif v. Nashville,
etc., Association, 39 S. W., 546.

The amendment to section 2 of the act of 1895 does not
fall within the purview of its title, and there is no at-
tempt in the amendatory act to enlarge the original ti-
tle. Building and loan associations, as defined by this
court, prior* to and at the time of the passage of this
amendatory act, were based upon the principle of mutu-
ality. Without this feature, they would not be tolerated
for one moment. But for the chance that the sharehold-
er has to earn dividends upon his shares to offset inter-

16 Cates] DECEMBER TERM, 1910. 125

State, ex rel., v. Folk.

est, fines, and penalties, the courts would have placed
such associations under the ban of the law as usurers.
Mutuality is the essential law of their being, and to in-
graft into an act provided for the examination and su-
pervision of this class of associations an amendment
which includes similar associations which are not mutu-
al is to extend the subject of legislation beyond the pur-
view of the title.

The term "building and loan associations," as used in
the title of the original act, will be given the legal sig-
nificance that attached to such term under the law at the
time it was employed. This means associations doing
a building and loan business based upon the principle
of mutuality between the association and its members,
and in which membership is obtained through the owner-
ship of its shares, and equal privileges and opportuni-
ties of obtaining loans of its funds are granted to every
shareholder upon reasonable terms prescribed for the
regulation of all members. It is foreign and incon-
gruous to the purpose of the act to inject into it all other
corporations, societies, organizations, or associations en-
gaged in seeking investments by selling forms of stock,
debentures, or certificates, whether they are mutual or
not. Eyman v. State, 87 Tenn., 109, 9 S. W., 372, 1 L.
R. A., 497 ; Railroad v. Byrne, 119 Tenn., 285, 104 S. W.,
460.

The result is that section 1 of the act of 1897 is uncon-
stitutional and void. It was only by virtue of this
amendment that the defendant assumed jurisdiction and

126 TENNESSEE EEPORTS. [124 Tenn.

State, ex rel., v. Folk.

control over the relator, and, of course, the statute under
which the defendant was acting having been declared
void, it necessarily follows that the relator does not
come within the jurisdiction of his office. It was not
necessary to grant an injunction restraining the defend-
ant from interfering with the business of the relator, as
the court will assume that the department of the govern-
ment represented by defendant will observe the law
when it is ascertained. Other questions raised by the
pleadings and discussed by counsel were disposed of
orally.

16 Cates] DECEMBER TERM, 1910. 127

State, ex rel., v. Potlard.

State op Tennessee, ex rel. Davidson County Board of
Education et al. v. W. M. Pollard, County Judge.

(Nashville. December Term, 1910.)

1. PUBLIC 8CHOOL8. County court cannot legally appropriate
general county funds for construction and repair of public
school buildings.

The county court has no power to make an appropriation cut of
the general county funds for special county purposes, and
cannot legally appropriate any part of the fund for general
county purposes to the special purpose of maintaining the pub-
lic schools, in the erection of school buildings and the repair
and improvement of existing * buildings ; for, while the main-
tenance of public schools in the county is a county purpose,
it is not, under our statutes, a general county purpose but a
special county purpose. (Post, pp. 129437.)

Code cited and construed: Sees. 1395, 6045, subsec. 11 (S.);
. sees. 1167, 4987, subsec. 11 (M. ft V.) ; sec. 4215, subsec. 12 (T. ft
S. and 1858).

Acts cited and construed: Acts 1809, ch. 81; Acts 1907, ch. 236,
sec. 8, subsec. 1, sec. 10, subsec. 2; ch. '447; ch. 537; Acts
1909, ch. 264, sec. 2; ch. 479, sees. 1 and 2.

Cases cited and approved: Kennedy v. Montgomery Co., 98
Tenn., 179; Railroad v. Hamblen Co., 115 Tenn., 526; State v.
True, 116 Tenn., 294.

2. SAME. Mandamus will not lie to compel county Judge to issue
county warrant for school purposes to be paid out of general
county funds attempted to be appropriated by quarterly county
court for school purposes.

The county judge cannot be compelled by mandamus to issue
a county warrant for the payment of indebtedness contracted
for the erection and repair of public school buildings, to be

128 TENNESSEE REPORTS- . [124 Tenn.

State, ex rel., v. Pollard.

paid out of the general county funds attempted to be appro-
priate*} by the quarterly county court for that purpose. (Post,
p. 129-137.)

See citations under the preceding headnote.

3. 8AM E. Statute authorizing appropriations for erection and
repair of courthouses, Jails, and "other county buildings" does
not include public schoolhouses; rule of construction.

The statute (Shannon's Code, sec. €045, subsec. 11) empowering
the quarterly county court to appropriate money for building,
repairing, and taking care of courthouses, Jails, and other
county buildings, does not include schoolhouses and buildings
used for school purposes; for the words "other county build-
ings/' as so used, under the rule of efusdem generis, mean county
buildings of the same nature and kind as courthouses and jails.
(Post, pp. 130. 138-139.)

Code cited and construed: Sec. 6045, subsec. 11 (S.); sec. 4987,
subsec. 11 (M. ft V.); sec. 4215, subsec. 12 (T. ft S. and 1858).

Acts cited and construed: Acts 1809, ch. 81.

FROM DAVIDSON.

Appeal from the Circuit Court of Davidson County to
the Court of Civil Appeals, and by certiorari from the
Court of Civil Appeals to the Supreme Court. — Thos.
E. Matthews, Judge.

Jno. T. Lellyett, for plaintiff.

Samuel N. Harwood, for defendant

16 Cates] DECEMBER TERM, 1910. 129

State, ex rel., v. Pollard.

Mb. Justice Green delivered the opinion of the Court.

The county court of Dayidson county passed a resolu-
tion appropriating out of its general funds $20,000 for
school purposes. Directions were made in this order as
to how this money was to be applied. Part of it was to
be used for the erection of school buildings, and part of
it for repairing and improving old ones.

In pursuance of this action of Jhe county court, and
upon the faith thereof, the Davidson county board of
education entered into a contract with a certain firm to
perform some of the work provided for in the resolution
mentioned.

Later, the board requested the county judge of David-
son county to pay these contractors for their work. The
county judge refused to do so. This petition was then
filed, seeking a mandamus to require the county judge
to issue his warrant for the payment of this indebted-
ness. The petition was filed on the relation of the
Davidson county board of education, the contractors, and
a certain citizen residing in the school district where the
work was done.

The county judge demurred to this petition. The
question raised by the demurrer was whether the county
court of Davidson county had the power to make an ap-
propriation out of the general county funds for school
purposes. The circuit judge was of opinion that the
county court had no authority thus to use a general fund
for a special purpose. He, therefore, sustained the de-

124 Tenn.— 9

130 TENNESSEE REPORTS. [124 Tenn,

State, ex rel., v. Pollard.

murrer. The court of civil appeals affirmed the action
of the trial judge.

We are of opinion that the action of the lower courts
was correct, and we denied a petition for a writ of cer-
tiorari at a former day of the term.

As the question is one of importance, and the opinion
of the court of civil appeals on the subject is forcible
and timely, this court adopts for publication a portion
of the opinion of that court, delivered by Judge Hughes.

After stating the fact of the cajse, Judge Hughes said :

m

"The argument presented on behalf of petitioners is
that the maintaining of public schools, including the
building and repairing of public schoolhouses, is a
county purpose, and, being a county purpose, the county
can make appropriations from its general funds to be
applied for those purposes. Shannon's Code, section
6045, subsec. 11, is specially relied on. The section and
subsection referred to are as follows :

" 'The county court may appropriate moneys as fol-
lows: . . . (11) For building, repairing, and taking
care of courthouses, jails, and other county buildings.'

"On the other hand, it is said by counsel representing
defendant that while the maintaining of schools, includ-
ing the building and repairing of schoolhouses, is a
county purpose, that county purposes are of two kinds,
general county purposes and special county purposes,
and that moneys raised by taxation for special county
purposes cannot be used for a general county purpose,
and that money raised for general county purposes caa-

16 Cates] DECEMBER TERM, 1910. 131

State, ex rel., v. Pollard.

not be used for a special county purpose. The conten-
tion is that the fund from which the county court at-
tempted to make the appropriation in question was a
fund for a general county purpose, and that the matter
of building and repairing schoolhouses, being a special
county purpose, the fund in question could not be appro-
priated and used for that purpose. We are of opinion
the contention made by defendant is correct

"That the division of county purposes into the two
classes, of general purposes and special purposes, is
recognized in our statute and the decision of our su-
preme court, is beyond question. To illustrate this : As
to our statutes, it is not necessary to go beyond a statute
directly involved in the determination of the exact ques-
tion here at issue. Acts 1909, ch. 479, p. 1726, is the
general revenue law in force at the time of the action of
the county court of Davidson county now in question,
and at the time the suit was brought. The first section
of that act has this provision :

" 'Be it enacted by the general assembly of the State
of Tennessee, that the taxes on every $ 100 worth of prop-
erty shall be fifty cents for the year 1909 and for every
subsequent year thereafter, thirty-five cents of which
shall be for State purposes and fifteen cents for school
purposes.'

"The second section of that act has this provision :

" 'Be it further enacted, that the several county courts
of this State be and they are hereby authorized and em-
powered to levy an annual county tax on every f 100

132 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Pollard.

worth of taxable property not exceeding thirty cents
upon the f 100 worth of property, and exclusive of the
tax for public roads and pikes and schools and interest
on county debts and other special purposes.'

"So, in the very face of the act authorizing the levy of
taxes which was in force at the time the county court
passed the resolution in question, revenue for 'school
purposes' is provided for in the rate of taxation fixed for
the State, and in the provisions for levies by the coun-
ties a distinction is made between a 'county tax' and a
tax 'for schools;' the levy for schools being classed with
'other special purposes,' thus placing in direct terms the
tax 'for schools' among taxes for special purposes. Also
by Acts 1909> ch. 264, p. 907, provision is made for a
'general education fund,' and by section 2 of that act
sixty-one per cent, of this fund is directed to be appor-
tioned to the several counties of the State according to
the scholastic population. And by Acts 1907, ch. 537, p.
1789, a further provision is made for paying out of the
State treasury certain moneys into the 'public school
fund,' to be disbursed among the various counties in the
manner therein provided. Statutes providing for the
disbursement of school funds have in like manner recog-
nized them as special. Take as an illustration Acts
1907, ch. 236, p. 845, creating a county board of educa-
tion for the various counties of th$ State. That act
gives the power to control and supervise the erection and
repairing of school buildings to the county board of edu-
cation, and by section 10, subsec. 2, the county board is

16 Cates] DECEMBER TERM, 1910. 133

State, ex rel., v. Pollard.

given power to control the expenditure of the 'public
school fund/ and the manner of drawing warrants on
that fund is expressly provided for by section 8, subsec.
1. And by Acts 1907, ch. 447, p. 1504, a county school
board is created for Davidson county, and this board in
like manner is given power to control the building and
repairing of school buildings, and the power to draw
warrants on the public school fund, and in a general way
such powers as are conferred on the ordinary county
board of education. On the other hand, under other stat-
utory provisions not necessary to here point out, the fund
derived from taxation for ordinary county purposes is
paid out on the order or warrant of the county judge.
For years such differences in the manner of disbursing
the two funds has existed in Tennessee.

"This same recognition of the public school funds of
the State as a separate and distinct fund is found in the
decisions of our supreme court. There is no better illus-
tration than in the case of State v. True, 116 Tenn., 294,
95 S.W., 1028. The whole case recognizes this, but
special attention is called to the following language
found on page 309 of 116 Tenn., and page 1031 of 95 S.
W.:

" 'The public school funds in the hands of the trustees
of counties are not the property of the counties, and
their authorized agents have no control over them. The
school fund does not go into the county treasury. It

cannot be appropriated by the county authorities to any

«

purpose, and it is not subject to the warrant of the chair-

134 TENNESSEE REPOETS. [124 Tenn.

State, ex rel., v. Pollard.

man of the county court. The trustee is required to keep
it, from whatever source it may be derived, separate and
apart from all other county funds in his hands, and it is
made a high misdemeanor for him to use or appropriate
it to other or county purposes. Code, section 1167;
Shannon's Code, section 1395. He cannot dispose and
distribute it for other purposes than the maintenance of
the public schools of the county, and only for this pur-
pose in the manner pointed out by special statute.'

"The various statutes and decisions are referred to
for the purpose of indicating that under the laws in
force in Tennessee our public school system is a com-
plete one in itself, and the public school funds are recog-
nized as distinct from ordinary public funds. In fact,
the manner of creating the school fund and of handling
it is hedged about by more machinery and with more
care and protection than any other public fund, and
above all deserves to be classed as a special fund.

"The ultimate inquiry, then, is as to the power of the
county courts to take funds belonging to one, the
general fund, and use them for the special purposes for
which school funds are created. In the case of Railroad
v. Hamblen County, 115 Tenn., 526, 92 S. W., 238, the
following language is used :

" 'We think that an order of the county court levying
a special tax should state the purpose for which the levy
is made. This is necessary to enable the taxpayers to
challenge it, if it be for ja purpose not authorized by law,
and if authorized to compel the application of the tax to

16 Cates] DECEMBER TERM, 1910. 135

State, ex rel., v. Pollard.

the purpose for tctiich it was in fact levied, if a diversion
to some other object is attempted. . . .

" 'The object of the tax should be evidenced by some
record to which the people can resort fop information.
Without such record the taxpayers are substantially de-'
prived of their right to know the purpose for which they
are taxed, and to have the taxes paid by them applied to
the purpose for which they have consented to be taxed.'

"The court in the same case quoted with approval the
language of Judge Wilkes in the case of Kennedy v.
Montgomery County, 98 Tenn., 179, 38 S. W., 1079, to
the following effect :

" 'The taxpayers of every county have a right to know
for what purpose they are being taxed, and also to know
that taxes collected from them for any special purpose
are applied to such purpose, and not to some other, at
the discretion of county officials, and according to their
ideas of public policy or expediency. The law does not
provide for the mixing of special and ordinary funds,
nor the supplementing of one by the other by county
officials.'

"The case last referred to involved directly the matter
of collecting moneys for one purpose and using them for
another, and the court there held that such could not be
done, and used the language above quoted

"In the case of State v. True, 116 Tenn., 311, 95 S. W.,
1032, already herein quoted from, the following further
language is used with special reference to public school
funds:

136 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Pollard.

" 'The county court, whether quorum or quarterly, has
ouly such powers and jurisdiction as are vested in it by
statute, and when the power or jurisdiction exercised by
it is called in question, the party relying upon the action
•of the court must be able to point out the statute con-
ferring the jurisdiction.' See, also, Shannon's Code, sec-
tion 6046.

"Authorities might be greatly multiplied to the same
effect of those just referred to ; but these, we think, are
sufficient to show that it is beyond the power of county
courts of this State to take moneys raised for school
purposes and appropriate them for other different pur-
poses, or to take moneys raised for purposes other than
school purposes and use them for school purposes,

"This holding does not mean that that portion of the
population of the counties of the State interested es-
pecially in the public schools and public school build-
ings are without remedy. All the law requires is that
each fund be kept separate and used for the purpose for
which it was collected. The law is simple in its pro-
visions for the raising of funds to run the schools, and
all that is required in that regard is that the particular
means provided by statutes be pursued. The slipshod
method of using just any fund that might be on hand
and available for just any purpose that might arise is
not authorized by law and cannot be sanctioned by the
courts. Such methods lead but to ultimate confusion, if
not more serious trouble, and should be discouraged in

16 Gates] DECEMBER TERM, 1910. 137

State, ex rel, v. Pollard.

every department of government, State, county, and mu-
nicipal.

"It is proper to say that we do not think that section
6045, subsec. 11, of Shannon's Code, can have the effect
contended for by appellants. That section of our Code
originated with Acts 1809, ch. 81, and is found in 1
Scott's Revisal of the Laws of Tennessee, p. 1180, and as
there found, it will be seen that its original provisions
were for the building and repairing of courthouses,
prisons, and stocks; and this, we think, would be
sufficient to show that its object was not to extend to
buildings of the character contended for in this case.
We also think that, aside from this consideration, the
words 'courthouses, jails, and other county buildings,' all
used in the same sentence and in the same connection,
would indicate an intention to confine the 'other county
buildings' to buildings of the same character as those
mentioned — courthouses and jails. The rule of con-
struction applicable to this matter has been expressed
in the following language :

" 'It is a principle of statutory construction every-
where recognized and acted upon, not only with respect
to penal statutes, but to those affecting only civil rights
and duties, that where words particularly designating
specific acts or things are followed by and associated
with words of general import, comprehensively designat-
ing acts or things, the latter are generally to be regarded
as comprehending only matters of the same kind or class
as those particularly stated. They are to be deemed to

138 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Pollard.

have been used, not in the broad sense which they might
bear in standing alone, but as related to the words of
more definite and particular meaning with which they
are associated. The general rule is supported by
numerous casea' Lewis' Sutherland, Statutory Con-
struction (2d Ed.), vol. 2, section 422.

"For the reason indicated, the action of the circuit
judge in this case was correct, and is affirmed; and ap-
pellants will pay the costs."

16 Cates] DECEMBER TERM, 1910. 139

Surety Co. v. Folk.

American Surety Company op New York v. Reau E.
Folk, as Insurance Commissioner.

(Nashville. December Term, 1910.)

IN8URANCE. Fidelity, guaranty, and surety companies are In-
surance companies In sense of statute Imposing privilege taxes
upon Insurance companies.

Under the statute (Acts 1895, ch. 160, sec. 2, and Acts 1899, ch.
31) defining "a contract of insurance" to be "an agreement by
which one party, for a consideration, promises to pay money
or Its equivalent, or to do some act of value to the assured,
upon the destruction or injury, loss or damage, of something
in which the other has an insurable interest," a fidelity, surety,
and guaranty corporation is an "insurance company" within
the meaning of the statute (Acts 1907, ch. 541, sec. 6) imposing
a privilege tax upon insurance corporations or companies; and
the fact that the general incorporation statute (Acts 1875, ch.
142) makes provision for fire, life, and marine insurance cor-
porations, and that Acts 1895, ch. 113, provides for the incor-
poration of guaranty and surety companies, and Acts 1895,
ch. 175, authorizes guaranty and surety companies to become
surety on Judicial and official bonds, does not make guaranty
and surety companies a distinct class, though the general
'Tennessee insurance act" (Acts 1895, ch. 160) was enacted
prior to the enactment of Acts 1895, ch. 175.

Acts cited and construed: Acts 1875, ch. 142; Acts 1895, ch. 160,
sec. 2; Acts 1895, chs. 113 and 175; Acts 1907, ch. 541, sec. 6.

Cases cited and approved: Bank v. Fidelity & Guaranty Co.,
110 Tenn., 10, 19, 20; People v. Rose, 174 111., 310; Shakman v.
U. S. Credit System Co., 92 Wis., 366; In re Hogan, 8 N. D.,
301; Chaflin v. U. S. Credit System Co., 165 Mass., 601; Guar-
antee Co. v. Mechanics' Trust Co., 80 Fed., 772.

140 TENNESSEE REPORTS. [124 Tenu.

Surety Co. y. Folk.

FROM DAVIDSON.

Appeal from the Chancery Court of Davidson County.
— John Allison, Chancellor.

Thos. W. Bullitt, Jeff. MoCarn, and W. H. Wil-
liamson, for complainant.

*

Attorney-General Cates, for defendant.

Mr. Chief Justice Shields delivered the opinion of
the Court.

The question presented for determination in this case
is whether the American Surety Company of New York,
a corporation created and organized under the laws of
the State of New York, and doing business in this State,
is liable for the privilege tax imposed by the general rev-
enue law (chapter 541, sec. 6, Acts of 1907) upon "fire
and all other insurance corporations or companies of
other States and foreign countries, except life insurance
corporations or companies, of two and one-half per cent,
on gross premiums paid by or for policy holders residing
in this State, or on property in this State."

Complainant's first contention is that it is not an in-
surance corporation or company.

16 Cates] DECEMBER TERM, 1910. 141

Surety Co. v. Folk.

This contention is not sound and cannot be sustained.
The purposes for which the complainant was incor-
porated and the business which it is authorized to con-
duct, as set forth in its charter, are "guaranteeing the
fidelity of persons holding places of public and private
trust, the performance of contracts other than insurance
policies, and executing or guaranteeing bonds and un-
dertakings required or permitted in all actions or pro-
ceedings or by law allowed." The contracts here au-
thorized to be made arfe contracts of insurance, and the
making of them is an insurance business, as defined by
the statutes of this State, and by the common law.

The Tennessee insurance act, regulating the business
of all insurance other than life and casualty insurance,
defines a contract of insurance to be "an agreement by
which one party, for a consideration, promises to pay
money or its equivalent, or to do some act of value to the
assured, upon the destruction or injury, loss or damage,
of something in which the other party has an insurable
interest" Chapter 160, section 2, Acts of 1895 ; chapter
31, Acts of 1899.

The text-books upon the subject and the adjudged
cases define insurance to be a contract by which one
party, for an adequate consideration paid to him, under-
takes to indemnify or guarantee the other against loss
by certain specified risks — an agreement wherein one be-
comes surety to another that the latter shall not suffer
loss or damage upon the happening of certain contin-
gencies, upon specified terms. 1 May on Ins., sections 1,

142 TENNESSEE REPORTS. [124 Tenn.

Surety Co. v. Folk.

2 ; 1 Phillips on Ins., section 1 ; 11 Am. & Eng. Enc. of
Law, p. 280 ; 22 Cyc, 1384.

Upon the precise question we have before us, Mr.
Joyce in his work on Insurance (volume 1, section 12),
says:

"Guaranty insurance is a contract whereby one, for a
consideration, agrees to indemnify another against loss
arising from the want of integrity, fidelity, or insolvency
of employees and persons holding positions of trust,
against insolvency of debtors, losses in trade, losses from
nonpayment of notes and other evidences of indebted-
ness, or against other breaches of contract. It includes
other forms of insurance, which are specifically classed
as 'fidelity guaranty/ 'credit guaranty/ etc."

Mr. Frost says :

"In view of all that has been said in this immediate
connection, can it be affirmed that fidelity, commercial,
and judicial bonds or policies, as issued by the so-called
surety companies, constitute a contract of insurance
within the strict legal signification of that term? The
answer to the foregoing query must be unqualifiedly in
the affirmative. That such policies are essentially in-
surance contracts has been settled by the overwhelming
authority of a large number of courts of last resort, the
decisions to the contrary being few and far between."
Frost's Law of Guaranty Ins. (2d Ed.), p. 11.

Cooley's Briefs on the Law of Insurance, pp. 4, 5, con-
tains substantially the same statement in regard to the

16 Gates] DECEMBER TERM, 1910. 143

Surety Co. v. Folk.

character and business of guaranty and surety com-
panies.

Cases which fully sustain these authors, among others,
are: People v. Rose, 174 111., 310, 51 N. E., 246, 44 L. R.
A., 124; Shakman v. U. S. Credit System Co., 92 Wis.,
366, 66 N. W., 528, 32 L. R. A., 383, 53 Am. St. Rep., 920 ;
In re Hogan, 8 N. D., 301, 78 N. W., 1051, 45 L. R. A.,
166, 73 Am. St. Rep., 759 ; Claflin et al. v. U. S. Credit
System Co., 165 Mass., 501, 43 N. E., 293, 52 Am. St.
Rep., 528; Guarantee Co. v. Mechanics 9 Trust Co., 80
Fed., 772, 26 C. C. A., 146.

•Complainant's second contention is that the general
assembly of Tennessee has recognized guaranty and
surtey companies as a class of corporations distinct
from insurance corporations, and that they are not in-
cluded in legislation confined to the latter class.

It is said, as evidence of this, the statute providing for
the incorporation of insurance companies, chapter 142,
Acts of 1875, makes provision only for fire, life, and
marine insurance companies. This is true; but this
statute is a general act providing for the incorporation
of companies for many purposes, the enactment of which
was made necessary by the provision of the constitution
adopted by this State in 1870, prohibiting the general
assembly from granting charters to private corporations
by special acts. It has been amended from time to time
so as to provide for corporations for purposes omitted
in the original act, to answer the necessities and con-
veniences of commerce and business. Such an amend-

144 TENNESSEE REPORTS. [124 Tenn.

Surety Co. v. Folk.

nient was made by chapter 113, Acts of 1895, providing
for the incorporation of guaranty and surety companies.
The reason why provision was not made for this class of
insurance companies in the original act is doubtless be-
cause this class of business was then unknown in this
State. The Tennessee insurance act was passed after
this amendment providing for guaranty and surety com-
panies, and applies to them equally with all other in-
surance companies not therein excepted.

It was held to apply to guaranty and surety com-
panies, without controversy, in the case of First Nat.
Bank v. Fidelity & Guaranty Co., 110 Tenn., 10, 19, 20,
75 S. W., 1076, 100 Am. St. Rep., 765.

It is also said that this contention is supported by the
fact that the general assembly enacted, at the same ses-
sion the Tennessee insurance act was passed, a special
act in regard to guaranty and surety companies. Chap-
ter 175, Acts of 1895. This statute, which was enacted
after the general law regulating the insurance business
in this State, authorizes guaranty and surety com-
panies to become surety upon bonds required to be exe-
cuted in legal proceedings, or by public officials.
Foreign guaranty and surety companies were doing
business in this State in the way of guaranteeing the
fidelity of employees and the performance of contracts
previous to this time, and this act only authorized them
to become surety upon public bonds. It is to no extent
in conflict with the general law.

We axe therefore of the opinion that the complainant

16 Cates] DECEMBER TERM, 1910. 145

Surety Co. y. Folk.

is an insurance company, and, having been engaged in
business in this State, it was subject to the tax paid, and
now sued for, and there was no error in the decree of the
chancellor in sustaining the demurrer to its bill.

124 Tenn.— 10

146 TENNESSEE REPORTS. [124 Tenn.

Key v. Norrod.

L. A. Key, Admr., v. W. M. Norrod et al.
(Nashville. December Term, 1910.)

1. ARBITRATION AND AWARD. Revocation of agreement, at
common law, before award.

An agreement to arbitrate, unless made a rule of court, is, un-
der the common law, revocable at any time before the award
is made. (Post, pp. 148, 149.)

2. 8AME. 8ame. Common law right of revocation of agree-
ment hat not been abrogated or altered by statute.

The common law right of revocation of the agreement to arbi-
trate, when not made a rule of court, and when exercised be-
fore the award is made, has not been abrogated or altered by
statute in this State. (Post, pp. 149-153.)

Code cited and construed: Sees. 5188-5195 (S.); Bees. 4169-4176
(M. ft V.); sees. 3432-3439 (T. ft S. and 1858).

Acts cited and construed: Acts 1851-52, ch. 173, sees. 1 and 2.

3. SAME. Award made after effective revocation of arbitration
agreement is void.

An award rendered after the revocation of the agreement to ar-
bitrate, made effective by notice thereof to the arbitrators, is
void, because such revocation terminates the authority of the
arbitrators. (Post, p. 153.)

4. 8AM E. Agreement to arbitrate could not be made a rule of
court, except In a pending suit, at common law.

By the common law the courts had no power to make the agree-
ment to arbitrate a rule of court, unless there was a suit pend-
ing therein with reference to the dispute. (Post, pp. 152, 153.)

Case cited and approved: Halliburton v. Flowers, 12 Helsk., 25.

16 Oates] DECEMBER TERM, 1910. 147

Key t. Norrod.

5. 8AM E. 8tatutes authorize agreement to arbitrate to be made
a rule of court, though there la no pending suit.

Our statutes confer upon the courts authority to make the agree-
ment to arbitrate a rule of court, whether there is a suit
pending with reference to the controversy or not (Post, pp.
152, 153.)

See citations under headnote 2.

6. 8AM E. 8ame. Rule of court made upon agreement without
pending suit.

In order that a submission to arbitration may become a rule of
court, and, therefore, irrevocable, it is certainly necessary that
the parties agree that it may be entered of record; and upon
proof thereof, the rule shall thereupon be made. (Post, pp.
152, 153.)

See citations under headnote 2.

?. 8AM E. Mere agreement to enter the award as a Judgment of
a certain court does not make the submission Irrevocable;
question reserved.

The statute clearly makes irrevocable only such submissions to
arbitration as are entered of record, and the mere agreement
to enter the award as a Judgment of a particular court does
not make the submission irrevocable, because the submission
is not thereby made a rule of court; and the question whether
the mere agreement to enter a submission of record, without
actual entry, renders the submission Irrevocable, is reserved
and not decided. (Post, pp. 153, 154.)

See citations under headnote 2.

FROM OVERTON.

— Appeal from the Circuit Court of Overton County to
the Court of Civil Appeals, and by certiorari from the
Court of Civil Appeals to the Supreme Court. — C. E.
Snodgbabs, Judge.

148 TENNESSEE REPORTS. [124 Tena

Key v. Norrod.

O. J. Cullom, for plaintiff.
A. H. Roberts, for defendant.

Mil. Justice Green delivered the opinion of the Court.

This suit was brought to recover judgment on a
promissory note. The case resulted in favor of the de-
fendant below, and was appealed to the court of civil ap-
peals. That court affirmed the judgment of the circuit
court, and a writ of certiorari was granted, and the case
brought here.

The defense made to the suit below was that the plain-
tiff and defendant had entered into an agreement to
arbitrate all matters in controversy between them, and
that an arbitration was had, which resulted in favor of
defendant. The award was pleaded as a bar to the suit.

The plaintiff admitted having entered into an agree-
ment to arbitrate these matters, but showed that prior to
the time the award was made he served notice on the
arbitrators that he had withdrawn his consent to the
arbitration, and he contended, therefore, that the arbi-
tration was had and the award made without authority,
and was consequently not binding upon him.

It is conceded that the plaintiff did undertake to with-
draw his consent to the arbitration before the award
was made, and the hearing was ex parte, and the only
question in the case is whether an agreement to arbi-

16 Cates] DECEMBER TERM, 1910. 149

Key v. Norrod.

trate, such as this one, is revocable prior to the making
of the award.

The submission was drafted with care and at some
length, and it is not necessary to set it all out in this
opinion.

This submission or agreement to arbitrate specifies the
matters in controversy, names the arbitrators, fixes a
date for the hearing, includes some other details, and
then provides:

"Said award and judgment for costs will be made the
decree of the chancery court of Overton county, Tennes-
see. An execution may be issued thereon as fully as if
this cause had been brought in said court in the first in-
stance."

This agreement contains no specification that the sub-
mission itself shall be entered of record in any court, but
only provides that the award be entered and enforced in
the chancery court of Overton county.

It is admitted that at common law an agreement to ar-
bitrate, unless made a rule of the court, is revocable at
any time before the award is made ; and the law is equal-
ly plain thflt an award made after notice of revocation
to the arbitrators is void, for the revocation terminates
the authority of the arbitrators.

It is urged, however, that our statute changes the com-
mon law in this respect, and it becomes necessary, there-
fore, to investigate the statutory provisions that obtain
in Tennessee, which are contained in the Oode of 1858,
carried into Shannon's Oode, section 5188 et seq :

150 TENNESSEE REPORTS. [124 Tenn,

Key v. Norrod.

"5188. All causes of action, whether there be a suit
pending therefor or not, may be submitted to the deci-
sion of one or more arbitrators, as hereinafter provided.
(1851-52, ch. 173, section 1.)

"5189. The submission may be made by any party in
interest, or by an executor, administrator, guardian,
trustee, or assignee for creditors, or it may be made by a
trustee for a married woman, with her consent made in
open court and entered of record, or by writing proved
by privy examination as in case of conyeyance.

"5190. The submission shall be by written agreement,
specifying what demands are to be submitted, the names
of the arbitrators, and the court by the judgment on
their award is to be rendered. (1851-52, ch. 173, sec. 1.)

5191. The submission may be of some particular mat-
ters or demands, or of all demands which one party has
against the other, or of all mutual demands.

"5192. The agreement may specify that the submis-
sion be entered of record in any court of law or equity,
or, in cases within their jurisdiction, before a justice of
the peace. (1851-52, ch. 173, sec. 2.)

"5193. On proof of such agreement, or by consent of
parties in person or by counsel, it shall be entered in the
proceedings of the court, or on the docket of the justice,
and an order made that the parties submit to the award,
which shall be made in pursuance of such agreement.

"5194. Upon such proof or consent, the judge may,
in vacation, make upon the agreement the order men-

16 Cates] DECEMBER TERM, 1910. 151

Key v.* Norrod.

tioned in the last section, and such order shall have the
same force and effect as if made in terms.

"5195. No such submission shall be revocable after
the agreement is signed by the parties or entered of rec-
ord, without leave of the court or justice, except by mu-
tual consent entered of record."

Considering the last three sections quoted, it is seen
that section 5192 provides that "the agreement may spec-
ify that the submission be entered of record," etc., and
that section 5193 provides for the entering of such agree-
ments in the proceedings of the court, and for the enter-
ing of an order requiring the parties to submit to the
award, and section 5194 provides for the entering of a
.life order by the judge in vacation, and section 5195 pro-
vides that "no such submission shall be revocable after
the agreement is signed by the parties or entered of rec-
ord, without leave," etc.

After what agreement is signed? Not the agreement
to arbitrate, but the agreement to enter the submission
of record.

"No such submission" shall be revocable. What sort
of submission? A submission entered of record or agreed
to be entered of record.

The meaning of these sections of the Code is made
quite plain by reference to the original act (chapter 173,
Acts of 1851-52) :

"Persons desiring to end any controversy, whether
there be a suit pending therefor or not, may submit the
same, in writing, to arbitration, and agree that said sub-

152 TENNESSEE REPORTS. [124 Tenn.

Key v. ftorrod.

mission may be entered of record in any court of law or
equity and in cases within their jurisdiction before jus-
tices of the peace, upon proof of such agreement out of
court, or by consent of parties given in court, in person
or by counsel, it shall be entered in the proceedings of
such court or justice and, thereupon, a rule shall be made
in pursuance of such agreement.

"Sec. 2. Be it enacted, that no such submission en-
tered, or agreed to be entered of record in any court, or
before any justice of the peace, shall be revocable by any
party to such submission, without the leave of such court
or justice, and such court may enlarge the term within
which an award is required to be made."

It is obvious that by this act it was intended to confer-
on the courts authority to make an agreement to arbi-
trate a rule of court, whether there was a suit pending
with reference to the controversy or not. By the common
law the courts had no such power, unless there was a
suit pending with reference to the dispute. Halliburton
v. Flowers, 12 Heisk., 25 ; 5 Cyc, 48.

This act provides that the parties may agree that such
submissions to arbitration shall be entered of record,
and upon proof of such agreement a rule shall thereupon
be made, etc.

In order that such submissions may become a rule of
court, and, therefore, irrevocable, it is certainly necessa-
ry that the parties agree that they may be entered of rec-
ord.

There is no such agreement here, either on the face of

16 Gates] DECEMBER TERM, 1910. 153

Key v. Norrod.

the submission, nor is any such agreement, otherwise
proven.

In other words, this submission is not entered of rec-
ord, or agreed to be entered of record, and it is, therefore,
not such a submission as section 2 of the act declares ir-
revocable.

In order to render a statutory "submission irrevocable,
the submission must come within the terms of the stat-
ute, and the right to revoke the common law submission
is not affected." 5 Cyc, 59.

The Tennessee statute clearly makes irrevocable only
such submissions as are entered of record, or at least
agreed to be entered of record.

For the reasons stated, we are of opinion that the
plaintiff below was within his rights in revoking the au-
thority conferred on the arbitrators to settle the afore-
said controversies, and that the subsequent proceedings
by the arbitrators were without effect upon the plain-
tiff's rights, and the award was void.

The judgments of all the lower courts are accordingly
here reversed, and judgment will be entered for the
plaintiff against the defendant for the amount of hid
note, with interest.

To avoid any misapprehension, it perhaps should be
added that we do not here decide that a mere agreement
to enter a submission of record renders the submission
irrevocable, without an actual entry thereof.

This is a matter still open to controversy and does not

154 TENNESSEE REPORTS. [124 Tenu.

Key v. Norrod.

arise here. The profession differs about the proper con-
struction of the statute in this respect.

What we do hold is that, under no construction of the
statute, does a mere agreement to enter the award as a
judgment of court make the submission irrevocable. To
effect that end, if the submission itself is not entered of
record, there must at least be an agreement that it may
be so entered.

16 Cates] DECEMBER TERM, 1910. 155

Hosiery & Yarn Co. v. Napper.

National Hosiery & Yarn Company et at v. John

Napper, Administrator.

{Nashville. December Term, 1910.)

1. EMPLOYER AND EMPLOYEE. Instruction that employee
must fully understand risks and dangers to release employer
from liability for personal Injuries or death.

In an action against an employer for personal Injuries result-
ing in the alleged wrongful death of an employee, an instruc-
structlon calculated to mislead the jury into believing that,
though the employee was killed while disobeying orders and
as a consequence thereof, it must appear that the employee
fully understood the risks and dangers of disobedience, In
order to release the employer from liability, is erroneous; for
the law Is clear that if a servant Is injured while engaged in
disobeying the orders of his superior, he cannot recover. (Post,
pp. 160-169.)

Cases cited and approved: Railroad v. Wilson, 88 Tenn., 816;
Railroad v. Reagan, 96 Tenn., 128: Card v. Wilkins, 61 N. J.
Law, 296; McMellen v. Union News Co., 144 Pa., 382.

2. 8AM E. 8ame. Instruction making employee's understanding
of risk to depend upon directions of employer's foreman Is
erroneous as Invading province of Jury.

The court's charge which makes the employee's understanding
of the risk and dangers of the disobedience of orders to depend
upon statements and directions of the employer's foreman
is erroneous as invading the province of the jury. (Post, pp.
160-169.)
8. 8AM E. Employee, whether adult or minor, need not be warned
of danger of disobeying orders of his superior.

The employee, whether adult or minor, need not be warned of the
danger of disobeying the orders of his superior in order to
prevent a recovery for his Injury or death. (Post, p. 169.)

156 TENNESSEE REPORTS. [124 Tenn.

Hosiery & Yarn Co. v. Napper.

4. PRACTICE. Appellant cannot complain of court's statement
of hie contention, where no objection was made at the time.

The appellant cannot complain that the trial judge Incorrectly
instructed the jury as to the ground of his contention, where
the judge's statement was not objected to by him at the time
so as to give the judge an opportunity to correct the same,
by special requests or in other form. (Post, pp. 169, 170.)

Cases cited and approved. Hayes v. Cheatham, 6 Lea, 1, 7; Mc-
Colgan v. Langford, 6 Lea, 108, 116, 117;. M alone v. Searight,
8 Lea, 91; Slattery v. Lea, 11 Lea, 9, 12.

5. NEW TRIAL8. Motion sufficiently specifying the errors and
grounds therefor, under a rule of court requiring the same.

A court rule requiring that a motion for a new trial shall specify
the errors and the grounds on which the motion is based is
complied with by specifying the particular passages of the
charge complained of, and it does not require a statement of the
reasons why the mover believes that there was error in the
portion of the charge specified. (Post, pp. 170-172.)

Case cited and distinguished: Railroad v. Johnson, 114 Tenn.,
632.

6. EMPLOYER AND EMPLOYEE. Trial Judge should determine,
and not leave It to the Jury to determine, whether the em-
ployer's subsequent order rescinded his former order to em-
ployee.

Where plaintiffs intestate, a boy sixteen years old, in the em-
ploy of defendant, was ordered with another boy to take, on
the elevator, a heavy work bench from the basement to another
floor, and in doing so received a fatal injury, owing to the
legs of which bench coming in contact with a beam which pro-
jected into the elevator shaft, it was for the trial judge to
determine whether such order rescinded an order given on the
day before the accident that intestate should not take anything
on the elevator which must be placed on end, so as to excuse
intestate's disobedience thereof. {Post, pp. 162, 172-176.)

16 Cates] DECEMBER TERM, 1910. 157

Hosiery & Yarn Co. v. Napper.

7. 8AM E. Employee unable to comply with orders without vio-
lation of Instructions should ask for further instructions, and
his failure to do so Is contributory negligence as a matter of
law.

«

Where deceased, a boy sixteen years of age, was directed by
his foreman to assist another boy in removing a bench from
the basement and was directed by the foreman at the time or at
a previous time not to attempt to bring anything up on the
elevator, which it was necessary to stand on end, and the boys
found it necessary to stand the bench on end to get it on the
elevator, and it was too heavy for the boys to take up the
steps, H was the duty .of deceased to report to his foreman
and ask for further instructions, and his failure to do so was
a disobedience of orders, and he was guilty of contributory
negligence as a matter of law. (Post, pp. 162, 172-176.)

FROM DAVIDSON.

Appeal in error from the Circuit Court of Davidson
County, to the Court of Civil Appeals, and by certiorari
from the Court of Civil Appeals to the Supreme Court.
— Thos. E. Matthews, Judge.

W. H. Williamson and J. M. Anderson, for plain-
tiff in error.

W. 8. Lawrence and W. H. Washington, for defend-
ant in error.

158 TENNESSEE REPORTS, [124 Tenn!

Hosiery & Yarn Co. v. Napper.

Mr. Justice Neil delivered the opinion of the Court.

This case is before us under the writ of certiorari,
bringing up for re\iew the judgment of the court of civil
appeals.

We copy from the opinion of that court the following
brief and correct statement of the facts :

"This suit was brought in the circuit court of David-
son county to recover damages because of the alleged neg-
ligence of defendants below resulting in the death of
Robert Napper, a boy sixteen years old, the son of plain-
tiff below, who is the defendant in error. The suit was
brought against the National Hosiery & Yarn Company
and Nashville Saddlery Company Corporation, and H.
H. McPhail and J. H. Thomas. As the result of a trial
before a jury below, a verdict was directed and rendered
in favor of the Nashville Saddlery Company, of which no
complaint is made, but a verdict was rendered against
the other defendants for f 8,000, and on this verdict judg-
ment was entered. The case has been brought by these
defendants below to this court by appeal in the nature
of a writ of error.

"The undisputed facts necessary here to be stated are
these : Robert Napper, the deceased, received the inju-
ries from which he died, while in the employ of the plain-
tiffs in error, and after being in their service for about
four days. On the fifth day he and another boy named
Richardson, aged about fourteen, were engaged in taking
what is called in the record a table or work bench from
the basement of the building in which they were at work,

16 Cates] DECEMBER TERM, 1910. 159

Hosiery & Yarn Co. v. Napper.

to another floor in an elevator. This tahle or work bench
was too long to be placed in the elevator by setting it on
its legs on the floor or bottom of the elevator, so the boys
stood it xip on end, and, in doing this, so placed the legs
at the upper end as to make them project beyond the
casements or walls of the elevator and go into the eleva-
tor shaft. Having thus placed the table or work bench,
the boys got in the elevator and started it up. The legs
that were projecting over into the shaft came in contact
with a beam which existed eight and one half inches
from the back wall of the shaft, and within two and one
half inches of the casing or walls of the elevator^ but,
because of the play or wabbling of the elevator within
the shaft, this distance could be reduced below two and
one half inches. The bringing of the legs in contact with
the beam had the effect of shoeing forward the body of
the table or work bench, and this threw Napper forward
against another beam with such force that some of his
teeth were broken out, his head was crushed more or
less, and his neck broken, from which injuries he died
in about eight minutes.

"The declaration alleges negligence on part of the de-
fendants below in allowing the beam to extend into the
shaft in dangerous proximity to the elevator, and in neg-
ligently sending or permitting the deceased to be placed
in this dangerous position to work, and in negligently
failing to give him warning and instructing him of these
dangers, which dangerous conditions it is alleged were

160 TENNESSEE REPORTS. [124 Tenn.

Hosiery & Yam Co. v. Napper.

known to the defendants below, but unknown to the de-
ceased.

"On the trial below there were sharp conflicts and di-
rect contradictions in the testimony on almost every
material question of fact, so that it cannot be contended,
and in fact is not contended, that there is no evidence
to support the verdict of the jury.

"The assignments of error are all based on the charge
of the court to the jury and the failure of the court to
charge certain requests. In order to fully consider some
of these assignments of error, it is proper to set out the
testimony of one J. W. Sanders as to certain instruc-
tions he swears to having given Napper and Richardson,
the two boys who were in the elevator at the time of the
infliction of the injuries from which Napper died. The
testimony of this witness on this question is as follows :

" 'Well, the day before the accident occurred I sent
them over there and went with them myself to where the
accident occurred and took the two boys up to the eleva-
tor. I had some long pieces of steel shaftiiig to move,
and a table or work bench, and I took them up to the ele-
vator shaft, where it comes down, and I said "Now boys,
whatever you do, don't haul anything on this elevator
up or down that you have to stand on end." I said, "now
you remember that," for I said I had come very near
getting hurt on several different occasions myself that
very day, and the boys both replied and said, "all right,"
and that was the impression they left on my mind, they
would stay away from the elevator with that stuff, and

16 Cates] DECEMBER TERM, 1910. 161

Hosiery A Yarn Co. ▼. Napper.

I stayed with them until they brought the shafting out
and up to the tower of the mill.' "

"It is proper to say in this connection that there is
much conflict in the evidence as to what was said to the
two boys on the day of the accident and just before it oc-
curred, and at the particular time they were told to go
and get the table or work bench. Some of the testimony
is that they were told by Sanders to bring it up on the
elevator, and other testimony is that they were told to
bring it up the stairway, and still other testimony is that
they were told to bring it up without being directed how.
There is also direct conflict on the question of whether
or not employees, and especially children, had been di-
rected generally to not go up and down on the elevators,
or had been permitted and encouraged to so go. Some
of the witnesses swear that notices were posted on vari-
ous floors of the building in which the elevator was run
prohibiting the employees from using the elevators, and
others swear that they were not only permitted to use
them, but that they were encouraged to use them, one
girl sixteen years of age going so far as to swear that
they were directed to ride on them, and that she had
been discharged because she refused to go up and down
on the elevators. There is this same conflict as to what
was tiaid to Napper about the use of the elevators on the
day he was employed."

The first, second, and fourth assignments of error are
based upon parts of the following excerpt from the
charge;

124 Tenn.— 11

162 TENNESSEE REPORTS, [124 Tenn.

Hosiery & Yarn Co. v. Napper.

(1) "There is evidence tending to prove that on the
day before the accident the foreman, Sanders, had tol/1
these two boys, Richardson and Napper, when they were
instructed to bring up shaftings, not to put anything
on the elevator which was so long as to require heading
up, and defendants say that the disobedience of this or-
der or instruction by both boys, it being fully understood
by them, and the risk and danger fully appreciated,
as defendants contend, was the direct and proxi-
mate cause of the injury and death complained of in
this suit. Hence, they say that deceased's own negli-
gence contributed to his death, and that therefore his
blood is on his own head and not on their hands. If,
from the preponderance of the evidence, you find the con-
tention to be the truth of the case, then, in that event,
your verdict must be for defendants. But plaintiff in-
sists that, on that very day of the accident, this same
foreman ordered these same two boys to bring up from
the basement to the story above a work bench or table
weighing a hundred and fifty pounds, which, it is insist-
ed, was too heavy and beyond the strength of these two
boys to carry up the stairs, and yet was of such dimen-
sions as to make it impossible for them to carry it up on
the elevator, except by heading it up."

(2) "Plaintiff insists that the order given on the day
of the accident, if it was so given, necessarily repealed,
rescinded, or countermanded the order of the day before,
to the extent that the two boys were in conflict. How
this matter is, I leave for the jury to determine."

16 , Cates] DECEMBER TERM, 1910. 163

Hosiery & Yarn Co. v. Napper.

(3) "I charge the jury further that in determining
whether the deceased, a boy of sixteen years of age, was
guilty of contributory negligence or an assumption of
the risk, the jury have a right to take into consideration
his age, capacity, and experience, the length of time he
had been employed in defendants' business and estab-
lishment, and although he may have been guilty, in the
opinion of the jury, of an act or acts which in an adult
would have amounted to an assumption of the risk of the
injury and a waiver of the duty the master owed him, or
have amounted to contributory negligence, yet deceased
cannot be held to have been guilty of contributory negli-
gence and cannot be held to have assumed any such risk
or to have waived such duty which one of his age, discre-
tion, and experience could not fully comprehend or ap-
preciate."

(4) 'TTou will not understand me to say, or to inti-
mate, that he did or did not fully understand and appre-
ciate the risk. I say the law is that if he did not himself
fully understand and appreciate the risk, and no one
pointed it out and explained it to him in such a way aa to
bring it within the reach of his capacity and understand-
ing, then he did not assume the risk, nor was he guilty of
contributory negligence. This is the law ; the facts are for
the jury to find from the preponderance of all the evi-
dence."

(5) "On the other hand, you are instructed that if
you believe from the evidence that the deceased and his
co-worker and fellow-servant, the Richardson boy, were

164 TENNESSEE REPORTS. [124 Tenn.

Hosiery ft Yarn Co. t. Napper.

expressly instructed by their foreman, Sanders, on the
day before the accident, not to carry anything up on the
elevator that required to be headed up, and that, when
they used the elevator for carrying up any freight what-
soever, they were to start the elevator by manipulating
the ropes, while they must remain on the basement floor,
and that the elevator would stop automatically when
it reached the floor above, and that the boys must ascend
and descend by the steps; and if the jury further finds
from the evidence that all this was clearly brought home
to the deceased boy, and fully explained to him so that he
fully understood the risk and dangers of disobedience,
and that nevertheless deceased and his co-worker and
fellow-servant disobeyed their said orders and instruc-
tions, at the time fully understanding and appreciating
the risks and dangers from so doing, either because those
risks and dangers had been explained and made plain to
them, or because those risks and dangers were so open
and obvious as to need no explanation, even to a boy of
the age, understanding, and experience of deceased ; and
if you further believe from the evidence that the meth-
ods adopted by deceased and his said co-worker and fel-
low-servant were dangerous, and that the adoption of
those methods was the direct and proximate cause of the
accident — then, in that case, plaintiff cannot recover,
and your verdict must be for the defendant."

For convenience of reference, we have numbered the
foregoing paragraphs excerpted from the charge, with
the numbers 1 to 5 inclusive, although they are not so

16 Gates] DECEMBER TEEM, 1910. 165

Hosiery & Yarn Co. v. Napper.

ij umbered in the charge as it appears in the record.
These paragraphs appear, however, in the record, in the
sequence we have given them here. Plaintiffs in error
have not assigned error upon these paragraphs in their
order ; but on the contrary, the first assignment is to the
fifth paragraph, and the second assignment to the first
paragraph, and the fourth assignment to the second par-
agraph.

The first and second assignments, however, are upon
the same subjects, as are the first and fifth paragraphs
of the charge to which they are assigned. The substance
of these assignments is that the trial judge instructed
the jury, in effect, that although they should find that
the deceased was acting in violation of the orders of his
employer, or master, when in conjunction with his co-
worker he put the work bench on the elevator, and head-
ed it up, yet his administrator could recover, unless it
also appeared that the risk and danger of such disobe-
dience had been fully explained to him, and he under-
stood and appreciated such risk and danger ; or, to state
the point differently, that, as a condition of plaintiffs in
error's exoneration, it must not only appear that the
deceased acted in violation of his employer's instruc-
tions, but that the risk and danger of such violation had
been explained to him, and he fully understood and ap-
preciated such risk and danger.

To bring out the full meaning of these two paragraphs
as they bear upon the point suggested, we shall read

166 TENNESSEE REPORTS. [124 Tenn.

Hosiery & Yarn Co. v. Napper.

them together, and paraphrase them. So treated, they
are as follows :

In the first paragraph the judge told the jury that
there was evidence tending to proro that on the day be-
fore the accident, Sanders (plaintiffs in error's foreman)
had told the boys, when he was instructing them to bring
up the shafting, not to put anything on the elevator
which was so long as to require heading up, or being
placed on end, and that'the plaintiffs in error contended
that this instruction was fully understood by the boys>
and that they also fully appreciated the risk and dan-
gers, and that the disobedience of this order by them
was the proximate cause of the injury and death com-
plained of in this suit. He further told the jury that,
if they found this contention to be true, under the pre-
ponderance of the evidence, the verdict should be for the
defendants, now plaintiffs in error.

The residue of the first and second paragraphs is on
other subjects, and need not, at this time, be specially
referred to. In the third paragraph his honor took up
the subject of the assumption of risk and contributory
negligence, and in that connection called attention to the
facts of the age, capacity, and experience of the em-
ployee, and the length of time he had been in service.
Closing up this matter, the court continued : "You will
not understand me to say, or intimate, that he did or did
not fully understand or appreciate the risk. I say the
law is that if he did not himself fully understand and
appreciate the risk, and no one pointed it out and ex-

16 Gates] DECEMBER TERM, 1910, 167

Hosiery & Yarn Co. y. Napper.

plained it to him in such a way as to bring it within the
reach of his capacity and understanding, then he did
not assume the risk nor was he guilty of contributory
negligence." His honor was here considering a case
wherein an employee of immature capacity is placed in
a dangerous position, where he does not himself under-
stand the dangers; that is, where they are not obvious,
or where he has not been instructed in respect of them.
He then turns to a case where an express order is given
and has been disobeyed. He introduces this obverse view
with the expression, "on the other hand." He says to
the jury that if they believe from the evidence that the
deceased and the Richardson boy were expressly ordered
by the foreman on the day before the accident not to
carry anything up on the elevator that required to be
headed up, and that when they used the elevator for car-
rying up any freight at all they were to start it by manip-
ulating the ropes, while they themselves remained on the
basement floor, and that the elevator would stop auto-
matically when it reached the floor above, and that they
must ascend and descend by the steps; and continued:
"And if the jury further finds from the evidence that all
this was clearly brought home to the deceased boy, and
fully explained to him, s<) that he fully understood the
risk and dangers of disobedience, and that nevertheless
the deceased and his co-worker and fellow-servant (the
Richardson boy) disobeyed their said orders and instruc-
tions, at the time fully understanding and appreciating
the risks and dangers from so doing, either because those

168 TENNESSEE REPORTS, [124 Tenn.

Hosiery & Yarn Co. v. Napper.

risks and dangers had been explained and made plain to
them, or because the risks and dangers were so open and
obvious as to need no explanation, even to a boy of the
age, understanding, and experience of deceased; and
if you further believe from the evidence that the methods
adopted by the deceased and his said co-worker and fel-
low-servant were dangerous, and that the adoption of
those methods was the direct and proximate cause of the
accident — then, in that case, plaintiff cannot recover,
and your verdict must be for the defendants."

It is insisted in the assignment of errors that the trial
judge in this part of the charge misled the jury into the
belief that, although the deceased was killed while diso-
beying orders, and as a consequence thereof, yet it must
appear, before his case could be defeated by such dis-
obedience, that he fully understood the risk and dangers
of the disobedience, and performed the act which cost
him his life nevertheless.

We think this is the proper construction of the por-
tion of the charge referred to. The court of civil appeals
took a different view, holding that the trial judge meant
to say that, if the things just preceding the matter just
quoted had been made known to the boys, tjiey would
have fully understood the said risks and dangers. This
construction, we think, is not only incorrect, but makes
the trial judge invade the province of the jury.

The law is clear, of course, that, if a servant is injured
while engaged in disobeying the orders of his superior,
he cannot recover. Railway Co. v. Wilson, 88 Tenn.,

16 Cates] DECEMBER TERM, 1910. 169

Hosiery & Yarn Co. v. Napper.

•

816, 12 S. W., 720; Railroad v. Reagan, 96 Tenn., 128,
33 S. W., 1050; Card v. Wilkins, 6r N. J. Law, 296, 39
AtL, 676 ; McMellen v. Umon News Co., 144 Pa., 332, 22
Atl., 707; Thompson's Law of Negligence, sees. 5375,
5396. Minors as well as adults are within the rule ; and
the mere fact that the servant was not warned that the
prohibited act was dangerous does not make the rule
any the less applicable, or the doing of the act any the
less culpable. 1 Lahatt on Master and Servant, sec.
363.

It is insisted on behalf of the defendant in error that
there was no affirmative error in this charge, since, if
the various points concurred which were contained in the
portion of the charge referred to the conclusion that
there could be no recovery would undoubtedly follow
hence there was no affirmative error, and that it was the
duty of the plaintiff below to offer a special instruction
to the court to limit the charge to the exact point de-
sired.

We think the error was an affirmative one, since, when
the portion of the charge in which it appears is taken
in connection with the context, it could not have failed
to mislead the jury.

However, this error is not available to the plaintiffs
in error in the present case, because, in the first para-
graph quoted from the charge, supra, the trial judge
stated to the jury, without objection or protest on the
part of plaintiffs in error's counsel, that such was the
contention of the plaintiffs in error. If plaintiffs in er-

170 TENNESSEE REPORTS. [124 Ten*

Hosiery & Yarn Co. y. Napper.

ror made such contention, they misled the trial judge
into the error now complained of. If the trial judge
misconceived the contention of the plaintiffs in error, it
was their duty, through their counsel, to protest at the
time, and have the proper correction made by special re-
quest of other form, before the case was finally given to
the jury. The rule upon this subject is the same as that
which applies when a trial judge, in his charge to the
jury, assumes a fact to be conceded, or makes an assump-
tion in the charge based upon the course of the party in
the court below and acquiesced in by that party at the
time as correct, or that a certain contention is the real
matter of contention between the parties. McGolgan v.
Lang ford, 6 Lea, 108, 116, 117; Hayes v. Cheatham, 6
Lea, 1, 7 ; Malone v. Searight, 8 Lea, 91 ; Slattery v. Lea,
11 Lea, 9, 12. It was held in the cases cited that it is
the duty of the trial judge to narrow the issues as much
as practicable in order to facilitate the labors of the
jury.

Defendant in error insists in this court, as he did in
the court of cftil appeals, that the error above referred
to could in no event be available to plaintiffs in error be-
cause it was not sufficiently pointed out in the motion
for new trial, as required by the rule of that court Af-
ter what has been said, we should not refer to this sub-
ject but for the fact that an important point of practice
is presented.

The rule referred to requires that motions for new
trial "shall specify the errors claimed to have been com-

16 Cates] DECEMBER TERM, 1910. 171

Hosiery & Yarn Co. v. Napper.

mitted on the trial, or the grounds, on which the motion
is based." The rule was fully complied with in the
court below by specifying the particular passages of the
charge complained of. It was held by the court of civil
appeals that it was the duty of the party moving for a
new trial to go further and to specify the reasons why
it was believed by the movant that there was error in
the portion of the charge specified, and the case of Rail-
road v. Johnson, 114 Teun., 632, 88 8. W., 169, is referred
to as authority for the proposition. That case does not
sustain the point, and the practice has never been so un-
derstood, so far as we know. Such a requirement would
expand motions for new trial into all the voluminosity
of "briefs" and printed arguments. Moreover, it would
be unjust to counsel, since in the hurry of nisi privs
trials it would be impossible for them to make objections
so minute; passing, as they do and must do, rapidly
from one case to another. The dangers consequent upon
such a requirement were perceived by the court of civil
appeals, and that court said that there need not be such
particularity as is required for assignments of error in
appellate courts. But where should the line be drawn?
The ascertainment of this line would be a source of great
distress to counsel, and of much perplexity to the appel-
late courts, as well as to the trial court. It is argued in
behalf of the requirement suggested that a party might
cut up a charge into as many sentences as composed it,
or into as many subjects as it treated of, and say that
each was error. Of course, such a colorable specifica-

172 TENNESSEE REPORTS. [124 Tenn.

Hosiery & Yarn Co. v. Napper.

tion would not be tolerated. In the present case, each
specification in the motion for new trial is directed to a
specific error supposed to have been committed by the
trial judge, either in a part of his charge copied into the
motion, or in respect of some instruction offered and re-
fused.

The fourth assignment is based upon the part of the
charge which we hare marked above as paragraph No. 2,
which paragraph, in order to be properly understood,
should be taken in connection with paragraph No. 1.

Under this assignment it is insisted that it was the
duty of the trial judge, instead of leaving to the jury the
question whether the subsequent order which was given
countermanded the former one, to have himself con-
strued the two orders and told the jury whether or not
they were in conflict

This assignment should be considered in connection
with the fifth, which makes the point that the trial judge
committed error in not instructing the jury that the
second order was not an abrogation of the order given
upon the previous date.

We are of the opinion that the trial judge committed
error in giving the instruction complained of in the
fourth assignment, but that he would also have com-
mitted error if he had giran the request which is referred
to in the fifth assignment, because that would have mis-
led the jury. This whole matter is covered by the re-
quest, refusal to give which is made the subject of the
third assignment, and we now pass to that subject

16 Cates] DECEMBER TERM, 1910. 173

Hosiery & Tarn Co. y. Napper.

The third assignment is based upon the failure of the
trial judge to charge the following special instruction:

"If you believe that the preponderance of the evidence
is to the effect that the deceased, Robert Napper, waa
directed by his foreman to assist another boy in remov-
ing this bench or table from the basement of the sad-
dlery building, and was told by the foreman, at the time
he was directed to assist in this work, or at any previous
time, not to attempt to bring anything up on the eleva-
tor which it was necessary to stand on its end, and if
you find upon a preponderance of the evidence that,
when the deceased and the other boy went to put this
bench on the elevator, they found that it would be neces-
sary to stand it on its end to get it on the elevator, and if
you find that the bench was too heavy for these boys to
take up the steps, then it was the duty of the deceased to
report these facts to his foreman, and ask further direc-
tions; and if you find he did not do this, but at the time
of his death was disobeying orders, and that diso-
bedience contributed as a part of the proximate cause of
the accident and his resulting death, then, and in that
event, your verdict should be for the defendants."

The point of the instruction is that the deceased and
his co-worker should, upon appearance of the facts
stated, have asked the foreman for further directions;
that is, if they could not take the bench up the steps
themselves because it was too heavy, and could not carry
it up on the elevator without putting it on the end, then
they should have resorted to the foreman for instruc-

174 TENNESSEE REPORTS. [124 Tenn.

Hosiery & Yarn Co. v. Napper.

tions as to what they should do under this State of facts,
instead of proceeding to put the bench on the elevator.
The case supposed is one where the servant was unable
to comply with one order because of physical inability,
and unable to comply with the other because of moral
inability, or violation of duty; that is, disobedience of
orders. Of course, it is clear, under such state of facts,
it is the duty of the servant to call upon the principal, or
vice-principal, for further instructions. It is said by
counsel for defendant in error that this is a conclusion
of fact and not of law. We think this is a mistaken view.
All men must agree that putting the bench on the eleva-
tor under the state of facts supposed in the request
would constitute negligence per 8e> or negligence in law ;
or, stated differently, that the attempt to act under such
circumstances without applying to the principal or vice-
principal for further instructions would be negligence in
law. We think the instruction should have been given.
It was said upon the argument at the bar that there
was no evidence that the work bench was too heavy to be
carried up the stairs by the boys. Evidently the argu-
ment was made by counsel in the court below based on
the weight of the bench, one hundred and fifty pounds,
and its length and breadth and thickness, showing its
bulk, and the age of the boys; they being about fourteen
years of age. At all events, the defendant in error, as
shown by the paragraph which we have marked No. 1
from the charge, made this contention, and assumed
such fact to have been proven, and it was proper that the

16 Cates] DECEMBEE TERM, 1910. 175

Hosiery & Yarn Co. v. Napper.

instruction just referred to on the same subject should
have been given in order to enable the jury to fully ap-
ply the law to the facts.

The matters embraced in the sixth and seventh as-
signments are sufficiently covered by the charge of the
court, and need not be further referred to.

The eighth and last assignment is upon the subject of
the amount of damages ; but that need not be considered,
as the judgment of the court of civil appeals and of the
court below must be reversed for the error above indi-
cated in refusing to give the special instruction men-
tioned.

176 TENNESSEE BEPOBTS. [124 Tenn.

Iron ft Coal Co. v. Schwoon.

Southern Iron & Coal Company v. P. B. Schwoon

et ah

(Nashoille. December Term, 1910.)

1. ADVER8E P088E88ION. Period of suspension of statutes of
limitations from May 6, 1861, to January 1, 1867, could not be
used to complete bar of statutes of limitations.

The adverse possession of land from 1860 to 1870 did not com-
plete the bar of the statute, because the period from May 6,
1861, to January 1, 1867, was inoperative,, and could not be
used to complete the bar of the statute of limitation of seven
years, and such adverse possession was reduced to a period
of less than seven years, under Acts 1865, ch. 10, sec. 1, sus-
pending the operation of the statutes of limitations from May
6, 1861, to January 1, 1867. (Post, p. 196.)

Acts cited and construed: Acts 1865, ch. 10, sec. 1.

2. 8AME. Assurance of title purporting to convey an estate in
fee constitutes color of title. •

An assurance of title purporting to convey an estate in fee,
though not, in fact, conveying such estate, constitutes color
of title; and it may be a fraudulent or forged deed, or it may
be a will, or a decree divesting and vesting title, or any other
paper purporting to transfer a title in fee. (Post, pp. 203, 204.)

Code cited and construed: Sec. 4456 (S.); sec. 3459 (M. ft V.);
sec. 2763 (T. ft S. and 1858).

Acts cited and construed: Acts 1819, ch. 28, sec. 1.

8. 8AME. 8ame. .Decree in ejectment adjudging the title to be

In complainant Is not an assurance of title, when.
A decree in an ejectment suit, which merely declares tnat the
complainant therein is the owner in fee of the land in contro-
versy described, and that his title is superior to that claimed

16 Cates] DECEMBER TERM, 1910. 177

Iron & Coal Co. v. Schwoon.

- 1 ■ in 1 1 i n ■ i in i n 1 1 ■ ~ ■ — —

by the defendant therein, but which does not purport to di-
rest and vest title, 1b not an assurance of title; for such de-
cree simply determines. In favor of the complainant; the con-
test with the defendant, and merely means that the court has
considered the complainant's chain of title, and adjudges that
he has title, but does not purport to transfer title. (Port, pp.
194, 195, 203-206.)

Code cited and construed: Sec. 6301 (S.) ; sec. 6234 (M. & V.) ;
sec. 4484 (T. ft S. and 1858).

Case cited and approved: Duncan v. Oibbs, 1 Yerg., 258.

Case cited and distinguished: Wilkins v. McCorkle, 112 Tenn.,
688.

4. 8AM E. Deed of bargain and sale quitclaiming and transferring
land constitutes color of title, and not a mere quitclaim deed.

A deed which uses the expression "bargained and sold, and do
hereby quitclaim and transfer" purports to convey the lands,
and is not a mere quitclaim deed, but is a color of title. (Post,
pp. 193, 194, 201-203, 205.)

Case cited and approved: Hanks v. Folsom, 11 Lea, 559.

5. SAME. Executor's deed conveying "all the right, title, and
claim" of testator holding under registered tax deeds purport-
ing to convey the fee is an assurance of title.

The deed of an executor, showing on its face that it is made in
pursuance of a power conferred by the will, and purporting to
convey "all the right, title, and claim" of the testator who held
under registered tax deeds purporting to convey an estate
in fee, is an assurance of title within the meaning of the statute
of limitation (Shannon's Code, sec. 4456) vesting title in one
who has had seven years' adverse possession of land under an
assurance of title. (Post, pp. 193, 194, 197, 198, 200, 203, 205-
207.)

Cases cited and approved: McGavock v. Deery, 1 Cold., 265;
Selfreid v. State, 2 Tenn. Chy., 17, 23; Thurston v. University,
4 Lea, 513, 515-520; Swiney v. Swiney, 14 Lea, 316, 328.
124 Tenn.— 12

178 TENNESSEE EEPORTS. [124 Tenn.

Iron & Coal Qo. v. Schwoon.

6. 8AM E. Void tax deed Is an assurance of title.

If It be conceded that a tax deed is void on the ground that the land
was assessed for the taxes against a deceased owner, or on the
ground that the tax sale was made on a day not authorized
by law, still it would constitute an assurance of title within the
meaning of the statute of limitations. (Post, pp. 193, 195, 196,
207, 208.)

Cases cited and approved: Gray v. Darby, M. & Y., 396; Love v.
Shields, 3 Terg., 405; Whiteside v. Singleton, Meigs, 224; Vance
y. Johnson* 10 Humph., 214; Blantire v. Whi taker, 11 Humph.,
313; Clark v. Chase, 6 Sneed, 636; Hunter v. O'Neal, 4 Bax. v
494.

7. SAME. Deed purporting to convey right and title of grantor
holding -under deeds purporting to convey the fee is an assur-
ance of title.

A deed purporting to convey the grantor's right, title, and inter-
est in a specified tract of land, accompanied by proof of deeds
purporting to convey an estate in fee to him, constitutes an
assurance of title or color of title. (Post, p. 208.)

8. 8AM E. Deed conveying grantor's right, title, estate, and In-
terest in certain described lands constitutes an assurance of
title within our statutes of limitations.

Under the statute (Shannon's Code, sec 3672), providing that
every grant or devise of real estate, or any interest therein,
shall pass all the estate or interest of the grantor or devisor,
unless the Intent to pass a less estate or interest shall appear,
one who makes a deed conveying all its right, title, estate, and
interest in certain described lands, or who uses equivalent
words, necessarily refers to his title papers, and the deed
conveys whatever interest those title papers show that he has;
and where his title papers do not convey a title to him in fact
and law, but only purport to do so, the effect would be the
same, that is, the deed would carry whatever force or effect
such assurance has under our statutes of limitations. (Post,
pp. 208, 209.)

16 Cates] DECEMBER TERM, 1910. 179

Iron & Coal Co. v. Schwoon.

Code cited and construed: Sec. 3672 (8.); sec. 2812 (M. & V.);
sec. 2006 (T. ft S. and 1868).

Acts cited and construed: Acts 1819, ch. 28, sec. 1; Acts 1861-52,
ch. 38, sec. 1.

9. DEEDS OF CONVEYANCE. Conveying all that portion not
previously conveyed or held by older title, without description
of excluded land, operates prima facie to convey the whole
described tract

Where a deed purports to convey "all that portion not hereto-
fore sold or conveyed or held by older title or* a certain des-
cribed tract, all lands previously conveyed and those held by
older title are excluded; and the rule is that the burden of es-
tablishing the existence and location of the excluded land is
on the party claiming adversely to the deed; and, unless a
description of the excluded land appears in the deed, there is
prima facie no excluded territory until the evidence estab-
lishes the fact. (Post, pp. 193, 197-201, 209, 210.)

Cases cited and approved: Bowman v. Bowman, 3 Head, 48;
Fowler v. Nixon, 7 Heisk., 719; Bleldorn v. Pilot Mountain C.
ft M. Co., 89 Tenn., 212; Wright v. Hurst, 122 Tenn., 666.

10. 8AM E. Intention reached by construction of all parts, with-
out regard to technical divisions.

All parts of a deed shall be examined together for the purpose of
reaching the intention of the parties, and, when so ascertained,
that intention shall control, without regard to technical divi-
sions, or to the particular parts of deeds as distinguished from
each other. (Post, p. 210.)

Cases cited and approved: Kirk v. Burkholtz, 3 Tenn., Chy., 421,

424, et seq; Hanks v. Folsom, 11 Lea, 660 (and citations);
Fogarty v. Stack, 2 Pickle, 610.

11. 8AM E. Rule -stated In the ninth headnote has become a rule
of property.

The rule stated in the ninth headnote has become a rule of prop
erty in this State and the distinction contended for that such

180 TENNESSEE REPORTS- [124 Tenn

Iron & Coal Co. v. Schwoon.

role may obtain as to lands granted in a deed and then ex-
cluded, but not where the exclusion appears in the granting
words of the deed, would be disastrous. {Post, p. 210.)

12. ADVERSE P088E83ION. The cutting of timber, not shown
to be the only use the land was susceptible of, does not con-
situate adverse possession.

Where the evidence shows that the defendant for more than
seven years, cut timber on the land in controversy, but the
evidence does not show that the land was susceptible of only
that form of occupation or use, but on the contrary shows, by
the subsequent building of houses and the clearing and opening
of fields thereon, that it was susceptible of other forms of pos-
session, there was no adverse possession established. (Post,
pp. 211, 212.)

Cases cited and approved: West v. Lanier, 9 Humph., 762;
Creech v. Jones, 5 Sneed, 632; Cass v. Richardson, 2 Cold., 28;
Copeland v. Murphy, 2 Cold., 72; Pullen v. Hopkins, 1 Lea,
741; Hicks v. Tredericks, 9 Lea, 491; Coal & Iron Co. v. Cop-
pinger, 95 Tenn., 526.

13. SAME. 8ame. Not made out by defendant's cutting of tim-
ber, though bill charged land was valuable principally for its
timber, but not stating that it was exclusively valuable there-
for.

A charge in the bill that the land sought to be recovered was
valuable principally for it timber, but not stating that it was
exclusively valuable therefor, does not enable the defendant
to make out adverse possession by showing that he cut timber
on the land for more than seven years. (Post, pp. 211, 212.)

14. 8AM E. Lime kilns not used continuously for seven years and
houses burned within four or five years after their erection,
and not rebuilt, do not constitute adverse possession.

Where a lime kiln was erected on land and used for the burn-
of lime for some years, but not continuously for seven years,
but remained thereon in good condition for seven years; and
about the time the kiln was constructed, some houses were

16 Cates] DECEMBER TERM, 1910. 181

Iron ft Coal Co. v. Schwoon.

built for the lime burners, but these were destroyed by fire
four or five years thereafter, and were never rebuilt, adverse
possession for seven years is not shown under oar seven year
statute of limitation. {Post, p. 212.)

Code cited and construed: Sec. 4456 (8.); sec 3469 (M. ft V.);
sec. 2763 (T. ft S. and 1858).

Acts cited and construed: Acts 1819, ch. 28, 1.

15. SAME. Inclosure and cultivation of land for two years, then
the erection of houses thereon and their occupancy for five
years, though the fences are removed, constitute adverse pos-
session.

Where lands were Inclosed and cultivated for two years, and then
houses were erected within the inclosures, and thereafter the
fence around the inclosure was torn down to faclliate the log-
ging business of the possessor, and the occupancy of the houses
were continuously kept up until such possession had been held
consecutively for more than seven years before the bill was filed,
the adverse possession of the defendant was established.
{Post, p. 213.)

16. 8AM E. Possession acquired by one holding under a registered
deed from one without color of title, and held adversely for
seven years perfects his title.

Where the owner of a tract of land occupied an adjoining parcel
Included in another tract embraced in a deed under which a

third person claimed, until he sold his tract to such third per-

» ... .

son, who then took possession thereof and also of such parcel,
and continued in such possession of such parcel for more than
seven years under his previously registered deed, which enabled
any adverse claimant to determine the nature of the claim of such
third person's possession, the third person's possession ripened
into a title by adverse possession, over the objection that there
was hut a secret change of possession from one who had no
color of title to one who had color of title, without bringing
knowledge of the changed possession to the adverse claimant;

182 TENNESSEE EEPORTS. [124 Tenn.

Iron ft Goal Co. v. Schwoon.

for the inclosure and possession were notorious, and the ad-
verse claim was shown by the registered deed under which tho
possession was held. (Past, pp. 213-216.)

Code cited and construed: Sec. 4456 (S.); sec. 3459 (M. ft V.);
sec. 2763 (T. ft S. and 1858).

Acts cited and construed: Acts 1819, ch. 28, sec. 1; Acts 1895,
ch. 38.

Cases cited and approved: Coal Co. v. Parks, 94' Tenn., 263; Coal
Co. v. Scott, 121 Tenn., 88, 118, 119, 120.

17. 8AM E. Statute of limitation need not be pleaded where title
has been perfected by adverse possession under registered
deed.

The defendant need not plead the seven year statute of limita-
tion in order to make his defense under the statute (Shannon's
Code, sea 4456), vesting title in one who has had seven years'
adverse possession holding under a registered assurance of
title, since seven years' adverse possession thereunder operates
as a transfer of title. (Post, p. 216.)

Code cited and construed: Sec. 4456 (S.); sec. 3459 (M. ft V.);
sec. 2763 (T. ft S. and 1858).

Acts cited and construed: Acts 1819, ch. 28, sec. 1.

18. SAME. 8tatute of limitation must be pleaded to make defense
of possessory right.

Where the defense is merely of a possessory right under Acts
1819, ch. 28, sec. 2 (embraced in Shannon's Code, sec. 4458),
the defense of the seven year statute of limitation must be
pleaded, in order to make the defense. (Post, p. 216.)

FROM GRUNDY.

Appeal from the Chancery Court of Grundy County.
-T. M. McConnell, Chancellor.

16 Gates] DECEMBER TERM, 1910. 183

Iron & Coal Co. v. Schwoon.

Whitson & Mercer, for complainant.

J, D. Fults, J. B. Ferguson, and L. V. Woodlee, for
defendants.

Mr. Justice Neil delivered the opinion of the Court.

Complainant's bill was filed on January 16, 1907. It
claimed thereunder a tract of land described, containing
about 2,500 acres lying within grant No. 4,935, issued
by the State of Tennessee to one Samuel Edmondson,
dated January 6, 1837; that complainant had become
the owner of this land by virtue of a regular chain of
conveyances from the grantee to itself.

It was alleged that this land was wild mountain land,
including the gulf or gulches of Big creek, or Rain's
creek, and also of the Stone Door, and had on it a large
quantity of valuable poplar, oak, and other timber ; that
it was especially valuable for its timber, which was
worth many thousands of dollars ; that the land denuded
of its timber would not be worth more than ordinary
mountain land, and much of it would be worthless.

The bill further alleges :

"That complainant is informed and believes that de-
fendant F. R. Schwoon is claiming the ownership of and
setting up some kind of claim of title to a portion or all
of said tract of land. That complainant is informed and
believes that defendant Schwoon is claiming said land
under a quitclaim deed for which he paid only the sum

184 TENNESSEE REPOBTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

of sementy-five dollars; that said claim of title
rests solely on a tax sale made in 1859 or 1860 to
one W. 0. Hill. That complainant is informed and be-
lieves and is advised that said tax sale was and is in-
valid, null, and void and conferred no title on the pur-
chaser, and that defendant Schwoon acquired no title by
said purchase, and has not acquired the title since ; that
defendant Schwoon has unlawfully and without au-
thority entered upon said land and erected a house
thereon, and has cut and destroyed several hundred
dollars worth of fine poplar timber thereon, as com-
plainant is informed, and has committed dirars tres-
passes and waste on said land and will continue to do so
unless restrained; that defendant Schwoon, as com-
plainant is informed and believes, is now and has been
for several years engaged more or less in the sawmill
and lumber business; that he now has a sawmill near
said premises ; that it is his avowed intention to cut and
remove the timber from said land; and that he will so
cut and remove said timber unless restrained by the flat
of your honor's court."

It is further alleged that Charles E. Campbell is
claiming ownership of all of said tract of land, by virtue
of (a conveyance of) one McMurray, of the land de-
scribed in grant No. 5318, covered and issued to one
Stephen Haight; that said Haight's title is inferior to
that of complainant

Defendant Schwoon answered in the following lan-
guage:

16 Cates] DECEMBER TERM, 1910. 185

Iron & Coal Co. v. Schwoon.

"Respondent denies each and every material allega-
tion in said bill contained as fully and as emphatically
as though each of said allegations was herein quoted
verbatim and each separately denied in express terms.
Respondent most especially denies that the complainant
company is the owner of the land described in said bill
or any part of same, either legally or equitably ."

Defendant Campbell filed an answer in the same
terms.

The cause was heard by Chancellor McConnell at the
November term, 1908, and he then entered a decree ad-
judging that the allegations of the bill have been fully
met and denied by the answers, and were not sustained
by the evidence, and he thereupon dismissed the bill.

From this decree the complainant prayed an appeal to
this court, which was granted, and errors have been asr
signed. The cause was argued at a previous term and
held under advisement by the court until the present
term, and has been again argued, and we now have it
before us for determination.

As already stated, complainant claims title under a
grant issued to one Samuel Edmondson on January 6,
1837. It appears from the evidence that there were two
Samuel Edmondsons living in Warren county at the
time the grant was issued, one Dr. Samuel Edmondson
and another Samuel Edmondson, a hotel keeper. Com-
plainant insists .that the grant was issued to Dr. Samuel
Edmondson. Defendant insists that it was issued to
Samuel Edmondson, the hotel keeper, who was a cousin

186 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

of Dr. Samuel Edmondson. The evidence as to the iden-
tity of the grantee is quite meager on both sides.

Passing this controversy at this time, and assuming
for the present that Dr. Samuel Edmondson was the
grantee,, it should be stated that he died intestate in
1844, leaving as his only heir at law John Crawford Ed.
mondson. On the 25th of April, 1887, John Crawford
Edmonson, along with W. W. Summers and wife, C. R.
Summers, and Ward Kincannon and Mrs. C. G. Kincan-
non, entered into a contract whereby they agreed to sell
to P. W. Keith and John H. Anderson the tract of land
in controversy. This contract recites :

"Whereas, the said John C. Edmondson is the owner
of one-half of the following lands; and as W. W. Sum-
mers, C. R. Summers, his wife, Ward Kincannon and
Mrs. O. G. Kincannon are the owners of the other one-
half undivided interest in the following described grants,
viz., Nos. 4,669; 4,933; 4,394; 4,935; 4,936; 4,937, 4,938;
4,939; 4,940; 4,972; 4,973; 4,987; 5,051; 5,052; 5,191;
6,174; 6,175, of record in the register's office for the
Mountain Land district at Sparta, Tennessee, to which
reference is here made for a full and more specific de-
scription ; and

"Whereas, said lands are of that class of lands known
as 'wild lands/ and that it is necessary to investigate the
title to some, to locate said lands :

"Now, therefore, the said P. W. Keith and John H.
Anderson bind and obligate themselves to locate said
Jands, and to find purchasers to purchase the same,

16 Gates] DECEMBER TERM, 1910. 187

Iron ft Coal Co. v. Schwoon.

using all good diligence to secure purchasers therefor,
and, if necessary to make sales, will map said lands and
carry purchasers on the same to show the same up to the
best advantage; all of which is to be at the expense of
the said Keith and Anderson.

"Now, therefore, and in consideration of one dollar
to us in hand paid, and the said services ren-
dered by the said P. W. Keith and John H. Anderson,
and by them hereby agreed to be rendered, we bind our-
selves, our heirs and assigns, to pay over to the said P.
W. Keith and John H. Anderson, their heirs and as-
signs, one-third part of the sales price of said lands when

4

sold. The said Anderson and Keith obligate themselves

to submit all offers of purchase to our consideration for

•

our acceptance and confirmation; said land not to be
sold for less than one dollar per acre. And to
this end said P. W. Keith and John H. Anderson are
hereby empowered and authorized to make sales of any
and all of said lands as early as is practicable; and to
this end we, John C. Edmondson, W. W. Summers, C. R.
Summers, Ward Kincannon and O. G. Kincannon, bind
and obligate ourselves to make, or cause to be made, the
purchasers solicited by said Keith and Anderson good
and sufficient title to any and all said land, after having
the terms of sale submitted to us as aforesaid."

John 0. Edmondson, the son, died in October, 1887,
testate. In his last will and testament he made these
provisions :

"Second, I will and bequeath to my beloved wife, M.

188 TENNESSEE REPORTS. [124 Tenn.

Iron ft Coal Co. v. Schwoon.

L. Edmondson, all my property, both real and personal,
during her natural life to be used by her as she wishes.

"Third. I will and bequeath all my property not con-
sumed in use heretofore left to my wife during her life,
upon her death to my beloved niece, Mrs. Rowena
Smartt and her two children Myra Smartt and. Geo. E.
Smartt, sharing equally; and if any other children shall
hereafter be born to Mrs. Rowena Smartt they shall take
an equal share in said property.

"Fourth. I will and direct that J. P. Smartt and wife,
Rowena Smartt, shall be authorized to manage and
control the property of said minors during their mi-
nority for their benefit. During the minority of said
children aforesaid, I authorize my wife, M. L. Edmond-

■

son, J. P. Smartt and Mrs. Rowena Smartt, or in case of
death of either one of them, the survivors, to sell and dis-
pose and make title to any real estate of which I may die
seized and possessed, when in their judgment they think
best to do so.

* -Fifth. I hereby nominate and appoint J. P. Smartt
as the executor of this, my last will and testament, re-
lieving him from giving any bond as such."

On the 3d day of April, 1890, Edmondson, Kincannon,
and others sold said lands, including grant No. 4,935, to
the Cumberland Mountain Coal, Iron & Railroad Com-
pany ; and said Cumberland Mountain Coal, Iron & Rail-
road Company sold said lands to the Bridgeport Land &
Improvement Company, a corporation organized under
the laws of the State of Alabama ; and by request of

16 Cates] DECEMBER TERM, 1910. 189

Iron & Coal Co. v. Schwoon.

said Anderson and Keith and the Cumberland Mountain
Coal, Iron & Railroad Company a deed was made con-
veying said property directly to the Bridgeport Land &
Improvement Company for the consideration of the sum
of $20,000, a receipt of which was acknowledged.

This deed recites :

"We, the said C. G. Kincannon, C. R. Summers, Ward
Kincannon and J. P. Smartt, executor, and jointly with
M. P. EdmOndson, widow of said testator, and Rowena
Smartt, wife of the said J. P. Smartt (by virtue of the
power conferred upon them by the will aforesaid), have
bargained and sold, and hereby quitclaim and convey to
the Bridgeport Land & Improvement Company their re-
spective and undivided one-half interest in and to the
lands embraced in the following grants, to wit: Nos.
4,969; 4,933; 4,934; 4,935; 4,936; 4,937; 4,938; 4,939;
4,940; 4,972; 4,973; 4,987; 5,051; 5,052; 5,191; 6,174;
and 6,175 ; all being of record in the register's office for
the Mountain Land district at Sparta, Tennessee, to
which reference is had for a full and more specific de-
scription. Said lands lie in Grundy, Coffee and adjoin-
ing counties, as will more particularly appear from the
record of said grants, it being the intention to convey all
the lands jointly owned by either.

"To have and to hold to the said Bridgeport Land &
Improvement Company, its successors and assigns for-
ever.

"We covenant and bind ourselves, our heirs and repre-
sentatives, to warrant and defend the title to the one-

r*

I

190 TENNESSEE EEPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

half interest in said land conveyed by us respectively to
said company, its successors and assigns forever against
any claims to be made by ourselves, our heirs, executors,
administrators, but no further."

The next link in the chain of title consists of a record
in the case of E. H. McFarland, a citizen of the State of
Alabama, against the Bridgeport Land & Improvement
Company.

This was a bill filed by said McFarland on July 1,
1903, in the chancery court of Coffee county, Tenn.,
against the Bridgeport Land & Improvement Company,
for the purpose of collecting certain judgments he had
obtained against the Bridgeport Land & Improvement
Company in Alabama. The bill was afterwards
amended, so as to make it a general creditors' bill, to
wind up the affairs of the Bridgeport Land & Improve-
ment Company, and to sell its assets for the payment of
its debts. This bill set out and described the lands em-
braced in the grants hereinbefore mentioned, including
grant No. 4,935 ; and such proceedings were had in this
case in the chancery court of Coffee county that these
lands were decreed to be sold by the chancery court, and
were sold by the clerk and master at public outcry, and
were purchased by the Southern Coal, Iron & Railroad
Company, the complainant in this cause, for the sum of
f 45,000, and the title to all of said property divested out
of the Bridgeport Land & Improvement Company, and
vested in the Southern Coal, Iron & Railroad Company
by decree of the court, and the clerk and master was or-

16 Cates] DECEMBER TERM, 1910. 191

Iron & Coal Go. v. Schwoon.

dered to execute and convey said lands by deed, to be re-
corded as a muniment of title.

In pursuance of this decree, sale, and purchase by the
Southern Coal & Iron Company, the clerk and master of
the chancery court of Coffee county executed a deed con-
veying to said Southern Coal & Iron Company all the
lands above mentioned, including grant No. 4,935, which
it had recorded as its muniment of title.

Defendant insists that this chain of title is fatally
defective, because the complainant has failed to show
that Dr. Samuel Edmondson was the grantee of grant
No. 4,935. Secondly, because the Bridgeport Land &
Improvement Company was a foreign corporation, if a
corporation at all, a citizen of Alabama, having no legal
status in Tennessee, and the general creditors' bill filed
in the chancery court of Coffee county was between citi-
zens of Alabama. Third, because the charter of the
Bridgeport Land & Improvement Ctompany is not filed
in this record, and, it being a foreign corporation, it was
incumbent upon the complainant to file said charter as
a link in its chain of title. Fourth, that, if the paper
title of the complainant were otherwise perfect, it would
cover but a one-half undivided interest in the lands in
controversy, there being no conveyance or other muni-
ment of title vesting the Summers and Kincannons with
the half interest they attempt to convey, and the Ed-
mondsons purport to convey but a half interest.

It is next insisted that, if complainant's title were
otherwise perfect, it is inferior to the title of defendant

192 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

Schwoon, because he has been in absolute, open, no-
torious, and adverse possession, under a deed of convey-
ance purporting to convey a fee, ever since 1882, by cut-
ting, selling, sawing, and using the timber from said
lands; this being the character of possession such lands
are susceptible of.

It is next insisted that, if such possession by cutting
timber for twenty-five years next before the filing of the
bill in this cause be held insufficient to vest him with
title, yet for more than seven years next before the filing
of the bill he has had, under said deed and color of title,
open, notorious, and adverse possession of said lands by
houses, outbuildings, fences, and in closures.

It is next insisted that if said deed purporting to con-
vey a fee, and under which he has owned and controlled
said land, were deemed insufficient as color of title, he
has another assurance of title to said property, a decree
of the chancery court of Grundy county, entered at the
November term, 1899, more than seven years before the
filing of the bill in this case.

Defendant Schwoon introduced the following docu-
ments :

First. A deed executed November 25, 1861, by Samuel
Christian, tax collector, to W. 0. Hill. This instrument
recites judgment rendered by the circuit court of G-rundy
county, on January 7, 1860, for $11.48 for four tracts of
land, one of which is referred to and reputed to be
owned by Samuel Edmondson, and describes the tract
in controversy. This deed recites that the judgment and

16 Cates] DECEMBER TERM, 1910. 193

Iron ft Coal Co. v. Schwoon.

order of sale came into the collector's hands on January
30, 1860; that, after advertising and giving notice, he
sold the several tracts of land separately at the court-
house door, on the first Monday in July, 1860, at public
sale, to William C. Hill, for f 11.48.

Second. A deed executed December 19, 1861, by John
Dugan, tax collector, to William O. Hill, transferring
nine tracts of land. Among the lands described is that
in controversy in this case. Thig deed recites that the
judgment and order of sale came to the hands of the
sureties of the tax collector of Grundy county for the
year 1858 ; that the lands were sold at the courthouse on
the 3d day of December, 1860. The bid for this tract
was f 12.25.

Third. Wijliam C. Hill died testate. In his will
Francis Marion Moflfett was made executor. The will
contains this clause : a I direct that whilst executor he
shall sell any of my personal real estate, little or large,
at public or private sale, for cash, or on time as he may
think best."

Fourth. A deed which purports to be a deed of F. M.
Moffett to defendant Schwoon. This document is as fol-
lows : "I, F. M. Moflfett, as executor of William C. Hill,
deceased, by virtue of the authority in me vested as said
executor, for and in consideration of seventy-five dol-
lars to me in hand paid, receipt of which is hereby ack-
nowledged, have this day bargained and sold, and do
hereby quitclaim and transfer to F. R. Schwoon, his
heirs and assigns forever, all the right, title and claim

124 Tenn.— 13

194 TENNESSEE REPORTS. [124 Term.

Iron & Coal Co. v. Schwoon.

that I, as said executor, have in and to all that portion
not heretofore sold or conveyed or held by older title to
the following described 5000 acres tract of land in
Grundy county" — describing the land in controversy.

Fifth. A decree made at the November term, 1899, of
the chancery court at Altamont, in the cause of
Frederick Schwoon v. T. B. Roddy et al. This decree,
so far as is necessary to recite its contents, is as follows :

"This cause came on to be heard on the 23d day of No-
vember, 1899, before the Honorable T. M. McConnell,
the chancellor, upon the bill of complainant and ex-
hibits thereto, the answers of the several defendants, and
the proof filed in this cause ; from all of which it appears
to the court that complainant Frederick. Schwoon, Sr.,
is the owner in fee simple of the following described
tract of land (describing the land in controversy in the
present case,) situated in Grundy county, Tenn. It
further appears to the court that on June 7, 1897, the
defendant T. B. Roddy, as agent for defendant David
Mason, filed a suit in replevin before J. R. Myers, a jus-
tice of the peace of Grundy county, Tenn., to recover the
possession of a certain valuable walnut tree which had
been cut from said tract of land under a claim of said
Mason as owner of the lands upon which said timber
was cut ; said replevin suit having been enjoined by the
bill in this cause. It further appears to the court that
the title of the said David Mason to said tract of land
above described, or to any part thereof, is inferior to the
title of defendant Frederick Schwoon, Sr., and is a cloud

16 Cates] DECEMBER TERM, 1910. 195

Iron & Coal Co. v. Schwoon.

upon the same, and, as such, should be removed. It is
therefore considered by the court, and so ordered and
decreed, that the complainant Frederick Schwoon have
and recover from the defendant the above-described
tract of land, and that the claim of title of said defend-
ants, or either of them, to said lands, or any part there-
of, is a cloud upon the title of complainant, and as such
is declared void, invalid, and removed."

Complainant attacks the deed made by Christian, the
tax collector, to Hill, dated November 25, 1861, and the
deed from Dugan, dated December 2, 1861, alleging that
both of these deeds were void, because the taxes for 1858
and 1859, to collect which the sales were had under
which said deeds were executed, were assessed against
Samuel Edmondson, and judgment rendered against
Samuel Edmondson for said taxes. It is said that
Samuel Edmondson was not the owner of the property
in 1858 and 1859, and therefore was not the party to be
assessed or sued, as he died in 1844, which was fourteen
years before the taxes in question were assessed, and
fifteen years before any judgment was rendered. It is
insisted that John C. Edmondson was the owner of the
property in 1858 and 1859, as the heir of Dr. Samuel
Edmondson. This objection, it is perceived, is based
upon the assumption that grant No. 4,935 was issued to
Dr. Samuel Edmondson, and not to Samuel Edmondson
the hotel keeper.

It is insisted also that the tax sale made by Dugan is
void for the further reason that the sale was had on De-

196 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

. __ V

cember 3d, instead of on the first Monday of July, as re-
quired under the statute existing at that time.

It is noted, also, that on the trial of the cause in the
court below the complainant excepted to the reading as
evidence of the deed which purported to have been exe-
cuted by Christian to Hill, and the deed purported to
have been executed by John Dugan to W. 0. Hill, ex-
hibits Nos. 1 and 2, respectively, to the deposition of de-
fendant Schwoon, because not supported by the record
of the cases respectively upon which they were based.
These exceptions were overruled by the chancellor on
the ground that the deed might be read as evidence of
color of title only, and for this purpose need not be sup-
ported by the record.

William C. Hill held adverse possession of this land,
under his tax deeds, which purported to convey an es-
tate in fee, through the tenant Andrew Fults, from 1860
to 1870 ; but through the operation of the act of May 30,
1865, ch. 10, section 1, the time from May 6, 1861, to
January 1, 1867, was inoperative, and could not be used
to complete the bar of the statute of limitations, so that
such adverse possession, through Fults was legally re-
duced to a period of less than seven years.

It is insisted by complainant that these tax deeds, for
the reason stated, conferred no title on William O. Hill,
Moffett's testator; and that Moffett, as the executor of
W. C. Hill's will, although authorized by the will to sell
and convey his lands, could impart no title to Schwoon,
inasmuch as Hill had no property therein.

16 Cates] DECEMBER TERM, 1910. 197

Iron & Coal Co. v. Schwoon.

It is then insisted that, in order to present any kind
of defense to complainant's bill, Schwoon must make out
a case of adverse possession under the statute of limita-
tions, holding by a recorded deed purporting to convey
a fee.

It is averred in complainant's brief that the chan-
cellor, in rendering his decree in this case in the court
below, held that the defendant Schwoon had perfected
his title to the tract of land in controversy by the statute
of limitations of seven years, holding by recorded color
of title purporting to convey a fee and thereupon dis-
missed complainant's bill, taxing it with the cost This
is assigned for error.

It is insisted in behalf of complainant that the deed
presented in evidence by the defendant Schwoon pur-
porting to have been executed by F. M. Moffett, as execu-
tor of the estate of William 0. Hill, in and of itself is not
a color of title to any tract of land, in that it does not
describe any specific tract.

This objection is based on the words "all of the right,
title, and claim that I as said executor have in and to all
that portion not heretofore sold or conveyed or held by
older title." It is said that this deed does not purport
to convey the 5,000-acre tract, but only the interest in
that part of it which had not theretofore been sold or
conveyed or held by older title ; that, while the descrip-
tion given is of a very large tract of land, 5,000 acres,
and might be good if it purported to convey the whole
tract, yet, inasmuch as it failed totally to describe where

198 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

the portion conveyed was located, it was too indefinite
and uncertain.

It is further said that this is a conveyance where the
exception is embraced in the con^ieying part of the deed ;
that the meaning of it is all of the tract except that part
heretofore sold or conveyed or held by older title. In
other words, that the lands embraced in the exception
are not conveyed by this deed, but only that part of the
lands lying outside of the lands theretofore sold or con-
veyed or held by older title, and that the burden was on
Schwoon to identify the land which he claimed under
this deed, as some specific tract of land inclosed within
some specific boundary, and that he could not do this
without first showing what land had been previously
sold or conveyed or held by older title.

In response to this the defendant insists that, if such
exclusion were made in a grant, the party relying on the
exclusion would have to show affirmatively the bound-
aries of the land excluded. In other words, that the bur-
den of proof would be on the party relying on the ex-
clusion, as, without any definite description in the grant,
such exclusions are ineffective, until they are made
definite by proof.

It is insisted on behalf of defendant that the same rule
applies to deeds; but that, admitting for the sake of
argument that the burden of identifying the exclusions
in the deed from Moffett to Schwoon was upon the de-
fendant, it is insisted by him that the record shows con-
clusively all that portion of grant No. 4,935 theretofore

16 Cates] DECEMBER TERM, 1910. 199

Iron & Ccal Co. v. Schwoon.

sold or conveyed or held by older title. Reference is
made to exhibit No. 11 to the deposition of Frederick
Schwoon, which is a deed from James H. Hughes of Mc-
Minnville, and William C. Hill of Altamont to the Swiss
Emigration Society or Mutual Trust Company of Emi-
gration of the State of Berne, conveying the one-fourth
of 30,000 acres of land in Grundy county, Tenn., to be
selected by said societies by taking every fourth alter-
nate lot, and no other, which consist of fifty and one
hundred acre lots hereafter to be laid off.

It is perceived at transcript page 700 the first tract
described as the land of William C. Hill is the land in
question, grant No. 4,935. On pages 701 and 702 of the
transcript appear the conditions upon which the deed
was to become operative. It is conceded by defendant
that these conditions were not complied with, and the
deed- became null and void; but it is insisted that
Moffett, the executor of WilHam C. Hill, could not be
charged with notice of the fact. The deed was dated
June 24, 1868, and it is insisted that this is one of the
exclusions referred to by Moffett as land heretofore sold
or conveyed. On page 690 of the transcript, filed as ex-
hibit No. 7 to the deposition of defendant Schwoon is
the deed of William C. Hill to Andrew Fults for two
hundred acres, dated April 22, 1870. It is insisted that
this is the other tract referred to by Moffett as land
theretofore sold or conveyed. It is further insisted by
defendant that these deeds are specific, and the boun-
daries of the tract and the numbers of the lots are clearly

200 TENNESSEE REPORTS. [124 Tenn.

n Iron & Coal Co. v. Schwoon.

shown. Again, complainant refers to exhibit No. 10 to
his deposition, which exhibit is grant No. 3,250 issued by

the State of Tennessee to Moses Thompson, October 30,

f

1828, an older grant than the Edmondson, and the evi-
dence shows that grant No. 4,935 laps on a portion of
grant No. 3,250. An interlock was therefore held by
older title at the time of the issuance of grant No. 4,935,
and also at the time Moffett executed the deed to
Schwoon, and it is insisted it was therefore excluded
from the deed.

It is insisted that these are the only prior conveyances,
and answers to the language in the deed as the lands
"heretofore sold or conveyed or held by older title," and
that, if the burden was on defendant Schwoon, he has
affirmatively shown what lands were excluded.

It is insisted, however, in behalf of the complainant,
that inasmuch as grant No. 4,935 was issued to Dr. Sam-
uel Edmonson, this must likewise fall within the clause
With respect to older titles excluded. This hardly seems
to fall within the rule, because if that grant was really
issued to Dr. Samuel Edmonson, instead of to the hotel
keeper, Samuel Edmonson, it completely covered the
land in controversy, and the question would not be one
of exclusion at all, but simply of superior title.

Complainant lays special stress upon the following
words in the Moffett deed : "All the right, title, and
claim that I, as said executor, have in and to all that por-
tion not heretofore sold or held by older titles," etc. It
is said that this deed purports to convey only the right,
title, and claim that Moffett as executor had in and to

16 Gates] DECEMBER TERM, 1910. 201

Iron & Coal Co. v. Schwoon.

the land in controversy ; that it does not purport to con-
vey even the testator's interest in the land ; that the will
of W .C. Hill does not devise this land to F. M. Moffett
to sell, but only vests him with the power to make a sale ;
and hence that he had no interest in the land whatever ;
and so, having no interest in the land at the date he exe-
cuted the deed to Schwoon, he could convey no interest
in the land to Schwoon.

In response to this it is said by defendant that Mof-
fett's deed starts out with the language, "I, P. M. Mof-
fett, executor of William 0. Hill, deceased, by virtue of
the authority in me vested as said executor," and then,
after the words of conveyance, "all the right, title and
claim that I as said executor have in and to all that por-
tion not theretofore sold," etc. In other words, it is said
that the deed shows that he was acting in his official ca-
pacity under the will of William C. Hill, which gave him
the authority to sell this or any land belonging to Hill,
at the time of his death; that Moffett was acting within
the scope of his authority ; and that he was transferring,
not his interest, but the interest that he as said executor
had.

Again, it is insisted by complainant that the Moffett
deed is a mere quitclaim deed, and purports to convey
nothing, or, if it purports to convey anything at all, at
most it could only be whatever interest W. O. Hill had,
and it does not appear that he had any interest in the
land. On this head complainants say :

"We are not making the contention that a quitclaim

202 , TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

deed is no color of title. It may be that a quitclaim deed
which purports to convey the land itself, and not a mere
interest in the land, is color of title that purports to con-
vey a fee under the statute of limitations, and will vest
true title. But our contention is that the description
here used to describe the interest in the land conveyed
is a limitation on the estate conveyed. 'All my right,
title and claim' is the language of the deed. It does not
purport to convey anything that could not be embraced
within these terms. What then is the meaning of this
language, 'All my right, title and claim'? Necessarily,
that means all of the interest, the legal or equitable in-
terest, the conveyor had in the land at the time ; and, if
he had no interest in the land, he could convey none ; and,
if he had no right, title, or legal claim to the land, he
could convey none. Therefore the description contained
in this deed, being a limitation on the estate conveyed,
confines it to the interest of, or the title owned by, the
conveyor; and, if he had no interest or title, he could con-
vey none, because the deed would not be a color of title
for any purpose. So that we insist, in order to show
that the deed made by Moffett pretended to convey this
land to Schwoon in order to be a color of title for any
interest in the land, it is incumbent upon the defendant
to show that Moffett or his testator Hill had some legal
or equitable interest in the land at the time to convey."
In behalf of defendant it is insisted that the expres-
sion "quitclaim" is only one of four words used in the
conveying part of this deed, to wit, "bargained and sold,

16 Cates] DECEMBER TERM, 1910. 203

Iron ft Coal Co. v. Schwoon.

*

and do hereby quitclaim and transfer. So that," con-
tinues defendant, "this is not a mere quitclaim deed, but
a regular deed of conveyance, purporting to convey a fee.

. . . The deed from Moffett to Schwoon does more
than quitclaim. It bargains, sells, quitclaims and trans-
fers by metes and bounds the lands in controversy."

We do not find in defendant's brief any attempt to an-
swer the argument above quoted from the complainant's
brief respecting the conveyance of an interest merely.
However, defendant insists that the deed from Moffett is
not the only muniment of title under which Schwoon
claims the land in controversy, but he also claims it un-
der the decree above referred to, madfe in the case of
Frederick Schwoon against T. B. Roddy, which was
made more than seven years before the bill was filed.

The complainant makes many controversies with the
defendant, as we have seen, but is silent upon the sub-
ject of the decree last referred to, as a muniment of title
as the basis for the transference of title under the stat-
ute of limitations.

We should have been glad to have the benefit of a dis-
cussion of this subject by the respective counsel, as the
question seems to be one of first impression in this State,
so far as our investigations have extended. However, it
is not difficult when tested by established principles.

The fundamental thought underlying an assurance
of title is that it must be a paper which purports to con-
vey an estate in fee. In order to be mere color of title it
need not, in fact, convey such estate, and if it be what is

204 TENNESSEE REPORTS. [124 Tenn.

Iron ft Coal Co. v. Schwoon.

called mere color of title, it never does, but always pur-
ports to convey. It may be a fraudulent deed op a forg-
ed deed, op it may be a will op a decree divesting and vest-
ing title, op any other paper that purports to transfer,
a fee title. This fundamental requirement appears in
our act of 1819 as its contents are set forth in section
4456 of Shannon's Code. The language used is : "Hold-
ing by conveyance, devise, grant, or other assurance of
title purporting to convey an estate in fee." This rule
is general. It is said in Cyc, vol. 1, p. 1055 et seq., that an
instrument in order to operate as a color of title "must
purport to convey title to the claimant thereunder, op to
those with whom he is in privity." The decree above re-
f erred to merely declares that the complainant therein
is the owner in fee of the land described, and that his
title is superior to that claimed by the defendant therein,
but it does not purport to divest and vest title. We are
referred by counsel fop defendant to the case of Wilkins
v. McCorkle, 112 Tenn., 688, 80 S. W., 834, as support-
ing the proposition that a decree divesting and vesting
title is equivalent to a deed. So it is in fact, and it is so
declared by our statute. Shannon's Code, section 6301.
And such was the rule at common law, as noted in the
case of Duncan v. Gibbs, 1 Yerg., 258, loc. cit. But it is no
where held, so far as we know, that a decree in an eject-
ment suit merely declaring that the complainant therein
is the owner in fee of the land for the -purpose of deter-
mining the contest with the defendant in such case is
an assurance of title. Such a decree means simply that
the court has considered the plaintiff's chain of title,

16 Cates] DECEMBER TERM, 1910. 205

Iron & Coal Co. v. Schwoon.

and adjudges that he has title. It does not purport to
transfer title.

We shall now consider whether the Moffett deed can
be treated as showing color of title.

We are of opinion that it can. and should be. The ob-
jection is not well taken that the executor purports to
convey his own interest. The deed shows that he is un-
dertaking to act pursuant to a power conferred upon
him as executor of the will of W. 0. Hill, and to convey
the interest of Hill's estate.

Equally unfounded is the contention that the deed is
a mere quitclaim. It uses the expressions, "bargained
and sold" and "transfer." These are sufficient (Hanks v.
Folsom, 11 Lea, 559 ) , even the latter, to purport a con-
veyance.

The point made on the expressions, "all the right, title
and claim," presents more difficulty. However, when this
is taken in connection with the will of W. O. Hill, and
the tax deeds made to Hill, the difficulty vanishes. Each
of these deeds purports to convey an estate in fee. That
these deeds must be taken in connection with the will
and Moffett's deed is manifest, since the executor ex-
pressly referred to the will, and, in purporting to convey
the interest of his testator, necessarily referred to his ti-
tle papers, both of which were duly registered in the
county at the time his deed was made. Such reference
was sufficient to describe the property and the interest
conveyed. McOavock v. Beery , 1 Cold., 265; Self tied

206 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

v. State, 2 Tenn. Ch., 17, and 23 ; Swiney v. Swiney, 14
Lea, 316, 323.

A striking example of the principle is found in Thurs-
ton v. University of North Carolina. In that case it ap-
peared that Samuel Dickens died in 1840, leaving a will
which was admitted to probate in September of that
year. By that will, after making certain specific devises
and legacies, he directed all the residue of his lands and
real estate "to be equally divided between his children,"
and appointed three persons by name to make "all and
every necessary division pursuant to the will," and pro-
vided that "their acts and doings, or the acts and doings
of either two of them," should be binding on all parties
concerned. In pursuance of the will the parties them-
selves agreed upon a division of the lands in writing, by
which the 640-acre tract of land in controversy in that
case, treated as part of the estate of Samuel Dickens, was
allotted to one of his daughters, Mrs. Belote. The parti-
tion thus made was acknowledged by the two commis-
sioners as having been made under the powers confer-
red by the will. Mrs. Belote went immediately into pos-
session of the land, and held it for more than ten years.
Subsequently the University of North Carolina, to which
this land, along with other land, had been granted by the
State of Tennessee, set up claim to the land. The heirs
of Dickens, of whom Mrs. Belote was one, claimed that
there had been a deed made to Dickens by the University
which had been lost, but were unable to prove it, and so
Mrs. Belote was compelled to rely upon seven years' ad-

16 Cates] DECEMBER TERM, 1910. 207

' Iron & Coal Co. v. Schwoon.

verse possession. The court, after referring to the well-
known principle that a decree of a competent court for
partition is an assurance of title, within the meaning of
the statute of limitations, for the reason that the parties
hold their parcels in severalty by the same title that they
held in common, said that a deed or agreement for parti-
tion voluntarily entered into by the parties would be
equally efficacious for the same reason, although it did
not in legal terms vest each partitioner with the fee. The
court then stated that the question for decision was
whether the partition of specific lands among the de-
visees made under a will which gave each devisee a fee in
lands devised, constituted an assurance of title under
the statute to the lands mentioned therein, although the
testator had, in fact, no title, or, at most, a mere posses-
sory title to the land. In disposing of it, the court said
that the land was beyond doubt supposed by the devisees
and the persons empowered by the will to make the par-
tition to belong to the testator; that whether it did in
fact belong to him by any assurance of title could not
now be shown; that the instrument of partition was
neither forged nor fraudulent; that "even if inoperative
in its inception, or founded on a will ineffective as to
the lands in controversy, when taken in connection with
the will it purported to convey an estate in fee." Thurs-
ton v. University of North Carolina, 4 Lea, 513, 515-520.
If it be conceded that the tax deeds were void on the
grounds insisted on by complainant, which have been
already referred to, they would constitute an assurance

208 TENNESSEE KEPOBTS. [124 Tenn.

Iron ft Coal Co. r. Schwooa.

of title notwithstanding. Love v. Shields, 3 Yerg., 405 ;
Vance v. Johnson, 10 Humph., 214; Hunter v. O'Neal, 4
Baxt, 494; Whiteside v. Singleton, Meigs. 224; Grey v.
Darby, Mart. &. Y., 396; Clark v. Chase, 5 Sneed, 636;
Blantire v. Whitaker, 11 Humph., 313.

It may be that a deed made by A. B. purporting to con-
vey all of his right, title, and interest to a specified
boundary of land, nothing else appearing, would not be
an assurance of title; but, if accompanied by proof of
deeds purporting to convey an estate in fee to him, the
two taken together would constitute an assurance of ti-
tle sufficient under our act of 1819, when supported by
seven years' adverse possession, to effect the transfer of
title. It is true that such a deed would not in and of it-
self convey title of A. B. had no title; but, united with
proof of a deed purporting to convey title, it would
amount to color of title. In this same connection should
be considered our Act of 1851-52, ch. 33 section 1, the
contents of which appear in Shannon's Code, section
3672. This act provides that "every grant or devise of
real estate, or any interest therein, shall pass all the es-
tate or interest of the grantor or devisor, unless the in-
tent to pass a less estate, or interest, shall appear by ex-
press terms, or be necessarily implied in the terms of the
instrument." Under this statute, w r hen one makes a
deed to "all my right, title, estate, and interest" in jcer-
tain lands, or uses equivalent words, he necessarily re-
fers to his title papers, and the deed conveys whatever
interest those title papers show that he has; or in case

16 Gates] DECEMBER TERM, 1910, 209

Iron & Coal Co. v. Schwoon.

his title papers do not really convey a title to him in fact
and law, but only purport to convey such title, the effect
would Jbe the same; that is, the deed would carry what-
ever force or effect such assurance has under our statute
of limitations, that is, section I of our Act of 1819, ch.
28.

We shall next consider the point made upon the fol-
lowing language contained in the Moffett deed, viz.:
"All that portion not heretofore sold or conveyed or held
by older title of the following described 5,000-acre tract
of land," etc. This is equivalent to a clause excluding
from the conveyance lands previously conveyed, and
those held by older title. The rule upon that subject is
laid down in this State in the cases of Bowman v. Bow-
man, 3 Head, 48, Fowler v. Niwon, 7 Heisk., 719 ;
Bleidorn v. Pilot Mountain 0. <& M. Co., 89 Tenn.,
212, 15 S. W., 737; and Wright v. Hurst, 122 Tenn.,
656, 127 S. W., 701, 135 Am. St Rep., 869, and
it is that the burdens of establishing the existence
and location of the excluded land is upon the party
claiming adversely to the deed; that, unless a descrip-
tion of the excluded land appears in the face of the deed,
there is prima facie no excluded territory until the testi-
mony establishes that there id some particular land re-
ferred to in the excluding clause covered by a prior con-
veyance ; that, when this fact is established by evidence,
then as to such particular territory the grant or deed
never did operate as a conveyance or color of title to such
excluded territory.

124 Tenn.— 14

210 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

It is insisted by complainants that, while this may be
the rule as to lands granted in a deed and then excluded,
it cannot be the rule where the exclusion appears in the
granting words of the deed. The modern rule, as recog-
nized in this State, is that all the parts of a deed shall
be examined together for the purpose of reaching the in-
tention, and, when so ascertained, that intention shall
control without regard to technical divisions, or to the
particular parts of deeds as distinguished from each
other. Hanks v. Folsom, 11 Lea, 560, loc. cit., and au-
thorities cited ; Fogarty v. Stack, 2 Pick., 610, 8 S. W.,
846. See also, Kirk v. Burkholtz, 3 Tenn. Ch., 421, 424,
et seq.

The rule laid down in Bowman v. Bowman, and other
cases cited in connection therewith, has become a rule
of property in this State, and the consequences of in-
dulging the technical distinction made in complainant's
brief just referred to in respect of the particular part of
a deed in w T hich the excluding clause must appear might
be disastrous. The cases cited, Bowman v. Bowman and
others therewith, refer to exclusion clauses generally,
and the doctrine upon that subject is firmly established
in this State.

Moreover, the defendant, though not bound to furnish
such evidence, has shown the particular tracts or parcels
of land to which the exclusion clauses refer; the deed of
Hill to Andrew Fults for two hundred acres, and the
Thompson grant, No. 3,250. The deed to the Swiss Em-
igration Society is of no importance upon this subject.

16 Gates] DECEMBER TERM, 1910. 211

Iron & Coal Co. v. Schwoon.

We shall next consider the question whether defend-
ant has made out his claim of seven years' adverse posses-
sion under the color of title above discussed.

Six possessions are referred to in the evidence.

We exclude possessions Nos. 3, 5, and 6 as having
been made within seven years next before the filing of
the bill.

Before referring especially to Nos. 1, 2, and 4, we
should dispose of a claim put forward, rather tentative-
ly, it is true, in the brief, that defendant Schwoon had
perfected an adverse possession upon the land by cutting
timber. All the testimony to be found upon this sutn
ject is in his deposition, as follows: "I have exercised
acts of ownership over the tract in controversy for twen-
ty-five years, and cut timber to a great extent, having
had a sawmill on the tract of Mr. McCarver and cut tim-
ber up from the lands in controversy to the amount of
a million feet of poplar. I cut walnut timber as far back
as 1883, and have cut most every year more or less tim-
ber on the land in controversy." So far as concerns
the cutting of timber, the evidence is not sufficient to
justify the conclusion that defendant thereby perfected
an adverse possession, because it does not appear that
the land was susceptible of only that form of occupation.
Indeed, it is shown by the evidence of subsequent posses-
sions, in building houses and inclosing fields, that it was
susceptible of other forms of possession than that of cut
ting timber. It is true that the bill charges that the land
was valuable principally for its timber, but it is not said

212 TENNESSEE REPOETS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

that it was exclusively valuable therefor. We have sev-
eral cases in this State bearing upon this phase of the
subject, viz. : West v. Lanier, 9 Humph., 762 ; Creech v.
Jones, 5 Sneed, 632; Cass v. Richardson, 2 Cold., 28;
Copeland v. Murphy, 2 Cold., 72; Ptdlen v. Hopkins, 1
Lea, 741; Hicks v. Tredericks, 9 Lea. 491; Coal £ Iron
Co. v. Coppinger, 95 Tenn., 526, 32 S. W., 465. Some of
the earlier cases indicate a more liberal doctrine upon
this subject than the later ones. These latter have shown
a disposition not to extend the right of acquiring posses-
sion by acts of cutting timber, and, particularly, it is
shown in Hicks v. Tredericks that where the claimant
has subsequently built houses, or opened fields upon the
property, he thereby conclusively admits that it was ca-
pable of other possession than that of cutting timber.

Possession No. 1 consists of a lime kiln. This was
erected upon the land in 1899, and used for the burning
of lime for some years. About the same time that the
kiln was constructed, there were some houses built for
the lime burners. These houses, however, were destroyed
by fire four or five years thereafter, and were jiever re-
built. It appears that the lime kiln is now in good con-
dition, but it does not appear .that it was used continu-
ously for seven years. We are of the opinion that the
fact that a lime kiln is left in good condition standing
upon a tract of land would not constitute such posses-
sion as would hold the land within the sense
of our statute of limitations, the act of 1819 above re-
ferred to. What effect such structure would have if
continuously used for seven consecutive years we need

16 Cates] DECEMBER TERM, 1910. 213

Iron & Coal Co. v. Schwoon.

not determine, as the facts in this case do not present
such a question.

Possession No. 2 rests on the following facts : In 1899
defendant Schwoon inclosed an acre or an acre and a
half of land lying on the northeastern part of the tract
in controversy, and this land was cultivated by tenants
who lived in a nearby house during the years 1899 and
1900, and in 1901 two houses and a stable were con-
structed upon this lot, within the inclosure, and they
have been used and kept up ever since. After the houses
were built, the fence around the inclosure was torn down
in order to facilitate the logging business of defendant
Schwoon, because the space occupied by the fence was
needed to haul logs over. However, as stated, the houses
were occupied, and they were continuously kept up. Al-
though no one is living in the houses now, defendant
keeps some of his property in two of them. This posses-
sion had been held consecutively more than seven years
when the bill in the present case was filed. We are of
the opinion that this establishes respondent's defense
of seven years' adverse possession. Although the fence
was removed, as already stated, before it was removed
the houses were built, as stated, within the inclosure, and
they were kept up thereafter.

Possession No. 4 is known as the "turkey bottom"
field.

This consists of two acres, and was taken possession
of by defendant on February 13," 1899, and has been held
by him nnder an inclosure and adversely ever since, and

214 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

of course, nothing else appearing, is a legal possession
which would perfect his title; it having been held by
him more than seven years before the bill was filed.

It is insisted, however, by complainant that this is not
the true result, because of the following facts : Prior to
February 13, 1899, one Elias McOarver owned a small
tract of land which lay over and upon the Edmondson
grant. This McCarver tract consisted of less than a
hundred acres, and was a part of grant No. 3,250, the
Thompson grant, which was superior to the Edmondson
grant. McCarver, while he was living upon this Thomp-
son land, cleared the "turkey bottom" field, believing
at the time that it was within the Thompson grant. He
rested under this impression until two or three years
prior to February 13th, when he discovered by a survey
made that it was outside of his grant; that is, of the
Thompson grant. Still, he continued to use and culti-
vate that field. On February 13, 1899, he sold the Thomp-
son land to the defendant Schwoon. Schwoon took pos-
session of the Thompson land, and at the same time took
possession of the "turkey bottom" field, and during that
year had the fences reset, and had a crop made on this
land in 1899 and 1900, and has kept it up ever since. On
one occasion, a part of the fence was laid down to let his
log w T agons through, but w r as rebuilt.

Now, it is insisted by complainant that inasmuch as
McCarver held possession of the "turkey bottom" field
without any color of title, and that Schwoon took pos-
session of that field at the same time that he took posses-

16 Cates] DECEMBER TERM, 1910. 215

Iron & Coal Co. v. Schwoon.

sion of the land he bought from McCarver, this was a se-
cret change of possession from one who had no color of
title to one who did have, and that the statute of limita-
tions would not run in favor of the latter unless knowl-
edge of the changed possession was brought to the owner
of the Dr. Samuel Edmondson title. As authority for
this proposition, we are referred to Johnson & Burr v.
Elder, 92 Ark., 30, 121 S. W., 1068.

We do not think this is a sound view. The case rather
falls under the authority of Coal Co. v. Scott, 121 Tenn.,
88, 118, 119, 120 (loc. cit), 114 S. W., 930, and Bon Air
Coal Co. v. Parks, 94 Tenn., 263, 29 S. W., 130. At the
time defendant took possession of the "turkey bottom"
field, he knew that it lay outside of the Thompson grant,
and his possession must have been based upon his claim
under the Moffett deed. So far as concerns the knowl-
edge of whoever may have been the true owner of the Ed-
mondson grant, the fence around the field was notice to
such owner, and the fact that Schwoon was in posses-
sion, was notorious, and the fact that he had a claim to
the land must have been equally known, because the
Moffett deed under which he claimed was registered;
also, the will of W. O. Hill and the deeds under which
Hill claimed. By the Act of 1895, ch. 38, such registra-
tion is required as a condition of the vestiture of title ;
the Act of 1819, ch. 28, section 1, being amended to that
extent The purpose of requiring such registrations was
to enable landowners to determine the nature of the
claim which any possessor might be making to his land.

1

216 TENNESSEE REPORTS. [124 Tenn.

Iron & Coal Co. v. Schwoon.

In view of this statute, and the registered deeds above
referred to, it could not be said that this was a secret
transfer of possession of which the owner of the Ed-
mondson grant could not be required to take notice.

Neither of the two possessions above referred to were
upon excluded lands, but were upon other parts of the
Edmondson tract.

It was not necessary that defendant should have
pleaded the statute of limitations in order to make his
defense under the first section of the act of 1819, since
seven years adverse possession under that act operates
as a transfer of title ; the adverse possessor tolls the title
of the real owner; the rule is otherwise where the de-
fense is merely of a possessory right under the second
section of the act of 1819. These principles are so well
settled that it is unnecessary to cite authorities to sup-
port them.

Up to this time we have preferred to merely assume
that the evidence was sufficient to show that Dr. Samuel
Edmondson was the grantee under grant No. 4,935, in-
stead of the hotel keeper Samuel Edmondson, in order
that we might consider, on their merits, the leading
questions of law presented. We have carefully examined
the testimony upon this question, but do not deem it
necessary to decide it, as such decisions, now unimport-
ant to the present controversy, might affect other litiga-
tions concerning other grants, which may be pending, or
may arise hereafter.

There are some other questions suggested in the briefs

16 Cates] DECEMBER TERM, 1910. 217

Iron & Coal Co. v. Schwoon.

of counsel, as already indicated, but they need not be
considered, as those already disposed of are determinat-
ive of the issues.

It results that the decree of the chancellor must be
affirmed, with costs.

218 TENNESSEE REPORTS. [124 Tenn.

Smlthson v. State.

P. H. Smithson v. State.
(Nashville. December Term, 1910.)

1. HOMICIDE. Rejection of evidence of the lecherous character
of the deceased showing motive of accused to protect his young
daughter is reversible error.

Where the accused, the father of a motherless daughter, sixteen
years of age, knowing that the deceased was a libertine, wrote
him a friendly letter, requesting that he cease his attentions
to his said daughter, as she was too young to marry; and the
deceased replied to the letter in a flippant and offensive note,
admitting that he had proposed marriage to the daughter,
but denying that he had any intention to marry her, and almost
declaring in so many words that his attenions to the daughter
were for no good purpose, and, when taken in connection with
the prisoner's knowledge of the decedent's character, the reply
was of a nature to excite much further the apprehensions of
the father concerning the decedent's visits to the young daugh-
ter; and with some evidence tending to show that the accused
was under the impression that the deceased had not discon-
tinued his meetings with the daughter, but had seen her clan-
destinely after decedent's said letter; and, thereafter, on the
night of the homicide, the accused met the deceased at a
social gathering, and upon seeing him in conversation with
the daughter, beckoned him to one side, where they had an
altercation, and the accused claimed that, after the deceased
had struck him with brassknucks, he, in self-defense, shot and
killed the deceased. Upon these facts, it was reversible error
for the trial judge to reject evidence of decedent's conduct
with other women, indicating a lecherous character to a high
degree, which was known to the accused, and was admissible
as bearing upon the motives of the accused. (Post, pp. 220-229.)

16 Cates] DECEMBER TERM, 1910. 219

Smithson v. State.

Cases cited and approved: State v. Zellers, 7 N. J. Law, 220,
230; Cheek v. State, 35 Ind. f 492; Shepherd v. Commonwealth,
119 Ky., 931; Shlpp v. Commonwealth, 124 Ky., 643; Austin
v. State, 14 Ark., 561; Pritchett v. State, 22 Ala., 39; Gardom
y. Woodard, 44 Kan., 758.

2. CRIMINAL LAW. What constitutes the "res gestae" In a
prosecution for murder.

The "res gestae" is the murder, and the murder is made up
of the homicide and the intent with which it was committed;
and in a prosecution for murder, the "re* gestae" is not limited
to the act of killing, for it includes not only the killing itself,
hut also the acts and words demonstrating the intention and
motive. (Post, pp. 227, 228.)

Cases cited and aproved: Cornwell v. State, M. ft T., 147;
Garber v. State, 4 Cold., 161, 169; Ray v. State, 108 Xenn., 282.

3. 8AM E. Same. Intent and malice are essential to murder, even
In the second degree; motive may rebut presumption of malice
raised by other evidence.

To sustain a conviction for murder, even in the second degree,
it is as essential to show the intent, directly or circumstan-
tially, as it is to .prove the killing itself; and it was reversible
error in the trial judge to exclude the evidence rejecting on
the motive and intention of the accused; for it was admissible
in this case to' explain the motive of the accused in calling
the deceased aside at the social gathering, and to rebut the
presumption of malice necessary to sustain the conviction for
murder in the second degree, which other evidence in the rec-
ord raised against the accused. {Post, pp. 228, 229.)

FROM WILLIAMSON.

Appeal in error from the Circuit Court of Williamson
County. — Douglas Wilke, Judge.

220 TENNESSEE REPORTS. [124 Tenn.

t ■

Smithflon v. State.

McCorklb, Hearn & Lanb and J. C. Eggleston, for
Smithson.

Assistant Attorney-General Paw, fop State.

Mr. Justice Green delivered the opinion of the Court.

The plaintiff in error was indicted for the killing of
one Jesse Jackson. He was convicted of murder in the
second degree, and sentenced to the penitentiary for ten
years. Motion for a new trial was overruled, and the
case was brought to this court.

This killing occurred in Williamson county on July
20, 1906, at an ice cream supper that was held at a
country schoolhouse. The facts, so far as necessary to
be stated, are these :

The plaintiff in error was a man of about 37 years of
age. He had been married twice, and at the time of the
killing he was living with his second wife. By his first
wife he had a daughter, named Eunice, 16 years of age,
who was also living with him at this time.

The deceased, Jesse Jackson, was a man about 27 or
28 years old at the time of the tragedy. He and the
plaintiff in error had been somewhat intimate friends
for a number of years and were on confidential terms.

Some time prior to his death, Jesse Jackson began to
pay attention to Eunice Smithson, referred to above.
It seems that the plaintiff in error objected viery
seriously to these visits to his daughter by Jackson.

16 Gates] DECEMBER TERM, 1910. 221

Smlthson v. State. '

•

Some three months before this killing, Smithson ad-
dressed to the deceased a letter, in which he requested
Jackson to cease his attentions to the daughter Eunice.
Smithson said in the letter that the girl's mother was
dead, that he was the only one she had to look after her,
that he was informed Jackson had tried to get her to
marry him, and that he wanted this pursuit of the girl
stopped, as she was too young to marry. Although
couched in homely phrase, the letter was courteous and
friendly in its language, and the father disclaimed par-
ticularly any intention of givng offense.

Jackson replied to this letter in a flippant note, ad-
mitting that he had asked the girl to marry him, but
disavowed expressly any serious intentions in his ad-
dresses to her. His communication was to the effect
that he had no thought of marriage, and almost in as
many words he declared that his attentions to Eunice
were for no good purpose. He concluded his letter with
these words : "It looks funny to me that a man can't go
to see a girl a half dozen times, but what somebody is
ready to say they are going to marry. Of course, I
asked Eunice to marry me; but didn't you never ask a
girl to marry her, and then not marry her. You didn't
think I was going to talk to her about cats and dogs all
this time."

This reply of Jackson, as has been seen, was offensive
in tone, expressly avowed that the requests to marry
were not in good faith, and, taken in connection with
Smithson's knowledge of deceased's character, hereafter

222 TENNESSEE REPORTS. [124 Tenn.

' Smithson v. State.

referred to, the reply was of a nature to much further
excite the apprehensions of the father concerning this
man's -visits to the young daughter.

There is some evidence tending to show that the plain-
tiff in error was under the impression that deceased had
not discontinued his meetings with Eunice, the daugh-
ter, but that they had seen each other clandestinely after
Jackson's foregoing letter.

On the night of July 20, 1906, as before indicated,
there was a social gathering at a country schoolhouse in
Williamson county. Seats were arranged for the young
people in a circle, which was lighted by Chinese lan-
terns, and they were engaged in social conversation and
other diversions.

Smithson attended this festival in company with his
wife. His daughter, Eunice, was also present, but seems
not to have come with her father. When he arrived at
the place of gathering, he found his daughter already
there. She was seated at one side of this circle, which
was called the promenade ring, and Jackson was engag-
ing her in conversation, when the plaintiff in error ar-
rived.

The plaintiff in error, upon seeing his daughter thus
, engaged with the deceased, beckoned to the latter and
called him off to one side out into the woods, a short
distance from where the gathering was. After the two
had retired to this place, which was only a few feet away
from the ring, there they had an altercation which was
witnessed by several persons. It amounted only to a

16 Cates] DECEMBER TERM, 1910. 223

Smithson v. State..

slight fisticuff, however, and attracted no particular at-
tention.

At the conclusion of this encounter the deceased and
plaintiff in error then proceeded some distance from the
place where the, company was gathered, going over to a
church which w r as in the neighborhood. It seems that
they mutually agreed to retire to this farther point, that
they might there settle their differences without inter-
ruption.

According to the testimony of the plaintiff in error,
when he arrived at the latter point, he again remon-
strated with Jackson about the latter's attention to
Eunice. He says that Jackson replied to him with pro-
fane language, and struck him a heavy blow or blows in
the face with brassknucks, whereupon the plaintiff in
error produced his pistol and fired two or three shots at
the deceased. He testified that after these shots were
fired the deceased ran off, and plaintiff in error supposed
the shots had missed entirely. One of the shots, how-
ever, passed probably through the apex of Jackson's
heart, and it is doubtful from the testimony in this
record if he could have done anything more than drop in
his tracks after he was shot. At any rate the plaintiff
in error then returned to the festival, and left there
shortly, going to spend the night with a neighbor.

This tragedy occurred Friday night, and Jackson's
body was discovered on Sunday morning, by a gentle-
man in the neighborhood, lying just at the church where

224 TENNESSEE REPORTS. [124 Tenn.

Smithson v. State.

the difficulty had occurred according to the testimony of
the plaintiff in error.

The theory of the plaintiff in error was that he ap-
proached Jackson first merely to protest further against
the laiter's attentions to Eunice, and he- says that, when
he retired to the church with Jackson, the latter com-
menced the assault as above indicated, and that he
(Smithson) acted in self-defense.

On the trial below, the defendant undertook to testify
as to certain conversations he had had with the deceased
and as to his knowledge of the deceased's character.

From these conversations it appeared that deceased
was an impossible associate for a young girl. He boasted
to the plaintiff in error of his conquests of women,
prided himself on the numbers of his victims, ajnd named
them, accompanied with some detail of his methods- The
plaintiff in error offered to relate various statements
that Jackson had made to him, indicating that the char-
acter of the latter was lecherous to a high degree. The
defendant below also sought to prove that on one occa-
sion, prior to the killing, his wife told him she had seen
Jackson hugging and kissing the daughter Eunice.

The circuit judge excluded all this evidence. In this
we think he w&s in error.

We have searched this record carefully to find the mo-
tive for the conduct of the plaintiff in error. None is ap-
parent, except a natural, tender, and praiseworthy solic-
itude for the welfare of his motherless daughter, as in-
dicated in the letter heretofore referred to. The plain-

16 Cates] DECEMBER TERM, 1910. 225

Smithson v. State.

tiff in error felt that the entire responsibility of this
girl's future depended on him, her mother being dead.
Any evidence tending to show that the plaintiff in error
was inspired by a disposition to protect his daughter
from a libertine is competent, and should have been, al-
lowed to go to the jury as reflecting on his motive in
seeking the interview with deceased. It is always
proper to offer, in explanation of motive for crime, the
state of mind or intentions of the accused; for in the
state of his mind lies the difference between murder and
manslaughter.

Mr. Wharton says:

"The distinction between murder, either in the first
or in the second degree, and manslaughter, is that in
murder in either degree malice is a necessary ingredient,
and the crime is attributable to a wicked, depraved, and
malignant spirit, while in manslaughter malice is want-
ing and the crime is imputed by the benignity of the law
to human infirmity. If malice existed, the crime is mur-
der, and not manslaughter, though sudden passion. co-
existed, and the homicide was the product of both. And
in manslaughter malice is presumed to be and is absent.
. . . The distinguishing characteristics of manslaugh-
ter are absence of malice or an intent to kill, and action
while in the heat of passion, or an intent to kill under
provocation sufficiently serious to deprive the inten-
tional killing of its malicious character, though the mere
presence or absence of intent to kill is not the test, since
there may be an intent to kill under proper provoca-

124 Tenn.-— 15

226 TENNESSEE REPORTS. [124 Tenn.

Smithson v. State.

tion in manslaughter. . . . And to sustain a verdict
of murder in the second degree the proof must show that
the homicide was committed with malice aforethought,
either express or implied, and that it was not the result
of sudden heat upon adequate provocation." Wharton
on Homicide, section 163.

In many of the States the conduct or language of the
deceased in respect to the female relatives of the accused,
when insulting in its nature, may be offered in evidence
as affording sufficient provocation to reduce the degree
of the homicide, if it be shown that the defendant had
knowledge of such insults at the time of the killing. 21
Cyc, 950.

The supreme court of New Jersey has said :

"Inasmuch as the distinction between murder and
manslaughter depends upon the impulse of the mind
with which the act was committed, every circumstance
which goes to show the feeling of the parties toward
each other may be proper." State v. Zellers, 7 N. J.
Law, 220, 230.

The supreme court of Indiana has held that evidence
that the person killed had entered into a conspiracy with
a third party to induce defendant's wife to elope, and
that the facts going to prove such conspiracy had lately
come to the knowledge of the defendant, is competent.
Cheek v. State, 35 Ind., 492.

The court of appeals of Kentucky, in two late cases,
held that it was permissible for the accused to testify as
to knowledge, which he had obtained prior to the killing,

16 Cates] DECEMBER TERM, 1910. 227

Smithson v. State.

as to improper relations existing between the deceased
and female relatives of the accused. Shepherd v. Com-
monwealth, 119 Ky., 931, 85 S. W., 191; Shipp v. Com-
monwealth, 124 Ky., 643, 99 8. W., 945, 10 L. R. A. (N.
S. ) , 335. The court held in these two cases that it was
proper to allow this evidence to go to the jury, and for
them to say how much such information which the ac-
cused had received should palliate his conduct, if at all.

The supreme court of Arkansas has said in discussing
evidence of this character :

"The jury was sitting in judgment upon an act which
in point of law was to be essentially characterized by
the motives of the heart which prompted it. These in
the order of Providence are hidden and beyond the reach
of human law, until developed by acts of commission
which present them to its judgment in determining the
quality of the act brought in question. Every act, then,
of either class, which in the range of probability could
cast a ray of light upon the motive which produced the
homicide in question, was legitimately within the range
of investigation, although occurring at an antecedent
time or at another place." Austin v. State, 14 Ark., 561.

See, also, Pritchett v. State, 22 Ala., 39, 58 Am. Dec,
250 ; Gardom v. Woodard, 44 Kan., 758, 25 Pac, 199, 21
Am. St Rep., 310.

This plaintiff in error, as before noted, was convicted
of murder in the second degree. This court, in discuss-
ing a homicide or murder has said :

"The res gestae is the murder, and the murder is made

228 TENNESSEE REPOBTS. [124 Tenn.

Smithson v. State.

up of the homicide and the intent with which it was com-
mitted. Actions, therefore, which seem to demonstrate
the quo ammo are a part of the res gestae, and words
which are a part of these actions are admissible." Gat-
her v. State, 4 Cold., 161, 169.

And again:

"It is a great mistake to suppose that the res gestae
in the legal sense is in a case of murder confined to. the
fact of thrusting the knife into the body and thereby de-
priving of life. The res gestae is the murder, and the
murder is made up of the homicide and the intent with
which it was committed." Cornwell v. State, Mart. &
Y., 147. To the same effect, see Bay v. State, 108 Tenn.,
282, 67 S. W., 553.

So that to sustain a conviction for murder, it is as es-
sential to show the intent, directly or circumstantially,
as it is to prove the killing itself. This being true, we
think the trial judge was in error in excluding the evi-
dence that we have heretofore referred to. This evidence
reflected on the motive and intentions of the plaintiff in
error. It was admissible to explain his motive in calling
Jackson aside at the ice cream supper. It was admis-
sible to rebut the presumption of malice, necessary to
sustain this conviction for murder, which other evidence
in the record raised against Smithson.

Manifestly his feelings upon seeing deceased convers-
ing with the daughter were very different from what
they* would have been had plaintiff in error obtained a
different impression of Jackson's character. The

16 Cates] DECEMBER TERM, 1910. 229

Smithson v. State.

avowals of Jackson as to his habits and propensities,
made to the plaintiff in error, of course, fixed the tatter's
view of deceased's manner of conduct toward women.

The jury could not possibly appreciate this father's
attitude and feelings toward Jackson's attentions to the
daughter without understanding the father's estimate of
Jackson's character. It was proper, therefore, when the
jury were to judge these acts of the father, and to con-
sider his state of mind, that they should have been al-
lowed to hear what manner of man the deceased de-
scribed himself to be in conversing with the man whose
daughter he was pursuing.

For the errors stated, the case will be reversed, and
remanded for a new trial.

230 TENNESSEE REPORTS. [124 Tenn.

State v. Marshall.

State v. Sherman Marshall.
(Nashville. December Term, 1910.)

1. CRIMINAL LAW. Venue le in new county to which the place
where the offenee wae committed le transferred.

Where the place in which the offense was committed is trans-
ferred to a new county before indictment had, the indictment
must be returned in the new county. (Post, pp. 233, 234.)

Constitution cited and construed: Art 1, sec. 9.

Cases cited and approved: State y. Donaldson, 3 Heisk., 48;
Speck v. State, 7 Bax., 46; Ex parte Moran, 144 Fed., 694, 75
C. C. A., 396; Moran ▼. Territory, 14 Okla., 544.

2. 8AM E. Venue In county to which the place of offense Is trans-
ferred after indictment, and cause should be transferred.

Where the portion of an old county in which an offense has been
committed is transferred to another county, while the proceed-
ings are pending in the first county, the court of such county
loses jurisdiction, but has inherent power to order the trans-
fer of the cause to the new jurisdiction, to which the place
of the crime has been transferred by the legislature. (Post, p.
234.)

Constitution cited and construed: Art. 1, sec. 9.

Cases cited and approved: Pope ▼. State, 124 Oa., 801; Bundrlck
v. State, 125 Ga., 753.

3. 8AM E. 8ame. 8upreme court will remand cause for transfer
by the circuit court where that court should have transferred
it to another county, when.

Where the circuit court erroneously abates the indictment and
discharges the accused upon the ground that the place in
which the offense was committed has been transferred to an-
other county pending the proceedings, the supreme court will.

16 Cates] DECEMBER TERM, 1910. 231

State y. Marshall.

. upon reversing the case, remand the cause to the circuit court,
with direction to transfer the same to the county to which the
place of the offense has been transferred, for further proceed-
ings, and to transmit the indictment, together with certified
copies of all the entries of record therein made. (Post, p. 234.)

FROM WAYNE.

Appeal from the Circuit Court of Wayne County.
Sam Holding, Judge.

Assistant Attorney-General Faw, for State:

Boyd & Morrison, for Marshall.

Mr. Justice Neil delivered the opinion of the Court.

The defendant was indicted by the grand jury of
Wayne county, at the September term, 1908, charged
with an asault with intent to commit murder in the first
degree upon the person of one Earl Boyce on a day in
August of the same year. The case was continued from
term to term until the April term, 1910, when the de-
fendant was arraigned and entered a plea of not guilty.
A jury was impaneled to try the issue, and the trial had
proceeded to the extent of the examination of one wit-
ness for the State, when the defendant moved the court
for permission to withdraw his plea of not guilty, and

232 TENNESSEE REPORTS. [124 Tenn.

State v. Marshall.

io file a plea in abatement To this motion the attorney
for the State offered no resistance. Thereupon, by con-
sent of the defendant in open court, the jury was dis-
charged, and a mistrial entered. Defendant then with-
drew his plea of not guilty, and filed his plea in abate-
ment to the jurisdiction of the court. The attorney for
the State admitted the facts set out in the plea, but
moved the court to strike out the plea as insufficient
Upon consideration of this motion and the plea, the
court overruled the motion, and held that the plea was
good. Thereupon he quashed the indictment, declared
the suit abated, and discharged the defendant. From
this action the State appealed, and has here assigned
errors.

The plea is in the following language :

"Comes the defendant in proper person, and by plea
in abatement to the indictment, filed by leave of the
court, says: That the indictment in this case charges
the defendant with an assault with intent to commit
murder upon the body of one Earl Boyce; that the
difficulty or shooting out of which this indictment
arises, and upon which the charge is made, was com-
mitted on the 6th day of June, 1908 ; that the territory
where said alleged offense was committed was on that
day in the county of Wayne ; the said indictment was re-
turned by the grand jury of the county of Wayne at the
September term, 1908, of said county ; but since the com-
mission of said alleged offense, and since the return of
said indictment, to wit, April 30, 1909, the general as-

16 Cates] DECEMBER TERM, 1910. 233

State v. Marshall.

sembly of the State of Tennessee passed an act by which
the line between the counties of Wayne and Perry was
so changed as to place said territory where said alleged
offense was committed in the county of Perry — said act
being chapter 441 of the Acts of 1909, page 1653. The
alleged offense embraced in this indictment against de-
fendant was committed, if committed at all, in the terri-
tory described in said act, and by said act taken from
Wayne county and annexed to Perry county, and is now
a part of Perry county.

"Therefore defendant avers that the circuit court of

*

Wayne county has no jurisdiction to try this defendant
upon said indictment for said offense, and prays that
said indictment be abated and the defendant be dis-
charged."

We think the plea was good, so far as concerned any
further proceedings for trial in the circuit court of
Wayne county, but that the judge of that court acted in-
correctly in quashing the indictment and abating the
suit. He should have transferred the cause to the cir-
cuit court of Perry county.

The constitution guarantees to the accused a trial by
a jury of the county in which the offense was committed.
Const., art. 1, section 9. Where the place in which the
offense was committed is transferred to a new county be-
fore indictment had, the indictment must be returned in
the new county. State v. Robert Donaldson, 3 Heisk.,
48; Speck y. State, 7 Baxt, 46; Ex parte Moran, 144

234 TENNESSEE KEPORTS. [124 Tenn.

m

State v. Marshall.

Fed., 594, 75 C. C. A., 396; Moran v. Territory, 14 Okl.,
544, 78 Pac., 111.

The same reason governs when a portion of an old
county wherein an offense has been committed is trans-
ferred to another county, while the proceedings are
pending in the first county, and the same rule should
control. In either case the court of the initial county
has inherent power to order the transfer of the cause to
the new jurisdiction^ into which the locus of the crime
has been transferred by the legislature. Pope v. Btate,
124 Ga., 801, 53 S. E., 384, 110 Am. St. Rep., 197;
Bundricic v. State, 125 Ga., 753, 54 8. E., 683.

It results that the judgment of the court below, sus-
taining the plea in abatement, must be affirmed ; but his
honor's action in abating suit and discharging the
prisoner must be reversed, and the cause must be re-
manded to the trial court, with the direction that it be
transferred to the circuit court of Perry county for
further proceedings. That court will transmit the in-
dictment to the circuit court of Perry county, together
with certified copies of all the entries of record hereto-
fore made therein.

16 Cates] DECEMBER TERM, 1910. 235

Hall v. State.

Harry C. Hall v. Statr
(Nashville. December Term, 1910.)

1. CONSTITUTIONAL LAW. Legislation applicable to counties
having a population within designated limits according to the
existing or any subsequent census Is not unconstitutional as
for vicious classification.

The provisions of the constitution of this State (art 1, see. 8,
and art 11, sec. 8) and that of the United States, contained
in the fourteenth amendment thereto, do not prohibit the
enactment of laws not general in their application, where
the classification is natural, and has a reasonable relation to
the subject-matter of the legislation; and a statute applicable in
counties having a designated population by the last federal
census, or by any subsequent federal census, is not within such
constitutional prohibitions; for such classification is not arbi-
trary, vicious, or capricious. (Post, pp. 238-240.)

Constitution cited and construed: Art 1, sec. 8, and art 11, sec.
8 (State) r 14th am. (U. S.).

Cases cited and approved: Woodard v. Brien, 14 Lea, 523;

Cook v. State, 90 Tenn., 407; Sutton v. State, 96 Tenn., 696;
Peterson v. State, 104 Tenn., 127; Condon v. Maloney, 108 Tenn.,
. 82-98; Turner v. State, 111 Tenn., 593-602; Archibald v. Clark,
112 Tenn., 532; Murphy v. State, 114 Tenn., 531.

2. STATUTE8. Construction to ascertain and give effect to leg-
islative Intent

The courts, In construing a statute, must give effect to its intent;
for the Intent of a statute is the law, and the primary rule of
construction Is to ascertain and give effect to that intent
(Pott, p. 240.)

236 TENNESSEE REPORTS. [124 Tenn.

Hall v. State.

3. 8AM E. Same. Entire statute must be considered In constru-
ing It, and effect given to tvery part, if possible.

The courts, in ascertaining the intent of a statute, must con-
sider the entire statute, and give effect, if possible, to every
part thereof. (Post, p. 240.)

4. 8AM E. Construction to carry out manifest object, and not to
defeat It, If susceptible of two constructions.

Where a statute is susceptible of two constructions, one of which
will carry out its manifest object, and the other will defeat it,
the former construction must be adopted; for a statute .must be
construed with reference to its manifest object. (Post, pp. 240,
241.)

5. SAME. Construction with a view to reason and convenience,
and to avoid absurdity, hardship, Injustice, or inconvenience.

In construing a statute, what it reasonable and convenient or
what will cause hardship and injustice must be considered;
and statutes must be construed in the most beneficial way
permitted by law, to prevent absurdity, hardship, injustice, or
inconvenience. (Post, p. 241.)

6. 8AM E. Applicable In certain counties according to population
of last or any subsequent federal census remains so applicable
notwithstanding population changes; and becomes applicable
to all other counties coming within its classification under any
subsequent census.

A statute made applicable in counties having a population, within
designated minimum and maximum limits, according to the
last (then existing) or any subsequent federal census, is ap-
plicable in all counties coming within its provisions when
passed, and remains in force and continues applicable in said
counties, notwithstanding any changeB that may occur in their
population as shown by any future federal census, and until
it shall be repealed by proper legislative act; and it applies
in all other counties that may come within its provisions by
changes in their population as shown by any future federal
census. (Post, pp. 238, 241-243.)

Acts cited and construed: Acts 1903, ch. 263.

16 Cates] DECEMBER TERM, 1910. 237

Hall v. State.

7. 8AM E. Rule of public policy that all laws shall be certain
In their terms and application must be applied In construing
statutes.

One rule to be applied in the construction of statutes is the rule
of public policy that all laws shall be certain in their terms
and application, so that they may be known by the people,
and that no disturbances may grow out of frequent changes
and alterations. (Post, p. 242.)

8. CONSTITUTIONAL LAW. Construction making a statute
once applicable in a county, under a population classification,
always applicable, regardless of future population, does not
render it unconstitutional as arbitrary class legislation.

The construction given the statute as stated in the sixth head-
note does not render it void and unconstitutional as arbitrary
class legislation, because such construction makes it impos-
sible for any county, by a change in its population according
to a subsequent federal census, to pass out of the classification
that at first made the law applicable in it. (Post, pp. 238, 243-
246.)

Constitution cited and construed: Art. 1, sec. 8; art. 11, sec 8.

Cases cited and approved: Cook v. State, 90 Tenn., 407; Peter-
son v. State, 104 Tenn., 127; Condon v. Maloney, 108 Tenn.,
82.

Cases cited and and distinguished: Woodard v. Brlen, 14 Lea,
623; Sutton v. State; 96 Tenn., 696.

FROM MONTGOMERY.

Appeal in error from the Criminal Oourt of Mont-
gomery County. — C. W. Tyler,, Judge.

238 TENNESSEE REPORTS. [124 Tenn.

Hall y. State.

Collis Tate, for Hall.

Attorney-General Gates and Austin Peay, for
State.

Mr. Chief Justice Shields delivered the opinion of
the Court.

The facts in this case are not disputed. The defend-
ant was indicted under chapter 263 of the Acts of 1903.
The act is a stock law, and is applicable to those coun-
ties having a population, by the census of 1900, of not
less than 35,000, nor more than 36,250, or having a like
population by any subsequent census. Montgomery
county, by reason of its population under the census of
1900, fell within the act, and it applied to that county.
It was, in fact, the only county to which the act applied
according to the census of 1900.

This case was tried in the criminal court of Mont-
gomery county on an agreed statement of facts. If the
application of the act to Montgomery county is not
affected by the subsequent census of 1910, the defendant
is guilty, and the case should be affirmed.

It is insisted for the plaintiff in error that, because
the census of 1910 shows Montgomery county to have a
population of 33,672, the act does not apply to that
county.

For the State it is said that the application of the act
to the county has not been affected by the last census,

16 Cates] DECEMBEK TERM, 1910. * 239

Hall y. State.

and that it continued in force in all counties falling
within it when passed, and the sole effect of the subse-
quent census has been to bring other counties within its
operation.

The provisions of the constitution of this State (art.
1, section 8, and article 11, section 8) and that of the
United States, contained in the fourteenth amendment
to that instrument, do not prohibit the enactment of
laws not general in their application, where the classifi-
cation is natural and has a reasonable relation to the
subject-matter of the legislation.

It is only where the classification is arbitrary and
capricious that it is held to be vicious and violative of
those constitutional restrictions.

It is now well settled in this State that statutes mak-
ing a classification of the character of the one in ques-
tion are not violative of the constitutional provisions to
which we have referred, but are valid and constitutional
laws. Cook v. State, 90 Tenn., 407, 16 S. W., 471, 13 L.
B. A., 183; Peterson v. &tate/i04 Tenn., 127, 56 S. W.,
834; Condon v. Moloney, 108 Tenn., 82-98, 65 S. W., 871;
Turner v. State, 111 Tenn., 593-602, 69 S. W., 774;
Archibald v. Clark, 112 Tenn., 532, 82 S. W., 310; Mur-
phy v. State, 114 Tenn., 531, 86 S. W., 711.

It will be seen by an examination of this act that it
in express terms applies to counties having a certain
designated population, not only according to the federal
census of 1900, but according to any subsequent federal
census, and the principle upon which such acts have

240 TENNESSEE REPORTS. [124 Tenn.

Hall 7. State.

been sustained is that the classification is not arbi-
trarily based upon or applied to a population determined
or determinable by any one census, but that it is so ar-
ranged that it is possible thereunder to receive into the
classification every county in the State. The acts sus-
tained in the cases we have cited were of this character.

If the act had applied only to counties having the
named and designated population according to the
federal census of 1900, there is no doubt but that it
would be capricious and arbitrary, as no other county
could at any time come within its provisions. Woodard
v. Brien, 14 Lea, 523 ; Sutton v. State, 96 Tenn., 696, 36
S. W., 697, 33 L. R. A., 589.

We will now determine the proper construction of the
act. It is elementary that "the intent of a statute is the
law," or, as stated in Sutherland on Statutory Construc-
tion, section 363 : "The intent is the vital part, the es-
sence, of the law, and the primary rule of construction
is to ascertain and give effect to that intent."

And (sections 368, 380), in ascertaining the intent,
the entire statute isto be considered, because "it is an
elementary rule of construction that effect must be
given, if possible, to every word, clause, and sentence of
a statute."

And, further, the same learned author quotes approv-
ingly ( section 369 ) : "A statute is to be construed with
reference to its manifest object, and if the thing is sus-
ceptible of two constructions, one which will carry out,

16 Cates] DECEMBER TERM, 1910. 241

Hall v. State.

and the other which will defeat such manifest object, it
should receive the former construction."

Again (section 267), it is said that in the construction
or interpretation of statutes "an argument based on in-
convenience is forcible in law, and no less so is one to
avoid what is unjust or unreasonable. . . . "

"Considerations of what is reasonable, convenient, or
causes hardship and injustice, have a potent influence in
many cases."

And still again (section 490) it is said : "Statutes will
be construed in the most beneficial way which they are,
in law, permitted, to prevent absurdity, hardship, or in-
justice, or to favor public convenience, and to oppose all
prejudice to public necessities." Section 488.

That this statute was intended by the general assem-
bly to apply to Montgomery county must be conceded. It
is the only county having the population of the census of
1900 named in the act, and was clearly within its pro-
visions.

The question for determination is whether or not it
was the intention of the general assembly that its appli-
cation to that county should be fixed and continuous,
notwithstanding any changes that might occur in its
population as shown by any future census, until it
should be repealed by proper legislative act.

We think clearly such was the intention of the legis-
lature and that the statute is effective to carry out that
intention.

In other words we are of the opinion that the intention

124 Tenn.— 16

242 TENNESSEE REPORTS. [124 Tenn.

Hall y. State.

of the general assembly was to enact a law applicable
to all counties coming within its provisions when passed,
and to remain in force and continue applicable to the
class then created until repealed, and to apply to all oth-
er counties that might come within such provisions by
changes in their population as shown by any future cen-
sus.

This construction is supported by the rule of public
policy that all laws shall be certain in their terms and
application, so that they may be known by the people,
and that no disturbances may grow out of frequent
changes and alterations.

It is also demanded by the interest and convenience of
the people of the counties to which this and similar stat-
utes when enacted do apply. The object and purpose of
the statute was to save the people of the counties to
which it applied the great expense incident to maintain-
ing fences for the protection of cultivated lands. It is
not conceivable that the general assembly would enact a
law temporary in its duration, which could be changed
in its application without the consent of the people in
whose interest it was passed, through their representa-
tives, which has caused and induced them to abandon or
remove fences costing thousands of dollars, and abso-
lutely necessary for the protection of their crops. The
effect of holding this law no longer applicable to Mont-
gomery county, or a similar law applicable to other
counties no longer applicable, because of the change of
population, would not only result in great inconvenience

16 Cates] DECEMBER TERM, 1910. 243

Hall y. State,

and expense to the people of those counties, but bring
about a condition of affairs that would be impossible to
remedy and most disastrous in its consequences.

It is said, however, that, if the act be given this con-
struction, it is then arbitrary class legislation and void,
because it is made impossible for any county to with-
draw from its application by a change in its popula-
tion.

The cases of Woodard v. Brien, 14 Lea, 523, and Sut-
ton v. State, 96 Tenn., 696, 36 S. W., 697, 33 L. R. A.,
589, are relied upon to support this contention. These
cases are not in point The classification there was gov-
erned, by a past census, and it was impossible for any
county at any time, not having the named population by
that census, to come within the provisions of the act.

It is true, that in the latter case, in the argument of
Judge Caldwell, it is said that a statute must be so that
a county by change of population can pass out of the
classification made, and that this was as necessary as
that other counties might come within it. This question,
however, was not involved in that case, and what is there
said is mere dictum.

Other cases involving the constitutionality of similar
statutes make no reference to this reasoning of Judge
Caldwell, but hold that, if other counties by a change in
the population may come within the class, it is sufficient
to make the classification natural and reasonable and
valid.

In Cook v. State, 90 Tenn., 407, 16 S. W., 471, 13 L.

244 TENNESSEE REPORTS. [124 Tenn.

Hall t. State.

R. A., 183, there was involved the constitutionality of
the Dortch law (Acts 1890, ch. 24), entitled "An act to
provide more stringent regulations for securing the puri-
ty of elections in this State, and applicable to counties
having a population of over seventy thousand and cities
of over nine thousand inhabitants, computed by the cen-
sus of 1880, or may hereafter have such numbers by any
subsequent federal census," etc.

The constitutionality of this act was challenged,
among others, upon the ground that it was partial legis-
lation, and that its classification was arbitrary; but this
court, replying to this contention, said:

"That the law applies only to counties of 70,000 and
have cities of 9,000 inhabitants does not impeach its val-
idity. All counties and cities that have or may hereafter
hare the designated population are embraced. It applies
to all parts of the State, and each city and county may
come within its provisions.

In Peterson v. State, 104 Tenn., 127, 56 S. W., 834, the
constitutionality of Acts of 1899, ch. 23, was challenged
upon the ground that it was a partial law, and that its
classification was unreasonable and arbitrary. The title
of this act was as follows :

"An act to prevent stock from running at large in
counties of this State having a population of 59,000 or
more, according to the federal census of 1890, or ac-
cording to any subsequent federal census, and
to prevent the necessity of fencing lands in counties that

16 Cates] DECEMBER TERM, 1910. 245:

Hall y. State.

are now affected by this act, or that may hereafter be
affected by it."

The court approved its holding in the Cook Case, and
among other things said :

"This act extends to all parts of the State. It fixes no
limits within which counties failing in statutory quali-
fications at this time, but hereafter attaining it, shall not
enter. On the contrary, each county, upon reaching
the prescribed number of population, according to the
federal census, becomes at once entitled to the benefit
of the statute. It being possible for all the counties of
the State to bring themselves within its provisions, it is
clear, upon the authority of many reported cases, that
its constitutionality cannot be successfully impeached
on the ground that it is class legislation."

In Condon v. Moloney, 108 Tenn., 82, 65 S. W., 871,
was invoh^ed the constitutionality of what is known as
the "Knox County Road Law," which applied only "to
counties having a population of not less than 70,000 and
not more than 90,000, under* the federal census of 1900,
or any subsequent federal census."

In sustaining the constitutionality of this act, this
court said :

"By its terms it applies with uniformity to all coun-
ties which had the requisite population at the time of
the passage of the act, and to all such as hereafter may
fall within its provisions, as indicated by it."

The declaration here is that the act applied, not only
to those counties which had the requisite population at

246 TENNESSEE EEPORTS. [124 Tenn.

Hall v. State.

the time of the passage of the particular act, but also all
such as thereafter might fall within its provisions. In
other words, the classification was prospective in its
operation, permitting other counties to come into the
classification of the benefits prescribed by the act ; but it
did not permit counties to fall out of the classification
merely by a change in population above or below the des-
ignated number. By this construction it is possible for
all the counties of the State to eventually come within
the provisions of the act.

It is immaterial whether the population of a county
falling within a class created when the act is passed in-
creases or decreases, so as to have that of some other
class. It remains in the class in which it fell when a par-
ticular act was passed.

The act in question continues in force in Montgomery
county, and the judgment of the trial court is affirmed.

16 Cates] DECEMBER TERM, 1910. 247

Insurance Cos. v. Confectionery Co.

Dixie Fire Insurance Company et ah, v. American

Confectionery Company et al.

(Nashville. December Term, 1910.)

■

1. MULTIPLICITY OF 8UIT8. Chancery hat Jurisdiction of a
bill by Insurance companies to prevent a multiplicity of actions
at law In which the remedy would be Inadequate.

Where five insurance companies separately issued policies on
a manufacturing plant, insuring it against loss by fire, one
company issuing a policy upon machiner y alo ne; one company
issuing two policies at different dates upon both machinery
and stock, .with stipulated sums in each policy on each class
of property; one company Issuing one policy upon machinery,
and at a later date another policy upon stock; one company
issuing a policy with certain sums upon building, machinery*
and office fixtures; one company issuing a policy upon the
stock alone; all of which policies were identical, excepting
their dates, their amounts, the property insured, and the name
of the insurer, and each policy provided for a proportional a nd
limited liability with other i nsurers; and a loss occurring
while these policies were in force, {a bill filed by some of the
insurance companies against the insured and the other insur-
ance companies, and a cross bill by the defendant insurance
companies, showing that the questions common to all the
policies were Q2 mis represe ntations in procuring the policies;

C2) the -beeping of explosives by the insured in violation of the
olicies;\3) his failure to separate the damaged and undam-
aged property and to make an inventory thereof; (4) his vio-
lation of the stipulation or condition as to the automatic sprink-
ler system; and (5) the fraudulent arbitration award
wrongly classifying the property and distributing the loss and
valuing the property so excessively as to shock the conscience,
is not demurrable, because chancery has Jurisdiction of such

248. TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

suit for the adjustment of the liability of each insurer under
each policy for the purpose of preventing a multiplicity of ac-
tions at law, and because none of them could give efficient and
adequate relief, though the actions at law might be consoli-
dated; and it is not necessary that each of the parties should
be interested in all of the questions^

Cases cited and approved: Harrison v. Hallum, 5 Cold., 525,
528, 529; Cartmell v. McClaren, 12 Heisk., 41, 42, 43; Walker
v. Day, 8 Bax., 77-80; Woodward v. Hall, 2 Tenn. Chy., 164,
166, 167; Hughes v. Tennison, 3 Tenn. Chy., 641-643 (citing
Johnson v. Brown, 2 Humph., 328); Ducktown, Sulphur & Iron
Co. v. Fain, 109 Tenn., 56, 70; Smyth v. Ames, 169 U. S., 466.
517, 518; Bitterman v. Railroad, 207 U. S., 205, 226; Kelly v.
Boettcher, 85 Fed., 55, 64, 29 C. C. A., 14; Curran v. Campion,
85 Fed., 67, 29 C. C. A., 26; Wyman v. Bowman, 127 Fed., 257,
263, 264, 62 C. C. A., 189, 195, 196; Railroad v. Smith, 128 Fed.,
1, 63 C. C. A., 1; Railroad v. Caffrey, 128 Fed., 770, 774, 775;
Fidelity & Deposit Co. v. Fidelity Trust Co. (C. C), 143 Fed.,
152, 156, 157; Risely v. Utica (D. C), 173 Fed., 502, 506, 507;
Snelling v. Richard (C. C.) ; 166 Fed., 635, 636; Bracken v.
Rosenthal (C. C), 151 Fed., 136-138; Pennsylvania Co. v. Bay
(C. C), 150 Fed., 770, 773, 774; State v. Knife Falls Boone
Corporation, 96 Minn., 194, 199; Hanson v. Neal, 215 Mo., 256,
271; Blumer v. Ulmer t (Miss.), 44 South., 161; Tlsdale v. In-
surance Co., 84 Miss., 709; Insurance Co. v. Landau, 56 N. J.
Eq., 513, 522, 523 (and numerous citations) ; Scofield v. Lan-
sing, 17 Mich., 437, 444; Torrent v. Hamilton, 95 Mich., 159, 161-
163; Fegelson v. Insurance Co., 94 Minn., 486; Baumgartner
v. Bradt, 207 111., 345, 348, 349, 350; Charles Simon's Sons Co.
v. Md. Telephone & Telegraph Co., 99 Md., 141, 180; Blakenburg
v. Black, 200 Pa., 629; Whipple v. Guile, 22 R. I., 576; Brown
v. Tilley, 25 R. I., 579; Almond v. Wilson, 75 Va., 613, 623, 624;
Johnson v. Black, 103 Va., 477. See also the citations under
the next headnote.

Cases cited and distinguished: Bruton v. Rutland, 3 Humph.,
435; Insurance Co. v. Insurance Co., 11 Humph., 134, 35; Rogers

16 Cates] DECEMBER TERM, 1910. 249

Insurance Cos. v. Confectionery Co.

i v. Simpson, 10 Heisk., 665, 657; Insurance Co. v. Schmidt, 175

Fed., 720, 99 C. C. A., 296.

2. 8AME. General principles for sustaining or rejecting a bill
upon the ground of preventing a multiplicity of suits.

Bach suit sought to be sustained upon the ground of preventing
a multiplicity of actions, if not brought directly within the
principle of some preceding case, must be decided upon its
merits, and upon a survey of the real and substantial conven-
ience of all parties, the adequacy of the real remedy, the sit-
uations of the different parties, the points to be contested, and
the result which would follow if jurisdiction should be assumed
or denied, whether within reasonable and fair grounds the sit-
uation is calculated to be in truth one which will practically
prevent a multiplicity of litigation, and will be an actual con-
venience to all parties, and will not unreasonably overlook or
obstruct the material interests of any. In avoiding a multiplic-
ity of suits, care should be exercised to guard against that
complication and confusion in the investigation of rights and
the application of remedies, arising from the attempt to blend
in one suit distinct and incongruous claims and liabilities.
{Post, pp. 265-290.)

Cases cited and approved: Johnson v. Brown, 2 Humph., 327,
328, 329; Governor v. McEwen, 5 Humph., 241, 263, 264; Bartee
v. Thompklns, 4 Sneed, 623, 634, 636; Fogg v. Rogers, 2 Cold.,
290; Miller v. Harris, 9 Bax., 101; Ducktown, Sulphur & Iron
Co. v. Fain, 109 Tenn., 56; Insurance Co. v. Be as ley, MS. at
Jackson, April term, 1908; Insurance Co. v. Trabue, MS. at
Jackson, April term, 1908 (and citations) ; Hale v. AUinson, 188
U. S., 56, 77; Whipple v. Guile, 22 R. I., 678. See also citations
under preceding headnote.

3. 8AME. Chancery jurisdiction to prevent a multiplicity of ac-
tions at law and to subserve public and private interests re-
gardless of law jurisdiction.

Chancery has jurisdiction of a suit to prevent a multiplicity of
actions at law, and to subserve thereby both public and private

250 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Go.

interests, regardless of the fact that a court of law has juris-
diction. (Post, pp. 290, 291.)

4. 8AM E. Relief In chancery against a multiplicity of actions
will not be denied, because they might all be consolidated.

Relief in chancery on the ground of preventing a multiplicity of
actions at law will not be denied, merely because the actions
at law should all be brought in one court, and consolidated and
heard together. (Post, p. 291.)

5. 8AM E. Chancery obtaining jurisdiction to set aside the award
under a fire policy will dispose of the whole case.

Chancery has jurisdiction, upon the ground of fraud, to set aside
an award under a fire policy, made under an arbitration agree-
ment, and, having obtained jurisdiction upon this ground, chan-
eery would proceed to dispose of the whole case, even if the
other matters referred to in the first headnote were not in-
volved. (Post, pp. 291, 292.)

i

Cases cited and approved: Fire Association v. Allisina, 45 Or.,
164, 158; Robertson v. Insurance Co., 68 Fed., 173, 176.

FROM DAVIDSON.

Appeal from the Chancery Court of Davidson County,
to the Court of Civil Appeals, and by certiorari from the
Court of Civil Appeals to the Supreme Court. — John
Allison, Chancellor.

Stokes & Stokes and R. L. Bartells, for complain-
ants.

H. S. Stokes and Jno. T. Lellyett, for defendants.

16 Gates] DECEMBER TERM, 1910. 251

Insurance Oos. v. Confectionery Co.

Mb. Justice Neil delivered the opinion of the Court.

The original bill in this case was filed by the Dixie
Fire Insurance Company, the North British & Mercan-
tile Insurance Company and the Stuyvesant Insur-
ance Company against the American Confection-
ery Company, the Globe Underwriters' Agency, and
the International Fire Insurance Company.

There was also a cross bill filed by the two latter com-
panies against the complainants and the American Con-
fectionery Company.

There was a demurrer filed to the original bill, and up-
on the hearing in the court below the chancellor dis-
missed both bills for want of jurisdiction, and thereupon
the complainants and the cross-complainants appealed to
the court of civil appeals. In that court the decree of
the chancellor was reversed, and the cause remanded to
the chancery court of Davidson county for further pro-
ceedings. A petition for certiorari and supersedeas was
then filed in this court by the American Confectionery
Company, the prayer of which petition was granted, and
the cause was set down for argument, and was argued
at the bar of this court.

The original bill alleged: That on the 15th of Sep-
tember, 1909, the Dixie Fire Insurance Company issued
to the American Confectionery Company a policy of in-
surance for $5,000, under which it insured the defendant
for the period of one year against loss by fire upon the
machinery located in the manufacturing plant of the
insured; that on August 11, 1909, the North British &

252 TENNESSEE REPOETS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

Mercantile Insurance Company issued two policies of
insurance to the same insured, one policy being for
f 7,720, of which amount f 1,250 was upon the machinery
in said plant and f 6,470 was upon the stock, and the oth-
er policy being for f 5,000, of which amount f 1,000 was
upon machinery and f 4,000 was upon stock; that on
August 20, 1909, the same insurance company last
named issued another policy for f 6,000, of which amount
f 1,250 was upon machinery and f 4,750 was upon stock ;
that the Stuyyesant Insurance Company, on January
28, 1910, issued to the same insured a policy of $10,000
upon machinery, and on June 4, 1910, issued another
policy for the sum of $6,000 upon the stock ; that on Feb-
ruary 21, 1910, the Globe Underwriters' Agency issued
a policy for $28,720, of which $18,720 was upon the
building, $9,500 upon the machinery and $500 upon
office fixtures; that the International Fire Insurance
Company on March 7, 1910, issued a policy for $8,780
upon the stock of the said American Confectionery
Company :

That excepting in the name of the insurer, the prop-
erty insured, the amount insured, and the date of the pol-
icy, all of the contracts of insurance issued by the com-
plainant and defendant companies w r ere in every respect
identical :

That on the morning of July 4, 1910, a fire occurred in
the manufacturing establishment of the American
Confectionery Company, by which some of the prop-
erty covered by the said insurance was destroyed,
and some was damaged; that various represent^-

16 Cates] DECEMBER TERM, 1910. , 253

Insurance Oqb. v. Confectionery Co.

tives of the insurance companies appeared in Nash-
ville soon after the fire, with a view to investigating it
and ascertaining the amount of the loss; that prior to
entering upon this work these representatives requested
of the defendant American Confectionery Company the
execution of an agreement under which they would be
permitted to make such investigation without waiving
any of the legal rights or defenses that each company
might have on the policy or policies issued by it, respect-
ively, that in accordance with the request such an
agreement in writing was entered into separately by
each of the companies, all of said agreements being iden-
tical in form, differing only in the signature of the com-
pany thereto :

That an appraisal was demanded by the defendant
Globe Underwaters' Agency, for the purpose of ascer-
taining the injury done to the building, and the apprais-
ers estimated the damage thereto at $3,617.43; that
complainants are in no way interested in the amount of
that award, except that, as subsequently shown in the
bill, the amount should be increased, for the reason that
the appraisers charged up certain sums for loss on the
machinery that should have been charged up for loss on
the building:

That an appraisal was demanded regarding the loss
on the engine, boiler, and machinery, and that in accord-
ance therewith the appraisers fixed the damage thereof
at $20,064; that apportioning said sums ratably among
the various companies having policies of insurance on

254 .TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

these items of property would make the amount due
from the different companies, if said appraisal was cor-
rect, as follows :

Policy No. 171856, Dixie Fire Insurance Company $3,571 64

Policy No. 62596, Globe Underwriters' Agency 6,785 93

Policy No. 598976, North British & Mercantile Insurance

Company 892 89

Policy No. 698985, North British ft Mercantile Insurance

Company 714 30

Policy No. 598986, North British ft Mercantile Insurance

Company t 892 89

Policy No. 71102, North British ft Mercantile Insurance

Company 7,143 09

It is further alleged that this appraisal was incor-
rectly made ; that various items of damage to the prop-
erty were charged up to machinery, when these items
should have been charged up to the building ; that among
the items so erroneously charged up to machinery was
one amounting to about $400 for protecting and bracing
the water tank on top of the building which furnished
water for the sprinkling plant, which property was in-
cluded in the insurance taken on the building, and not
on the machinery :

That the adjustment of the damage done to the stock
could not be ascertained or appraised, and that the de-
fendant American Confectionery Company prepared
and filed with each of the companies papers purporting
to be proofs of loss on account of the burning and dam-
age to the stock; that it is claimed by the defendant
American Confectionery Company in these proofs of loss
that different sums are owing to it by the companies that

16 Cates] DECEMBER TERM, 1910. 255

Insurance Cos. v. Confectionery Co.

issued policies upon the stock, and that the total amount
of damage claimed on account of the destruction or in-
jury to the stock is ( 27,258.09 :

That by the terms of each of the insurance policies
issued by the several companies it is expressly provided
that no company shall be liable under its policy for a
greater proportion of any loss on the described property,
or for loss by the expense of removal from the premises
endangered by fire, than the amount insured by such
policy shall bear to the whole insurance, whether valid
or not, or by solvent or insolvent insurers, covering such
property :

That the amount fixed as the loss on the machinery by
the appraisers, as well as the amount named in the
proofs of loss as the damage sustained upon the stock are
both erroneous, and that, if the companies are liable at
all, they can be liable only for their proportionate
amount of such loss, to wit, as the amount of each in-
surance bears to the total insurance; that to do justice
between the companies, and to carry out the terms of
their contracts, it is necessary that the amount of loss, if
any, should be ascertained; also the amount of in-
surance, and- the percentage that the amount of each pol-
icy bears to the total amount of insurance and to the to-
tal amount of loss to be ascertained and fixed; that if
the insurers are liable at all, the loss should be appor-
tioned between them in accordance with the terms and
stipulations of their contracts; that by virtue of these
contracts of insurance each insurer is interested in the
liability of the other; that the only possible way in

256 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

which all these matters could be justly and equitably
determined would be in one suit ; that the American Con-
fectionery Company is threatening to institute, and will
institute, separate suits against each of the complainants
and the defendant insurers, claiming the amount alleged
to be owing by them under the proofs of loss, and this
would necessitate the institution of nine separate and
distinct lawsuits; that it would be an impossibility to
arrive at justice between the insurers through such a
multiplicity of suits; that in one suit one set of values
might be fixed, and in another, another set of values, and
in this way one insurance company might be called
upon to pay its proportion in one case upon a cer-
tain ratio different from that fixed in another case,
so that, instead of the insurers, if liable at all,
paying in accordance with their covenants, they
would pay in accordance with the divergent find-
ings of separate juries and separate trials, and possi-
bly in separate tribunals; that, if liability at all exists,
this presents a case for making a common apportion-
ment and determining the contribution that each of the
insurers should bear to the common loss; that this can
be apportioned only in a court of equity, where matters
of account, apportionment, and contribution are cog-
nizable, and that it could not be done in the nine sepa-
rate suits threatened as aforesaid; that all the insur-
ance companies have the same defense against the claims
of the assured, arising from a common interest in the lit-
igation, and that by one comprehensive suit in equity

16 Cates] DECEMBER TERM, 1910. 257

Insurance Cos. v. Confectionery Co.

.all the rights and interests of the insurers can be deter-
mined as between them and the Confectionery Company;
that the various insurance contracts are interdepend-
ent, and are not enforceable without reference to each
other, and in that way it would be necessary to deter-
mine the equities common to all of them before the lia-
bility of any one of them could be ascertained and de-
termined; that for the purpose of preventing a multi-
plicity of suits, and to equitably and legally adjust the
rights of the parties, the court of chancery has jurisdic-
tion, and should enjoin the Confectionery Company from
instituting the said nine separate suits.

The bill thereupon proceeds to charge several grounds
under which it is alleged the companies are not liable.
We need not state these matters with particularity, since
the demurrer goes to the jurisdiction of the court, rath-
er than to the validity of the defenses urged against the
policies. We shall, however, state these matters briefly.
It is alleged that each policy contained the following
clause : "This entire policy shall be void if the insured
has concealed or misrepresented, in writing or other-
wise, any material fact or circumstance concerning this
insurance or the subject thereof." Under this two dis-
tinct and important specifications are made.

It is further alleged that each policy contains this
clause: "This entire policy, unless otherwise provided
by agreement indorsed hereon or added hereto, shall be
void ... if ( any usage or custom or trade or manu-
facture to the contrary notwithstanding) there be kept,

124 Tenn.— 17

258 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

used, or allowed on the above-described premises, ben-
zine, benzole, dynamite, ether, fireworks, gasoline, Greek
fire, gunpowder exceeding twenty-five pounds in quan-
tity, naphtha, nitrq-glycerine, or other explosives." There
is a specification under this to the effect that the fire was
caused by an explosion, or a series of explosions, when
there was no fire in the building at all, and had not been
for two or three days.

It is also alleged that each policy contains the follow-
ing clause : "If fire occur, the insured shall give imme-
diate notice of any loss thereby in writing to this com-
pany, and protect the property from further damage,
forthwith separate the damaged and undamaged person-
al property, put it in the best possible order, make a com-
plete inventory of the same, stating the quantity and
cost of each article and the amount claimed thereon."
The specification under this is that the Confectionery
Company did not separate the damaged and undamaged
personal property ; that it did not put the personal prop-
erty in the best possible order; that it did not make a
complete inventory of it, stating the quantity and cost of
each article, and the amount claimed ; but that the Con-
fectionery Company, before the representative of the in-
surance companies arrived, which was not more than
three or four days after the fire, sold or caused to be
hauled away the damaged personal property; that no
effort was made to separate it, or to put it in good condi-
tion, or to make an inventory thereof.

It is further alleged that there is in each policy the

16 Cates] DECEMBER TERM, 1910. 259

Insurance Cos. ▼. Confectionery Co.

following provision : "It is understood and agreed that
this policy is issued, and the rate of premium charged
therein is fixed and determined, on condition that the
assured shall use due diligence to maintain in complete
working order at all times during the full term of this
insurance the automatic sprinkler system now in use,
and that no change shall be made in such system with-
out the consent in writing of this company;" that by
virtue of this clause the defendant Confectionery Com-
pany w T as enabled to obtain insurance at a rate two-
thirds less than it could have obtained it otherwise; but
that the said Confectionery Company violated this pro-
vision of the policy by allowing the sprinkler system to
become wholly ineffective, although from time to time
it was warned that the said system was out of
order and that by reason of such defective condition
of the sprinkler system the insurance companies were
greatly injured, in that they did not have the benefit of
this protection against fire. It is alleged that this clause
in the policies upon this subject was employed by both
parties with a full understanding "that it was a state-
ment and assumption of condition and undertaking on
the part of the insured, relating to the risk and affect-
ing its character and extent," and that this statement
was both a warranty and a condition of the contract;
that the companies did not know that there was a breach
of this condition until after the fire occurred ; that there
was an association separate and apart from the insur-
ance companies, whose business it was to make an in-
spection of different sprinkler systems installed in build-

260 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

ings over the country, and that such an inspection was
made, on the 21st day of February, 1910, of the sprink-
ler system owned by the defendant Confectionery Com-
pany, and its defective condition shown, as above
stated, and notification issued to the Confectionery
Company, and again only a few months before
the fire occurred, to the same effect.

The prayer of the bill was for an injunction against
the bringing of the nine separate suite, to the end that
all the suits might be tried in one in the chancery court.

The cross bill filed by the Globe Underwriters' Agency
and the International Fire Insurance Company briefly
recites the substance of the original bill, partly in the
form of a recapitulation, and partly in the form of an
original statement covering the same matters.

The only real difference between the two bills is to be
found in the charges in the cross bill in respect of the
appraisement. It goes into too much particularity upon
this subject, and makes some additional charges.

It is alleged that the agreement for submission to
the appraisers was drawn up, signed, and executed by
all the insurers interested in the machinery and by the
insured, under and by virtue of which one William Fay,
of St Louis, Mo., was appointed by the insured as its
appraiser, and one Frederick W. Hardwick, of Louis-
ville, Ky., was appointed by the insurers as their ap-
praiser, and the appraisers appointed J. R. Andrews, of
Nashville, Tenn., as umpire; that the agreement for
submission was in strict accord with the several con-

16 Cates] DECEMBER TERM, 1910. 261

Insurance Cos. v. Confectionery Go.

tracts of insurance relating to appraisal ; that is to say,
it provided that the two appraisers should appraise and
estimate the sound value of the loss and damage; that
the appraisement was to be made for the sole purpose
of fixing the amount of sound value and damage ; that it
should not waive and invalidate any of the rights of
either party under their several contracts of insurance ;
that in making the appraisal the appraisers should
estimate the actual cash cost of replacing or repairing
the damaged or destroyed property, allowing proper de-
duction for depreciation ; that the appraisers proceeded
to act, and on the 26th day of July, 1910, made an award,
estimating the loss and damage at $20,064; that this
award was signed by William Fay, the appraiser for the
insured, and J. R. Andrews, the umpire :

That the award on the machinery was improperly ar-
rived at; that it was unfair and unjust to the insurers,
and should be set aside, for the following reasons, to wit :
The policies of insurance provided that the appraisers
together should estimate and appraise the loss, and, fail-
ing to agree, should submit their differences to the um-
pire; that the appraisers did not together appraise or
undertake to appraise the loss and damage to the prop-
erty, but each acted independently of the other, and
made no attempt whatever to agree upon any differences
which existed between them; that each appraiser took
a copy of the inventory furnished by the insured, and
each appraiser separately noted on his respective inven-
tory his estimate of the sound value and damage to the

262 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

property; that there was no discussion between the ap-
praisers with reference to their respective estimates,
and no attempt on their part to compare their figures
in an effort to agree upon the amount of damage;
that Mr. Fay, the appraiser for the insured, sug-
gested to Mr. Hardwick, the appraiser for the in-
surers, that each appraiser should separately put
down in figures or ciphers, on their respective sheets,
just what damage was done to the respective articles
of machinery; that this was done, and afterwards Mr.
Fay repaired to his room, and there fixed upon the
amount of sound value and damage, according to his
estimate, had it typewritten, and the respective esti-
mates of each appraiser were turned over to the umpire
for his action ; that the umpire made no personal exam-
ination of the property in the presence of the apprais-
ers; that he was not present at the time that the ap-
praisers made their several estimates or appraisements,
and was not called upon to settle any differences be-
tween the two appraisers > save and except in the manner
as above set out; that when the umpire presented his
award to the appraisers to be signed, Mr. Hardwick re-
quested him to discuss the matter in detail, which the
umpire declined to do; that the award was then signed
by the umpire and Mr. Fay, the appraiser for the in-
sured :

That among the articles embraced in the property ap-
praised by Messrs. Hardwick and Fay, there were 55,000
pounds of moulding starch; that this starch was on

16 Gates] DECEMBER TERM, 1910. 263

\

— * — ■ ■ " _ _- ^ |

Insurance .Cos. v. Confectionery Co.

the iirrentory handed to the appraisers by the insured ;
that whatever amount of moulding starch was in the
fire was completely and wholly destroyed; that no in-
voices were furnished relative to this moulding starch ;
that with reference to it Mr. Harris, of the American
Confectionery Company, was called in by the appraisers
and questioned in regard to it ; he stating that he was
willing to make affidavit to the effect that 55,000 pounds
of moulding starch, worth the amount stated in the in-
ventory furnished the appraisers by the insured, were on
hand at the time of the fire ; that acting upon this state-
ment the appraisers allowed the American Confection-
ery Company for 55,000 pounds of moulding starch at
the figure put upon the inventory furnished the apprais-
ers by the insured; that neither the insurers nor their
representatives (other than Mr. Hardwick) was present
at the time this information was furnished to the ap-
praisers by Mr. Harris ; that, this being an item of prop-
erty totally destroyed, the insurers were entitled to no-
tice from the appraisers as to the time and place when
this matter would be considered, so that they might
have an opportunity of putting before the appraisers
such information as they might have or could obtain rel-
ative to it :

That there were other articles included in the apprais-
al which were totally destroyed, and with reference to
which the appraisers necessarily had to act on informa-
tion and evidence, and that in none of such cases were
the insurers notified of the time and place when such

264 TENNESSEE EEPORTS. [124 Tenn.

- -

Insurance Cos. v. Confectionery Co.

■

matters would be considered, though under the law they
were entitled to such notice :

That the failure of the appraisers to act together in
making the appraisment in itself operated to defeat the
award, whether signed by one or both of the appraisers,
inasmuch as said appraisal was not made pursuant to
the agreement for submission to appraisal, and the policy
provisions pertaining to the appraisal; likewise that
the failure of the appraisers to give notice to the
insurers of the time and place when they would
consider articles totally destroyed operated to defeat
the appraisal, or the award made thereunder :

That the appraiser for the insuued, Mr, Fay,
was biased in favor of the insured, and prejudiced
against the insurers; that by reason of his bias and
prejudice he was not a "disinterested" appraiser, as h«
was required to be, both under the law and under the
contract and agreement for submission; that, because
of not being a "disinterested" appraiser, the appraisal
made by him was excessive, and the amount of sound
value and damage fixed by him upon the various articles
appraised did not truly and correctly represent the loss
and damage :

That the act of the umpire in refusing to discuss the
award with the appraisers for the insurers was an act
arbitrary in itself, and wholly without warrant either in
law or equity ; that the failure of the umpire to per-
sonally examine the appraised articles in the presence of
the appraisers, and to accompany them while making

16 Cates] DECEMBER TERM, 1910. 265

Insurance Cos. v. Confectionery Co.

their appraisal, necessarily prevented him from deter-
mining the relative merits and demerits of the estimates
of each appraisal; that his fixation of the award at
some place other than that where the appraised property
was located, and in the absence of the appraiser for the
insurers, was wholly in disregard of his duties as an
umpire.

It is further alleged that the amount of the award did
not truly and correctly represent the actual cash value
of the loss and damage to the articles submitted to ap-
praisal, but that the award in itself was so grossly ex-
cessive as to shock the conscience.

The demurrer filed to the original bill presents six-
teen grounds ; but, so far as they are material, they may
all be embraced under the single proposition that the bill
does not state sufficient grounds for enjoining the con-
templated suits of law and embracing all within one
suit in equity.

The chancellor took this view, and on his own motion
dismissed both the original bill and cross bill, holding
that the chancery court had no jurisdiction under the
facts stated in either bill, but that the matters involved
were such as could be, and should be, entertained in a
court of law.

The exact question arising on the original bill, and
the cross bill, as to the jurisdiction of the court of
equity, arose in tw r o cases decided by this court in 1908,
in both of which the decision was in favor of the juris-
diction of the court. Georgia Home Insurance Co. et al

266 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

v. E. A. Beasley et ah, MS., Jackson, April term, 1908,
and Globe & Rutgers Fire Insurance Co. et ah v. 8.
Trabue, MS., Jackson, April term, 1908. In the last of
these cases the court said :

"There is some contrariety of opinion in the authori-
ties as to the circumstances under which a bill may be
maintained in equity to enjoin actions at law on the
ground of multiplicity of suits. It would be a useless
consumption of time, in the present opinion, to under-
take to reconcile the authorities. Suffice it to say that we
have carefully considered the question, and we think the
better rule is stated in the following cases: Virginia-
Carolina Chemical Co. v. Home Insurance Co. et ah, 51
C. C. A., 22, 113 Fed., 1; Id. (0. C .)>109 Fed., 681; Tis-
dale v. Insurance Co., 84 Miss., 709 (36 South., 568) ;
Insurance Company v. Landau, 56 N. J. Eq., 513, 39 Atl.,
400; Fuller v. Detroit F. & H. Insurance Company (C.
C), 36 Fed., 469, 1 L. R. A., 801; Garrison v. Insurance
Co., 60 U. S., 312, 15 L. Ed., 656. Other cases are cited
in opposition to this view; . . . but, without going
into the particulars of these cases, we think it suffices to
say that the cases first mentioned announce the better
rule. As above stated, it is unnecessary, in the present
case, to go into the conflict of the cases on this subject
(see 16 Cyc, 64, 65, 66, and notes), since the rule for
this State has been laid down in Duck town v. Fain, 109
Tenn., 56 (70 S. W., 813), and, as stated in Hale v.
Allinson, 188 U. S., 56, SI (23 Sup. Ct, 244, 252, 47 L.

16 Cates] DECEMBER TERM, 1910. 267

Insurance Cos. v. Confectionery Co.

Ed., 380), in which an excellent discussion of the sub-
ject appears :

" 'Each case, if not brought directly within the prin-
ciple of some preceding case, must, as we think, be de-
cided upon its merits, and upon a survey of the real and
substantial convenience of all parties, the adequacy of
the real remedy, the situations of the different parties,
the points to be contested, and the result which would
follow if jurisdiction should be assumed or denied ; these
various matters being factors to be taken into considera-
tion upon the question of equitable jurisdiction on this
ground, and whether within reasonable and fair grounds
the situation is calculated to be in truth one which will
practically prevent a multiplicity of litigation, and will
be an actual convenience to all parties, and will not un-
reasonably overlook or obstruct the material interests of
any. The single fact that a multiplicity of suits may be
prevented is not in all cases enough to sustain it. It
might be that the exercise of equitable jurisdiction on
this ground, while preventing a formal multiplicity of
suits, would nevertheless he attended with much more
and deeper inconvenience to the defendants than would
be compensated for by the convenience of a single plain-
tiff ; and where the case is not covered by any controll-
ing precedent the inconvenience might constitute good
ground for denying jurisdiction.' "

The principle copied from Hale v. Allinson has been
the rule in this State for seventy years.

Johnson v. Brown, 2 Humph., 327, 328, 329, 37 Am.

268 TENNESSEE EEPOBTS. [124 Tenn,

Insurance Cos. v. Confectionery Co.

Dec, 556 ( April term, 1841) : "Mr. Justice Story has
justly remarked that, numerous as are the cases upon
this subject, no principle can be extracted from them
that can be safely adhered to as a general rule ; but the
courts must determine each case upon its own peculiar
circumstances. While multiplicity of actions, on the
one hand, ought to be avoided, we should be careful, on
the other, to guard against that complication and con-
fusion, in the investigation of rights and the application
of remedies, arising from the attempt to blend in one
suit distinct and incongruous claims and liabilities. The
interest and liability of defendants may be separate, and
yet they can be joined in the same suit. But then their
liability must flow from the same fountain, their in-
terests radiate from some common center, as if they
have distinct portions of complainant's distributive
share, or have purchased severally and each for himself,
from the complainant's testator, separate portions of his
trust property, and in such like cases. It is upon this
principle, perhaps, that the judgment in the case of Fel-
lows v. Fellows, 4 Cow. (N. Y.), 682 (15 Am. Dec, 412),
can be maintained, if at all maintainable. In that case
several persons, at distinct times and without confedera-
tion with each other, had fraudulently purchased sepa-
rate portions of property of B, the debtor of A, and who
had a judgment against B. It w r as held that a bill filed
against all was not multifarious. B, the common and
fraudulent vendor to all the defendants* was the debtor

16 Cates] DECEMBER TERM, 1910. ,269

Insurance Cos. v. Confectionery Co.

to A, and constituted a common connecting link, a cen-
tral point to all."

Governor v. McEtven, 5 Humph., 241, 263, 264 (De-
cember term, 1844) : "This doctrine of multifarious-
ness, in each particular instance, peculiarly refers itself
to the sound legal discretion of the court to be guided by
the analogies of the decided cases, the principle of which,
however, is the attainment of justice, by means the most
convenient and least embarrassing/'

Bartee v. Tompkins, 4 Sneed, 623, 635, 630 (Decem-
ber term, 1857) : "Was the bill as filed multifarious? It
is well said by the supreme court of the United States in
the case of Gains v. Chew, 2 How., 619 (11 L. Ed. 402) :
'As to what constitutes multifariousness it is impossible
to lay down any general rule; every case must be
gorerned by its own circumstances, and the court must
exercise a sound discretion on the subject.' Neither the
number of parties nor the intricacy of the claims on the
one side or the other will render a bill multifarious. It
is their disconnection or inconsistency, or the practical
inconvenience of considering them together, that renders
it improper that they should be embraced under a single
bill. Whenever a series of transactions have a common
root or origin, and are so connected in the manner in
which they transpire as that it is impossible to tell in
advance what bearing one may have upon another, or
how respective parties may be charged in reference to
each other, embracing them under one bill would not
subject it to the charge of multifariousness. See Story's

/

270 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

Eq. PL, sections 284-286. Where a debtor, having many
creditors, makes a fraudulent conveyance of different
portions of his property to different grantees, and the
property is further disposed of to different persons, not
innocent purchasers, the creditors may all join in a bill
against all the fraudulent grantees and those who may
claim under them. Story's Eq. PL, section 286. Again
says Mr. Story, in section 539, Eq. PL, after stating that
there is no inflexible rule : 'It is not very easy a priori to
say exactly what is, or what ought to be, the true line
regulating the course of pleading on this point' 'In

*

new cases, it is to be presumed that the court will be
governed by those analogies which seem best founded in
general convenience and will best promote the due ad-
ministration of justice.' "

Fogg v. Rogers, 2 Cold., 290 (December term, 1865) :
The third syllabus, which is fully sustained by the body
of the opinion, reads : "No principle, in regard to multi-
fariousness in bills of chancery, can be adhered to, as a
general rule; but the courts must determine each case
upon its own peculiar circumstances."

Miller v. Harris, 9 Baxt., 101 (April term, 1877) :
"On a question of multifariousness, the court must look
to the circumstances of each case, to avoid on the one
hand multiplicity of suits, and on the other inconven-
ience and hardship to defendants, in being called upon
to defend as to matters that have no connection, and to
avoid complication and confusion of evidence."

All our other authorities are in line, viz. : Bruton v.

16 Gates] DECEMBER TERM, 1910. 271

Insurance Cos. v. Confectionery Co.

Rutland, 3 Humph., 435; O/uo Life Insurance' Co. v.
Merchants Insurance Co., 11 Humph., 1, 53 Am. Dec,
742; Harrison v. Hallum, 5 Cold., 525; Rogers v. Simp-
son, 10 Heisk., 655; Cartmell v. McClaren, 12 Heist., 41;
Wa/A-er v. Day, 8 Baxt, 77 ; Woodward v. ITaZZ, 2 Tenn.
Ch., 164; Hughes v. Tennison, 3 Tenn. Ch., 641;*Zh*cfc-
town Sulphur, Copper <& Iron Co. v. Fain, 109 Tenn., 56,
70 S. W., 813.

In the cases last cited there are some illustrations
which may be useful to enable us to thoroughly under-
stand the position of our authorities upon the subject.

In Bruton v. Rutland it is said : "The bill in this case
is clearly multifarious. (1) It sets up the complainant's
equity against a portion of the defendants, and seeks to
get a decree vesting their legal title in him. (2) It
seeks to investigate the validity of a sale by the sheriff
of the share of one of the heirs under whom complainant
claims. (3) It seeks to investigate the question arising
upon the forcible entry and detainer. (4) It asks for
an account for rents *and profits."

In Ohio IAfe Insurance Co. v. Merchants' Insurance
Co., 11 Humph., 1, 34, 35 (53 Am. Dec, 742) : "In the
last place, it is said the bill was multifarious. It makes
the persons w r ho compose the members of the corpora-
tion parties, and seeks to impose upon them a personal
liability in their private capacity, and independent of
the character, to the extent of the complainant's de-
mand. It makes the same persons parties in their cor-
porate capacity, and seeks to enforce against them a lia-

272 TENNESSEE REPOETS. [124 Tenn.

Insurance Cos. y. Confectionery Co.

bility as corporators, to the extent of the capital stock
of the company. It makes the corporation, as such, a
party, and seeks to enforce against it a liability, not as
upon the contract stated in the bill, but upon the ground
of fraud. It makes the trustees in the deed of assign-
ment parties, and, impeaching it for fraud, seeks to set
aside the assignment and to subject those assets to the
payment of complainant's claims. Now, the question is
whether the various subjects and parties may all be
united in the same record, as one suit. And we are
clearly of the opinion that they cannot. If a bill 'seeks
to enforce different demands against persons liable re-
spectively, but not as connected with each other, it is
clearly multifarious' (per Lord Eldon, in Saxton v.
Davis, 18 Ves., 79 ) ; but if there be a common interest in
the plaintiffs, and the defendants represent and are in-
terested in all the different questions raised in the
record, and the suit have a common object, it is not to be
considered as multifarious. Campbell v. Macky, 1
Mylne & Craig, 603. The interest alluded to must not be
remote and consequential, but such as will be affected
and concluded by the decree. Story's Eq. PL, sections
140, 226."

In Harrison v. Hallum, 5 Cold., 525, 528, 529 : "The
objection that the bill as to these defendants is multi-
farious is not well taken. It is altogether proper, where
there are several judgment debtors, and one of them has
made a fraudulent conveyance to one grantee, and
another has made a fraudulent conveyance to another

16 Cates] DECEMBER TERM, 1910, 273

Insurance Cob. v. Confectionery Co.

grantee, and another has made a like conveyance to
another grantee, to unite all these debtors and their
several fraudulent grantees in one common bill. The
one judgment and the one object of the bill, the satisfac-
tion of the judgment, and the common purpose to de-
fraud the creditor, constitute a quite sufficient link to
take the bill out of the objection of multifariousness."

Rogers v. Simpson, 10 Heisk., 655, 657 : "The ground
of multifariousness is the only one we need notice. It
is that one of the complainants seeks to enforce a pri-
vate debt, when the general object of the bill is for par-
tition, or sale for distribution among the heirs. This
objection was unquestionably well taken. The claim for
an enforcement of his private debt against John Rogers 1
interest in the estate, as one of the heirs of Jeremiah
Rogers, had no connection whatever with the right of the
heirs to have a partition of the estate, and could not
properly be joined with such claim for partition."

Cartmell v. McClaren, 12 Heisk., 41, 42, 43 : The bill
in this case was filed in chancery court to enjoin the col-
lection of several judgments rendered against complain-
ants as sureties of one Clark. The bill alleged that these
judgments, which were in favor of different persons,
were, as rendered by the circuit court, against Clark
only, the judge refusing to give judgment against the
sureties, but that after the adjournment .of the term the
entries were fraudulently interlined, so as to convert
them into judgments against the complainants also. It
was alleged that there was a fund under the control of

124 Tenn.— 18

274 TENNESSEE EEPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

the sheriff which should be applied to these judgments.
Two grounds of demurrer were relied upon. The court
said : "It is said that the bill is multifarious, containing
distinct causes of complaint against distinct parties
without community of interest. But for the allegation
that there is in the hands of the sheriff a fund applicable
to the several judgments, this ground of demurrer would
be well taken ; but the bill shows that a negro was levied
on for these debts, and that a fund arose from his hire,
under the direction of the court, which should be applied
towards their satisfaction, though it does not appear in
what proportions, nor even what is the amount of the
fund. But as this amount, whatever it be, should be
credited on the judgments, the complainants might well
unite in a bill to enforce this object."

Walker v. Day, 8 Baxt., 77-80: The object of the bill
was to set aside sales of real estate under a decree of the
chancery court; the bill assuming that under the facts
relied on the sale was absolutely void. There was a de-
murrer for multifariousness. The court said upon this
subject : "The demurrer for multifariousness is not well
taken. The sales of the several lots were the result of a
single proceeding. The parties, by their purchases,
made themselves parties to that proceeding, and derived
whatever rights or titles they had therefrom. It was the
title and property of Walker sought to be reached, and
the claims of right of the purchasers came from that
common source through the judicial sale. The decree at-
tacked by this bill, and through which the defendants

16 Cates] DECEMBER TERM, 1910. 275

Insurance Cob. v. Confectionery Co.

are compelled to claim, is the single fountain ; and, if it
fail, the claims flowing from it must also fail."

Woodward v. Hall, 2 Tenn. Ch., 164, 166, 167 : The
bill in this case was filed by the executor of one Allen to
recover for services performed by his testator in secur-
ing the share of certaip heirs in the estate of one John L.
Harris, who died leaving a large amount of property in
the States of Louisiana, Mississippi, and Virginia. The
contract stated in the bill was that complainant's testa-
tor was first employed by his wife, Mary C. Allen, and
by John Vining and William Vining, which three de-
fendants had a common interest as the children of a de-
ceased sister of Harris. The other two defendants were
themsebres sisters of Harris, and employed John Dillard
to look to their interest. At the death of John Dillard
in 1865, the bill alleged that all of said parties, including
the defendants Charlotte Hall and Elizabeth Dillard,
employed the testator to act for them. "It is obvious,
therefore," said the court, "that there was at first a con-
tract made with complainant's testator by only three of
the defendants, and that, conceding for the moment that
the contracts were joint, and not independent, the other
two defendants were not parties to the joint contract un-
til after Dillard's death in 1865. The demurrer, then,
raises the question whether the complainant can join in
one and the same bill a cause of action against all of the
defendants and a cause of action against only a part of
them ; the causes of action being, however, in relation to
the same estate, in which the several sets of defendants

276 TENNESSEE REPORTS- [124 Term.

Insurance Cos. v. Confectionery Co.

had separate, but undivided, interests. In this view the
objection is to the uniting in the same bill of several
matters of a distinct nature against several defendants.
But this objection, it is well settled, must be confined
to cases where the case of each particular defendant is
entirely distinct and separate in its subject-matter from
that of the other defendants; for the case against one
defendant may be so entire as to be incapable of being
prosecuted in several suits, and yet some other defendant
may be a necessary party to some portion only of the
case stated. In the latter case the objection of multi-
fariousness cannot.be allowed to prevail. Story's Eq.
PL, section 271, a. 'So/ continues the author, 'it is not
indispensable that all the parties should have an in-
terest in all the matters contained in the bill. It will be
sufficient if each party has an interest in some matters
in the suit, and they are connected with the others.' Id.,
and cases cited. And upon this general principle it has
been held by our own supreme court that a bill is not
multifarious where the interests and liability of the de-
fendants are separate, but grow out of, or relate "to, a
common subject-matter."

Hughes v. Tennison et al. } 3 Tenn. Ch., 641-643 : "The
other defendants move to dismiss the bill for multi-
fariousness and the misjoinder of parties. But the mo-
tion is clearly not well taken. 'The interest and liability
of defendants may be separate, and yet/ as said by our
supreme court, 'they can be joined in the same suit/ pro-
vided their liability flows from the same fountain, and

16 Cates] DECEMBER TERM, 1910. 277

Insurance Cos. v. Confectionery Co.

their interests radiate from some common center. John-
son v. Brown, 2 Humph., 328 (37 Am. Dec, 556). And
the authorities all recognize the case before us as falling
within the rule where a debtor conveys, at different
times and independently, distinct portions of his prop-
erty to several persons, in fraud of the rights of his
creditors."

Ducktown Copper, Sulphur & Iron Co. v. Fain, supra :
This was a case in which the copper company had been
sued by numerous persons for a tort committed by kill-
ing trees and vegetation with copper smoke. It sought
to unite all of these suits into one. The case of Tribette
v. Railroad Co., 70 Miss., 182, 12 South., 32, 19 L. B. A.,
660, 35 Am. St. Rep., 642, was referred to and relied on.
In that case it appeared that a number of different
owners of property destroyed by fire from sparks emitted
by an engine of the company sued separately in the cir-
cuit court to recover damages for their respective losses
by said fire, alleged to have resulted from the negligence
of the defendant. The company filed a bill in equity
seeking to enjoin the prosecution of the suits upon the
ground that they all grew out of the same occurrence,
and depended for their solution upon the same ques-
tions of fact and law, and to prevent a multiplicity of
suits and the harassment and vexation consequent there-
on. The decision in that case was approved, wherein it
was held that mere community of interest "in the ques-
tions of law and fact involved in the general contro-
versy, or in the kind and form of relief demanded and

278 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

obtained by or against each individual member of a
numerous body," would not be ground for the interposi-
tion of chancery to settle in one suit the several contro-
versies; that the recvery of damages for a tort does not
pertain to courts of chancery, which are accustomed to
decree damages only in a very limited class of cases, or
under peculiar circumstances, or as incident to some
other relief ; that the sound doctrine is that, "in order to
warrant a bill to prevent multiplicity of suits, there
must be some recognized ground of equitable cognizance,
or some community of interest in the subject-matter of
controversy, or a common right or title involved, or the
parties must have some common purpose in pursuit of a
common adversary, where each may resort to equity in
order to be joined in one suit ; and it is not enough that
'there is a community of interest merely in the question
of law or fact involved.' "

Referring to the question which the supreme court of
Mississippi had under consideration in Tribette v. Rail-
road Company, and which this court had in Duektown,
etc., Company v. Fain, supra, as to whether there could
be a bill in equity uniting several actions of tort arising
out of a single act of misconduct, Stiness, C. J., said, in
Whipple v. Ouile: "The defendants call our attention
to a question put by Jessel, M. R., in Appleton v. Chapel
Co. } 45 L. J. Ch. Rep. (N. S.), 276, in illustration of 'the
real essence of the difficulty with a bill like that in the
case at bar.' The question was : 'If twenty people were
hurt in a railway collision, would that be a common in-

16 Cates] DECEMBER TERM, 1910. 279

Insurance Cos. v. Confectionery Co.

jury? And could they all join as plaintiffs in one action
for compensation V Of course they could not, because
the extent of the injury would be different in each case,
and require a separate assessment and judgment. But,
if they were creditors of the railroad company, they
could join in a bill for a receiver. The controlling ques-
tion is not of diversity of interest but of unity in
remedy." 22 R. I., 578, 48 Atl., 936, 89 Am. St. Rep.,
855.

The language we have quoted from Ducktoum, etc.,
Co. v. Fain was reproduced by this court in the above-
mentioned case of Georgia Home Insurance Co. et al. v.
E. A. Beasley (April term, 1908), a case similar in its
facts to the case now before us, and it was held to cowr
the facts involved in that case, and to justify the filing
of the bill in equity, which had been filed therein, to en-
join the bringing of the several suits, and to compel their
trial together in one comprehensive suit in equity.

It is insisted by counsel for the defendant in the pres-
ent case that the two cases decided by this court in 1908
are not well founded in law, because the court referred,
among other authorities, to the case of VirginiarCarolina
Chemical Go. v. Home Insurance Co. et al., supra, and
this latter case was doubted subsequently in the case of
Rochester German Insurance Co. v. Schmidt, 175 Fed.,
720, 99 C. C. A., 296, which was an opinion delivered in
the circuit court of appeals, also in the Fourth circuit,
by Pritchard, circuit judge. So far as the matter of
pure authority is concerned, of course, the later federal

280 TENNESSEE REPORTS. [124 Tenn.

»

Insurance Cob. v. Confectionery Co.

case very much weakens the former; but we prefer the
reasoning in the former case. However,. setting aside
both of these federal cases, the authority is ample in
decisions of our own court. Moreover, the lower federal
courts are not in accord. In Wyman v. Bowman, in the
circuit court of appeals for the Eighth circuit, 127 Fed.,
257, 263, 264, 62 C. O. A., 189, 195, 196, it is said :

"This court has repeatedly held — and that holding is
sustained by the great weight of authority — that a bill in
equity against several defendants, separately liable
either at law or in equity, may be maintained, in order to
avoid a multiplicity of actions at law or of suits in
equity, whenever there is a common and decisive point
of litigation between the complainants and the defend-
ants, the complainant has no remedy at law as prompt,
practical, and efficient to attain the ends of justice as
the suit in equity, and the convenience of the complain-
ant in pursuing the single suit in equity is not overcome
by the deeper inconvenience of such a course to the de-
fendants. (Authorities.) In the suit under considera-
tion, every point of litigation between complainant and
the defendants is common to all the latter. One of them
has demurred to the bill, and eight have joined in a com-
mon answer. Their alleged liability is based on their
signatures to the same agreement of subscription. They
all defend on the ground that their subscriptions were
conditional, that their contracts were rescinded, that
41.625 per cent, of their subscriptions was paid by John-
son and his associates, that the questions presented in

16 Cates] DECEMBER TERM, 1910. 281

Insurance Cos. v. Confectionery Co.

this suit are res ad judicata, that the complainant has no
legal capacity to maintain the suit, and that the court
below had no jurisdiction in equity. The same facts,
proved by the same evidence, condition the defenses of
each of the defendants, and the same questions of law
are presented by each of them for our determination.
Why does not this suit prevent a multiplicity of actions
at law, and give to the complainant a more efficient and
practical remedy, without inconvenience to the defend-
ants, than nine separate actions at law could give? The
remedy which will preclude the maintenance of a suit in
equity must b>e 'plain and adequate, or, in other words,
as practical and efficient to the ends of justice and its
prompt administration as the remedy in equity .' (Au-
thorities.) Would nine actions at law, in which the
same questions of law and fact would be tried nine times
upon the production and reproduction of the same evi-
dence before nine different parties, be as efficient and
prompt or as practical a means to determine the ques-
tions here at issue, and to attain the ends of justice, as
this single suit in equity? The question is its own an-
swer. Is there any deeper inconvenience to the defend-
ants than would be compensated for by the convenience
of the plaintiff in pursuing this remedy? None is
proved. None can be conceived. Indeed, the single suit
in equity entails less expense, less labor, and less trouble
upon the defendants, by as much as it is less expensive
and troublesome to try a single suit in equity than it is

282 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

to try nine actions at law, involving the same contro-
versies, conditioned by the same evidence."

In Risely v. City of Utica (D. C.), 173 Fed., 502, 506,
507, it was held that a bill to enjoin the collection of
illegal taxes is not multifarious because it includes taxes
levied for different purposes, where all are subject to
the same infirmity, and the bill has a single purpose,
which is to have all the taxes adjudged illegal.

In Snelling v. Richard (C. C), 166 Fed., 635, 636, it
was held in a suit by stockholders against directors,
where the only relief prayed was an injunction against
issuing any of the company's new stock without first giv-
ing complainants reasonable opportunity to take their
proportionate share, and against voting, or permitting
to vote, stock that might have been issued in violation
of their rights, complainants had a common interest in
such relief, and could properly be joined in a single bill.

In Bracken V. Rosenthal (C. C), 151 Fed., 136-138,
it was held that a bill for infringement of the copyrights
of different pieces of sculpture would not be held demur-
rable for multifariousness, where the parties and the gen-
eral methods of alleged infringement are the same, and

■

especially where it appears from the bill that all of the
acts of infringement were committed pursuant to a com-
mon purpose by the defendants.

In Pennsylvania Co. v. Bay (C. C), 150 Fed., 770,
773, 774, it was held that a bill by a railroad company
for an injunction to restrain brokers from dealing in
special non-transferable tickets issued by it was not

16 Cates] DECEMBER TERM, 1910. 283

Insurance Cos. v. Confectionery Co.

multifarious because a number of defendants were join-
ed who had no connection with each other, where all
were engaged in the same business, and were alike inter-
ested in the questions at issue, and a joinder would
save a multiplicity of suits.

In Smyth v. Ames, 169 U. S., 466, 517, 518, 18 Sup.
Ct., 418, 42 L. Ed., 819, it appeared that the State of
Nebraska had passed a law providing for the fixing of
certain railroad rates. The statute expressly provided
that, if those rates were deemed by the railroad compa-
nies unjust or unreasonable, they should have a right of
action in the supreme court of the State for the purpose
of obtaining an increase of rates; but in the meantime
they were subject to heavy penalties for any violation of
the law. Under the operation of the law the companies
might be subjected to various suits for penalties, in case
of a violation of its provisions. The several railroads
joined in one bill, filed on the equity side of the United
States court, to enjoin action under this law, on the
ground of its unconstitutionality. Objection was
made to the jurisdiction of the equity court on
the ground that the railroads had a complete
remedy at law expressly provided for by statute.
The court said there was a remedy at law, but that it
was not efficacious, and therefore did not take away
from the court of equity a right to entertain the bill, be-
cause that jurisdiction was dependent, not alone on
whether there was a remedy at law, but whether there
was a remedy afforded relief as comprehensive and

284 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

efficacious as that afforded in equity ; and in view of the
fact that the whole matter could be determined by one
comprehensive suit in equity, while a multiplicity of
suits at law would be required, it was held that the bill
was maintainable.

In Bitterman v. L. & N. R. R. Co., 207 U. S., 205, 226,
28 Sup. Ct, 91, 52 L. Ed., 171, it was held that the ob-
jection of multifariousness, based on misjoinder of par-
ties and causes of action, would not lie against a bill to
enjoin ticket brokers from dealing in nontransferable re-
duced rate excursion tickets, where the acts complained
of as to each defendant were of a like character, and
their operation and effect upon the rights of the com-
plaining carrier were identical; the relief sought
against each defendant being the same, and the defenses
which might be interposed being common to each defend-
ant, and involving like legal questions.

In State v. Knife Falls Boom Corporation, 96 Minn.,
194, 199, 104 N. W., 817, it was held that a bill in equity
is not multifarious, where one general right only is
claimed by it, though defendants have only separate in-
terests in distinct questions which arise out of such a
right, and it is not necessary that all the defendants
should be equally affected.

In Hanson v. Neal, 215 Mo., 256, 271, 114 S. W., 1073;
wherein it appeared that defendants, pursuant to a com-
mon understanding, had, between them, received the
deeds to land sold at a trust deed sale, it was held a bill
to set aside the deeds was not multifarious for joining

16 Cates] DECEMBER TERM, 1910. 285

Insurance Cos. v. Confectionery Co.

them as defendants, where the causes of action against
them depended on the same evidence.

In Blumer v. Ulmcr (Miss.), 44 South., 161, it was
held that equity had jurisdiction of a suit by several de-
positors of an insolvent bank against the directors for
deceit in inducing complainants to make deposits when
the bank was insolvent, in order to prevent a multiplic-
ity of suits, though the cause of action of each depositor,
if asserted alone, would properly be at law.

In Tisdale v. Insurance Co., 84 Miss., T09, 36 South.,
568, the court said : "The appellant brought three sep-
arate suits, one against each company," in a court of law.
"The property insured was the same, and the principles
of law governing the three cases were the same, and the
facts were, substantially identical. The bill further al-
leges incorrect and false bookkeeping, in this: That he *
did not keep such an inventory and such a set of books as
the policies required, and that they did not show the
truth about the purchases and shipments in the business,
and were not a complete record of the business trans-
acted by the appellant. The bill was demurred to, and
the demurrer overruled; hence this appeal. We think
equitable jurisdiction is maintainable on the ground of
the prevention of a multiplicity of suits at law, as well
as upon the inadequacy of the remedy at law. The very
same principles of law and the very same facts determine
each case. Besides, it is important to note that there can
be but one true fixation of the actual amount of loss, and
yet each jury might put it at a different sum."

286 TENNESSEE REPORTS. [124 Tenn.

• *

Insurance Cos. v. Confectionery Co.

In American Central Insurance Co. v. Landau, supra,
it appearel that thirty-two insurers under twelve sepa-
rate policies filed a bill to enjoin separate suits against
them, and alleged that some of their policies covered
insured's property in one of three buildings, and some
in another, and some in all of the buildings ; that each
policy contained a provision that the insurer should not
be held liable for a greater proportion of any loss than
the amount insured therein should bear to the whole in-
surance ; that' insurers had jointly tendered the agree-
gate amount of an award that had been made under in-
sured's agreement with them jointly to arbitrate accord-
ing to the provisions of each policy. Held, such bill was
not subject to demurrer for multifariousness. 56 N. J.
Eq., 513, and see numerous cases cited on pages 522 and
523, 39 Atl., 400.

In Scofield v. City of Landing ', infra, the case of Ken-
sington v. White, 3 Price, 164,. is referred to, wherein
it appeared that seventy-two different underwriters,
upon different policies of insurance, upon which com-
plainants had been severally sued at law for their re-
spective subscriptions, joined in one bill, the object of
which was to establish a defense which was common to
all. The bill was sustained as not multifarious.

Fegelxon v. Niagara Fire Insurance Co., 94 Minn., 486,
103 N. W., 495, was a case wherein the insured brought
a single joint action against six fire insurance companies,
for the purpose of holding them liable on six separate
policies of insurance, covering his stock of merchandise,

16 Cates] DECEMBER TERM, 1910. 287

Insurance Cos. v. Confectionery Co.

furniture, and fixtures. The complainant alleged that a
fire had occured, whereby the insured had sustained loss,
and that each of the companies denied liability. It also
alleged that the amount of liability of each defendant
for such loss depended upon the liability of the other de-
fendants, and that to adjust their respective liabilities
it was necessary at the same time to determine the liabil-
ity of each, and for this reason, and to prevent a multi-
plicity of suits, it was necessary to join all of the defend-
ants in one action. The prayer of the complaint was that
the court would ascertain the facts and the amount of
the plaintiff's loss, and the proportionate share thereof
of each defendant, and award judgment accordingly.
There was a demurrer, making objection that the several
causes of action were improperly joined. Each of the
policies contained a rule or provision for apportioning
liability between the several companies in substance the
same as that which is embraced in the policies involved
in the present controversy, except that only valid insur-
ance was to be considered. The court sustained the com-
plaint, assigning as grounds of its judgment: That in
order to determine the amount which the plaintiff was
entitled to recover against each of the defendant^, it was
necessary to determine conclusively against each two
questions, in which there was a community of interest
among them all, namely, the amount of the plaintiff's
loss, and the amount of his valid insurance; that if the
plaintiff could not bring all of the defendants into one
action, and have these questions settled as a basis for

288 TENNESSEE REPORTS. [124 Tenn.

Insurance Cob. ▼. Confectionery Co.

accurately and conclusively determining the pro rata lia-
bility of each insurer for the loss, he was without any
certain, speedy, adequate, and convenient remedy in the
premises, but would be remitted to the uncertain remedy
of a multiplicity of suits. "If a separate action against
each defendant," continued the court, '^be his only rem-
edy, he must bring six actions, instead of one, in each
of which the same evidence on the two essential ques-
tions must be gone over, and the law applicable thereto
determined, with the not improbable result that the
amount of his loss and the amount of his valid insurance
will be fixed at a different amount in each case. Such a
remedy is neither certain nor adequate depending, as it
does, upon the aggregate result of a multiplicity of vexa-
tious actions."

In general accord with all the; cases cited, see, also, the
following : Baumgartner v. Bradt, 207 111., 345, 348, 349,
350, 69 N. E., 912 ; Charles Simon's Sons Co. v. M d. Tele-
phone & Telegraph Co., 99 Md., 141, 180, 57 Atl., 193, 63
L. R. A., 727 ; Scofield v. City of Lansing, 17 Mich., 159,
161-163, 54 N. W., 634; Torrent v. Hamilton, 95 Mich.,
159, 161-163, 54 N. W., 634; Blankenburg v. Black, 200
Pa., 629, 50 Atl., 198; Whipple v. Guile, 22 R. I., 576, 48
Atl., 935, 84 Am. St. Rep., 855; Brown v. Tilley, 25 R. I.,
579, 57 Atl., 380; Almond v. Wilson, 75 Va., 613, 623,
624 ; Johnson v. Black, 103 Va., 477, 49 S. E., 633, 68 L.
R. A., 264, 106 Am. St. Rep., 890 ; Fidelity & Deposit Co.
of Md. v. Fidelity Trust Co. (C. C.)> 143 Fed., 152, 156,
157 ; Illinois Central B. R. Co. v. Caffrey, 128 Fed., 770,
774, 775 ; L. & N. B. R. Co. v. Smith, 128 Fed., 1, 63 C. C.

16 Cates] DECEMBER TERM, 1910. 289

Insurance Cob. v. Confectionery Co.

A., 1; Curran v. Campion, 85 Fed., 67, 29 C. 0. A., 26;
Kelley v. Boettcher, 85 Fed., 55, 64, 29 C. 0. A., 14.

Numerous other cases could be added, but these will
suffice. They present various interesting illustrations of
the subject.

In the foregoing citations we have referred to author-
ities upon misjoinder of parties complainant and parties
defendant, and upon cases on the subject of multifari-
ousness in general ; all being questions closely akin, and
throwing light upon the subject of inquiry.

Of course, the application of the doctrine to insurance
litigation presents only one very small aspect of a very
broad, general question. It would be preposterous to es-
tablish a rule, in this branch of the law, applicable to
such contracts alone.

Now, bringing this class of cases under the general
principle, it is perceived at a glance that the five con-
tracts of insurance upon which the nine suits complained
of might be brought, all cover property which was de-
stroyed or injured by the fire which occurred at the plant
of the Confectionery Company. The liability, under each
policy springs from that loss. Each company is interested
in the ascertainment of the loss, and in fixing the amount
thereof, since each is liable for the loss only in the pro-
portion which the amount of each policy bears to the
whole amount of insurance. There could be brought at
law certainly five suits, one on each policy. Why should S
there be five different valuations of five separate/
juries on the same evidence, when one trial before th<y

124 Tenn.— 19

290 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

court of chancery, or in that court before a jury, would
settle the question with very much less labor and expense
to the parties, and with very much less expenditure of
the public time and public money in affording the parties
the facilities of a trial? In addition to this, it is to be
noted that there are the several other questions which
are common to the parties, and which must be settled by
the same evidence, or substantially the same evidence,
all of which are suggested in the bill, viz. : First, con-
cerning the misrepresentations which are alleged to have
been made for the purpose of procuring the policies;
secondly, the keeping of explosives; thirdly, the failure
to separate the damaged and undamaged personal prop-
erty, and to put the property in the best possible order,
and the failure to make an inventory thereof; fourthly,
concerning the misconduct of the insured in respect of
the sprinkler system. While the existence of these ques-
tions alone, although common to all the parties, might
not justify the enjoining of the suits at law, and trying
them all in the court of equity (although we do not de-
cide this question one way or the other), yet when they
are found in connection with the question first men-
tioned they become very important, under the rule that
a court, for the purpose of preventing a multiplicity of
Buits, will act upon the facts of each case, with a view to
the convenience of the parties, and to affording com-
plete and adequate relief.

The fact that the five separate suits might be enter-
tained at law, and five separate valuations had of the
property lost, and that the whole amount of insurance

16 Cates] DECEMBER TERM, 1910. 291

Insurance Cos. v. Confectionery Co.

might be ascertained in each such case, and the jury
instructed to return against each defendant company
in such separate suit only such amount of the loss as the
amount of the policy sued on would bear to the whole
amount of the insurance, is no answer to the relief sought
in the bill ; since the rule whereby a court of equity may
enjoin such numerous suits at law is not based on the
postulate that the court of law is without jurisdiction,
but simply on the ground that a multiplicity of suits
would be thereby prevented, and that in such prevention
both the public and private interest would be subserved.

Nor is it any answer to say that, if the suits at law
should all be brought in one court of law, they could all
be consolidated and heard together by order of the judge
of such court. This presupposes that they would all be
so brought, and likewise that they would all remain in
court, when in truth there would be nothing to prevent
the dismissal of any of the cases on voluntary motion
of the plaintiff therein, and their subsequent renewal
at such times and in such ways as would effectually pre-
vent consolidation. Relief in equity cannot be denied
on such grounds. Moreover, consolidated cases, involv-
ing numerous and diverse questions affecting different
branches of a composite controversy, cannot be so well
handled in trials at law as in equity, owing to the differ-
ence in the methods of practice in the two courts, and
particularly to the difference in the functions of the jury
in the respective tribunals.

In addition to the foregoing questions common to the
various insurance companies, the question made in the

292 TENNESSEE REPORTS. [124 Tenn.

Insurance Cos. v. Confectionery Co.

cross bill, wherein the award is attacked for fraud, is a
very important one. The jurisdiction of a court of equity
to set aside an award for fraud is clear. The relief in
such a case is in equity, and not at law. 1 Clements on
Fire Insurance, p. 183 ; Cooley's Briefs on Insurance, voL
4, 3654 ; Robertson v. Insurance Co., 68 Fed., 173, 175 ;
Philadelphia Fire Association v. Allesina, 45 Or., 154,
158, 77 Pac., 123. The court of chancery obtaining juris-
diction on this ground, would proceed to dispose of the
whole case, even if the other matters referred to were
not involved.

We note that one of the policies is on machinery alone,
six of them on machinery and stock, and one on stock
alone, and one insured office furniture along with other
property. This, however, will not alter the application
of the principle, since all the property was destroyed in
the same fire, and the same common questions remain as
above indicated. While there is one policy upon the ma-
chinery alone, and one upon the stock alone, the same
facts of loss govern, and, besides, it is not necessary that
each of the parties should be interested in all of the
questions. This is shown by the authorities above re-
ferred to.

It results that the judgment of the court of civil ap-
peals, reversing the decree of the chancellor, must be
affirmed, and the cause remanded for further proceed-
ings.

16 Cates] DECEMBER TERM, 1910. 293

Miller v. State.

John L. Miller v. State.
(Nashville. December Term, 1910. y

1. NAVIGABLE 8TREAM3. Legislative act declaring a non-
navigable stream to be navigable is unconstitutional because
its effect, If valid, would be to deprive the riparian proprietors)
of their title and use of the bed of the stream, without com-
pensation.

The legislature cannot arbitrarily declare a stream to be naviga-
ble, when it la in fact not so in a legal or technical sense, be-
cause such legislative act would be void as violative of the con-
stitutional provision (art 1, sec. 21) against the taking of pri-
vate property for a public use, without the consent of the owner,
through his representatives, and without just compensation
therefor, for the reason that such act would, if valid, deprive
the riparian proprietors of their title and use of the bed of the
stream without compensation. (Post, pp. 300, 301.)

Acts cited and construed: Acts 1837-38, ch. 39; Acts 1879, ch.
165; Acts 1893, ch. 118.

Constitution cited and construed: Art 1, sec. 21.

Cases cited and approved: Stuart v. Clark, 2 Swan, 17; Railroad
v. Ferguson, 105 Tenn., 552; Griffith v. Holman, 23 Wash., 347;
Murray v. Preston, 106 Ky., 661; People v. Mill Co., 107 Cal.,
221; Bayzer v. Mill Co., 105 Ala., 395; Walker v. Board, 16 Ohio,
540; State v. Pool, 74 N. C, 402; Morgan v. King, 35 N. T., 454;
Partridge v. Eaton, 63 N. Y., 482; Barclay, etc., Co. v. Ingham,
36 Pa., 194; Allen v. Weber, 80 Wis., 531.

2. 8AM E. Must be navigable In the ordinary state of water, by
vessels usually employed for ordinary commerce.

A navigable stream is one that in the ordinary state of water,
has capacity and suitability for the usual purposes of naviga-
tion, ascending or descending, by vessels such as are usually

294 TENNESSEE REPORTS. [124 Tenn.

Miller y. State.

employed in the ordinary purposes of commerce. (Post, pp.
301, 302.)

Cases cited and approved: Elder v. Burrus, 6 Humph.. 358:
Stuart y. Clark, 2 Swan, 17; Sigler y. State, 7 Bax., 496; Hoi-
bert y. Edens, 5 Lea, 204; Webster v. Harris, 111 Tenn., 676.

3. SAME. 8tr earns navigable only for floatage of logs and rafts
for ten or twelve days In a year are not navigable In a legal
sense.

. Wolf river is not navigable within the sense of the definition of
a navigable stream, because it cannot be navigated profitably
for commercial purposes, ascending at any time, and can only
be used, descending, for the transportation of logs and rafts
for short periods of time, ten or twelve days in each year.
(Post, p. 302.)

4. SAME. Public highway easement In streams not navigable
in a legal sense, but navigable for the profitable floatage of
crafts and rafts at regularly recurring seasons, but the
riparian ownership is absolute and exclusive In streams of
less size.

While the beds of all streams not navigable in the legal sense
belong to the riparian proprietors and are private property,
yet this ownership of the beds of all such nonnavigable streams
Is not absolute and exclusive in all cases; for if, in its natural
state, the volume of a stream, whether ordinary or swollen by
rains occurring with reasonable certainty at regularly recurring
seasons, is such that the stream can be used profitably for
commercial purposes in the transportation of the products of the
forest, mines, tillage of the soil, or other articles of commerce,
the public has an easement of highway therein, which the
riparian proprietors cannot in law unreasonably obstruct; but
the stream must be of sufficient size to float, by the force of
the current, and without the aid of persons traveling upon
the banks, crafts and rafts sufficiently large to make the business
profitable, and it is not sufficient that loose logs or lumber can
be floated down the stream when at flood; for streams of that

16 Gates] DECEMBER TERM, 1910. 295

Miller v. State.

character are not subject to the public servitude, but are private
property, absolutely and exclusively owned by the riparian
proprietors. {Post, pp % 303-305.)

Cases cited and approved: Stuart v. -Clark, 2 Swan, 17; Sigler
v. State, 7 Bax., 496; Irwin v. Brown, 3 Shannon's Cases, 310;
Allison v. Davidson, 39 S. W., 905, 908, 909.

5. SAME. Respective rights of riparian proprietors and the
public In streams not navigable in the legal sense, but navi-
gable for the floatage of crafts and rafts of logs.

The public easement for the floatage of crafts and rafts of logs in
streams not navigable in the legal sense is not an absolute and
unqualified right of way, but is subject to the rights of the
riparian owners, including a reasonable use for power; for the
riparian proprietors have rights in such streams as valuable
and sacred as that of the public, and these respective rights
of the public and the riparian proprietors must be reconciled and
so used and exercised as not unreasonably to interfere with and
obstruct each other, so that both can be enjoyed and neither
be unnecessarily or unreasonably obstructed or destroyed; and
the public, in exercising its rights in it, must do so with unusual
care not to interfere with those of the riparian proprietors.
(Post, pp. 305-310.)

Cases cited and approved: Gaston v. Mace, 33 W. Va., 14; Burke
Co. v. Lumber Co., 116 N. C, 731; Ward v. Greenville, 32 Can.
S. C, 510; Pearson v. Rolfe, 76 Me., 380; Foster v. Searsport
Spool ft Block Co., 79 Me., 508; Lancey v. Clifford, 54 Me., 487;
Blackman v. Mauldin, 164 Ala., 337.

6. 8AM E. In prosecution against a riparian proprietor for ob-
structing a stream, the court should charge the jury concern-
ing the respective and reciprocal rights of such proprietor
and the public In a stream navigable only for the floatage of
rafts, when.

In the trial of a case under an indictment against a riparian pro-
prietor for obstructing the navigation of a stream by the erec-

296 TENNESSEE REPORTS. [124 Tenn.

Miller y. State.

tlon and maintenance of a mllldam across the same, where the
evidence shows or tends to show that such stream Is not navi-
gable In the legal sense, but only navigable for the floatage of
rafts of logs during floods, the trial judge should charge the
jury concerning the respective and reciprocal rights of the pub-
lic and the accused defendant as such riparian proprietor In
the stream, substantially as defined in the preceding headnote.
(Post, p. 311.)

7. 8AM E. Evidence held Insufficient to show unlawful obstruc-
tlon of a stream navigable only for floatage of rafts.

The evidence is stated and held to be insufficient to show an unlaw-
ful obstruction of a stream navigable only for floating logs, by
the erection and maintenance of a milldam by a riparian pro-
prietor. (Post, pp. 297, 298, 299, 310, 311.)

FROM PICKETT.

Appeal in error from the Criminal Court of Pickett
County.- 1 - J. M. Gardenhirb, Judge.

A. H. Roberts, for Miller.

Assistant Attorney-General Faw and S. M. Tur-
ner, for State.

Mr. Chief Justice Shields delivered the opinion of
the Court.

The indictment in this case contains two counts.
The first charges that the plaintiff in error "did un-
lawfully obstruct the navigation of the main channel

16 Gates] DECEMBER TERM, 1910. 297

Miller v. State.

of a navigable stream, viz., Wolf rftier, at a place gener-
ally known as 'Miller's Mill/ in the Fourth civil district
of Pickett county, by erecting a dam in and across the
same."

The second count charges that the plaintiff in error
"did unlawfully obstruct Wolf river, a navigable stream,
at a place in the Fourth civil district of Pickett county
known as 'Miller's Mill/ the same being being a public
highway for the transportation of large amounts of logs
and lumber, by erecting and maintaining in and across
said stream a dam, which obstructs navigation and is
hurtful and injurious to the people generally, render-
ing passage along such stream for rafts and lumber dan-
gerous and inconvenient to the public."

There was a trial, and a general verdict of guilty, and
from the judgment of the court thereon the plaintiff in
error has brought the case to this court for review.

There is little or no controversy abut the material facts
of this case. Wolf river is a narrow, crooked, rocky, and
swift stream something over fifty miles in length. In
its ordinary condition, and with the exception of a few
days each year, when swollen by heavy rains, it is for the
most part shallow, having numerous shoals, where it is
ofttimes less than eight inches deep, and cannot in the
ordinary state of its waters be navigated or used for
floatage, ascending or descending, for commercial pur-
poses. During the winter and spring months, as a result
of heavy and continuous rains for six or more hours, it
has tides or floods, lasting from twelve to thirty-six

298 TENNESSEE REPORTS. [124 Tenn.

Miller v. State.

hours, during which small rafts containing twenty-five
to fifty logs can be floated from points some forty miles
above its mouth. There are usually about six of these
tides each year, and they can be relied upon to occur pe-
riodically with reasonable certainty. There is a large
amount of valuable timber on and near this river, which
can only reach the market by being floated down it in
rafts upon these tides, and it has been used for this pur-
pose for over thirty years ; there now being floated down
its waters each year from $50,000 to $75,000 worth of
logs in rafts of the size mentioned.

The river also affords along its entire length much
valuable water power, which is utilized by a number of
valuable mills for grinding corn and wheat and sawing
lumber on its banks, operated by this power; the waters
of the river being collected and held by dams erected
and maintained in and across the river for that purpose.

The plaintiff in error owns a valuable tract of land
situated upon both sides of the river in Pickett county,
upon which he has a valuable mill for manufacturing
meal, flour, and lumber; the power being furnished by
the waters of the river, accumulated in a dam, which he
maintains in the river. These lands were granted to the
predecessors in title of the plaintiff in error in 1792, and
the mill and dam now operated and maintained by him
have been so operated and maintained by the owners
of the property for more than sixty years. It is a cus-
tom mill, and accommodates a large number of people
in that section of the country.

16 Cates] DECEMBER TERM, 1910. 299

Miller v. State.

John Elder, one of the former owners of this property,
was indicted in the circuit court of Pickett county, in
1884, upon the same charge preferred against the plain-
tiff in error, for maintaining this dam, and upon his
building and agreeing to maintain a "&lope," composed
of timbers resting upon the dam at one end in the bed of
the river at the other, for the waters to flow over, of suffi-
cient width to accommodate rafts, the prosecution was
dismissed. This "slope" has been maintained since that
date, and furnishes a reasonably safe and convenient
means by which rafts may be floated over the dam dur-
ing tides in the river. Arranged in this way, the dam is
not a much greater obstruction to floating rafts down
the stream than exists from natural causes in other
places.

The description here given of the river applies to it
at the dam of the plaintiff in error and above that point.
There is only one instance of a flatboat or barge being
floated down the river, and this occurred many years
ago. The preponderance of evidence clearly shows that
the stream can only be used profitably for commercial
purposes for floating loose logs and small rafts, at regu-
lar, recurrent periods, some six times each year, each
period lasting from twelve to thirty-six hours, depend-
ent upon the quantity and duration of the fall of rain.

The questions to be determined upon these facts are
whether or not Wolf river is a navigable stream, as
averred in the first count of the indictment ; and, if not,
whether it is a highway for transportation of commerce,

300 TENNESSEE REPORTS. [124 Tenn.

Miller v. State.

the public has the right to have kept open and unob-
structed for its use in floating logs and rafts.

For the State, it is insisted that these questions are
concluded by three acts of the general assembly— chap-
ter 39, Acts of 1837-38, chapter 165, Acts of 1879, and
chapter 118, Acts of 1893 — declaring Wolf river naviga-
ble for rafts and flatboats from its mouth to points con-
siderably above the dam of the plaintiff in error.

This contention cannot be sustained. The general
assembly cannot arbitrarily declare a stream to be navi-
gable. Whether a fresh water stream is navigable is al-
ways a question of fact. Railroad v. Ferguson, 105
Tenn., 552, 59 S. W., 343, 80 Am. St. Rep., 908; Griffith
v. Holman, 23 Wash., 347, 63 Pac, 239, 54 L. R. A., 178,
83 Am. St. Rep., 821; Farnham's Waters and Water
Rights, section 24.

If Wolf river is not in fact navigable, all these acts
are violative of article 1, section 21, of our constitution,
ordaining that private property shall not be taken or
applied to public use without the consent of the owner,
through his representatives, and just compensation being
made.

The lands upon which the dam of the plaintiff in error
is located were granted previous to the enactment of
these statutes, and if Wolf river be not a navigable
stream in a legal or technical sense the owner — the ripa-
rian proprietor — has title to the banks and the bed of
the stream and the right to use his property for the pur-
poses for which it is suitable. The statutes declaring the
stream navigable and a public highway would, if valid,

16 Cates] DECEMBER TERM, 1910. 301

Miller v. State.

deprive him of this use without compensation. There
could not be a clearer case of violation of the constitu-
tional provisions stated. This is in substance held in
Stuart v. Claries Lessees, 2 Swan, 17, 58 Am. Dec., 49.

It has been repeatedly so adjudged by the courts of
other States having similar constitutional provisions.
Murray v. Preston, 106 Ky., 561, 50 S. W., 1095, 90 Am.
St. Rep., 232 ; People v. Elk River Mill Co., 107 Cal., 221,
40 Pac, 531, 48 Am. St. Rep., 125; Bayzer v. McMillan
Mill Co., 105 Ala., 395, 16 South., 923, 53 Am. St. Rep.,
133; Walker v. Board of Public Works, 16 Ohio, 540;
State v. Pool, 74 N. C, 402; Morgan v. King, 35 N. T.,
454, 91 Am. Dec, 58 ; Partridge v. Eaton, 63 N. T., 482 ;
Barclay R. & Goal Co. v. Ingham, 36 Pa., 194; Allen v.
Weber, 80 Wis., 531, 50 N. W., 514, 14 L. R. A., 361, 27
Am. St. Rep., 51 ; Cooley's Const. Lim., 862, 863 ; Farn-
ham's Waters and Water Rights, sections 24, 77.

We are also of the opinion that Wolf river is not a
navigable stream within the sense of the laws of Ten-
nessee. The common law rule, that all waters in which
the tide ebbs and flows are navigable, was held in Elder
V. Burrus, 6 Humph., 358, to be inapplicable to condi-
tions in this State, as there are no such waters within its
boundaries; and the rule of the mil law, that rivers
capable of being navigated or navigable in the common
sense of the term, was adopted and held to be applicable
to all our rivers coming within that definition. This
case has been frequently followed by this court, and the
rule there announced is now the settled law of this State.

302 TENNESSEE REPORTS. [124 Tenn.

Miller y. Stata

Stuart v. Clark' 8 Lessees, 2 Swan, 17, 58 Am. Dec, 49 ;
Sigler v. State, 7 Baxt., 496 ; Holbert v. Edens, 5 Lea,
204, 40 Am. Rep., 26 ; Webster v. Harris, 111 Tenn., 676,
69 S. W., 782, 59 L. R. A., 324.

Judge McKinney, in Stuart v. Clark's Lessees, supra,
after discussing the subject fully, defines a navigable
stream to be "a river capable, in the ordinary state of
water, of navigation, ascending or descending, by ves-
sels ; that is, such vessels as are employed in the ordi-
nary purposes of commerce, whether foreign or inland,
and whether steam or sail vessels."

In Holbert v. Edens, supra, it is said: "A stream is
navigable, in a legal sense, when it is capable in the ordi-
nary stage of water of being navigated, both ascending
and descending, by such vessels as are usually employed
for purposes of commerce."

And in the last case upon the subject, Webster v. Har-
ris, supra, it is said : "The test of a navigable stream is
whether, in the ordinary state of water, it has capacity
and suitability for the usual purposes of navigation, as-
cending or descending, by vessels such as are employed
in the ordinary purposes of commerce, whether foreign
or inland, and whether steam or sail vessels."

Wolf river does not come within these definitions of a
navigable stream. It cannot be navigated profitably for
commercial purposes ascending at any time, and can
only be used descending for the transportation of logs
and rafts for short periods of time, when swollen with
rains, ten or twelve days in each year.

16 Cates] DECEMBER TERM, 1910. 303

Miller v. State.

The remaining question, then, is whether this stream
is a public highway, which the public has the right to
use for transportation purposes, and whether the plain-
tiff in error, by the maintenance of his dam across the
same, is unlawfully obstructing it.

While the beds of all streams not navigable in the
legal sense belong to the riparian proprietors and ar§
private property, yet if in its natural state the volume of
a stream, whether ordinary or when swollen by rains, at
certain periods of the year occurring with reasonable
certainty, is such that the stream can be used profitably
for commercial purposes in the transportation of the
products of the forest, mines, tillage of the soil, or other
articles of commerce, the public hajs an easement of high-
way therein, and this easement cannot be unreasonably
obstructed by the riparian proprietors.

In Stuart v. Clark's Lessees, supra, upon this subject,
it is said: ,»

"Having considered this case upon the principles » of
law Evolved in it, rather than upon the facts, we do n(rt
feel it incumbent upon us to express any opinion as to
the character of the Nolachucky river — whether navi*
gable or otherwise. This question, however, upon tljq
principles herein laid down, will be of no difficult solu-
tion.

"Neither have we deemed it material to notice particu-
larly Acts of 1799, ch. 35, and other subsequent acts of
like import, declaring that the navigation of Nolachueky
and certain other rivers 'shall remain free and open,? and

304 TENNESSEE REPORTS. [124 Tenn.

Miller v. State.

affixing a penalty for any obstruction thereof. We sup-
pose that legislation of this character was neither de-
signed to have, nor can be allowed to have, any effect
whatever upon the rights of the riparian proprietors.
More especially can it have no such effect upon rights ac-
quired prior to the date of the earliest statute upon the
subject. But these acts, so far as they provide that the
rivers shall remain open and free for purpose* of naviga-
tion, are merely declaratory of the common law, as has
already "been shown."

That case really involved the title to the land covered
by the waters of Nolachucky river as between two ad-
joining proprietors, and not the respective rights of the
public desiring to navigate the river and a riparian pro-
prietor, and the court does not, therefore, undertake to
define the latter rights fully.

In Sigler v. State, 7 Baxt, 496, this court quoted with
approval from Angell on Highways as follows, viz. :

"The ebb and flow is not the only test, nor is the pub-
lic easement always formed upon usage or custom. The
test is whether there is in the stream capacity for use for
the purpose of transportation valuable to the public;
and in this view it is not necessary that the stream
should haire a capacity for floatage at all seasons of the
year, nor that it should be available for use against the
current as well as with it. If, in its natural state and
with its ordinary volume of water, either constantly or
at regularly recurring seasons, it has such capacity that
it is valuable to the public, it is sufficient."

16 Cates] DECEMBER TERM, 1910. 305

Miller v. State.

This easement, however, does not extend to all streams
in this State. The stream mnst be of sufficient size to
float, by the force of the current, and without the aid of
persons traveling upon the, banks, craft and rafts of
sufficient size to make the business profitable. It is not
sufficient that loose logs or lumber can be floated down
it when at flood. Streams of that character are not
subject to the public servitude, but are private property.
Allison v. Davidson, 39 S. W., 905, 908, 909; Irwin v.
Brown, 3 Shan. Cas., 310.

We think that Wolf river is such a stream that the
public has an easement in, and the right to use, its
waters for floatage at such periods as this right can be
profitably exercised in the natural state of the stream.
This easement, however, is not an absolute and un-
qualified right of way. The riparian proprietors also
have rights in such streams as valuable as that of the
public, and these respective rights of the public and the
riparian proprietors must be so used and exercised as
not to unreasonably interfere with and obstruct each
other.

The evidence in this case demonstrates that the water
power furnished by the river is very valuable, and doubt-
less in many instances the only value inhering in the
lands through which it flows, and that in the near future
this value will greatly exceed the value of the use of the
river for floating logs and rafts, which articles of com-
merce will, in the course of time, become exhausted.

The value of the natural water powers of the country

124 Tenn. — 20

306 TENNESSEE REPORTS. [124 Tenn.

Miller v. State.

for manufacturing purposes is constantly increasing,
and is difficult to overestimate. The public is as much
interested in the conservation of this class of property
as it is in the protection of highways in streams. * The
policy of this State has been, and is now, to encourage
the building of mills and the promotion of other manu-
facturing enterprises, for the operation of which these
natural forces are of great value, and may be absolutely
necessary. Public policy demands that these interests
•be reconciled, so that both can be enjoyed and neither be
unnecessarily or unreasonably obstructed or destroyed,
and just regard must be had in all such cases to the
rights of the riparian proprietors. This is the view that
has been taken of this question in a number of States
where conditions are similar to those in this State, and
we believe it to be just and sound.

Mr. Farnham, in his valuable work on Waters and
Water Rights (section 29), says:

"When it is said that the right of the public is para-
mount, nothing more is meant than that the riparian
owner can do nothing to close the highway. He cannot
divert the water from the stream, nor consume it so as
to defeat the possibility of navigation ; nor can he place
any insuperable obstructions in the stream. Conversely,
the right of public navigation is not such as to destroy
the rights of the riparian owner. The right cannot be
exercised to the unnecessary or wanton destruction of
private rights, or so as to deprive the riparian proprie-
tors of the use of the stream for legitimate purposes

16 Cates] DECEMBER TERM, 1910. 307

Miller t. State.

which will not unreasonably interfere with the right of
navigation. The navigation right is the right of pas-
sage merely* and so long as the right is preserved with-
out unreasonable impairment, the riparian owner may
abridge the stream, or use water therefrom, or even
throw a dam across it, if he makes provision for the
right of passage. The rights may be said to be recipro-
cal, each modifying the other, each to be used so as not
to interfere unreasonably with the other right. The
riparian owner is not bound to provide a better passage
than is furnished by nature. He may even abridge the
rights to some extent, if he leaves a convenient passage-
way."

This text is well sustained by adjudged cases of courts
of last resort. Gaston v. Mace, 33 W. Va., 14, 10 S. E.,
60, 5 L. E. A., 392, 25 Am. St. Rep., 854, 855; Corners of
Burke Co. v. Lumber Co., 116 N. C, 731, 21 S. E., 941,
47 Am. St. Rep., 838 ; Ward v. Greenville Township, 32
Can. S. C, 510; Pearson v. Rolfe, 76 Me., 380; Foster v.
Searsport Spool & Block Co., 79 Me., 508, 11 Atl., 273 ;
Lancey v. Clifford, 54 Me., 487, 92 Am. Dec, 561.

In this last case, Dickerson, Judge, speaking for the
court, says :

"Reasonable use is the touchstone for determining the
rights of the respective parties. Thus, in considering
this subject, we find the public right of way over the
stream, and the landowner's right of soil under it, and
his right to use its flow. The rights of both these par-
ties are necessary for the purposes of commerce, agricul-

308 TENNESSEE REPORTS. [124 Tenn.

Miller y. State.

tiire, and manufactures. The products of the forest
would be of little value, if the riparian proprietors have
no right to raise the water by dams, and erect mills for
the manufacture of these products into lumber. The
right to use the water of such streams for milling pur-
poses is as necessary as the right of transportation. In-
deed, it is this consideration that oftentimes imparts the
chief value to the estate of the riparian proprietors, and
without which it would have no value whatever in many
instances. Each right is the handmaid of civilization;
and neither can be exercised without in some degree im-
pairing the other. This conflict of rights, therefore,
must be reconciled. The common law, in its wonderful
adaptation to the vicissitudes of human affairs, and to
promote the comfort and conveniences of men, as un-
folded in the progress of society, furnishes a solution of
this difficulty by allowing the owner of the soil, over
which a floatable stream which is not technically navi-
gable passes, to build a dam across it, and erect a mill
thereon, provided he furnishes a convenient and suitable
sluice or passageway for the public by or through his
erections. In this way both these rights may be exer-
cised without substantial prejudice or inconvenience.

"We therefore hold that, on a stream which is valu-
able for the floatage of loose logs, but not for navigation
in any more enlarged sense, it cannot be said that the
right of such floatage is so far paramount to the use of
the water for machinery and other valuable purposes as
to require the sacrifice of the latter to the former."

16Cates] DECEMBER TEEM, 1910. 309

Miller y. State.

The latest case in which the question is involved that
has been called to our attention is that of Blaokman v.
Mauldin, recently decided by the supreme court of Ala-
bama, and to be found reported in 164 Ala., 337, 51
South., 23, 27 L. B. A. (N. &.), 670. There, after hold-
ing that the public has an easement of a right of way for
floatage purposes in nonnavigable streams of the charac-
ter of Wolf river, it is said :

"But we are not disposed to accord to the public the
same unqualified right to the use of streams valuable
only for the floatage of loose logs and timber, as in the
case of streams navigable in the true sense of that word.
The right of floatage must be preserved to the extent
which the experience of those who have utilized the
stream for that purpose has shown to be practicable and
profitable, and to meet the probable future needs of the
country which it serves. Its water may not be diverted
nor consumed, so as to render impossible its customary
use; nor must insuperable obstacles be put across the

4

stream. But a just regard for the rights of the owners
of the beds and banks of the streams capable only of such
limited use would require that their situation be con-
sidered in judicial decision. Such consideration cannot
be unreasonable in the circumstances of this case, be-
cause, during considerable parts of the year, the stream
is not capable of floatage, and at such times it would be
unreasonable to deprive the owner of the opportunity to
utilize the water power of the stream, or to make such
other uses of his property as will not unreasonably inter-

310 TENNESSEE REPORTS. [124 Tenn.

Miller t. State.

fere with those uses of the stream which the public has
and will hereafter make it Gristmills, sawmills, and
gins serve also a public purpose."

While we think that the preponderance of the evi-
dence in this record places Wolf river in that class of
streams in which the public has the right of floatage for
the transportation of sawlogs and rafts, yet, under the
rule in this State as announced in the cases of Irwin v.
Brown, supra, and Allison v. Davidson, supra, it is not
more than in that class, and the public, in exercising its
rights in it, must do so with unusual care not to inter-
fere with those of the riparian proprietors. The great
weight of the evidence clearly establishes that the dam of
the plaintiff in error, as maintained by him, is not an un-
reasonable, and therefore not an unlawful, obstruction to
the navigation of the stream. It has been there for sixty
years, and the "slope," built for the accommodation and
protection of rafts in crossing it, has been maintained for
about twenty-five years. During all this time rafts have
gone over the dam upon this "slope" without greater in-
convenience or danger to the logs and those in charge of
them than ordinarily incident to the navigation of the
river. The dam does not constitute a greater obstruc-
tion, provided, as it is, with the "slope" for the passage
of rafts, than the plaintiff in error, as riparian proprie-
tor, has the right to build and maintain upon his own
property. It is not an obstruction of a navigable stream,
either under the common law or our statute; for Wolf
river is not navigable within the sense of the law.

16 Cates] DECEMBER TERM, 1910. 311

Miller y. State.

The trial judge, upon the evidence introduced by the
State, should have so instructed the jury. He should
have further charged the jury concerning the respective
and reciprocal rights of the public and those of plaintiff
in error as riparian proprietor in the stream. It is, we
think, reasonably clear that, had this been done, the ver-
dict of the jury would have been in favor of the plaintiff
in error, as the preponderance of the evidence is against
the verdict that was found, and in favor of his inno-
cence.

For these reasons, the judgment of the criminal court
is reversed, and the case remanded for a new trial.

312 TENNESSEE EEPORTS. [124 Tenn.

Bradford v. Leake.

James C. Bradford et al. v. J. O. Leake et al.
(Nashville. December Term, 1910.)

1. WILL8. Testator cannot disinherit his heirs by words of
exclusion, but only by giving his property to others.

A testator can disinherit his heirs only by giving his property
to others, and mere words excluding the heirs, without an
affirmative disposition to others, will not suffice to disinherit
them; for the right of a person to disinherit his heirs exists,
not as a distinctive or abstract substantive power, but
merely as a consequence of the power to leave his estate to
others, and while a testator may make or revoke his will, he
can neither make nor unmake a law of the State. (Post, pp.
315-328, and especially 320-328.)

Cases cited and approved: Coffman v. Coif man, 85 Va., 469;
Boisseau v. Aldridges, 5 Leigh (Va.), 222; Todd v. Gentry, 109
Ky., 704; Oalligher v. Crooks. 132 N. Y., 338; Lawrence v.
Smith, 163 111., 149, 166; Wells v. Anderson, 69 N. H., 561;
Wilder v. Holland, 102 Ga., 44, 45; Bourke v. Bonne, 94 Md.,
472, 477.

Cases cited and disapproved: Clarkson v. Clarkson, 71 Ky.,
655 (overruled by Todd v. Gentry, 109 Ky., 704, to the extent
of the conflict on this point) ; Tabor v. Mclntyre, 79 Ky., 605-
609 (same as last); Sullivan v. Straus, 161 Pa., 145; In re
Tucker's Estate, 209 Pa., 521; Willis v. Watson, 4 Scam. (111.),
66 (overruled by Lawrence v. Smith, 163 111., 149, 166, to extent
of the conflict on this point).

2. 8AM E. Presumption of acceptance of beneficial gift, which
begins at testator's death; renunciation relates to moment of
gift, preventing it.

A beneficial devise is always presumed to be accepted, and, in
the absence of anything to the contrary, the gift begins at the

16 Cates] DECEMBER TERM, 1910. 313

Bradford v. Leake.

moment of testator's death; but such a devise may be re-
nounced, and where the renunciation is mage, it relates to the
moment of the gift, and prevent its ever taking effect {Post,
p. 328.)

Cases cited and approved: Bradford v. Calhoun, 120 Tenn., 53.

3. 8AM E. No presumption of acceptance of an Incumbered
gift; renunciation relates to testator's death and avoids the
gift from the beginning.

Where the testamentary gift is not prima facie beneficial, but is
burdened with onerous exactions, there is no presumption of
acceptance, and where there is an express renunciation, it
relates to the testator's death, and furnishes, conclusive evi-
dence that the gift was void from the beginning. (Post, pp.
328, 329.)

4. 8AM E. Renounced devise stands as a lapsed or void devise,
and the property passes under the residuary clause, if there
be one, and If none, It goes to testator's heirs.

A devise, which does not become effective because the devisee
renounces it, stands in the category of a lapsed or void devise;
and, in such case, the property covered thereby passes under
the residuary clause, if there be one; and, in the absence of
such clause, such property goes to the heirs of the testator.
(P08t t p. 329.)

Cases cited and approved: Curd v. Curd, 9 Humph., 171; Reeves
v. Reeves, 5 Lea, 644-663.

6. 8AM E. A testator dies Intestate as to property not effectu-
ally disposed of by his will.

Where a testator gave his residuary estate to his mother,
coupled with a provision that no part of his estate should
come into the possession of his sister or her descendants, and
providing that, upon the death of his mother intestate, the
property should go to a third person; and where the mother
devised certain real estate, received under such residuary

314 TENNESSEE REPORTS. [124 Tenn.

Bradford v. Leake.

clause, to a devisee who renounced the same, it was held that
the mother died intestate as to such real estate, and it passed
to the third person under the prior will, because a testator
dies intestate as to property not effectually disposed of by his
wiU. {Post, pp. 317, 329, 330.)

6. 8AME. Condition that property devised shall not go to a
certain person by devise or inheritance does not follow the
property as a limitation to the condition, when.

The condition in the will that none of the property should
pass to testator's sister or her descendants did not follow the
property into the hands of any one upon whom the same might
be devolved through the operation of the limitation attached
to the condition, and the devisee under the second will, had
he accepted the devise instead of renouncing it, could have
made such disposition of the property as he saw fit, and could
have either given it away or sold it; and the third person,
taking the gift under the first will, upon the death of the
mother Intestate, as shown in the preceding headnote, could
have likewise made any disposition of it he desired, and could
sell or give it to the first testator's sister or to her descendants.
(Post, pp. 330, 331.)

7. 8AM E. Harsh will Is entitled to a fair and reasonable
construction, but not to a tender or equitable one.

A will so harsh as to direct that no part of testator's estate
shall pass to his sister or her descendants is not entitled to a
tender or equitable construction; but it is entitled to a fair
and reasonable one. (Post, p. 331.)

8. DEED8 OF CONVEYANCE. To one for life, and then to his
children, but to revert If his issue should become extinct
within twenty-one years, vests a determinable fee In his sur-
viving children, subject to the contingent reversionary estate.

Where a mother and father conveyed her land to their son as
trustee for himself for life, and on his death to his children,
with a provision that, if his issue should become extinct within

16 Cates] DECEMBER TERM, 1910. 31S

Bradford r. Leake.

twenty-one years after his death, the property should revert to
the mother; and the mother subsequently devised all her estate,
including said contingent reversionary estate, to her husband
who conveyed such contingent estate to his brother; and upon
the death of the said son and trustee, the life tenant, leaving
two children surviving, it was held that a determinable fee
vested in the two children, subject to the contingent reversion-
ary interest of the said brother, upon a failure of the issue of
the son and trustee within twenty-one years after his death.
(Post, pp. 331-333.)

FROM DAVIDSON.

Appeal from the Chancery Court of Davidson County.
— John Allison Chancellor.

Jno. J. Vertrees, P. D. Maddin, and W. A. Guild, for
complainants.

J. M. Anderson, W. A. Buntin, Seay & Seay, Frank
Slemons, Overton Lea, and Perkins Baxter, for de-
fendants.

Mr, Justice Neil delivered the opinion of the Court.

The bill in this case was filed by the executors of the
will of Mrs. Rebecca S. Lea, deceased, in the chancery
court of Davidson county, for the purpose of settling her
estate, and, as incidental thereto, to obtain a construc-
tion of her will, and of the will of her son, John M. Lea,

316 TENNESSEE REPORTS. [124 Tenn.

Bradford v. Leake.

Jr., under which she derived nearly all of the property
which she devised. All of the questions involved in the
case were settled in the court below, except those which
affect the property described in the seventh item of Mrs.
Lea's will. As to the property devised in this item, there
is a controversy between Mrs. Bessie Leake, the daugh-
ter of Mrs. Lea, and a brother of Mrs. Lea, and the chil-
dren of her deceased brothers and sisters. It is insisted
by the latter that Mrs. Leake, the daughter, is debarred
from taking this property by virtue of certain provisions
in the aforesaid will of John M. Lea, Jr.

In order to a proper understanding of these matters,
it is necessary to set out a portion of the will of John >M.
Lea, Jr., and likewise the seventh item of the will of
Mrs. Lea.

So much of the will of John M. Lea, Jr., as it is neces-
sary to reproduce is as follows :

"As to all the rest, residue and remainder of my estate
and effects, whatsoever and wheresoever, both real and
personal, whether in possession, reversion, remainder or
expectancy, I give, devise and bequeath the same unto
my mother, Rebecca Salmons Lea, to and for her own
use and benefit absolutely, provided that she does not
marry again; but, if she marries again, I give, devise and
bequeath the same, from the time of her marriage, to my
cousin, Overton Lea, Jr., son of Overton Lea, Sr., of
Nashville, Tenn.

"I will and direct that not any portion of my estate
come into the possession of my sister, Bessie Kelly, the

16 Cates] DECEMBER TERM, 1910. 317

Bradford v. Leake.

wife of Robert Dalton Kelly, or into the possession of
her husband, or of any descendant of hers, or of any
one bearing the name of Kelly.

"In case my mother, Rebecca Salmons Lea, dies dur-
ing my lifetime, or in case she dies intestate, or in case
she gtaes or bequeathes to my sister, Bessie Kelly, or her
husband, or any descendant of hers, or any one bearing
the name of Kelly, any portion of my estate, I give, de-
vise and bequeath said rest, residue and remainder of my
estate and effects whatsoever, both real and personal,
whether in possession, reversion, remainder or expect-
ancy, unto the said Overton Lea, Jr., to and for his own
use and benefit absolutely."

Item 7 of the will of Mrs. Lea is as follows :

"Item 7. To Overton Lea, of Davidson county, Ten-
nessee, brother of my deceased husband, I devise the fol-
lowing property in Memphis, Tennessee, subject to the
mortgage thereon, which, in accepting this bequest, he
must take subject to and assume the payment of said
mortgage :

"(a) Part of lot one hundred and nine (109) in the
original plan of Memphis, being the northwest corner of
Main and Court streets, thirty-five (35) feet by one hun-
dred and forty-eight and one-half (148%) feet, upon
which is erected a six-story storehouse, now occupied by
Lowenstein & Co.

"(b) A lot on the southwest corner of Madison and
De Soto streets, fronting fifty-four (54) feet on Madison

318 TENNESSEE REPOBTS. [124 Tenn.

Bradford v. Leake.

street, and one hundred and forty-eight (148) feet on
De Soto street."

Overton Lea filed a formal renunciation and refusal
in writing to accept the devise sought to be given him.

This renunciation precipitated the controversies
which we are to settle in the present case.

The validity of that portion of the will of John M. Lea,
Jr., which is reproduced above was settled by this court
in the case of Overton v. Lea, 108 Tenn., 505, 68 S. W.,
250.

Mrs. Lea survived her son, and she never remarried.

It is insisted in behalf of the collateral kindred of
Mrs. Lea that the conditional limitation (for a discus-
sion of which subject, see Fowlkes v. Wagoner, 46 S. W.,
586), based on the contingency of Mrs. Lea dying intes-
tate, or of an attempted disposition of the property by
her to Bessie Kelly, now Bessie Leake, imposed upon the
property in her hands was satisfied by the execution of
the will, even' though the seventh item of it, which alone
concerned the property involved, was rejected by the
proposed devisee; that she died testate in September,
1905, and thereby satisfied and prevented the operation
of the conditional limitation, and that the subsequent
renunciation by Overton Lea, in February, 1906, could
not restore such conditional limitation to life and vigor ;
and that upon the filing of such renunciation the prop-
erty would simply fall into the estate of Mrs. Lea, to be
disposed of under the statute of descents, save only that
the daughter could not inherit from the mother because

16 Cates] DECEMBER TERM, 1910. 319

Bradford v. Leake.

of the provision in the will of John M. Lea, Jr., which
roads: "I will and direct that not any portion of my
estate come into the possession of my sister, Bessie Kel-
ly, wife of Kobert Dalton Kelly, or into the possession
of her husband, or of any descendants of hers, or of any
one bearing the name of Kelly;" and that by reason of
such setting aside of Mrs. Kelly (now Mrs. Leake), the
collateral kindred, the brothers' and sisters' children
would be the next of kin, and would take the
property by inheritance from Mrs. Lea. In sup-
port of this view we are referred to the following:
On the point that she did not die intestate, having left a
will, although it was ineffectual, 23 Cyc, 41 ; 2 Bl. Com.,
494; 2 Kent's Com., 408-409; 1 Bouvier's Law Diction-
ery, 1117, Bawl's Revision; Den. v. Mugway, 15 N. J.
Law, 330-331 ; In re Commissioners' Estate, 47 App. Div.,
120, 62 N. Y. Supp., 188; Messman v. Egenberger, 46
App. Div., 46, 61 N. Y. Supp., 556 : On the point that the
language last quoted was a condition annexed to the es-
tate, and binding, no matter into whose hands it might
pass, Hogeboom v. Hall, 24 Wend., 146 ; Pickering v.
Pickering, 15 N. H., 218 ; Wilson v. Wilson, 38 Me., 18,
61 Am. Dec, 227 ; Taylor v. Sutton, 15 Ga., 103, 60 Am.
Dec, 682 : On the point that conditions which prevent
th£ alienation of the estate to a particular person or for
a certain limited period, if reasonable, are not subver-
sive of the estate, Pritchard on Wills, section 161 : On
the point that a provision in a will declaring that a cer-
tain person shall never take the estate is good, although
the property is not given in the same will to any other,

320 TENNESSEE REPORTS. [124 Tenn.

Bradford v. Leake.

Tabor v. Mclntire, 79 Ky., 505-509 ; Clarkson v. Clark-
son, 71 Ky., 655; Sullivan v. Straus, 161 Pa., 145, 28
AtL, 1020; In re Tucker's Estate, 209 Pa., 521, 58 Ail-,
898; Willis v. Watson, 4 Scam. (111.), 65: On the point
that, where the immediate heirs cannot succeed to the
estate, then it will pass to those next entitled under the
law, Mager's Succession, 12 Rob. (La.), 584; Layre v.
Pasco, 5 Rob. (La.), 9 ; Jackson v. Jaekson, 7 Johns, (N.
Y.), 214; Scott v. Cohen, 2 Nott & McO. (S. 0.), 293;
Orr v. Hodgson, 4 Wheat, 453, 4 L. Ed., 613.

Counsel for the executors have filed a brief, in which
they concede Mrs. Rebecca S. Lea did not die intestate,
but insist her daughter Mrs. Kelly took the property of
Mrs. Lea as heir of her mother, Mrs. Rebecca S. Lea.

With reference to the above clause of the will of John
M. Lea, Jr., relied on ("I will and direct that not any
portion of my estate come into the possession of my sis-
ter, Bessie Kelly, wife of Robert Dal ton Kelly," etc.), it
is said that this is ineffectual and abortive, because a
negative instrument is not a will; that to be a will it
must be an affirmative dispositive document, as to which
there is one recognized exception, to the effect than an
instrument in the form of a will, which nominates and
appoints an executor or revokes a previous will, without
making any affirmative disposition of property, has also
come to be regarded as a will (1 Rood on Wills, section
479 ; 1 Underhill on Wills, sections 4, 5, pp. 6, 7 ; 1 Jar-
man on Wills, 16 ) ; but, for the reason that a will, to be
effective so far as property is concerned, must be an af-

16 Cates] DECEMBEE TERM, 1910. 321

Bradford v. Leake.

firmative dispositive document, it is well settled that
negative and prohibitive provisions are inoperative and
without effect, citing Rood on Wills, section 497, as fol-
lows : "The law appoints definite methods and channels
of disposition of all intestate property. The heirs take by
operation of law, without any act or will of the intestate.
He can deprive them of it only by exercising the option
the law gives him of disposing of it while he lives, or
giving it to others by his will. If he says: 'I wish my
sons to have only one dollar each from my estate/ or 'I
give this property to my wife in satisfaction of all her
claims on my estate,' he does not thereby give the rest of
his property to any one else, either expressly or by impli-
cation. . . . The unfavored children will take their
regular share" of all the property not given to any one
else. See, also, Coffman v. Coffman, 85 Va., 459, 8 S. E.,
672, 2 L. R. A., 848, 17 Am. St. Rep., 69, 7 Am. Prob.
Rep., 380, in which the principle is decided that a testa-
tor can disinherit his heirs only by giving his property
to others, and that mere words of exclusion, without an
affirmative disposition to another, will not suffice to dis-
inherit.

In that case the testator said : "It is my will that my
son William H. Coffman be excluded from all my estate
at my death, and have no heirship in the same ;" but the
testator did not give his property to the other sons, or
to any one else. It was held that William took his equal
share. The argument was made and considered that the
testator (as in Boisseau v. Aldridges, 5 Leigh [Va.], 222,

124 Tenn.— 21

322 TENNESSEE KEPORTS. [124 Tenn.

Bradford v. Leake.

27 Am. Dec, 590), knowing that the law would give his
estate equally to his children, excluded William for the
purpose of letting the others take it all under the law;
but the doctrine was rejected, on the principle that the
right of a person to disinherit his heirs exists, not as a
distinctive or abstract substantive power, but merely as
a consequence of the power to leave his estate to others.

Todd v. Gentry, 109 Ky., 704, 60 S, W., 639, decided
by the court of appeals of Kentucky, is to the same effect.
There the testator plainly intended to exclude certain
of his heirs from sharing in his estate, but he wholly
failed to make any disposition of a certain tract of land.
The court held that it passed to all his heirs, including
those he attempted by negative terms to exclude. To
same effect, see, also, Gallgher v. Crooks, 132 N. Y.,
338, 30 N. E., 746 ; Lawrence v. Smith, 163 111., 149, 166,
45 N. E., 259 ; Wells v. Anderson, 69 N. H., 561, 44 Atl.,
103; Wilder v. Holland, 102 Ga., 44, 45, 29 S. E., 134;
Bourke v. Bonne, 94 Md., 472, 477, 51 Atl., 396.

The Kentucky cases cited by counsel for the collateral
heirs, Tabor v. Mclntire, supra, and Clarkson v. Clark-
son, supra, so far as they are in conflict with Todd v.
Gentry, supra, are overruled thereby. Indeed, Tabor v.
Mclntire is expressly overruled. Likewise Willis v.
Watson, supra, if it is in conflict with the later case of
Lawrence v. Smith, supra, is controlled thereby. As we
understand Willis v. Watson, however, it does not seem
to be in conflict. It appeared in that case that the whole
estate had been disposed of by appropriate language in

16 Cates] DECEMBER TERM, 1910. 323

Bradford v. Leake.

the will. Moreover, it is intimated in the opinion that,
if there had been no such affirmative disposition, the par-
ty intended to be excluded would have inherited an inter-
est in the property involved in the litigation.

Sullivan v. Straus, supra, cited by counsel for the col-
lateral heirs, is fairly open to the construction that there
was a disposition of the property to some one else, as
well as the clause providing that a particular child
should never take. In re Tucker's Estate, supra, is mea-
ger and unsatisfactory.

We are of the opinion that the true rule is that sup-
ported by Coffman v. Coffman, supra, and Todd v. Gen-
try, supra, and the cases we have cited therewith. A
testator may make or revoke his will, but he can neither
make nor unmake a law of the State.

It is truly said by counsel for the executors that John
M. Lea, Jr., kept his estate from going to his sister, Bes-
sie, not by the provision that she should not have any of
it, but by the affirmative devise to his mother, Mrs. Re-
becca S. Lea.

He evinced a purpose to exclude his sister, not only
from taking under his will, but from taking from her
mother by descent. Accordingly he provided that if his
mother should devise these lands to her daughter, his
sister, Bessie, or should die intestate, so that but for his
will the lands would descend to Bessie, then Overton
Lea, Jr., should take.

The argument for the executors is thus continued :

"Mrs. Elizabeth Lea had only two children, Overton

324 TENNESSEE REPORTS. [124 Tenn.

Bradford v. Leake.

and Robert Lea. She devised to them equally a large
estate. Mrs. Elizabeth Lea was dead, and Robert was
dead. When Robert died, he devised his ancestral lands
to his wife, Rebecca, for life, and at her death equally
to their children, John M., Jr., and Bessie. John M.,
Jr., dying childless, devised his ancestral lands to his
mother, with the harsh provision that she should not de-
vise them to her only child Bessie, his sister — which,
of course, she wanted to do, but she could not. It was
eminently just that she should give these lands back to
the Leas — to Overton Lea, the only surviving child of
Mrs. Elizabeth Lea, and brother of her husband, Robert
Lea. Notwithstanding this act of justice, the mother
in a letter expressed the hope that he would let her
daughter Bessie receive the income during life. It is
clear, as she could not give the property to Robert Lea's
child, that she ought to have given it to Robert Lea's
brother, Overton, and this she did.

"When John M. Lea's will provides that the property
shall go to Overton Lea, Jr. (the son of Overton Lea,
Sr.), now dead, 'in case she (Rebecca) dies intestate,'
it is to be taken that he means intestate as to the prop-
erty which he gives to her — not general intestacy. She
did not die intestate as to that. She devised it to Over-
ton Lea, Sr., the man who ought to have had it, if it could
not be given to his brother Robert's daughter, Bessie.

"Mrs. Rebecca Lea received these lands from her son
John M. under the limitations imposed by his will. When
she lived up to them, and did all that they required, and

16 Cates] DECEMBER TERM, 1910. 325

Bradford v. Leake.

i

all that it was possible for her to do, they were met and
ceased thenceforward to be operative. Mrs. Rebecca
Lea had the power under her will to devise these lands
to anybody except Bessie and the Kellys. She devised
them to Mr. Overton Lea, as she ought to have done.
The will was a valid will, and it was duly probated. In
the nature of things that was the end of the matter so
far as the operation of the limitations of John M. Lea,
Jr.'s, will was concerned. This must be so because Mrs.
Rebecca Lea's title and right of disposition depended
alone upon her own voluntary acts — not on the acts of
any one else. She could refuse to make a will, and die
intestate, and thereby defeat her daughter. The validity
of her gift and the title of her devisee depended alone
upon the selection of a devisee that she should make. If
she did not select her daughter Bessie, or a child of
Bessie's, or a Kelly, the devise was good and valid.

"She selected a person (Mr. Overton Lea) not in the
proscribed class, and died. It was not possible for her
to do more. It was not possible for her to provide against
the renunciation of the devisee after she was dead, and
the will does not provide for this event. . . .

"When Mrs. Lea died testate, leaving a valid will
which devised the lands to Overton Lea, who did not be-
long to the excluded class, the conditional limitations
imposed by the will of John M. Lea upon his mother,
his first devisee, were exhausted. The force of the will
of John M. Lea, Jr., was spent. Up to the moment that
Mrs. Rebecca Lea died testate the personal limitations

326 TENNESSEE REPORTS. [124 Tenn.

*

Bradford v. Leake.

of John M. Lea, Jr.'s, will controlled. Thenceforward
the law controlled. Mrs. Lea did not die intestate as to
this land; but, when Overton Lea renounced, the lands
had to be dealt with the same as if she had died intestate
as to them. Under the law they descended to Mrs. Re-
becca S. Lea's heirs, whomsoever they might be. That
Mrs. Leake was the sole and only heir is but an accident
in the case.

"If John M. Lea had thought to provide against the
contingency of renunciation by the devisee under his
mother's will, he, of course, could have done so. He prob-
ably would have done so, had he anticipated that the
devisee might renounce; but he did not. Perhaps his
judgment of men was such that he regarded it as beyond
the limits of possibility that any one would have pride
and convictions sufficient to induce him to refuse a large
and valuable devise. However, we must not speculate.
As a matter of fact, he did not provide against renuncia-
tion by his mother's devisee; and, as a consequence,
his mother's heirs take the property."

By the counsel who directly represents Mrs. Leake it
is contended that since the devise, attempted by Mrs.
Lea, to Overton Lea, never became effective, because of
his refusal to accept it, she died intestate as to the prop-
erty in controversy, the conditional limitation based on
her dying intestate became operative and passed the
property to the heirs of Overton Lea, Jr., he having pre-
deceased Mrs. Lea, and that by a quitclaim deed which
these heirs (Hon. Luke Lea, Miss Elizabeth Lea, <and

16 Gates] DECEMBER TERM, 1910. 327

Bradford v. Leake.

Mrs. Laura Robertson, joined by her husband, W. C.
Robertson) made to Mrs. Leake the property passed to
her.

It is perceived that the counsel for the executors and
the personal counsel for Mrs. Leake reach the same final
conclusion but by different lines of reasoning, while the
counsel for the executors and those who represent the
collateral kindred agree upon the premises that Mrs.
Lea died testate as to the property involved herein, and
that her act in making the will was by the renunciation
of Overton Lea rendered abortive so far as concerned
the passing of title to the property involved; but they
draw different and opposite conclusions from these
premises, owing to divergent views taken as to the means
of rendering effectual that clause of John M. Lea, Jr.'s,
will which provided that no portion of his estate should
ever come into the possession of his sister Bessie, now
Mrs. Leake.

If the premise be granted that Mrs. Lea died testate
as to the property in controversy, and also the view be
held sound that the testator cannot deprive his heir of
property by mere negative words, but only by an affirm-
ative disposition to another, the conclusion reached by
the counsel for the executors, we think, follows with rig-
id logical accuracy.

On the other hand, if the true conclusion be that Mrs.
Lea died intestate as to this property, then it follows
with equal accuracy that it passed under the conditional

328 TENNESSEE REPORTS. [124 Tenn.

Bradford v. Leakte.

limitation to the heirs of Overton Lea, Jr., and from
them, by thGir deed, to Mrs. Leake.

Whether Mrs. Lea died intestate as to this property
depends upon the view taken of the effect of the renunci-
ation filed by Overton Lea, Sr.

A beneficial devise is always presumed to be accepted,
and, nothing else appearing, the gift will begin immedi-
ately upon the going into effect of the will; that is, at
the moment of the testator's death. However, even such
a devise may be renounced, and in that evient the renun-
ciation will relate to the moment of the gift, and prevent
its ever taking effect. Bradford v. Calhoun, 120 Tenn.,
53, 109 S. W., 502, 19 L. R. A., (N. S.), 595. Where the
gift is not prima fade beneficial, but saddled with oner-
ous exactions, there is no presumption of acceptance.
When there is an express renunciation in such a case,
it will relate to the death of the testator, as in the form-
er instance, and will furnish conclusive evidence that
the gift was void from the beginning. In the present
case there was a mortgage of $34,000 upon the property,
which the devisee was required to assume, and, by refer-
ence to the fourteenth item, also an annuity of three hun-
dred dollars per year, payable in installments of twenty-
five dollars per month in favor of Price and wife, charged
upon the same property. In addition, there was a letter,
written by Mrs. Lea to Overton Lea, Sr., in which she re-
quested him to give all of the income to her daughter
during the life of the latter. This letter was not a part
of the will, and could impose only a moral obligation

16 Cates] DECEMBER TERM, 1910. 329

Bradford v. Leake.

upon Mr. Lea, if he had accepted the gift. Still it would
be a matter for consideration in determining whether
there would be a presumption of acceptance. This letter,
taken in connection with the large debt and the annuity,
would make it clear that there could be no such presump-
tion; indeed, we think the requirement that he should
assume so large a debt, and should pay the annuity to
Price and wife, would be sufficient to prevent any pre-
sumption in favor of acceptance, even though the prop-
erty was worth very much more than the debt.

In any event, the devise never became effective, and
so stood in the category of a lapsed or void devise. 18
Am. & Eng. Enc. of L. (2d Ed.), 747-769, inclusive. In
such cases the rule is, where there is a residuary clause,
the property covered by the lapsed or void devise goes
to the residuary devisee. Reeves v. Reeves, 5 Lea, 644-
653. In the absence of such a clause, it goes to the heirs
of the testator. Curd's AdmW v. Curd, 9 Humph., 171.
The property in the present case would have taken the
same direction, but for the limitation over upon intest-
acy.

Now, while it may be said that Mrs. Lea went through
all the forms of making a will as to the property in con-
troversy here, yet it did not result in a disposition of the
property. As to this property she died nominally testate,
but really intestate. Though the ordinary meaning of
the word "intestacy" is that it is the state of one who has
died without making a will, we think it is clear that
John M. Lea. Jr., intended to be understood as saying

330 TENNESSEE REPORTS. [124 Tenn.

Bradford v. Leake.

that, if his mother should die without effectually dispos-
ing of the property which he was devising to her, it
should, upon her death, pass to Overton Lea, Jr. His
purpose, in that aspect, was to prevent his sister's taking
the property as heir of her mother. To that end he di-
rected that if his mother should die without having dis-
posed of the property to some one other than Bessie Kel-
ly, or her husband, or any descendant of theirs, or any
one bearing the name of Kelly, it should pass to Overton
Lea, Jr. She having died without such effectual disposi-
tion, we are of the opinion that it did pass to the heirs
of Overton Lea, Jr., and that Mrs. Leake takes under
them through the deed which they made.

It is insisted in the brief of counsel for the collateral
kindred, as already indicated, that the condition against
Mrs. Leake's becoming owner of the property inhered
therein, in whosesoever hands it might fall. We do not
think this is a sound view. John M. Lea, Jr., could not
prevent his sister's taking the property, even as the heir
of her mother, except by a provision in his will giving it
to another; and it is no less true that this condition
could not follow the property into the hands of any one
upon whom the property might be devolved through the
operation of the limitation attached to the condition.
That is to say, if Overton Lea, Sr., had accepted the de-
vise, he could have made such disposition of the property
as he saw fit. He could have either given it away or
could have sold it. So, when through the substantial
and actual intestacy of Mrs. Lea in respect of this prop-

16 Cates] DECEMBER TERM, 1910. 331'

Bradford v. Leake.

»

erty, it passed under the will of John M. Lea, Jr., to the
heirs of Overton Lea, Jr., they became owners of it in
fee, and had power to sell it op give it to Mrs. Leake op
to any one else.

At this point we deem it not improper to say that the
generous conduct of the heirs of Overton Lea, Jr., in be-
stowing the property upon Mrs. Leake, is recognized by
the court as most commendable. Whatever may have
been the cause which moved John M. Lea, Jr., to make
his most harsh and unnatural will, so far as it related
to his sister, the record shows no blame on her. We are
likewise convinced that her mother earnestly desired
that she should have the benefit of the property, and that
she adopted the course which she beliewd would lead
most directly to that end. A will so harsh as that of
John M. Lea, Jr., can claim no tender or equitable con-
struction ; but it is entitled to a fair and reasonable one.
It gives the court pleasure to realize that in following
the rigid path of the law we have been conducted to a re-
sult highly equitable in itself, and satisfying to the con-
science and heart as well.

In what has been said, it must not be understood that
we intend in any way to interfere with, or to question,
the prior contingent estate created by the deed of Eliza-
beth B. Lea and John M. Lea in 1881 to Robert B. Lea,
trustee, conveying the property in question to Robert
B. Lea in trust for himself during his life, and after his
death to his children, and providing, further, that if he
should die and his issue should become extinct within

332 TENNESSEE REPORTS. [124 Tenn.

Bradford v. Leake.

twenty-one years thereafter, the property should revert
to the said Elizabeth B. Lea, who was the mother of Rob-
ert B. Lea, and Overton Lea, Sr.

Robert B. Lea died in January, 1895, leaving two
children, John M. Lea, Jr., and Bessie Lea. The latter
subsequently intermarried with Dalton Kelly, and after
Kelly's death in 1897 she intermarried with one of the
defendants in this case, J. O. Leake, and has living by
her second marriage two children, the defendants Doro-
thy and Esther Leake. The estate conveyed by the deed
of Elizabeth B. Lea and John M. Lea in 1881, after the
death of the late Robert B. Lea in 1895, vested in the late
John M. Lea, Jr., and Bessie Lea, subject to be divested
in the event that both of them should die without leav-
ing issue within twenty-one years after the death of the
said Robert B. Lea. In 1890 the said Elizabeth B. Lea
died, leaving a last will and testament, in which she
made a specific devise giving all her lands, tenements,
and hereditaments to John M. Lea, Sr., her husband.
John M. Lea, Sr., thus became the owner of the contin-
gent reversionary interest reserved to the estate of
Elizabeth B. Lea in the aforesaid deed of 1881. This was
the status when Robert B. Lea died in January, 1895.
Thereafter, in 1898, the said late John M. Lea, Sr., by
deed conveyed to defendant Overton Lea, Sr., the con-
tingent estate which he had received from his wife, and
thereupon the ownership of the property was vested as
follows: A determinable fee in John M. Lea, Jr., and
Bessie Lea Kelly (now Bessie Lea Leake), subject to

16 Gates] DECEMBER TERM, 1910. 333

Bradford v. Leake.

the contingent reversionary interest above mentioned in
Overton Lea, Sr., upon a failure of the issue of Robert
B. Lea within twenty-one years after his death.

It follows that there was no error in the result reached
by the chancellor, and his decree must be affirmed*

334 TENNESSEE REPORTS, 1*24 Term.

Hitt y. Coal Co.

H. D. Hitt v. Caney Fork Gulp Coal Company

and
H. D. Hitt v. Rose Gibbons et al.

(Nashville. December Term, 1910.)

1. RE8 ADJUDICATA. Defense must be specially pleaded.

The defense of re* adjudicate cannot be considered, unless spe-
cially pleaded. (Post, p. 339.)

2. REDEMPTION. Money may be paid to clerk of court mak-
ing sale, and In other cases to clerk of circuit court; and In
all cases to purchaser or rightful claimant under him.

The true construction of our statutes (Shannon's Code, sections
3813 and 3823, and Acts 1897, ch. 132), preserving the beneficient
right of redemption and prescribing the method of exercising
and making effective that right is that the debtor whose land
has been sold may always make certain his redemption by pay-
ing the redemption money to the clerk of the court under whose
judgment or decree the land was sold; and in other cases, to
the clerk of the circuit court in which the land lies; and in
this way, the peril of deciding an actual or possible contro-
versy between the purchaser and a claimant under him by
transfer or otherwise as to which is entitled to the redemption
money may be avoided, although the redemption money may
in all cases be paid to the purchaser or to the rightful claimant
under him. (Post, pp. 340, 341.)

Code cited and construed: Sees. 3813, 3823 (S.); sees. 2949,
2959 (M. & V.) ; sees. 2126, 2136 (T. & S. and 1858).

Acta cited and construed: Acts 1897, ch. 132.

16 Cates] DECEMBER TEEM, 1910, 335

Hitt v. Coal Co.

3. REGISTRATION. Upon defective probate la Inoperative as
notice.

The registration of a deed of conveyance of land, upon a defec-
tive certificate of acknowledgment or probate, does not operate
as notice under our registration laws. (Post, pp. 342, 344.)

4. 8AM E. 8a me. Deed registered upon defective probate Is
good between the parties.

A deed of conveyance of land Is good between the parties, and
Is binding on the grantor and his heirs and representatives,
notwithstanding its registration on a defective certificate of
acknowledgment or probate. (Post, pp. 344, 345.)

5. 8AM E. For twenty years on a defective probate becomes a
good registration.

Where a deed of conveyance of land has been registered for

■

twenty years, upon a defective certificate of acknowledgment
or probate, it becomes good, that is, a good registration. (Post,
p. 345.)

Code cited and construed: Sec. 3761 (S.); sec. 2898 (M. ft V.);
sec. 2084 (T. ft S. and 1858).

Cases cited and approved: Matthewson v. Spencer, 3 Sneed, 513;
Mathewson v. Spencer, 4 Sneed, 383; Green v. Ooodall, 1 Cold.
404, 416; Murdock v. Leath, 10 Heisk., 173; Anderson v. Bewley
11 Heisk., 29, 31; Stephenson v. Walker, 8 Bax., 289; Stroud v.
McDaniel, 12 Lea. 619, 620; Kobbe v. Land Co., 117 Tenn.,
315.

6. 8AM E. 8ame. 8uccesslve deeds registered upon defective
probates become effective respectively as registered deeds
twenty years after their respective registrations; case In
Judgment.

Under the rule In the preceding headnote, a deed registered
upon a defective probate March 23d, 1851, became effective as
a registered deed March 23d, 1871; and a deed of reconveyance
registered upon a defective probate October 21st, 1856, became
effective as a registered deed October 21st, 1876; and
the subsequent deed of the reconveying grantor made to a

336 TENNESSEE REPORTS. [124 Teim.

Hitt v. Coal Co.

third party and registered upon a defective probate October
18th, 1859, became effective as a registered deed October 18th,
1879; so that the grantee under the reconveyance obtained the
title as against such third party under such subsequently reg-
istered deed. (Post, pp. 345-347, 348.)

7. DEED8 OF CONVEYANCE. General warranty of title vests
the warrantor's subsequently acquired title In the warrantor
and those claiming under him.

But inasmuch as the deed to said third party, made by the said
reconvening grantor after his such deed of reconveyance, as
appears in the preceding headnote, was good and binding as to
him, his heirs, and representatives from its delivery, and con-
tained a general warranty of title, the title, subsequently ac-
quired by the said reconvening grantor, by and undar the will
of the grantee under his said reconveyance, at once inured to
the benefit of said third party and those claiming under him,
and such reconveying grantor could not dispose of said title

by will or otherwise, because he had no title subject to his
disposition. {Post, pp. 346, 347.)

8. REGISTRATION. Upon defective certificate, after twenty
years, affects purchasers with constructive notice of con-
veyances before acquisition of title, when.

Where the registration of a deed of conveyance of land, made
upon a defective certificate of acknowledgment or probate,
has become by the lapse of twenty years, under our statute
(Shannon's Code, section 3761), a valid and effective registra-
tion, a purchaser thereafter is affected with constructive notice
by reason of such registration; and while the general rule is
that the purchaser does not have to go out of the line of title
to ascertain whether each successive holder of the title had
made any deed before he acquired title, yet he does have to
see whether each such holder has conveyed after he acquired
title, and he must follow that line to the Pimit to which it
leads, and be held to notice of what is thereby shown. {Post,
pp. 347-349.)

But see headnote 10.

16 Cates] DECEMBER TEEM, 1910. 337

Hitt v. Coal Co.

Code cited and construed: Sec. 3761 (S.); sec. 2898 (M. ft V.);
sec 2084 (T. ft S. and 1858).

Case cited and approved: Wilkins v. McCorkle, 112 Tenn., 688.

9. DEEDS OF CONVEYANCE. That "absolutely give, grant,
quitclaim 99 Is not a quitclaim deed, but conveys the grantor's
whole estate.

A deed reciting that the grantors do thereby "absolutely give,
grant, remise, release, and forever quitclaim unto the grantee"
named "all such right and title as * • • the grantors have,
or ought to have, in and to the" ldhd described, is not a quit-
claim deed; but, under the statute (Shannon's Code, section
3672) providing that every grant shall pass all the estate of
the grantor, it conveys the grantors' whole estate in the prem-
ises, and refers to and must be taken in connection with the
chain of title on which it is based whereby it must appear what
was the estate owned by the grantors, and was conveyed
by them. Notwithstanding the use of the word "quitclaim,"
such deed purports to convey, since the word "grant" is equiva*
lent to the word "convey." {Post, pp. 349, 350.)

Code cited and construed: Sec. 3672 (S.); sec. 2812 (M. ft V.);
sec. 2006 (T. ft S. and 1858).

Case cited and approved: Schwoon's Case, 124 Tenn., 176.

10. REGISTRATION. Ineffective registration Is not constructive
notice to a devisee of an undivided Interest that a devise, to
another devisee, of an undivided interest in the same land
passed to his prior grantee.

Where a search of title would have shown that the testator had
conveyed the entire tract of land to a grantee who reconveyed
it to the testator by a deed whose registration became effec-
tive and valid before the registration of the deed to a third
person, made by the said first grantee and reconveying grantor,
became effective and valid, a devisee of an undivided Interest
in the land under said testator's will was not affected with

124 Tenn.— 22

338 TENNESSEE EEPOBTS. [124 Tenn.

HItt v. Coal Co.

constructive notice of the said grantee's want of title, as was
the case in the eighth headnote. {Post, p. 350.)

But see headnote 8.

11. TENANCY IN COMMON. One tenant's conveyance of a spe-
cific part Is void if complicative, but not, If such part can be
laid off without injury to the others, or If such tenant's Inter-
est was reduced to an undivided interest by the wrong of the
one under whom they claim.

The rule that a deed by one tenant in common to a specific part
of the common land by separate metes and bounds is void,
because the title of the other cotenants should not be so
complicated without their consent, is not absolute, but is sub-
ject to the qualification that if the land can, in partition pro-
ceedlngs, be so laid off as to give the party In question his
land at the place his deed covers, without injury to the others,
this will be done. The tenants in common claiming under one
whose misconduct caused the interest of such party to be re-
duced to an undivided interest in the land should not be per-
mitted to use that situation to the disadvantage of such party
or those claiming under him. {Post, pp. 350-353.)

Cases cited and approved: Reeves v. Reeves, 11 Heisk., 669, 674,
675; Aiken ▼. Suttle, 4 Lea, 138.

FROM WHITE.

* ■

Appeal from the Chancery Court of White County,
T. M. McConnell, Chancellor.

Robinson, Fanchee & Meredith, for complainant.
W. T. Smith, for defendants.

16 Cates] DECEMBER TERM, 1910. 339

Hitt t. Coal Co.

Mb. Justice Neil delivered the opinion of the Court.

These were consolidated cases heard together in the
chancery court of White county. There was a decree in
favor of the defendants in both cases, and the complain-
ant has appealed and assigned errors. Both suits in-
volved the same land, but the controversy in the first
suit turned mainly upon a question of boundary, or the
location of a line. Then there was also a question of
res adjudicata made in the arguments at the bar, but
this matter not having been specially pleaded, it could
not be considered. There were some other questions, but
these appear also in the second case, and will be there
examined. All of the points pertaining to the first case
are disposed of in a memorandum opinion, and this case
need not be further noticed.

The facts pertaining to the second case are substan-
tially stated in the body of the opinion in addition to the
various contentions discussed or treated. We need now
state only some general matters which are necessary to
a proper understanding of the particular facts referred
to.

These actions were brought to recover 780 acres of
land, part of what is known generally, in the record as
the "1,200-acre Coville tract." Subsequently, it devel-
oped that a part of the 780 acres, that is, what is known
as the "200-acre Elizabeth Allen tract," was conceded
by the defendants, leaving under contest 580 acres of the
Coville 1,200 acres, lying in White county. Of this 580
acres, the complainant in the course of the litigation

340 TENNESSEE REPORTS. [124 Tenn.

Hitt v. Coal Co.

conceded to the defendants two small tracts known as
the McKay and Welsh lands, lying within the bounda-
ries of the 580 acres.

The Coville title or claim passed by a regular chain
of conveyances to Catherine P. Hatch, and Marie L. Har-
back. They sold by deed, retaining a lien, to one Mitch-
ell. He failed to pay the purchase money when due,
and a bill was thereupon filed against him to enforce
the vendor's lien. A decree was rendered in that case
directing the land to be sold for the payment of the debt.
It was sold subject to the two-year's right of redemp-
tion. At this sale the owners of the decree became the
purchasers. They resided out of the county where the
land lay. They subsequently transferred their right in
the decree to Meredith and another, each of whom
claimed a half interest. Meredith sold his right of re-
demption to complainant Hitt. Before the redemption
period expired Hitt paid the redemption money to the
clerk of the chancery court in which the land had been
sold.

The first question arises on the validity of the redemp-
tion. We are of opinion that under our redemption stat-
utes (Shannon's Code, sections 3813, 3823, and Acts
1897, ch. 132) the party whose land has been sold may
pay the redemption money to the clerk of the court in
which the land was sold. He may also pay it to the pur-
chaser or any one claiming under him. Of course, if he
pay it to the purchaser after he has notice of a transfer
by him to another, the redemption would not be a good
one. Likewise, if he pay it to one claiming under the

16 Cates] DECEMBER TERM, 1910. 341

Hitt t. Coal Co.

._ »

purchaser he takes the risk of the claim being valid. He
is not bound to decide such a controversy actual or possi-
ble. We believe that a true construction, preserving the
beneficent right of redemption, is that the debtor may al-
ways make certain his redemption by paying the redemp-
tion money, in case the land has been sold by the judg-
ment or decree of a court, to the clerk of the court from
which the saie was made; in other cases to the clerk of
the circuit court.

Complainant having purchased Mitchell's right of re-
demption, and having redeemed under him, acquired
his title. Mitchell claimed the Coville title which passed
by a regular chain from Coville to him. Coville pur-
chased from Hiram SpafFord, Jr., and he from Hiram
Spafford, Si*., the latter from Thomas Eastland^ and
Thomas Eastland from Thomas B. Eastland, and he was
the grantee of the State.

At this point a contest arises between the Coville title
and that under which the defendants claim. The de-
fendants trace their title from the State through Thomas
B. Eastland, Thomas Eastland, and Hiram Spafford,
Sr. Then by the will of Hiram Spafford, Sr., to Hiram
Spafford, Jr., an undivided one-half interest, and to
E. A. Spafford, Hettie Gibbons, and Abbie A. Proctor,
each an undivided one-sixth; then a deed from E. A.
Spafford to his father, Hiram Spafford, Jr., conveying
his one-sixth ; then the will of Hiram Spafford, Jr., devis-
ing to E. A. Spafford his four-sixths or two-thirds; then
the deed of E. A. Spafford to Abbie A. Proctor convey-

342 TENNESSEE REPORTS. [124 Tenn.

Hitt y. Coal Co.

ing to her the said two-thirds, she thereby becoming vest-
ed with a five-sixths undivided interest ; then the deed of
Abbie A. Proctor of this five-sixths to P. T. Fancher,
then the deed of the same five-sixths, made by F. T. Fan-
cher, to the defendant Caney Fork Gulf Coal Company.

Hettie Gibbons died, and the defendant Rose Gibbons
became heir at law of her undivided one-sixth interest.
Rose Gibbons died, but, before her death, devised her
interest to her father, defendant John W. Gibbons.

The question as to the superiority of these respective
titles or claims of title depends upon the effect of three
deeds ; one of which Hiram Spaff ord, Sr., made to Hiram
Spafford, Jr., on March 1, 1851 ; the deed of H. Spafford,
Jr., of October 20, 1851', purporting to reconvey this
land;»and the deed of H. Spafford, Jr., to Edward Co-
ville made on September 21, 1859. All three of these
deeds had defective certificates, so that although each
was put on record in the register's office, as below indi-
cated, such registration could not operate as notice un-
der our registration laws. It is not shown that Edward
Coville had any notice of the deed of reconveyance made
by H. Spafford, Jr., to H. Spafford, Sr.

We shall now state the foregoing facts with more par-
ticularity, and also what we conceive to be the legal prin-
ciples controlling them.

The deed of H. Spafford, Sr., to H. Spafford, Jr., was
made on March 1, 1851, and registered on a defective
certificate on the 23d of March, 1851. The deed of H.
Spafford, Jr., to H. Spafford, Sr., reconveying the same

16 Gates] DECEMBER TERM, 1910. 343

Hitt y. Coal Co.

land, was made October 20, 1851 and registered October
21, 1856, on defective certificate. The deed of H. Spaf-
ford, Jr., to Edward Coville was made September 21,
1859, and registered October 18, 1859, on defective cer-
tificate. The will of H. Spafford, Sr., went into effect
March 14, 1876, the date of his death. By this will he
purported to devise one-half of his land to his son Hiram
Spafford, Jr., and one-sixth to his grandson, E. A. Spaf-
ford, son of Hiram Spafford, Jr., one-sixth to his grand-
daughter defendant Abbie A. Proctor, one-sixth to his
granddaughter Hettie Gibbons, who left as her heir de-
fendant Rose Gibbons. E. A. Spafford conveyed his one-
sixth interest to his father, Hiram Spafford, Jr., by deed
dated March 22, 1893. Hiram Spafford, Jr., died Octo-
ber 5, 1893, having devised his property to E. A. Spaf-
ford, by will which went into effect October 5, 1893. Un-
der this will of his father, E. A. Spafford, on the face of
the papers, acquired four-sixths or two-thirds undivided
interest in the land which Hiram Spafford, Sr., purport-
ed to own, and by his deed E. A. Spafford conveyed the
said two-thirds undivided interest to Abbie A. Proctor,
March 2, 1901, and she thus with her own one-sixth in-
terest devised to her by her grandfather Hiram Spafford,
Sr., apparently became the owner of five-sixths undi-
vided interest in the Jand. Abbie A. Proctor undertook
to convey the said five-sixths to F. T. Fancher June 30,
1903. Abbie A. Proctor had no actual knowledge of the
Coville deed when she purchased from E. A. Spafford,

344 TENNESSEE REPORTS. [124 Tenn.

Hltt v. Coal Co.

but Fancher had knowledge of it, and E. A. Spafford
had knowledge of it.

Now as to the Coville title, under the foregoing facts.

When H. Spafford, Jr., reconveyed the land on Octo-
ber 20, 1851, to H. Spafford, Sr., the title passed into
the latter as between him and H. Spafford, Jr., and the
heirs and representatives of the latter, notwithstanding
the fact that the deed was registered on a defective cer-
tificate. But when prior thereto, on March 1, 1851,
Hiram Spafford, Sr., conveyed to Hiram Spafford, Jr.,
the title passed into the latter notwithstanding the deed
was registered on a defective certificate, and so yvas good
not only against Hiram Spafford, Sr., but also against
his heirs and representatives as well ; and subsequently
when Hiram Spafford, Jr., conveyed the land, on Sep-
tember 21, 1859, to Edward Coville, he, Coville, acquired
through that deed the title which Hiram Spafford, Sr.,
had conveyed to Hiram Spafford, Jr., by the deed of
March 1, 1851', notwithstanding the fact that on October
20, 1851, Hiram Spafford, Jr., had reconveyed the land
to Hiram Spafford, Sr., the latter deed, as already
stated, having a defective certificate, and it not appear-
ing that Edward Coville had any notice of such deed,
since the deed having a defective certificate was not en-
titled to registration, and the registration thereof on the
certificate was not notice to him. But the Coville deed
(Hiram Spafford, Jr., to Edward Coville, September 21,
1859) had also, as stated, a defective certificate, which
did not entitle it to registration, and hence conveyed

16 Cates] DECEMBER TERM, 1910. 345

Hitt v. Coal Co.

only an inchoate title as to Hiram Spafford, Sr., though
good as to Hiram Spafford, Jr., and his heirs and repre-
sentations.

Now by our statute, Sh. Code, section 3761, when a
deed has been registered twenty years on a defective cer-
tificate, it becomes good, that is, a good registration.
And see Matthewson v. Spencer, 3 Sneed, 513, same case,
on second appeal, 4 Sneed, 383 ; Green v. Goodall, 1
Cold., 404, 415 ; Murdoch v. heath, 10 Heisk., 173 ; An-
derson v. Bewley, 11 Heisk., 29, 31 ; Stephenson v. Wal-
ker, 8 Baxt., 289 ; Stroud v. McDaniel, 12 Lea, 619, 620 ;
Kobbe v. Land Co., 117 Tenn., 315, 98 S. W., 175. Un-
der this rule the deed of Hiram Spafford, Sr., to Hiram
Spafford, Jr., became a registered deed March 23, 1871 ;
the deed of reconveyance from Hiram Spafford, Jr., to
Hiram Spafford, Sr., October 21, 1876; the deed from
Hiram Spafford, Jr., to Edward Coville, October 18,
1879. It is true that if Edward Coville's deed had been
properly registered (that is, if the certificate to it had
been good ) when it was placed on the record October 18,
1859, or at any time before October 21, 1876 (the date
when the registration of the deed of Hiram Spafford,
Jr., to Hiram Spafford, Sr., became mature by the lapse
of twenty years), he would have obtained perfect title,
under our registration laws, notwithstanding Hiram
Spafford's deed of reconveyance. Per contra, if the deed
of reconveyance had been properly acknowledged when
it was put to record on October 21, 1856, Coville would
have obtained no title, because the registration would

346 TENNESSEE REPORTS. [124 Tenn.

Hitt v. Coal Co.

have been notice to him. Bnt both deeds, in the eye of
the law, were unregistered. Whoever should first obtain
legal registration, would, under our registration laws,
obtain precedence. If either had had his deed subse-
quently acknowledged properly, and put on record, from
that moment his precedence in title would have been at-
tained. So between H. Spafford, St., and Edward
Coville, it became a question which should first obtain
registration. Neither obtained an actual subsequent
registration; but both had deeds running at the same
time for the status of registration by presumption of
law under the twenty-year's statute. This status was first
reached by the deed of reconveyance from H. Spafford,
Jr., to H. Spafford, Sr., to wit, on October 21, 1876 ; the
deed of H. Spafford, Jr., to Edward Coville reaching
that status only on October 18, 1879. Therefore, as be-
tween H. Spafford, Sr., and Edward Coville, the mat-
ter must be treated as if after the former had received
and registered his deed of reconveyance from H. Spaf-
ford, Jr., on October 21, 1876, Edward Coville had, in
this view, taken from the latter a deed on October 18,
1879, when he had no title or semblance of title. It fol-
lows that as between H. Spafford, Sr., and Edward
Coville, the latter obtained no title.

But when we come to the state of the title as between
H. Spafford, Jr., and his heirs and representatives on
the one hand, and Edward Coville on the other, a differ-
ent principle obtains. The deed which he made to
Edward Co\ille was good as to him, his heirs and repre-

16 Cates] DECEMBER TERM, 1910. 347

Hitt y. Coal Co.

sentatives. It was a registered deed on October 18,
1879; but it was good against him, his heirs and rep-
resentatives from its delivery on October 18, 1859. They
could not dispute it. It was a deed also containing a
general warranty of title. When by the will of his
father he acquired a one-half interest in this land, on
March 14, 1876, that interest at once inured to the
benefit of Coville and those claiming under him ; so, when
he acquired the one-sixth interest of E. A. Spafford by
deed of the latter March 22, 1893 ; therefore, when Hiram
Spafford, Jr., on October 5, 1893, undertook to devise
this land to E. A. Spafford, he had nothing he could
lawfully devise. He was estopped to devise it, and E. A.
Spafford was estopped to receive it, both by the fact that
he was a representative of his father, and by the fact
that he had actual knowledge also of the Coville deed, as
shown by his deposition. But when E. A. Spafford con-
veyed this two-thirds interest acquired (or purporting
to have been acquired under his father's will) to Abbie
A. Proctor, she had no actual knowledge of the Coville
deed. Was she affected with notice from the registration
books? We think she was. Tracing back along the line
of title, she would have found ( 1 ) the will of Hiram
Spafford, Jr.; (2) the deed of E. A. Spafford conveying
one-sixth to Hiram Spafford, Jr.; (3) the will of Hiram
Spafford, Sr.; (4) the deed from Thomas Eastland to
Hiram Spafford, Sr.; (5) the deed of Thomas B. East-
land to Thomas Eastland; (6) the grant of the State of

348 TENNESSEE REPORTS. [124 Tenn.

Hitt y. Coal Co.

Tennessee to Thomas B. Eastland. Having reached the
point where Hiram Spafford, Sr., acquired title it would
have been the duty of the searcher to ascertain if he had
conveyed it. We must suppose the search to have been
made by Mrs. Proctor in 1901, when she purchased from
E. A. Spafford. The searcher then would have found
that H. Spafford did make a deed to Hiram Spafford,
Jr., in March, 1851, and that Hiram Spafford, Jr., made
a deed to Coville in 1859. He would also have found
that in October, 1851, Hiram Spafford, Jr., had made a
deed of reconveyance to Hiram Spafford, Sr., and that
all of these had become mature by the statute of twenty
years, respectively, on March 23, 1871, October 21,
1876, and October 18, 1879. He would have
known that under the rule of law applicable to
the subject (Wilkins v. McCorUe, 112 Tenn., 688,
80 S. W., 834), we must presume, in the absence of
proof to the contrary, that Coville had no knowledge of
the deed of reconveyance made by Hiram Spafford, Jr.,
to Hiram Spafford, Sr. He would have seen that the
deed made by Hiram Spafford, Jr., to Coville was a war-
ranty deed. From these facts he would have deduced
that Hiram Spafford, Jr., and his heirs and representa-
tives were estopped from claiming title as against
Coville and those claiming under him. Now, while the
general rule is that the searcher does not have to go out
of the line of title to ascertain whether each successive
holder of the title has made any deed before he acquired
title, yet he does have to see whether each such holder has
conveyed after he acquired title, and he must follow that

16 Gates] DECEMBER TERM, 1910. 349

Hitt t. Coal Co.

line to the limit to which it leads, and be held to notice
of what is thereby shown.

It is insisted that Mrs. Proctor would be affected
with notice also because the deed she received from E. A.
Spafford was a quitclaim deed. If such were the fact,
probably the modern and better doctrine is that such
deed is not notice. However, we do not decide this point.
Our own cases when they are all taken together are not
quite clear. But the deed is not a quitclaim. Its lan-
guage is : "Do by these presents absolutely give, grant,
remise, release and forever quitclaim, unto the said
grantee (Abbie A. Proctor) all such right and title as
we, the said grantors, have, pr ought to have, in and to
the following described piece or parcel of land," etc.
Notwithstanding the use of the word "quitclaim" this is
a deed purporting to convey, since it uses also the word
"grant," which is equivalent to the word "convey." Nor
is it made a quitclaim deed by the use of the words "all
such right and title as we the said grantors have or
ought to have," etc. Such a deed under our statutes, Sh.
Code, section 3672, purports to convey the grantors'
whole estate in the premises. Such a deed of course re-
fers to and must be taken in connection with the chain
of title on which it is based, whereby it must appear
what was the estate owned by the grantor and conveyed
by him ; but so does every other deed when we are con-
sidering the question of absolute title. There is a
difference, of course, under statutes of limitation affect-
ing real estate, where a deed upon its face may purport

350 TENNESSEE EEPORTS. [124 Tenn.

Hitt v. Coal Co.

to convey an estate in fee without reference to any other
deed, and so constitute an assurance of title under which
seven years adverse possession will give title; but such
deeds also may be in the form of the present one, as we
have recently held, and by reference will incorporate a
prior deed or deeds, so as with it or them to make an as-
surance of title purporting to convey an estate in fee.
&chwoon>8 Case, 124 Tenn., 176, 135 S. W., 785, opinion
at present term.

As to the one-sixth interest; which Mrs. Proctor re-
ceived under the will of her grandfather, Hiram Spaf-
ford, Sr., and the one-sixth interest which Hettie Gib-
bons, mother of Rose Gibbons, received under the same
will, they are not affected by what has been said concern-
ing the two-thirds interest derived from Hiram Spaf-
ford, Jr. It is true that the satne search for title which
we have referred to would have shown that H. Spafford,
Sr., had conveyed the whole land in controversy to H.
Spafford, Jr., and that the latter had conveyed it to
Edward Co^ille, but it would also have shown that it
had passed back into H. Spafford, Sr., by a deed su-
perior to that which H. Spafford, Jr., had made to
Coville because first registered, and would have failed
to show that these two-sixths were affected by the con-
duct of H. Spafford Jr.,. since they did not pass to him
under the will of his father, Hiram Spafford, Sr., and so
could not be affected by any estoppel against him and
his heirs and representatives.

Nor do we think that the defendants can be relieved of
the conclusion we have reached in respect of the H.

16 Cates] DECEMBER TERM, 1910. 351

Hitt ▼. Coal Go.

Spafford, Jr., two-thirds by what has been urged upon
the subject of tenants in common. We shall here state
the contention upon this subject. It is : That a deed by
one tenant in common to a specific part of the common
land by separate metes and bounds, is void, because the
title of the other co-tenants should not be so complicated
without their consent. The rule is not absolute, but is
subject to the qualification that if the land can, in parti-
tion proceedings, be so laid off as to give the party in
question his land at the place his deed covers, without
injury to the others, this will be done. This has long
been the rule where one tenant in common erects im-
provements upon the common property. Reeves v.
Reeves , 11 Heisk., 669, 674, 675 ; Aiken v. Buttle, 4 Lea,
138. The principle is the same.

There is also another view of the matter. At the time
Edward Coville took his deed from H. Spafford, Jr., the
latter, according to the record so far as it could legally
affect Coville, was the owner of all of the shares in the
land , that is, of the whole of the Coville 1,200 acres, as
well as the rest of the grant (No. 6,235) of which it was
>a part. * The situation whereby his interest was reduced
to an undivided interest was owing to the misconduct of
H. Spafford, Jr. Those claiming under the latter should
not be permitted to use that situation to the disability
of Coville, or those claiming under him, if by any means
the shares of the parties can be so arranged as to give
the holder of the Coville title that interest in kind. But
really, when we consider the terms of the deeds under

352 TENNESSEE REPORTS. [124 Tenn.

Hltt v. Coal Co.

which defendants sold, the question cannot be said to
arise; since in the deed which Mrs. Abbie A. Proctor
made to F. T. Fancher, and in that which he made to de-
fendant Caney Fork Gulf Coal Company, the Coville 1,-
200 acres is conveyed as a separate tract, from the residue
of the land covered by grant No. 6235. This description
as it appears in the Abbie A. Proctor deed is as follows :
"The following described tract or parcel of land lying
and being in the Thirteenth civil district, White county,
Tennessee, and bounded as follows, to wit : The first
tract beginning on a stake standing in the center of the
old Ross road, with black oak pointers, being the north-
west corner of entry No. 2504, which entry was made in
White county, Tennessee; thence south 624 poles to a
black oak with hickory, dogwood and black oak pointers
on the west side of Big Laurel creek, southeast corner of
grant No. 6235, granted by the State of Tennessee to
Thomas B. Eastland; thence west 634 poles to a black
oak and hickory pointers on the east bank of Dry creek,
the southwest corner of said grant No. 6235; thence
north with the west boundary line of said grant No. 6235
to the Ross road, being the southwest corner of what isr
known as the Edward Coville 1,200-acre tract; thence
with the south boundary line of the Coville tract to the
south w r est corner of the Allen Straight tract; thence
with the Allen Straight south boundary line to the be-
ginning. The second tract beginning at two cherry trees
and two hickory trees in the boundary line of Thomas
Storms' land 160 poles west of his southeast corner, run-
ning thence south to the center of the Ross turnpike

16 Cates] DECEMBER TERM, 1910. 353

Hitt v. Coal Co.

road 372 poles ; thence east along the Ross turnpike road'
until it strikes a new eontemplated road; thence along
said contemplated road until it strikes the Ross turn-
pike, then down said turnpike until it strikes the land
sold by Hiram Spaff ord to Allen Straight ; thence north
with Straight's line to the north boundary line of said
grant, No 6235 ; thence west with said line to the begin-
ning, containing 1,200 acres. " The same description ap-
pears in the deed of P. T. Fancher to the defendant
Caney Pork Gulf Coal Company. The first tract above de-
scribed being also mentioned as a tract of 2,300 acres.
It is perceived that in the description aboTO copied the
land now in controversy is spoken of as the Edward
Coville 1,200 acres, and is used as a part of the northern
boundary of the 2,300 acres. The parties have thus
themselves separated the land in controversy from the
2,300 acres, and there is no difficulty in decreeing to com- .
plainant a two-thirds undivided interest in the 1,200
acres, and this will accordingly be done.

This, however, is subject to the following, viz. : Com-
plainant concedes on the record to the defendants the
McKay and Welch tracts contained within the boun-
daries of the 1,200 acre Coville tract, and these tracts
must be excluded from complainant's recovery. There
is also a tract of 300 acres mentioned on complainant's
map as the "Blasedell 300 acres," and on defendant's
map as the "Phifer or Carver 300 acres. , ' This is the
same tract conveyed by John Blasedell to Hiram Spaf-
ford, Sr., March 23, 1853, in a division between them on

124 Tenn. — 23

354 TENNESSEE REPORTS. [124 Tenn.

Hitt v. Coal Co.

that day of two tracts each of 300 acres. These two
tracts were conveyed to John Blasedell and Hiram Spaf-
ford, Sr., on October 21, 1850, by Eliza Dale and Polly
M. Wilson. It is recited in the deed that one of these
tracts (that which John Blasedell subsequently con-
veyed to Hiram Spafford) lay within the grant No. 6235.
As stated, on a division between John Blasedell and
Hiram Spafford, Sr., the latter became the full owner of
this tract on March 23, 1853. But on January 9, 1852,
Hiram Spafford, Sr., conveyed an undivided one-half in-
terest in this 300l acres to Stephen Carver with warranty
of title. Stephen Carver is therefore on this record the
owner of an undivided one-half interest in that 300 acres
which is outstanding in him. This Carver one-half in-
terest in the 300 acres referred to will be excluded from
complainant's recovery; but he is entitled to recover a
two-thirds undivided interest in the other undivided one-
half interest thereof.

Complainant will have a decree for a two-thirds un-
divided interest in the 580 acres, part of the tract known
in the record as the "Coville 1,200 acres," less the Mc-
Kay tract, the Welch tract, and the Blasedell or Phifer
and Carver 300-acre tract. As to the latter tract he will
have a decree for two-thirds of an undivided half thereof.
He will have a decree for the 200-acre Elizabeth Allen
tract.

The costs of this court and of the court below will be
equally divided between the complainant and the defend-
ants, except John W. Gibbons, Catherine P. Hatch, and
Marie L. Harback, who will pay no costs.

16 Cates] DECEMBER TERM, 1910. 355

Whitworth v. Hager.

J. W. Whitworth, Guardian, v. J. H. Hager, Admin-
istrator.

(Nashville. December Term, 1910.)

1. YEAR'S SUPPORT. Out of personalty of intestate for chil-
dren of his predeceased wife by a former marriage, when under
age of fifteen years.

The statute (Shannon's Code, section 4022), making provision
for a year's support, out of the personalty of a man dying in-
testate, for the benefit of his children, or those of his widow,
or those of both, under the age of fifteen years, Includes the
children of the intestate's predeceased wife, by her former hus-
band, where they are under the age of fifteen years at the
death of such intestate; and the statute Includes such children
of an intestate man, whether they be those of consanguinity or
affinity. (Pott, pp. 357-365.)

Code cited and construed: Sees. 58, 4020-4023 (S.); sees. 42, 3125-
3128 (M. & V.); sees. 41, 2285-2289 (T. & S. and 1858).

Acts cited and construed: Acts 1813, ch. 119, and sec. 3 [this
chapter is numbered 120 in original published Acts, but is num-
bered 119 in Scott's "Laws of Tennessee, Ac."]; Acts 1837-38, ch.
13; Acts 1841-42, ch. 4, sec. 1.

Cases cited and approved: Sanderlin v. Sanderlin, 1 Swan, 441:
Maguinay v. Saudek, 5 Sneed, 147; Vincent v. Vincent, 1 Heisk..
343; Norton v. Ailor, 11 Lea, 565; Compton v. Perkins, 92
Tenn., 715.

2. SAME. Same. Case In Judgment.

Where a man married the mother of two small children by a
former marriage, and took them Into his home, and made them
members of his household, in which relation they continued
until the death of their said mother, and for about three years

356 TENNESSEE REPORTS. t!24 Tenn.

Whitworth v. Hager.

thereafter, when he sent them to another State to lire with
their aunt, and they never again lived with him; and nearly a
year thereafter he died intestate while they were under the age
of fifteen years, It was held that said children were entitled
to a year's support out of the personal estate of their said step-
father. (Post, pp. 357-365.)

See citations under the first headnote.

3. EXEMPTIONS. Of personalty of decedent goes to children
of his predeceased wife by a former marriage, when under
fifteen years of age.

The children of the predeceased wife of a decedent, by a former
marriage, under the age of fifteen years at the death of their
stepfather, as shown in the preceding headnotes, where he left
no other children under that age, are entitled to all his exempt
personalty. (Post, pp. 357, 358, 365-367.)

Code cited and construed: Sec. 4023 (S.) ; sec. 3128 (M ft V.) ;
sees. 2288, 2289 (T. ft S. and 1858).

Acts cited and construed: Acts 1833, ch. 2; Acts 1855-56, ch. 99;
Acts 1879, ch. 89.

Case cited and approved: Thompson v. Alexander, 11 Helsk.,
313. See also citations under first headnote.

4. CODE OF TENNESSEE (OF 1858). A legislative act, and not
a mere revision.

The adoption of the Code of 1858 was a legislative act, and was
more than a mere revision of the pre-existing statutes of the
State. (Post, p. 360.)

Cases cited and approved: State v. Runnels, 92 Tenn., 320; Trust
Co. v. Weaver, 102 Tenn., 66; Brien v. Robinson, 102 Tenn.,
166.

t. 8AM E. Repealed all public and special acts revised therein.

Section 41 of the Code of 1858 repealed all public and special
acts, the subjects whereof were by that Code revised. (Post, p.
360.)

Code cited and construed: Sec. 58 (S.); sec. 42 (M. ft V.); sec.
41 (T. ft S. and 1858).

16 Cates] DECEMBER TERM, 1910. 357

Whltworth y. Hager.

FROM DAVIDSON.

Appeal from the Circuit Court of Davidson County to
the Court of Civil Appeals, and by certiorari from the
Court of Civil Appeals to the Supreme Court. — A. B.
Neil, Special Judge.

Stokes & Stokes, for plaintiff.
W. D. Covington, for defendant.

Mb. Justice Buchanan delivered the opinion of the
Court.

This case is before us on petition to rehear. It present-
ed two law questions arising out of this state of facts :
In the year 1903, J. T. Brent, then a widower with chil-
dren, intermarried with Mrs. R. J. Crump, a widow
with two small children, Norman and Roberta Crump, by
her first marriage; after her marriage to Brent, the
mother and her two children became members of Brent's
household and so continued until 1905, when she died,
and thereafter her children continued to be members of
Brent's household until November, 1908, when he sent
them to Texas to Hvb with their aunt. They remained in
Texas some time, and one of them still resides there. The
other returned to Tennessee; but neither of them ever

358 TENNESSEE REPORTS. [124 Tenn.

Whitworth y. Hager.

lived with Brent after being sent away. Brent died in-
testate September 4, 1909, at which time Norman and
Roberta Crump were each under the age of fifteen years.
Their guardian, Whitworth, petitioned the county court
of Davidson county, seeking:

1st. To have a year's support for each of said minors
set apart out of the personal estate of said intestate ;

2nd. To have the exempt property owned by said in-
testate at the time of his death set apart for said minors.

No children were born of the marriage between Brent
and Mrs. Orump, and all of Brent's children by his first
marriage were over the age of fifteen years at the time of
his death. The county court sustained the guardian's
petition, Brent's administrator appealed, and the circuit
court dismissed the guardian's petition, with costs, which
judgment the court of civil appeals affirmed, but Mr.
Justice Hughes, of that court, dissented in an able opin-
ion, and the case was before us on certiorari.

We will first consider the right of the minor to the
year's support. By chapter 119 of the Acts of 1813, it
was provided that "So much of the crops and provisions
on hand as may be necessary for the support of the wid-
ow and her family until the expiration of one year from
the decease of her husband, shall be set apart and shall
be her absolute property." By section 3 of this act, it
was provided, in substance, that creditors of the intes-
tate might levy upon the property set apart for the wid-
ow, where there was no other property of the intestate
to satisfy the debts of his estate. By chapter 13 of the

16Cates] DECEMBEE TERM, 1910. 359

WMtworth v. Hager.

Acts of 1837-38, the acts of 1813 was amended so as to
provide that commissioners "Shall set apart so much of
the crops, stock, provisions and moneys on hand or due,
or other assets, as may be necessary for the support of
such widow and her family until the expiration of one
year after the decease of her said husband, for the use
aforesaid." The act of 1837 expressly repealed the
third section of the act of 1813, and destroyed the right
of the creditors of the intestate to subject the property
which had been set apart for the year's support of the
widow, anfl expressly provided that such property should
not be taken by any precept or execution whatsoever.
The act of 1837 also enlarged the rights of the widow in
respect of the class of property of the intestate from
which the widow's year's support might be taken, by add-
ing that it might be taken from "moneys on hand or due,
or other assets." The act of 1841-42, chapter 4, section 1,
provided that upon the death of any intestate leaving no
widow, but minor children under the age of fifteen years,
it should be the duty of the county court to appoint com-
missioners, etc., to set apart the year's support, which,
when set apart, shall be the absolute property of such
minor children. Thus the legislation stood at the adop-
tion of the Code of 1858. The acts of 1813, 1837, and
1841 were codified and amended by sections 2285, 2286,
and 2287 of the Code of 1858, which three sections of that
Code were as follows :

Sec. 2285. "Upon the application of the widow of an
intestate or of a widow who dissents from her husband's

360 TENNESSEE REPORTS. [124 Tenn.

Whitworth v. Hager.

will, the county court shall appoint three freeholders,
unconnected with her either by consanguinity or affini-
ty, who, being first duly sworn to act impartially, shall
set apart so much of the crop, stock, provisions, moneys
on hand or due or other assets, as may be necessary for
the support of such widow and her family, until the expi-
ration of one year after the decease of her husband."

Sec. 2286. "And the moneys and effects so set apart
shall be the absolute property of the widow for said uses ;
and shall not be taken into the account of the adminis-
tration of the estate of said intestate, nor seized upon
any precept or execution."

Sec. 2287. "And if there be no widow, or she dies be-
fore the year's support is set apart, the same provision
shall be made for the children of the intestate or of the
widow, or of both, under the age of fifteen."

The above quoted three sections from the Code of
1858 now appeal' literally in Shannon's Code as sections
4020, 4021, and 4022. The adoption of the Code of 1858
was more than a mere revision, of pre-existing statutes of
the State; the adoption of that Code was a legislative
act, and has been repeatedly so held. Brien v. Robinson,
102 Tenn., 166; Trust Co. v. Weaver, 102 Tenn., 66; State
v. Runnels, 92 Tenn., 320.

Section 41 of the Code of 1858 repealed all public and
special acts, the subjects whereof were by that Code re-
vised; and, therefore, the acts of 1813, 1837, and 1841
were by the Code of 1858 repealed, said acts not only be-
ing revised by the Code of 1858, but also amended by it

16 Cates] DECEMBER TERM, 1910. 361

Whitworth v. Hager.

as already shown. The amendment to the previous leg-
islation effected by the Code of 1858 appears in Section
2287 of that Code> which section is the same as section
4022 of Shannon's Code. The amendment consists of
seTOn words, to wit : "or of the widow or of both." These
seven words were interpolated between the word "in-
testate" and the words "under the age of fifteen." It is
manifest that this change or amendment was a deliber-
ate enlargement of the class of persons who had been
theretofore entitled to a year's support out of the estate
of an intestate man, and that the added class was intend-
ed- by the legislature to be the children of his last wife,
whether such children were the fruit of his union with
her, or of her union with a former husband, and whether
she died before the intestate or after him, and before the
setting apart of the year's support. This enlargement
of the class of persons who might receive or become enti-
tled to a year's support out of the estate of an intestate
man was manifestly intended as a temporary provision
for children of tender years, under the age of fifteen, who
had been, or at all events should have been, members of
the family, and under the care and protection of the in-
testate. The evident policy of the legislation was humani-
tarian ; the provision was not based upon consanguinity
between the intestate and the added class, but upon
affinity between them, because of their mutual relation-
ship to the mother of the child or children under the age
of fifteen years at the time of the death of the intestate,
and furthermore, because of the interest in the added

362 TENNESSEE REPORTS. [124 Tenn.

Whitworth v. Hager.

class, which this mutual relationship would naturally in-
spire in a man of proper feeling.

This exact question is new, but we believe the view we
take of it is in accord with the construction which has
been placed by this court on legislation in cases which
have inTOlved the rights of the widow to a year's support
As early as 1858, in commenting on the enlargement of
the scope of the act of 1813 by the act of 1837, this court
in substance said that it evinced a legislative intent to
make a liberal allowance to widows in just regard to
their affliction, helplessness, and necessities immediately
after the death of the husband, and that in carrying out
the object and intention of the legislation, the court
ought not to interpret the language in a restricted sense,
and that the word "family," where the widow's right was
involved, was intended to include children, who, being
under age, resided with the parent, and constituted part
of the family, and that the Code made no difference
whether the children were of a former marriage or were
the children of the intestate, in either case they would
constitute part of the widow's family. Sanderlin v. San-
derlin, 1 Swan, 441.

In a case decided in 1870, it was held that the year's
support of the widow could not be diminished by the re-
moval from her home, without her consent after the
death of the husband, of two of his children by a former
wife, and in this connection the court said that the policy
of the statute was to keep the family together, at least
one year after the death of the intestate and to make the

16 Cates] DECEMBEE TERM, 1910. 363

Whitworth v. Hager.

widow the head of the family ; and that to allow any part
of the funds to be taken from her, and placed in other
hands would tend to interrupt the harmonious relations
that should exist between members of the same house-
hold and to subvert the lawful authority of the widow,
either as parent or standing in loco parentis, and that
the effect of such an order would be to annul the express
provision of the statute and to declare that the moneys
and effects set apart for the year's support were not the
absolute property of the widow. Vincent v. Vincent, 1
Heisk., 343.

It has also been held by this court that while the hus-
band is not bound by law to maintain a child of the wife
by a former husband, yet if he receives such child into
his own house, he is then considered as standing in loco
parentis, and is responsible for the maintenance and ed-
ucation of the child so long during its minority as it lives
with him, for by so doing, he holds the child out to the
world as a child of his family, and the court in that case
said "this is precisely the obligation of the father as re-
respects the support of his minor child." Maguinay v.
Baudek, 5 Sneed, 147 ; Norton v. Ailor, 11 Lea, 565.

In another case where the question involved was the
right of the widow to the exempt property of the estate
of her intestate husband, who left surviving him not only
the widow but several children by a former marriage,
all of whom were of age, there being no children by the
second marriage, and in which it was held by this court,

364 TENNESSEE REPOETS. t 1 ^ Tenn.

Whitworth ▼. Hager.

that the widow surviving was the sole object of the pro-
vision of the statute, this court said ;

"The 'children' here designated are not necessarily the
heirs or distributees of either the husband or wife, fop
they may be either his children alone or hers alone, or
those of both. The statute, therefore is not intended
to pass such property to heirs in the ordinary way. It
designates a class or classes of persons as the objects
of its beneficial operation in connection with the widow.
Neither is the term 'children' used in the more enlarged
sense of sons and daughters of either, for it was not in-
tended to provide for the grown and married descend-
ants of husband or wife out of .the exempt property of the
husband, thus vested in the wife for herself and in trust
for the benefit of the children, etc. The word 'children'
was used in the ordinary sense in which it is understood,
as the young sons and daughters of husband or wife, who
might constitute properly a part of the family of which
the deceased was the head, children in fact, in contra-
distinction to any descendant who was no longer a
child." Compton v. Perkins, 92 Tenn., 715.

It is true that the case of Compton v. Perkins, supra,
involved the right of the widow to the exempt property,
and not her right to the year's support, and is therefore
not direct authority on this branch of the present case,
still by examination of sections 2288 and 2289 of the
Code of 1858, which are reproduced in Shannon's Code,
as section 4023, it will be seen that the language of the
statute involved in the case of Compton v. Perkins was

16 Cates] DECEMBER TERM, 1910. 365

i Whitworth v. Hager.

i

practically identical with that which is the subject of
controversy on this branch of the present case, and there-
fore that the case of Compton v. Perkins, and the con-
struction there given by this court to this language is of
weight, and in harmony with our construction as herein-
before indicated on this branch of the present case.

It is manifest to us that the Code of 1858 added a third
to the two classes of persons already existing who were
entitled to a year's support. The acts of 1813 and of
1837 had established the rights of the widow. The acts
of 1841 had established the rights of the children of the
intestate, either by his last or former marriage under
fifteen years of age in cases where there was no widow or
where she died before the year's support was set apart.

The Code of 1858 established the rights of the children
of the last wife of the intestate under the age of fifteen
years, at the date of the death of the intestate whether
they were her children by the intestate or her children
by a former husband, and so we hold the law to be.

The second question involved in this case is the right
of Norman and Roberta Crump to the exempt property
of the intestate Brent. By chapter 2 of the Acts of 1833,
it was provided "Where any person or persons shall die
leaving a wife or a wife and children, or absconds and
leaves his family, then and in that case the articles and
property now exempt, or which may hereafter be exempt
by law from execution sale, shall and may be set apart for
the use of the widow, or wife, in the same manner, and to

366 TENNESSEE EEPORTS. [124 Tenn.

Whitworth. v. Hager.

the same extent, that said property is now exempt from
execution where the husband is living." •

The Act of 1855-56, chapter 99, provided "That the
property now exempt by law from execution, shall on
the death of the husband be exempt from execution, in
the hands of and vested in the widow (without regard
to the size of the estate of deceased) for herself and in
trust for the benefit of the children of the deceased, and
shall not go to the executor or administrator."

The acts of 1833 and 1855 aboine quoted were codified
and revised and amended by the sections 2288 and 2289
of the Code of 1858, and these sections, as they appear in
said Code, substantially reenacted the previous legisla-
tion with certain amendments thereto, which were as
follows: First, between the word "size" and the words
"of the estate" as they appeared in the acts of 1855, the
words "or solvency" were interpolated in section 2288
of the Code of 1858 ; and second, in the same section after
the words "children of the deceased" and before the
words "and shall not go to the executors or administra-
tors," as they appeared in the act of 1855, the words "or
of the widow or of both" were interpolated ; and third,
the whole of section 2289 of the Code of 1858 was new
legislation which had not appeared either in the act of
1833 or in the act of 1855. Said section 2289, as it ap-
peared in the Code of 1858, is :

Section 2289 : "And in case there be no widow and the
estate be insolvent, such property shall be exempt for the
benefit of the minor children under fifteen."

16 Cates] DECEMBER TERM, 1910. 367

Whitworth v. Hager.

While the law stood as above, the case of Thompson
v. Alexander was decided in 1872, 11 Heisk., 313, in
which it was held that the provision for the children un-
der the age of fifteen made by section 2289 of the Code
of 1858 did not apply in a case where the estate was solv-
ent, and after this decision the act of 1879, chapter 89,
was passed, the effect of which act was to entitle the
| minor children under the age of fifteen to the exempt

j property whether the estate be solvent or insolvent.

Section 4023 of Shannon's Code is the legislation accom-
plished by sections 2288 and 2289 and chapter 89 of the
act of 1879, each of the three separate pieces of legisla-
tion being combined in the formation of section 4023 of
Shannon's Code.

The same argument already made in support of the
right of the children in this case to a year's support ap-
plies to establish their right to the exempt property ; the
words "or of the widow or of both," as they appear in sec-
tion 2288 of the Code of 1858 are significant of the legis-
lative purpose to enlarge the class of persons entitled to
take and have the use and benefit of the exempt per-
sonal property of an intestate man.

Without further elaboration, the conclusion we have
reached is that Norman and Roberta Crump were each
entitled to a year's support to be set apart out of the per-
sonal estate of the intestate J. T. Brent, and that said
minors were also entitled to all of the exempt property
owned by decedent at the time of his death ; and, there-
fore, that the judgment of the court of civil appeals and

368 TENNESSEE REPORTS. [124 Tenn.

Wltftworth v. Hager.

of the circuit court of Davidson county should be re-
versed, and the judgment of the county court affirmed,
and the cause remanded to the county court for such pro-
ceedings there as might be necessary in the premises.

CASES

AEGUED AND DETERMINED

IN THE

SUPBEME COURT OF TENNESSEE

FOR THE
WESTERN DIVISION.

JACKSON, APRIL TERM, 1911.

L. G. Newsum, Trustee, et al., v. Leon Hoffman et at.

(Jackson. April Term, 1911.)

1. CHATTEL MORTGAGES. Executed and registered in other
States, valid and effective there, are to here, by comity; but
not if mortgagee contented to removal, when.
When a chattel mortgage is executed and duly recorded in an-
other State, where the property then Is, and where the mort-
gager resides, and is valid under the laws of that State, the
mortgagee, under the rule of comity between States, has the bet-
ter right, upon the subsequent removal of the property to
another State, as against a levying or attaching creditor of,
or an innocent purchaser from, the mortgageor in the State to
which the property has been removed, although the mortgage
Is not recovered in the latter State; and this is true, although
the mortgageor is permitted, under the terms of the mortgage,
to retain possession until default; but, such comity should not
be extended to cases wherein it appears that the mortgagee
consented to such removal, or, having knowledge thereof, does
not, within a reasonable time thereafter, assert his rights, so as
to protect him against incumbrances put upon the property or
purchases made in the State to which the removal has been
made.

(369) [124 Tenn.

124 Tenn.— 24

370 TENNESSEE REPORTS. [124 Tenn.

Newsum v. Hoffman.

Gases cited and approved: Gait v. Dibrell, 10 Yerg., 146, 152-155;
Gookin y. Graham, 5 Humph., 480; Beaumont v. Yeatman, 8
Humph., 542, 548; Allen v. Bain, 2 Head, 101; Bank v. Hill,
99 Tenn., 42; Hughes v. Abston, 105 Tenn., 70; Snyder v. Yates.
112 Tenn., 309; and numerous federal cases and cases in other
States on pages 372 and 373 of the opinion.

Case cited, distinguished and modified: Hughes v. Abston, 105
Tenn., 70.

2. SAME. Mortgage executed and registered In another 8tate
upon a chattel In this State Is not effective as against a pur-
chaser here.

A mortgage, executed in another State and duly recorded there,
upon a chattel at that time In this State and so remaining, does
not confer a right superior to that of an innocent purchaser
of the property at a sale made in this State. {Post, p. 375.)

Case cited and overruled: Lally v. Holland, 1 Swan, 396.

FROM SHELBY.

. Appeal from the Chancery Court of Shelby County. —
Fbanois Fentress, Chancellor.

E. C. Black and W. P. Armstrong, for complainants.

Leo Goodman, for defendants.

Mr. Justice Neil delivered the opinion of the Court.

The bill states the following facts :

In January, 1910, one C. R. Goza conveyed to com-

16 Cates] APBIL TERM, 1911. 371

Newsum v. Hoffman.

plainant Newsum, trustee for Self & Hawkins, two
mules to secure a debt All of these persons were resi-
dents of Quitman county, Miss., and the mnles were also
there when the trust deed was executed. This instru-
ment provided that the mortgagor should retain posses-
sion of the property until default made. Default was
made in the payment of the debt, and after that time
Goza, on the 6th day of December, 1910, without the
knowledge or consent of the trustee, or of the bene-
ficiaries under the trust deed, conveyed the mules to
Memphis, Tenn., and sold them to defendants Hoffman
and Wright the next day thereafter. This removal of
the property from the State of Mississippi to the State
of Tennessee, and the sale by Goza, was, on his part, for
the purpose of defrauding Newsum and the aforesaid
beneficiaries. The bill does not allege that Hoffman and
Wright had any actual knowledge of Goza's fraudulent
purpose, or of the deed of trust on the mules recorded in
Quitman county, Miss. The prayer of the bill was for
judgment, etc. The defendants demurred, making the
point that there was no equity in the bill, because it
failed to show that the trust deed was registered in Ten-
nessee, or that the defendants had any notice thereof,
and did show that they were innocent purchasers. The
chancellor sustained the demurrer and dismissed the
bill. On appeal to the court of civil appeals, the decree
of the chancellor was affirmed. Thereupon a petition for
certiorari w T as filed in this court, to remove the cause

372 TENNESSEE BEPOBTS. [124 Tenn.

Newsum v. Hoffman.

from the court of civil appeals, and to have it retried
here.

The weight of authority undoubtedly is that when a
chattel mortgage is executed in a foreign State, where
the property then is, and where the mortgagor resides,
and has been duly recorded in that State, pursuant to its
laws, and is valid under the laws of that State, the mort-
gagee, under the rule of comity between States, must be
held to have the better right, upon the subsequent re-
moval of the property to another State, as against a levy-
ing or attaching creditor of, or an innocent purchaser
from, the mortgagor, in such States into which the prop-
erty has been so removed, although the mortgage is not
recorded in the latter State. See notes to Snider v.
Yates, 64 L. B. A., 353, and text of the following cases
and notes thereto : Skapard v. Hynes, 104 Fed., 449, 45
C. 0. A., 271, 52 L. E. A., 675 ; Nat. Bank of Commerce
V. Morris, 114 Mo., 255, 21 S. W., 511, 19 L. B. A., 463,
35 Am. St. Eep., 754 ; Handley v. Harris, 48 Kan., 606,
29 Pac, 1145, 17 L. E. A., 703, 30 Am. St. Eep., 322; Ord
National Bank v. Massey, 48 Kan., 762, 30 Pac, 124, 17
L. B. A., 127; Hornthal v. Burwell, 109 N. C, 10, 13 S.
E., 721, 13 L. E. A., 740, 26 Am. St. Rep., 556; Creelman
Lumber Co. v. Lesh, 73 Ark., 16, 83 S. W., 320, 3 Am.
and Eng. Ann. Cas., 108 ; Walter C. Jones v. North Pac.
Fish <& Oil Co., 42 Wash., 332, 84 Pac, 1122, 6 L. R. A.
(N. S.), 940, 114 Am. St. Eep., 131. This is true, al-
though the mortgagor is permitted to retain possession
until default, under the terms of the mortgage. Many

16 Cates] APRIL TEEM, 1911. 373

Newsum v. Hoffman.

States have spoken upon the question, and, so far as we
have been able to disco^r, the courts of only three of
them have rendered adverse decisions — Pennsylvania,
Louisiana, and Michigan. In some of the cases referred
to it is held that the foreign mortgagee waives his
priority in favor of incumbrances put upon the property
in the State to which it has been removed, or as to pur-
chases made therein, if he consented to such removal, or,
having knowledge thereof, did not, within a reasonable
time thereafter, assert his rights. Walter C. Jones v.
North Pac. Fish & Oil Co., supra, and the following
cases cited in the note thereto : Armitage-Hereschell Co.
v. Potter, 93 111. App., 602 ; Kanaga v. Taylor, 7 Ohio St.,
134, 70 Am. Dec, 62 ; Anderson v. Doak, 32 N. 0., 295 ;
National Bank v. Morris, supra; Qreene v. Bentley, 52
C. C. A., 60, 114 Fed., 112. See, also, Bank v. Bauman,
87 Neb., 25, 126 N. W., 654. In Creelman Lumber Co. v.
Lesh, supra, the majority of the court declined to ex-
press an opinion on this subject ; but Wood, 0. J., in con-
curring with the majority, gave it as his opiniorf that
the fact of consent or nonconsent by the mortgagee
should be held immaterial.

We are of the opinion, however, that the point is ma-
terial, and that the grace of comity should not be ex-
tended to cases wherein it appears that the mortgagee
consented to the removal, since in such cases he thereby
negligently places it within the power of the mortgagor
to deceive and defraud innocent people in the State into
which the property may be removed. This was one of

374 TENNESSEE REPORTS. [124 Tenn.

NewBum y. Hoffman.

the grounds on which the court decided the case of Sny-
der v. Tates, 112 Tenn., 309, 79 S. W., 796, 64 L. R. A.,
353, 105 Am. St. Rep., 941. In that case it appeared
that the mortgagor had removed the property from Illi-
nois to Tennessee, and entered into business with it as a
part of his manufacturing establishment, and that the
mortgage had been placed of record in this State, in the
county in which the factory or stave mill was located,
but not properly acknowledged for registration here.
From these facts we inferred that the property had been
removed to this State with the consent of the mortgagor.
Under these facts the case was correctly decided. How-
ever, we think it should be limited to its facts. The view
expressed in that case, that, while the contract should
be governed, as to its validity, by the lex loci contractus,
it is contrary to sound policy to permit the laws of a
foreign State to control in respect of priority of lien or
right ; that is to say, to permit foreign statutes regulat-
ing the filing and registration of chattel mortgages to
operate as notice, or to take the place of the common-
law rule which requires the mortgagee of chattels to take
possession, on pain of suffering a subordination of his
rights to creditors of, and innocent purchasers from, the
mortgagor, is supported by reasons that are obvious and
strong. Still, on further consideration, we yield to
the great weight of authority on the general question,
with the qualification concerning the effect of the con-
sent of the mortgagee above indicated. It seems a
churlish and ungracious course, if not an example of im-

16 Cates] APRIL TERM, 1911. 375

Newsum v. Hoffman.

provident judgment, to hold out against the generous
comity of the many States which recognize the rule of
interstate courtesy upon this subject. We are the more
easily reconciled to our withdrawal from the position
taken in the case of Snyder v. Yates, since our present
view is in accord with that formerly held by this court,
as shown in Hughes v. A bston, 105 Tenn., 70, 58 S. W.,
296, Bank v. Hill, Fontaine & Co., 99 Tenn., 42, 41
South., 349; Allen v. Bain, 2 Head, 101; Beaumont v.
Yeatman, 8 Humph., 542, 548; Oookin v. Graham, 5
Humph., 480; and Gait v. Dibrell, 10 Yerg., 146, 152-155.
The last case cited recognizes the distinction above laid
down that, if the property be removed to this State with
consent of the mortgagor, it becomes subject to our laws
and must be registered here. 10 Yerg., 153, 154. To
same effect is Gookin v. Graham. Lolly v. Holland, 1
Swan, 396, has been referred to. We do not think that
case is sound, in so far as it holds that a mortgage exe-
cuted in a foreign State, and duly recorded there, upon
a chattel at the time in this State, and continuing in this
State, confers a right superior to that of an innocent
purchaser of the property by purchase made in this
State.

On the grounds stated, the petition tor certiorari must
be granted, the court of civil appeals reversed, the de-
murrer overruled, and the cause remanded for answer
and further proceedings.

376 TENNESSEE REPORTS. [124 Term.

Hill y. Hotel Co.

S. D. Hill et ux. v. Memphis Hotel Company. #
(Jackson. April Term, 1911.)

1. INN8 AND INNKEEPER8. Who are Innkeepers and what are
Inns.

An "Innkeeper" is a person who publicly professes that he keeps
an "inn," a house of entertainment for travelers, and that he
will receive therein all travelers promising to pay an adequate
price and coming in a situation or condition fit to be received.
(Post, pp. 379, 380.)

2. SAME. What establishes the relationship of "host" and
"guest.*

To establish the relation of "host" and "guest" at an inn, the
traveler must visit the inn for the purpose of availing himself
of the entertainment offered, and the innkeeper must receive
the traveler for the purpose of entertaining him; but it is not
necessary that the traveler shall register in order to become
a guest of the innkeeper. The traveler's application for the
entertainment and the Innkeeper's furnishing of the same con-
stitute the relation of host and guest (Post, pp. 380-383.)

Cases cited and approved: Overstreet v. Moser, 88 Mo. App., 72;
Walling v. Potter, 35 Conn., 188; Pullman Palace Car Co. v.
Lowe, 28 Neb., 289; Wintermore v. Clark, 6 Sandt (N. Y.),
247.

Cases cited and distinguished: Hotel Co. v. Holohan, 112 Tenn.,
214; Gastenhofer v. Clair, 10 Daly (N. T.), 265.

•As to what acts, with respect to baggage of an intending
guest, will initiate the relation of innkeeper and guest so as to
create liability for its loss or injury, see note in 23 L. R. A. (N. S.),
1107.

16 Gates] APRIL TERM, 1911. 377

Hill v. Hotel Co.

3. 8AM E. Liability for traveler's baggage received Into Inn-
keeper's possession by his servants, without formal notice from
traveler, when.

Where an Innkeeper, a corporation, through its servants em-
ployed for that purpose, met a traveler on his arrival at the
hotel, and received his baggage into its possession, and de-
posited it at the usual place, and served him with such refresh-
ments as he desired, for which he paid the usual and custom-
ary charges, the Innkeeper is liable for the loss of the trav-
eler's baggage, and cannot escape such liability upon the
ground that the traveler did not formally notify the innkeeper
that he was a traveler who had resorted to the hotel to re-
ceive entertainment. {Post, pp. 383, 384.)

Case cited and approved. Blckerson v. Rogers, 4 Humph., 181.

FROM SHELBY.

Appeal from the Chancery Court of Shelby County to
the Court of Civil Appeals, and by certiorari from the
Court of Civil Appeals to the Supreme Court. — F. H.
Heiskell, Chancellor.

Caeuthebs Ewing, for plaintiffs.

Fitzhugh & Bbiggs and Thos. A. Evans, for defend-
ant.

378 TENNESSEE EEPOETS. [124 Tenn.

Hill y. Hotel Co.

Mb. Justice Lansden delivered the opinion * of the
Court

This bill was filed in the chancery court of Shelby
county against the Memphis Hotel Company to recover
the loss of a suit case and contents, which, it is alleged,
were lost while in the possession of defendant company,
and while the complainants were guests of the Hotel
Gayoso. This hotel is operated by the defendant com-
pany.

The facts are that on the evening of December 11,
1909, the complainants, who lived in the State of Okla-
homa, arrived at he Gayoso Hotel in Memphis, Tenn., en
route to New Orleans. They were assisted in alighting
from their carriage by a servant of the defendant com-
pany, who carried their baggage, consisting of three suit
cases, into the hotel office and deposited it near the
clerk's desk, along with the baggage of others who were
at that time coming into the hotel. The complainants
did not register as guests of the hotel, nor did they com-
municate with the clerk their intention to become guests,
and gave no directions about the care of their baggage.
Soon after entering the hotel, they went to the cafe or
dining room operated by the defendant as a restaurant
The Hotel Gayoso is operated upon the. European plan,
and the defendant furnishes guests their lodging without
meals, and their meals without lodging. The complain-
ants had dinner in the cafe of the defendant, which con-
sumed about one hour's time, and for which they paid

16 Cates] APRIL TERM, 1911. 379

Hill v. Hotel Co.

the sum of four or five dollars, and returned to the first
floor of the hotel above the office and lobby, and there
they enjoyed music that was being furnished for the en-
tertainment of guests of the hotel. Soon after leaving
the cafe, the complainant Hill went into the office and
bought a cigar, and at that time noticed the baggage of
himself and wife near the clerk's desk at the place where
it was first deposited by the servant of defendant. He
returned to the first floor above the office, and there in
company with his wife remained until about 10 o'clock,
when they resumed their journey to New Orleans.

The chancellor gave a decree in favor of complainants
of the sum of f 173.84, this being the value of the suit
case lost and contents, consisting chiefly of the wearing
apparel of the complainant Mrs. Hill. This decree was
reversed by the court of civil appeals, and complainants'
bill dismissed, and to the decree of the latter court the
complainants have filed their petition for writs of cer-
tiorari and supersedeas. The court of civil appeals was
of opinion that upon the facts just stated the complain-
ants never became the guests of the defendant for the
reason that they never notified the clerk, or any other
officer or agent of the defendant in authority, of their
arrival, and therefore they were not accepted by defend-
ant as its guests, notwithstanding they patronized its
cafe and were served and refreshed as guests.

An inn is a house of entertainment for travelers, and
an innkeeper is a person who publicly professes that he
keeps an inn, and will receive therein all travelers who

380 TENNESSEE REPORTS. [124 Term.

Hill t. Hotel Co.

promise to pay an adequate price and who come in a
situation fit to be received.

To establish the relation of host and guest, the
traveler must visit the inn for the purpose of availing
himself of the entertainment offered, and the innkeeper
must receive the traveler for the purpose of entertaining
him. These principles are conceded by all, and accepted
by the court of civil appeals; but that court was of
opinion that it was incumbent upon complainants to
give notice to the clerk, or some officer or agent of the
defendant company authorized to bind it in the matter,
before the relationship of host and guest could be estab-
lished.

In this we think the learned court was in error. The
defendant held itself out as an innkeeper and publicly
professed to entertain travelers for compensation. All
of the authorities agree that it is not necessary that a
traveler shall register in order to become a guest of the
innkeeper. It is sufficient if he visit the inn for the pur-
pose of receiving entertainment, and is entertained by
the keeper.

An application to the innkeeper for entertainment is
sufficient notice of the traveler's intention to become a
guest, and supplying his wants and furnishing the en-
tertainment in the way in which the innkeeper publicly
professes to entertain travelers are sufficient acceptance
to constitute the relationship of host and guest. This
may be of any form of entertainment which the inn-
keeper publicly professes to serve. The traveler receiv-

16 Cates] APRIL TERM, 1911. 381

Hill v. Hotel Co.

ing lodging without food, or food without lodging, or
any other form of refreshment which the innkeeper pub-
licly professes to serve in the usual and customary way
in which travelers are entertained, thereby becomes a
guest. 22 Cyc, 1075; 16 Am. and Eng. Enc. of Law (2d
Ed.), 519 ; Overstreet v. Moser, 88 Mo. App., 72; Walling
v. Potter, 35 Conn., 183.

The supreme court of Nebraska, in Pullman Palace
Car Company v. Lowe, 28 Neb., 239, 44 N. W., 226, 6 L.
R. A., 809, 26 Am. St. Rep., 325, quotes the following
from Walling v. Potter, 35 Conn., 183, supra, approv-
ingly :

"In Winter mute v. Clark, 5 Sandf. (N. Y.), 247, the
court says that, in order to charge a party as an inn-
keeper, it is not necessary to prove that it was only for
the reception of travelers that his house was kept open;
it being sufficient to prove that all who came were re-
ceived as guests, without any previous agreement as to
the time or terms of their stay. A public house of enter-
tainment, for all who choose to visit it, is the definition
of an inn. These definitions are really in harmony with
each other. Webster defines a traveler as one who
travels in any way. Distance is not material. A towns-
man or neighbor may be a traveler, and therefore a guest
at an inn, as well as he who comes from a distance, or
from a foreign country. If he resides at the inn, his re-
lationship to the innkeeper is that of a boarder ; but if
he resides away from it, whether far or near, and comes
to it for entertainment as a traveler, and receives it as

382 TENNESSEE REPORTS. {124: Tenn-

Hill t. Hotel Co.

such, paying the customary rates, we know of no reason
why he should not be subjected to all the duties of a
guest, and entitled to all the rights and privileges of one.
In short, any one away from home, receiving accommo-
dation at an inn as a traveler, is a guest, and entitled to
hold the innkeeper responsible as such."

The court of civil appeals rests its conclusion upon
the authority of Hotel Company v. Holohan, 112 Tenn.,
214, 79 S. W., 113, and Qastenhofer v. Clair, 10 Daly
(N. Y.), 265. A casual examination of Hotel Company
v. Holohan will disclose that the question involved here
was neither presented, discussed, nor decided by the
court in that case. In discussing the contention of coun-
sel for Holohan that the hotel company should be held
liable as a mere bailee in the event the court should be
of the opinion that it was not liable as an innkeeper, the
court held that inasmuch as Holohan did not place his
baggage in the possession or custody of the clerk or bag-
gage keeper, or any other employee of the hotel com-
pany, the company could not be held liable as an ordi-
nary bailee. However, in discussing the liability of the
hotel company as an innkeeper, the court negatively
stated the rule as follows :

"The universal rule seems to be that one cannot be-
come the guest of a hotel unless he procure some accom-
modations. He must procure a meal, room, drink, feed
his horse, or at least offer to buy something of jthe in-
keeper, before he becomes a guest."

The case of Oasrtenhofer v. Clair, supra, as annotated

16 Cates] APRIL TERM, 1911. 383

Hill v. Hotel Co.

in note 62, 22 Cyc, 1076, is authority for the position of
the court of civil appeals that there must be some com-
munication between the traveler and the keeper in order
to establish the relationship of host and guest. It, how-
ever, is not authority for the opinion of that court that
there must be communication between the traveler and
any particular officer or agent of the innkeeper. An ex-
amination of the case itself discloses that Qastenhofer
was not a traveler in the legal sense, and that he did not
go to the hotel for the purpose of receiving its accommo-
dations as such. Gastenhofer supposed that his uncle
was a guest of the inn, and he visited it for the purpose
of meeting him, but failed to do so. While waiting for
his uncle to come in, the dinner hour arrived, and he en-
tered the dining room and ate dinner. It was held that
Gastenhofer was not a guest of the hotel, and that the
waiter in the dining room was not a servant of the hotel
authorized to receive guests. This case is sound, and
was correctly decided, and is not in conflict with any of
the many authorities cited in support of this opinion.

The defendant, through its servant employed for the
purpose, met the complainants upon their arrival at its
hotel, received their baggage into its possession, and de-
posited it at the place where such baggage of travelers
and guests of the hotel was usually deposited, and served
them with such refreshments as they desired, for which
they paid its usual and customary charges; and it can-
not escape liability because it was not formally notified
by complainants that they were travelers who had re-

384 TENNESSEE REPORTS. [124 Tenn.

Hill y. Hotel Co.

sorted to the hotel for the purpose of receiving such re-
freshments as it publicly professed to serve, and enjoy-
ing the conveniences for rest which it had provided for
the traveling public.

It is said that this rule works a great hardship upon
innkeepers, and may subject them to great annoyances,
and sometimes to unjust losses. To this, we can only re-
ply that such is the law according to all of the authori-
ties, and as stated by this court in Dickerson v. Rogers,
4 Humph., 181, 40 Am. Dec., 642, to wit :

"Rigorous as this rule may seem, and hard as its
operation may be in a few instances, it is founded on the
great principle of public utility, to which all private
considerations ought to yield. Tor/ as Sir William
Jones justly observes (Bailments, 95), 'travelers, who
are most numerous in a rich and commercial country,
are obliged to rely almost implicitly on the good faith of
inkeepers, whose education and morals are none of the
best, and who might have frequent opportunities of as-
sociating with ruffians and pilferers, while the injured
guest would seldom or never obtain legal proof of such
combinations, or even of their negligence, if no actual
fraud had been committed by them.' "

The petition for certiorari is granted, and the decree
of the court of civil appeals is reversed, and that of the
chancellor is affirmed, with costs.

16 Cates] APRIL TERM, 1911. 385

State, ex rel., v. Lee.

State, ex rel. J. W. Cannon, v. James Led.
(Jackson. April Term, 1911.)

1. FACTS. Whether a justice of the peace has removed from his
district Is purely a question of fact.

The question whether a justice of the peace has removed from
the district for which he was elected is purely a question of
fact (Post, pp. 386, 387.)

Code cited and construed: Sec. 433 (S.); sec. 399 (M. ft V.);
sec. 344 (T. ft S. and 1858).

2. SAME. 8ame. Concurrent finding of facts by chancellor and
court of civil appeals will not be reviewed by the supreme court,
If supported by any evidence.

Where there is a concurrent finding upon any Issue of fact by
the chancellor and the court of civil appeals, the supreme
court will not review that finding, if there is any evidence to
support it; as where the chancellor and the court of civil ap-
peals have concurrently found that a justice of the peace has
removed from his district. (Post, p. 387.)

3. FACTS AND LAW. Decree reached by applying correct princi-
ples of law to conclusive concurrent findings of fact by chan-
cery court and court of civil appeals will be affirmed by su-
preme court.

Where the supreme court, upon examination of the record, is
satisfied that both the chancery court and the court of civil
appeals applied correct principles of law to their conclusive
concurrent findings of facts in reaching their decisions, the
decree will be affirmed. (Post, p. 387.)

124 Tenn.— 25

386 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Lee.

FROM SHELBY.

Appeal from the Chancery Court of Shelby County to
the Court of Civil Appeals, and by certiorari from the
Court of Civil Appeals to the Supreme Court. — H. Dent
Minor, Chancellor.

Z. N. Estbs and Greer & Greer, for complainant.

M. Kinney Barton and Caruthers Ewing, for de-
fendant.

Mr. Justice Green delivered the opinion of the Court.

This bill was filed in the name of the State, upon the
relation of a citizen, as stated in the caption, to vacate
the office of James Lee, a magistrate elected for the
Sixth district of Shelby county.

The chancellor granted the relief sought, and his de-
cree was affirmed by the court of civil appeals. A peti-
tion for certiorari was presented to a member of this
court, and granted by him, and the case in this way
brought before us for review.

Shannon's Code, section 433, provides: il Justices of
the peace shall vacate their office by removal from the
district for which they were elected. . . . "

Therefore the sole question in this case is whether or

16 Cates] APRIL TERM, 1911. 387.

m

State, ex rel., y. Lee.

not the defendant, James Lee, had removed from the
Sixth district of Shelby county, from which he was
elected.

This is purely a question of fact. The chancellor and
the court of civil appeals hara concurrently found that
the defendant did remove from his district.

Where there is a concurrent finding upon any issue of
fact by the chancellor and court of civil appeals, this
court will accept and will not go behind that finding, if
there is any evidence to support it. There is material
evidence to support this finding here.

We have examined the record, and the opinions of the
chancellor and of the court of civil appeals, and we are
satisfied that both courts applied correct principles of
law in reaching their conclusions herein.

The result is that the decree of the court of civil ap-
peals will be affirmed.

388 TENNESSEE REPORTS. [124 Tenn.

Scott v. Marley.

M. H. Soott v. Job Marley et al.
(Jackson. April Term, 1911.)

1. CONSTITUTIONAL LAW. Statute authorizing Judge, In hie
discretion, to make attorney fees a common charge In partition
cases is not unconstitutional as delegating legislative functions.

The statute (Acts 1887, ch. 183, compiled in section 6035 of
Shannon's Code), providing that in partition cases the court
may, in its discretion, order the fees of the attorneys for both
parties to be paid out of the common fund, where the property
is sold for partition, and to be taxed as costs where the prop-
erty is partitioned in kind, is not unconstitutional as delegating
legislative functions to the judiciary by authorizing the Judge
to award, arbitrarily and at his pleasure, attorneys' fees out
of the fund; for the discretion conferred upon the Judge is a
Judicial discretion, a legal and regular power of discretion, the
abuse of which may be reviewed. The court simply exercises
a sound Judicial and, in case of abuse, a reviewable discretion,
in applying the law to the ascertained facts. {Post, pp. 393-
395.)

Code cited and construed: Sec. 5035 (S.).

Acts cited and construed: Acts 1887, ch. 183.

Constitution cited and construed: Art 2, sec. 2.

2. WORDS AND PHRASES. Judicial discretion Is defined.

Judicial discretion, in its broadest meaning, is that sense of right
and Justice from which has arisen a variety of legal and equi-
table principles or rules never written into any constitution,
code, or legislative act, but which nevertheless, by the sanction
and approval of the courts, have become component parts of
the law of the land; and in its narrower sense, It is the capa-
city of the presiding Judge to understand and apply the law
of the land to the particular facts of each case in Judgment,
so that the rights of the parties may be declared and enforced
according to the law of the land. (Post, pp. 394, 395.)

16 Gates] APRIL TERM, 1911. 389

Scott v. Marley.

3. CONSTITUTIONAL LAW. Legislature cannot delegate power
to make laws, but its delegation of Judicial discretion already
possessed by the courts to apply the law to the facts does not
vitiate the law. ■

While the legislature cannot constitutionally delegate its power
to make a law, it can make a law delegating to the courts the
power and discretion to determine some fact or state of things
to which the law applies or upon which the law operates; for
the courts, under the constitution, possess the power to exer-
cise judicial discretion in the application of the laws, and the
fact that a particular statute assumes to delegate a judi-
cial discretion already possessed by the courts does not vitiate
the statute, nor make it unconstitutional. (Post, pp. 395-397.)

Acts cited and construed: Acts 1887, ch. 183.

Cases cited and approved: Samuelson v. State, 116 Tenn. f 48B;
Mores v. Reading, 21 Pa., 202; Locke's Appeal, 72 Pa., 491.

4. SAME. Statute whose title gives ample notice of the legisla-
tion contained in Its body is not unconstitutional because Its
body does not cover the whole extent of the title.

A statute (Acts 1887, ch. 183, compiled in section 5035 of Shan«
non's Code), entitled "An act to regulate the practice in par-
tition cases, and to provide for the expense of the same," and
whose body provides that in partition cases the court may, in
its discretion, order the fees of the attorneys of both parties
to be paid out of the common fund where the property is sold
for partition, and to be taxed as costs in cases where the prop-
erty is partitioned in kind, is not unconstitutional upon the
ground that its title insufficiently expresses the subject of leg-
islation contained in its body, because its title certainly gives
ample notice of the legislation contained in its body; and the
body of the act is not required to cover the whole domain
within the title. (Post, pp. 397, 398.)

Acts cited and construed: Acts 1887, ch. 183.

Constitution cited and construed: Art 2, sec. 17.

390 TENNESSEE REPOETS. {124 Tenn.

Scott y. Marley.

Cases cited and approved: Cannon v. Matties, 8 Helsk., 519;
Prazier v. Railroad, 88 Tenn., 140; State v. Yardley, 95 Tenn.,
546; State v. Brewing Co., 104 Tenn., 728.

5. 8AM E. 8tatute whose title and body cover the practice and
expense in partition cases is not unconstitutional as embracing
more than one subject.

rhe statute (Acts 1887, ch. 183), whose title is quoted and whose
body is substantially stated in toe next preceding headnote, is
not unconstitutional as embracing more than one subject in
violation of the constitutional requirement (art 2, sec. 17) that
no bill shall become a law which embraces more than one sub*
ject, that subject to be expressed in the title, because there is
only one subject covered by the act, namely, the practice, in
partition cases. (Post, p. 398.)

Act cited and construed: Acts 1887, ch. 183.

Constitution cited and construed: Art 2, sec 17.

Cases cited and approved: Cannon v. Mathes, 8 Heisk., 604;
Luehrman v. Taxing District, 2 Lea, 426; Morrell v. Fickle, 8
Lea, 79; Frazier v. Railroad, 88 Tenn., 156; Manufacturing Co.
v. Falls, 90 Tenn., 469; State v. Yardley, 95 Tenn., 554; Peter-
son v. State, 104 Tenn., 131; Condon v. Maloney, 108 Tenn.,
99; Furnace Co. v. Railroad, 113 Tenn., 727.

6. 8AM E. 8tatute authorizing payment of fees of attorneys out
of common fund In partition cases Is not unconstitutional as
taking property without the judgment of peers, or not by the
law of land.

Said statute, In authorizing the payment of the fees of the attor-
neys out of the common fund, or to be taxed as costs, in par-
tition cases, is not unconstitutional as the taking of property
of an unwilling or unconsenting party other than by the judg-
ment of his peers, or other than by the law of the land. (Post,
pp. 398, 399-404.)

Acts cited and construed: Acts 1887, ch. 181

Constitution cited and construed: Art. 1. sec. 8.

16 Cates] APRIL TERM, 1911. 391

Scott y. Marley.

7. SAME. Statute authorizing payment of feet of attorneys out
of common fund In partition cates It not unconttltutional at
arbitrary or capricious clatt legislation.

The said statute, in authorizing the payment of the fees of the
attorneys out of the common fund, or to be taxed as costs, in
partition cases, is not unconstitutional as class legislation, be-
cause the classification is reasonable and natural, and not
arbitrary or capricious; for partition suits naturally and rea-
sonably belong to a class by themselves. (Post,' pp. 399-404.)

Code cited and construed: Sec. 5035 (S.).

Acts cited and construed: Acts 1887, ch. 183.

Constitution cited and construed: Art 11, sec. 8.

Cases cited and approved: DaviB v. State, 3 Lea, 379; Demoville
v. Davidson Co., 87 Tenn., 215; Bierce v. James, 87 Tenn., 538;
Cook v. State, 90 Tenn., 407; Railroad v. Crider, 91 Tenn., 490;
Turnpike Cases, 92 Tenn., 369; Dugger v. Insurance Co., 95
Tenn., 245; Henley v. State, 98 Tenn., 667; Debardelaben v.
State, 99 Tenn., 649; Railroad v. Harris, 99 Tenn., 684; Harbi-
son v. Knoxville Iron Co., 103 Tenn., 421; Dayton Co. v. Barton,
103 Tenn., 604 (affirmed by supreme court of the United States
in 183 U. S., 23); Leeper v. State, 103 Tenn., 500; State v.
Brewing Co., 104 Tenn., 715; Condon v. Maloney, 108 Tenn.,
82; Neas v. Borches, 109 Tenn., 398.

8. SAME. 8tatute authorizing payment of fees of attorneys out
of common fund in partition cases Is not unconstitutional as
taking the property of an unconsenting owner, without Just
compensation.

The said statute, in authorizing the payment of the fees of the
attorneys out of the common fund, or to be taxed as costs, in
partition cases, is not unconstitutional as violating the con-
stitution prohibition against the taking of property of an un-
consenting owner, without just compensation. (Post, pp. 399-
404.)

Acts cited and construed: Acts 1887, ch. 183.

Constitution cited and construed: Art. 1, sec. 21.

392 TENNESSEE REPORTS. [124 Tenn.

Scott y. Marley.

9. SAME. 8tatute authorizing payment of fees of attorneys out of
common fund in partition cases is not unconstitutional as de-
priving owner of property without due process of law and as
denying the equal protection of the laws.

The said statute, in authorizing the payment of the fees of the
attorneys out of the common fund or to be taxed as costs, in
partition cases, is not unconstitutional as depriving an un-
consenting party of his property without due process of law,
and as denying to him the equal protection of the laws. (Post,
pp. 399-404.)

'Acts cited and construed: Acts 1887, ch. 183.

Constitution cited and construed: 14th am. (U. S.).

10. PARTITION. Fees of the attorneys of both parties may be
fixed and paid out of the common fund.

The said statute providing that in all partition cases the court
may, in its discretion, order the fees of the attorneys of both
parties to be paid out of the common fund, is specially applica-
ble where the tenants in common are numerous, and many of
them own small interests; and the allowance, amount, and
apportionment of the fees of the attorneys in such case is
largely in the sound legal discretion of the court in which the
partition suit is conducted, subject to review for abuse. No
general rule should be laid down by the supreme court as to
the application of this statute; but the fees of the attorneys
of both parties may be allowed out of the common fund. (Post,
pp. 404-414.)

Code cited and construed: Sec. 5035 (S.).

Acts cited and construed: Acts 1887, ch. 183.

FROM LAUDERDALE.

- Appeal from the County Court of Lauderdale County.
— Geo. W. Young, Judge.

16 Cates] APBIL TERM, 1911. 393

Scott y. Marley.

J. W. Kirkpatrick & Son and Fitzhugh & Biggs, for
complainant.

McKinney & Pearson, and Lehman, Gates & Mar-
tin, for defendants.

Elias Gates, guardian ad litem for minor defendants.

Mr. Justice Buchanan delivered the opinion of the
Court.

The primary question involved in this suit is the
validity of chapter 183 of the Acts of 1887, which is
carried into Shannon's Code as section 5035. This act
is assailed as unconstitutional and void. The act is as
follows :

"An act to regulate the practice in partition cases,
and to provide for the expense of the same.

"Section 1. Be it enacted by the general assembly of
the State of Tennessee that in all partition cases in the
courts of this State, the court may in its discretion order
the fees of the attorneys for the complainant and defend-
ant to be paid out of the common fund, where the prop-
erty is sold for partition, and taxed as cost in cases
where the property is partitioned in kind.

"Sec. 2. Be it further enacted that this act take effect
from and after its passage, the public welfare requiring
it."

The first ground of assault upon this act is that it vio-

394 TENNESSEE REPORTS. [124 Tenn.

Scott v. Marley.

lates section 2 of article 2 of the constitution of Ten-
nessee, in that, as claimed, the legislature in its passage
delegated legislative functions to the judicial depart-
ment

The argument in support of the above contention is
that under this act the judge of the court may exercise
the discretion conferred at his pleasure; that he may
exercise it in one case, and not in another; that he may
exercise it in one county, and not in another; that, in
short, his will is the law, and his arbitrary discretion the
measure of right between the parties. This contention,
we think, is a misconstruction of the act In the first
place, the discretion which is conferred on the judge is a
judicial discretion, and is not an arbitrary, vague, or
fanciful discretion, but is a legal and regular power or
discretion, the abuse of which by the judge is subject to
review by writ of error or by appeal.

A judicial discretion is defined by Lord Coke to be
"discernere per legem quid sit justum" or "to see what
would be just according to the laws in the premises."
Lord Mansfield says on the same subject: "Discretion
when applied to a court of justice means sound discre-
tion guided by law. It must be governed by rule, not by
humor. It must not be arbitrary, vague, and fanciful,
but legal and regular." 23 Cyc, p. 1617.

Judicial discretion in its broadest meaning is that
sense of right and justice from which has sprung a vast
array of legal and equitable principles never written in
any constitution, code, or legislative act, but' which

16 Cates] APRIL TERM, 1911. 395

Scott y. Marley.

nevertheless by the sanction and approval of the courts
have become component parts of the law of the land. In
its narrower sense it is the capacity of the individual
judge presiding over a particular court to perceive and
apply to the facts of each case in judgment the law of
the land, so that in each case the rights of the parties un-
der the facts of the case may be declared and enforced
according to the law of the land.

By the act of 1887, the legislature did not delegate
legislative power to the court. The only power at-
tempted to be conferred upon the court by this act is to
determine a state of facts in each particular case, where-
in, according to the law of the land, attorney's fees in
partition cases should be taxed as costs or paid out of the
common fund. By the application of this act, the court
does make the law. It only finds the facts in cases where
the law applies. The law is made by the legislature in
the passage of the act, and the court simply exercises a
sound judicial, and, in case of abuse, reviewable discre-
tion in applying the law to the facts. The court exer-
cises the same kind of judicial discretion when it appor-
tions costs between parties, and when it delivers instruc-
tions to the jury, and when it does numberless other
things Which courts do, and have done from time imme-
morial, and which are necessary to be done by courts in
the administration of justice.

It is not within the constitutional power of the legisla-
ture to delegate its power, but it may make a law and
delegate to the courts the power and discretion to find

396 TENNESSEE REPORTS. [124 Tenn.

Scott r. Mmrlef.

the state of facts to which the law applies, and, if the
law 00 made be within the limits of the constitutional
power of the legislature, then the fact that coupled with
the legislative act is a delegation of power to the courts
to apply the law, and to exercise a judicial discretion in
its application, does not vitiate the law. Locke's Ap-
peal, 72 Pa., 491, 13 Am. Rep., 716; Moers v. Reading, 21
Pa., 202.

"The legislature cannot delegate its power to make a
law, but it can make a law to delegate a power to deter-
mine some fact or state of things upon which the law
makes or intends to make its own action depend. To
deny this would be to stop the wheels of government."
Samuehon v. State, 116 Tenn., 486, 95 8- W., 1016, 115
Am. St Rep., 805.

Strictly speaking, the act of 1887 need not have vested
any discretion in the courts to apply the act, for the dis-
cretion so to do belongs to the courts, under the constitu-
tion, but the fact that the act does assume to delegate a
discretion to the courts, which the courts already pos-
sess, does not vitiate the act The legislative will is reg-
istered in the words of the act as follows :

"That in all partition cases in the courts of this State,
the fees of the attorneys for the complainant and defend-
ant may be paid out of the common fund, where the
property is sold for partition and taxed as costs where
the property is partitioned in kind."

The balance of the act as to the discretion of the
courts is merely surplus, but wholly harmless legislative

16 Cates] APEIL TERM, 1911. 397

Scott ▼. Marley.

energy. Much more might be said in defense of this act
under the first ground on which it is assailed, but it is
believed that the foregoing is conclusive, and we are
satisfied that the first ground of assault is not well
taken.

The second ground of impeachment of this act is that
it violates article 2, section 17, of the constitution of Ten-
nessee, in that as claimed the title of the act does not ex-
press the subject of the legislation in the body of the act.

This objection is not well taken ui)der our authorities.

"The enactment must come within the title, but in no
case is it required to cover the whole domain within the
title. The constitution forbids that an enactment shall
go beyond the limits of its title, but there is no require-
ment that it shall completely fill it. Our statute books
afford numerous instances of somewhat meager enact-
ments under ample titles, and there are perhaps but few
of those with broad and general titles that would not
admit of some additional provision."

The foregoing is a quotation from the opinion of this
court in State v. Schlitz Brewing Co., 104 Tenn., 728, 59
S. W., 1035, 78 Am. St. Rep., 941. To the same effect,
see State v. Tardley, 95 Tenn., 546, 32 S. W., 481, 34 L.
R. A*, 656 ; Cannon v. Mathes, 8 Heisk., 519 ; Frazier v.
Railway Co., 88 Tenn., 140, 12 S. W., 537; Cooley's
Const Lim. (5th Ed.), p. 174.

The title to the act of 1887 certainly gives ample no-
tice of the legislation covered by the body of the act ; and,
this being true, the constitutional requirement is met,

398 TENNESSEE REPORTS. {124 Tenn.

Scott ▼. Marley.

and the second objection, we think, is therefore not well
taken.

The third objection to the act is also based on section
17 of article 2 of the constitution of Tennessee on the
ground that it violates that portion of said section,
which requires that no bill shall become a law which em-
braces more than one subject, that subject to be ex*
pressed in the title.

The answer to this criticism of the act is that only one
subject is covered by the title of the act The one sub-
ject covered is the practice in partition cases. This in
itself is a sufficient answer to the objection, and this ob-
jection is therefore not well taken, and the act on this
point is well sustained by the following Tennessee au-
thorities: Cannon v. Mathes, 8 Heisk., 504; Luehrman
v. Taxing District, 2 Lea, 426 ; Morrell v. Fickle, 3 Lea,
79; Frazier v. Railroad, 88 Tenn., 156, 12 S. W., 537
Cole Mfg. Co. v. Falls, 90 Tenn., 469, 16 S. W., 1045
State v. Yardley, 95 Tenn., 554, 32 S. W., 481, 34LR
A., 656 ; Peterson v. State, 104 Tenn., 131, 56 S. W., 834
Condon v. Moloney, 108 Tenn., 99, 65 S. W., 871 ; Fur
nace Co. v. Railroad Co., 113 Tenn., 727, 87 S. W., 1016

There are four other grounds of assault upon this act,
which are as follows : That it violates article 1, section
8, of the constitution of the State of Tennessee. The
point of this objection is that the act authorizes the pay-
ment of attorney's fees out of a common fund, resulting
from the sale of property of which the complainant and
the defendant are tenants in common, and therefore, so

16 Cates] APEIL TERM, 1911. 399

Scott v. Marley.

far as any unwilling or unconsenting party to the suit is
concerned, is a taking of property other than by the
judgment of the peers of such party, or other than by
the law of the land.

The next objection is that the act violates article 11,
section 8, of the constitution of Tennessee, in that it is
a species of class legislation thereby condemned.

The next objection to the act is that it violates article
1, section 21, of the constitution of Tennessee, in that it
authorizes the taking of a fund, resulting from the sale
of a common property of which fund an unconsenting
party may be part owner, and applying a portion of his
interest in such fund to the payment of the fee of an at-
torney, who was not employed by such unconsenting
party, and therefore amounts to a taking or application
of the funds of the unconsenting party without just com-
pensation to him, and contrary to the provisions of said
section of the constitution.

The next and last objection to the act is that it vio-
lates the fourteenth amendment to the constitution of
the United States, in that the act authorizes the applica-
tion of a common fund of which an unconsenting party is
part owner, to the payment of attorney's fees, not con-
tracted for by the unconsenting party, and therefore de-
prives such unconsenting party of his property without
due process of law, and denies to him the equal protec-
tion of the laws.

These last four objections to the act may properly be
treated as one. It is a complete answer to each and all

400 TENNESSEE REPORTS. [124 Tenn.

Scott v. Marley.

of the objections to the act to say that the application of
the fund of an nnconsenting party to the payment of at-
torney's fees in a partition suit, under the judgment of
the court in which the partition, by sale or in kind, of
the common property is accomplished, where the judg-
ment is properly exercised, is according to the law of
the land, and is due process of law ; and that the placing
of partition suits in a class to themselves is not arbi-
trary or capricious classification, such as is prohibited
by the foregoing sections of the State constitution, and
the fourteenth amendment to the constitution of the
United States. This is true because it is apparent that
partition suits naturally and reasonably belong in a
class by themselves, whether the partition be accom-
plished in kind, or where that cannot be done, by a sale
of the common property. Therefore such a proceeding,
whether the partition be made in kind or by sale, is made*
for the benefit of all the parties interested as owners of
the property.

It is further apparent that inasmuch as such a pro-
ceeding is for the benefit of each and all of the interested
parties, and inasmuch as the legal services necessary to
be rendered in order to effectuate a partition in kind or
a sale of the property are such in their nature as usually
may be performed by one attorney or one firm, that such
services when so rendered by one attorney or one firm
are properly chargeable, according to principles of right
and justice against the common fund, if the partition be

16 Cates] APRIL TERM, 1911. 401

Scott v. Marley.

by sale or against the common property if the partition
be accomplished in kind.

It is likewise apparent that, when such services are
rendered by one firm or one attorney, the services have
inured to the benefit and advantage of each owner of
the common property, and that compensation should,
according to principles of justice, be made to the person
or persons rendering the service by each of the common
owners in proportion to the interest of each in the com-
mon property; therefore, when payment for attorney
fees, under such circumstances is made, it cannot be said
that the property of any unconsenting party, or any par-
ty who has not taken part in the employment of the at-
torney, or firm, rendering the common service, has been
taken or applied to the payment of the debt of any other
person. On the contrary, where the attorney's fees are
taken out of the common fund, or taxed as a charge
against the common property, each owner pays in propor-
tion to his interest in the property that amount of the
fee, for which as an owner of the common fund, or as an
owner 6f the common property, the exact equivalent
of service has been rendered to him, and for his
benefit in proportion to the amount which has been
charged against his interest in the common prop-
erty, or of the amount which has been substracted from
his interest in the common fund, in order to pay and dis-
charge the claim of the attorney or firm for services ren-
dered in securing the partition in kind, or the sale of the
property.

124 Tenn. — 26

402 TENNESSEE REPORTS. [124 Tenn.

Scott y. Marley.

The foregoing is manifestly the theory, and the whole
theory, upon which the act of 1887 is based, and this
theory of the legislation is a complete answer to the va-
rious objections above named, that the act authorizes
the taking of the property of an unconsenting party to
discharge the debt of another person, or that it is the
taking of the property of such party without just com-
pensation, or that it is the taking of the property of such
party without due process of law.

The answer is equally conclusive and satisfactory to
the objection made that the placing of partition suits in
a class by themselves in an unnatural and palpably arbi-
trary and capricious act on the part of the legislature.

"Many things are necessary in a suit for partition for
which expense must be incurred which can rarely or nev-
er arise in other suits or actions, and when necessary
they may be procured and paid for, and the amount so
paid be allowed to the party making payment, such, for
instance, as the drawing of the commissioners' return,
and the making of all books and plats required as a part
thereof, or in connection therewith, the expenses of pro-
curing the services of necessary surveyors, and the
making of surveys, of giving notice of, and conducting
sales, of the services of the commissioners or referees,

. . . of procuring the attendance of witnesses, or
the services of auctioneers, or of guardians ad litem. 7 '
30 Cyc, p. 294.

And it may well be said, in addition to the above, that
in such suits the adjustment of costs between the inter-

16 Cates] APRIL TERM, 1911. 403

Scott v. Marley.

ested parties, and the question of attorney's fees and
the adjustment of the burdens of such fees between the
parties interested in the property, are matters which, as
before remarked, in the very nature of the environment
of the parties, and the common interest in the subject-
matter of the litigation places partition suits naturally
and reasonably in a class by themselves, and apart from
other classes of suits, and they have been so classified by
our legislation prior to the act of 1887. Bierce v. James,
87 Tenn., 538, 11 S. W., 788.

The subject of constitutional classification of objects
for legislation has been so often before this court that we
deem it unnecessary in this opinion to attempt to trace
analogies between this and other classifications which
have been sustained, and it will suffice here to say that
we think the classification made by chapter 183 of the act
of 1887, now carried as section 5035 of Shannon's Code,
is a reasonable and natural one, and not obnoxious to
any provision of the constitution of the State, or of the
United States, as will appear by examination of the fol-
lowing authorities : Dams v. State 3 Lea, 379 ; Condon
v. Moloney, 108 Tenn., 82, 65 S. W., 871 ; State v. Schlitz
Brewing Co., 104 Tenn., 715, 59 S. W., 1033, 78 Am. St.
Rep., 941; Demoville v. Dcmdson County, 87 Tenn., 215,
10 S. W., 353; Cook v. State, 90 Tenn., 407, 16 S. W.,
471, 13 L. R. A., 181; Railroad v. Crider, 91 Tenn., 490,
19 S. W., 618; Turnpike Cases, 92 Tenn., 369, 22 S. W.,
75; Bugger v. Ins. Co., 95 Tenn., 245, 32 S. W., 5, 28 L.
R. A., 796; Henley v. State, 98 Tenn., 667, 41 S. W., 352,

404 TENNESSEE REPORTS. [124 Tenn.

Scott y. Marley.

1104, 39 L. R. A., 126 ; Debardelaben v. State, 99 Tenn.,
649, 42 S. W., 684; Railroad v. Harris, 99 Tenn., 684, 43
S. W., 115, 53 L. R. A., 921 ; Harbison v. KnoxvUle Iron
Co., 103 Tenn., 421, 53 S. W., 955, 56 L* R. A., 316, 76
Am. St. Rep., 682; Id., 183 U. S. 21, 22 Sup. Ct., 1, 46 L.
Ed., 55 ; Dayton Co. v. Barton, 103 Tenn., 604, 53 S. W.,
970, affirmed by the Supreme Court of the United States,
183 U. S., 23, 22 Sup. Ct, 5, 46 L. Ed., 61; Leeper v.
State, 103 Tenn., 500, 53 S. W., 962, 48 L. R. A., 167 ;
Neas v. Borches, 109 Tenn., 398, 71 S. W., 50, 97 Am. St.
Rep., 851.

Time and space are not at our command to comment
upon the authorities to which we are cited in the able
brief of counsel assailing the constitutionality of the act.
Suffice it to say we do not regard them as of controlling
weight against the views herein expressed.

The constitutionality of chapter 183 of the act of 1887
being established, the next questions presented by this
case arises upon five assignments of error leveled at the
final decree of the county court of Lauderdale county in
which the cause originated, and was conducted as a par-
tition proceeding. Said assignments of error are as fol-
lows:

"First. The lower court erred in ordering or adjudg-
ing that any of the fees for the solicitors representing
adult parties should be paid out of the general fund, be-
cause there is no principle of equity jurisprudence nor
any statute which justifies such action, and the only au-
thority or warrant for the court to allow the said fees

16 Cates] APRIL TERM, 1911. 405

Scott v. Marley.

for the adult parties out of the general fund is to be
found in the acts of the general assembly of Tennessee
of 1887, ch, 183, which said act is unconstitutional.

"Second. The lower court erred in adjudging and de-
creeing that the fee for the complainants' solicitors
should be paid out of the general fund.

"Third. The lower court erred in adjudging and de-
creeing that the fee for the guardian ad litem should
be paid out of the general fund in this cause.

"Fourth. Assuming that the action of the lower court
in ordering the fees for complainant's solicitors be paid
out of the general fund is proper, then nevertheless the
lower court erred in allowing a fee of f 4,500 to the com-
plainant's solicitors, because such fee is unreasonable
and exorbitant.

m

"Fifth. Assuming that the lower court has power and
jurisdiction to allow fees to attorneys for the adult par-
ties out of the general found, then the lower court erred
in allowing and awarding to the attorneys for complain-
ant a fee of $4,500 and in denying to the attorneys for the
defendant the payment of any fee out of the general
fund."

The first, second, and third assignments of error are
each predicated upon the invalidity of the act of 1887,
and under the views already set out must be overruled.

The fourth and fifth assignments of error raise the
only remaining questions, and may be disposed of to-
gether. This necessitates a comprehensive but necessa-
rily brief view of the proceedings in the county court.

406 TENNESSEE REPOBTS. [124 Tenn.

Scott y. Marley.

The suit was for the partition of the lands owned by
Capt. Joe C. Marley, who died intestate on the 11th day
of May, 1909, a resident of Lauderdale county, Tenn.
He wag an unmarried man, and died leaving no direct
issue. His real estate consisted largely of timbered
lands, located in the lowlands of the Mississippi river.
His heirs at law were one full sister, Mrs. M. H. Scott,
the complainant in the partition suit, one half-brother,
W. H. Marley, whose interest in the estate was purchased
by Mrs. M. H. Scott, prior to the filing of this suit. By
this purchase and by inheritance, Mrs. Scott became en-
titled to one-third of the land of the intestate. The re-
mainder of the land was inherited by the heirs at law of
four half brothers and sisters, all of whom had died be-
fore the intestate. These heirs at law were residents of
Tennessee, Arkansas, Louisiana, Texas, and perhaps of
other States. Many of these heirs at law were unknown,
and, in advance of the filing of the bill, it was necessary
that their names and places of residence should be ascer-
tained, and also necessary that a description of the lands
owned by the intestate should be obtained.

The law firm of J. W. Kirkpatrick & Sons was em-
ployed by Mrs. M. H. Scott to accomplish a partition of
the estate, and after performing the very considerable
labor, hereinbefore indicated, this firm filed the partition
bill. Among other labors, it became necessary for one
member of this firm to make a journey to Goldsmith,
Tex., some four hundred or five hundred miles west of
Dallas, and to make a drive some ten miles in the country

16 Cates] APRIL TEEM, 1911. 407

Scott v. Marley.

for the purpose of taking the deposition of some witness-
es residing there, and whose depositions were necessary
in the cause. It also became necessary for this firm to
have a receiver appointed for the purpose of collecting
the rents on the land for the years 1909 and 1910, and
to render advice and assistance to the receiver. The ap-
pointment of this receiver brought into the case for dis-
tribution |4,037.60.

This firm also filed an amended bill for the purpose
of bringing in some heirs at law whose names had been
omitted in the original bill. This firm also took deposi-
tions of six witnesses in addition to the depositions of
a number of other witnesses taken for the purpose of de-
termining what would be reasonable attorney's fees for
the solicitors of the complainant, and for the guardian
ad litem, and of the counsel representing the defendant
in the cause.

The lands of the intestate consisted of some fifteen
tracts of timbered lands, and several farm tracts located
at different points in the county of Lauderdale, most
of which, however, consisted of timbered lands situated
in the Mississippi lowlands, as already stated.

Various papers prepared by the firm of J. W. Kirkpat-
rick & Son, as appears from the record, were as follows :
The original bill covered some seventeen pages of the
record; two orders of publication; four orders pro con-
fesso; one order to set aside pro confesso; one order of
revivor; one order for the appointment of a surveyor;
an order opening bids ; an order of reference ; an order to

408 TENNESSEE REPORTS. [124 Tenn.

Scott v. Marley.

pay out funds; petition to open biddings; receiver's
bond; the report of the receiver; a supplemental bill
covering some nine pages of the record ; two amendments
to the bill ; an order appointing receiver to collect rents ;
two orders appointing guardian ad litem, etc.

The firm also took an active interest in advertising
the lands for sale, and in securing bidders for the lands
in the partition sale. The lands of the estate were de-
creed to be sold for partition, instead of being divided in
kind.

Defendants to the partition proceedings who were
adults, were represented in the cause by Messrs. Lehman,
Gates & Martin, and McKinney & Pierson. The minor
defendants in the cause, some five or six in number, who
were entitled to an interest in the proceeds of the sale,
approximating some $1,200, were represented by Mr.
Elias Gates, their guardian ad litem; Mr. Gates being
a member of the firm of Lehman, Gates & Martin. The
contest here is between the law firm, which represented
the complainant in the suit, and the two law firms which
represented the defendants in the suit, in the interest of
their respective clients. The net result in dollars and
cents of this proceeding was as follows :

Proceeds of land sale $50,343 50

Rents, amounting- to 4,037 67

Making a total of $54,381 17

The county court allowed a fee amounting to $4,500
to the attorneys for the complainant, J. W. Kirkpatrick

16 Cates] APRIL TERM, 1911. 409

Scott v. Marley.

& Son, and directed that the same be taxed as costs and
paid out of the common fund belonging to the complain-
ant and the defendant in the cause.

Said conrt farther decreed that a reasonable fee for
the guardian ad litem, Elias Gates, was the sum of f 500,
and directed that said sum be paid out of the costs of the
cause. The court also decreed that the sum of f 2,500
was a reasonable fee to be charged by the solicitors of the
adult defendants to their clients for services rendered
in said cause, but declined to allow said fee to be taxed
against the common fund in the cause as costs thereof.

There is much proof in the record from members of the
Ripley bar tending to show that the services rendered
by the contending parties herein were reasonably worth
the amount, which the court decreed in favor of each
firm as aforesaid.

As to the services rendered by the attorneys represent-
ing the defendants Mr. McKinney, now Chancellor Mc-
Kinney, testified as follows :

"The first thing we did was to have the order pro con-
fesso set aside entered against the defendants, to which
there was no opposition. As I recollect the matter, we
then filed answers for the guardian ad litem. We then
began preparing for taking proof, etc., and consulted
and acted in conjunction with solicitors for complainant
in this matter. The first thing I did was to sit down and
figure out the interest of the respective heirs of J. O.
Marley (they being numerous), and I then discovered
that some of the heirs were not before the court, and dis-

410 TENNESSEE REPORTS. [124 Tenn.

Scott v. Marley.

cussed the matter with solicitor for complainant, the
result being that he prepared an amendment, making
them parties and had publication made. We then dis-
cussed the taking of proof and it was decided to send
J. W. Kirkpatrick, Jr., to Texas, to take deposition of
some of the Marley relatives to prove who the heirs were,
which was done.

"We then took the deposition of some local parties to
piwe the allegations of the bill, including the advisabil-
ity of having the lands sold for partition. We also in
conjunction with solicitors for complainants discussed
the advisability of appointing a receiver, and we finally
agreed to have G. M. Partee appointed receiver, which
was done. I think solicitor for complainant prepared
this order. We then discussed the advisability of having
some of the larger tracts cut into smaller tracts, and de-
cided that it was best, and Dave De Walt appointed to
do the work, which he did, and I drew the order confirm-
ing his report and making an additional amendment to
the bill, or rather I dictated same to the stenographer of
complainant's solicitor. After this was done, it became
necessary to revive the cause, a matter that was done by
consent, except as to some minors, and the order reviving
was drawn by solicitor of complainant, but I drew the
order appointing Elias Gates guardian ad litem for the
minors, and prepared and filed his answer for them.

"After this, I dictated to stenographer for solicitor
for complainant the principal decree in the cause, ad-
judging the rights of the parties and ordering the lands
sold. Of course, solicitor for complainant and myself

r

16 Cates] APRIL TERM, 1911. 411

Scott v. Marley.

discussed together this matter as well as all other mat-
ters, and agreed what the decree should contain. After
the land was ordered sold, we did what we could to get
parties interested in the sale of the property, and I went
in person (taking me several days) and looked at all the
land, with the exception of two or three small tracts.

"I bid on nearly all of the tracts or had them bid on,
and know that, on account of my bidding, the lands sold
for several thousand dollars more than they would have
sold for had I not bid on same. For example, the two
lots on the square in Ripley were knocked off at the orig-
inal sale to complainant for f 2,000. I raised the bid, and
was the only other person who bid on same, and ran it up
to 12,995. I prepared the decree confirming the sale as
well as all other papers and orders in the cause, not here-
in specified, as being prepared by solicitors for complain-
ant.

"In my opinion, this was the best land sale ever had in
Lauderdale county. I think it was conducted in the best
manner, and do not recall anything that solicitors for
auy of the parties left undone, nor do I know of anything
that could have been done by any of. the solicitors that
would have made the lands sell for more money.

"The parties were very numerous, scattered about the
Union. The lands were numerous, a good many perplex-
ing matters came up, and solicitors for both complain-
ant and defendant did a lot of good hard work."

Chapter 183 of the Acts of 1887 was designed to meet
just such a case as this record presents. The heirs at law

412 TENNESSEE REPORTS. [124 Tenn.

Scott t. Marley.

entitled to this estate were very numerous, being about
thirty-five in number. Mrs. M. H. Scott, the complain-
ant, owned a third interest ; five of the defendants owned
a one-thirtieth interest each; seren of the defendants
owned a one-forty-second interest each; two of the de-
fendants owned a one-twenty-fourth interest each ; eight
of the defendants owned a one forty-eighth interest each ;
five of the defendants owned a one two hundred and
fortieth interest each ; seven of the defendants owned a
one three hundred and thirty-sixth interest each; some
five or six of the defendants were minors.

To secure a partition of this property where the parties
entitled were so numerous and so widely divergent in
the matter of the amount of the interest to which each of
them was entitled in the property required capable, in-
telligent, and industrious legal services, and it is mani-
fest that the owner of a single small interest in this prop-
erty would have been wholly unable to secure competent
legal services, if the attorney representing that interest
had been compelled to look alone to his client's interest
in the estate for the payment of an adequate fee for the
services necessary* to be rendered in order to secure a
partition, or a sale for the partition of this large proper-
ty. So it is apparent that, in the absence of the statute,
great injustice might be done to the owners of small in-
terests in a large estate like this by a cotenant or coten-
ants owning a large interest. The latter might decline
to institute a suit for partition or sale of the property,
and gradually acquire by purchase at inadequate prices

16 Cates] APRIL TERM, 1911. 413

Scott v. Marley.

each and all of the small interests in the estate ; so that
the statute is a protection when properly applied to the
owner of small interests in a large estate.

It is an equal protection to the owner of a large inter-
est in such an estate in that by a proper application of
the statute a just apportionment of the burden of attor-
ney's fees may be made between all the persons inter-
ested in the estate in proportion to the amount of inter-
est which each one owns.

No general rule should be laid down by this court as
to the application of this statute. Its application should
be left to the sound discretion of the court in which the
partition suit is conducted. When that court fails to
make a just and equitable apportionment, of the burden
of attorney's fees as contemplated by the statute in parti-
tion cases, it is for an appellate tribunal to say whether
such failure amounts to an abuse of the discretion, and,
when such abuse exists, it should be corrected.

We think the present case is one in point. The county
court,' in the interests of the parties, should have appor-
tioned the fees between the attorneys representing com-
plainant and those representing the defendants. The
greater volume of service was rendered by the attorneys
for the complainant, but undoubtedly service of great
value was also rendered by the attorneys for the defend-
ants.

Under the facts of the case, the defendants were well
warranted in the employment of the attorneys to look af-
ter their interests, and the attorneys so employed coope-
rated with the attorneys of the complainant, and prac-

414 TENNESSEE REPORTS. [124 Tenn.

Scott y. Marley.

tically all of the services rendered by the attorneys for
the defendants resulted to the benefit of the complainant,
as well as to the benefit of all the defendants, and the
same may be said of the services rendered by the attor-
neys for the complainant! Moreover, the clients repre-
sented by the attorneys for the defendants were the own-
ers of two-thirds of the estate, and the client, represent-
ed by the attorneys for the complainant, only owned one-
third of the value of the estate. All of these facts should
be taken into consideration in the apportionment of the
fees.

We think the attorneys' fees, which were properly
taxable as costs against the common fund in this case,
should have been apportioned by the county court as fol-
lows, to wit :

A fee to J. W. Kirkpatrick & Son, solicitors for the
complainant, amounting to the sum of f 2,500.

A fee to Lehman, Gates & Martin and McKinney &
Pierson, solicitors for the adult defendants, amounting
to the sum of f 2,400.

A fee to Elias Gates, guardian ad litem for the minor
defendants, amounting to the sum of {100. And we think
these fees should be in full of all services heretofore ren-
dered or hereafter to be rendered by the attorneys above
named to their respective clients in this cause.

It results from the foregoing views that the decree of
the county court will be modified in accordance with
this opinion, and the costs of this appeal will be taxed
against the common fund in said partition suit as a part
of the costs of said cause.

16 Cates] APRIL TERM, 1911. 415

Gamble v. Rucker.

Lucinda Gamble et al. v. Claey Rucker et ah
{Jackson. April Term, 1911.)

1. MARRIAGE. Regularly solemnized la presumed to be valid;
burden to show contrary.

The law presumes that a marriage regularly solemnized is valid,
and casts upon those asserting its invalidity the burden of
showing the same; and this is true when it is asserted against
such marriage that it was entered into during a valid prior
marriage. (Post, p. 417.)

2. 8AM E. Presumption of validity of a second marriage when
property rights are Inolved, and presumption of dissolution
of former marriage by divorce; burden to show no divorce.

If the former spouse of one subsequently married be living at
the time of the subsequent marriage, the law presumes, in
cases involving the settlement of property rights, that one or
the other party to the former marriage had procured a divorce
before the second marriage was entered into; and the burden
is upon the person attacking the validity of such subsequent
marriage to show that there was no such divorce. (Post, p. 417.)

3. 8AM E. Absence of divorce may be proved from court records,
by direct evidence, or by circumstances.

The fact that parties formerly married were not divorced before
one of them remarried may be proved by evidence that the
court records where the divorce decree or judgment should be
found show no divorce; and the fact may also be shown by
other direct evidence, or by circumstances. (Post, p. 417.)

4. 8AME. Presumption In favor of the validity of marriage; and
character of evidence to overcome such presumption.

The presumption in favor of the validity of marriage is very
strong, and the pressure of that presumption is felt at every

416 TENNESSEE REPORTS. {124 Tenn.

Gamble v. Rucker.

stage of the inquiry; and evidence that a divorce was not ob-
tained before a second marriage was entered into by a party
to a former marriage must be cogent and convincing to over-
come the validity of the second marriage. {Post, pp. 417, 418.)

Numerous cases in other States are cited on page 418 of the
opinion.

5. SAME. Evidence held to be insufficient to rebut presumption
of divorce before a second marriage.

The evidence in the case is stated, reviewed, and held to be in-
sufficient to rebut the presumption that a divorce was obtained
before the husband married another woman. (Post, pp. 418-
420.)

FROM LAUDERDALE.

Appeal from the Chancery Court of Lauderdale Coun-
ty. — Jno. S. Cooper, Chancellor.

W. S. Lynn, for complainants,

McKinnby & Piebson, for defendants.

Mr. Justice Neil delivered the opinion of the Court.

The bill was filed by the children of Sam Rucker (col-
ored), deceased, born by his first wife, Martha, against
Clary Rucker, the wife of a second marriage, now his
widow, and the children of that marriage. It was alleged
that the second marriage was void, because made during
the lifetime of the first wife. The complainants there-
fore claim the land of their deceased father as his only

16 Cates] APRIL TEJtM, 1911. 417

i

Gamble v. Rucker.

heirs at law. The defendants deny that Sam Rucker
was ever married to the mother of complainants, and in-
sist that defendant Clary was the only wife that Sam
Rucker ever had. We think the weight of the evidence
is that the deceased was lawfully married to Martha
Rucker. The only question left is whether Sam and
Martha had been divorced before he intermarried with
Clary. Martha was still living at the. date of the sec-
ond marriage.

The rule upon this subject is that, where a marriage
has been regularly solemnized, the law will presume that
it was T*alid, and will cast upon those asserting its inval-
idity the burden of showing the fact. This is true when
it is asserted against such marriage that it was entered
into pending a valid prior marriage. If the former
spouse be living, the law, in cases involving the settle-
ment of property rights, will presume that one or the oth-
er party to the former marriage had procured a divorce
before the second marriage was entered into. The
burden is upon the person attacking the validity of such
marriage to show that there was no such divorce. This
may be shown, and generally should be shown, by evi-
dence that the records of the courts had been searched
where such divorce decree or judgment should be found,
if in existence at all, and that they show no such entry.
The fact may also be shown by other direct evidence,
and by circumstances ; but the evidence should be cogent
and convincing, since, in the interest of social order,
the presumption in favor of marriage is very strong,
and the pressure of that presumption is left at every

124 Tenn.— 27

4:18 TENNESSEE REPORTS. [124 Tenn.

Gamble v. Rucker.

stage of the inquiry. 1 Bishop, Map. & Div., section 457 ;
Megginson v. Megginson, 21 Or., 387, 28 Pac, 388, 14 L.
R. A., 540, and note; Smith v. Fuller, 138 Iowa 91, 115
N. W., 912, 16 L. R, A. (N. S.), 98, and note; Sloan v.
West, 50 Wash., 86, 96 Pac, 684, 17 L. R. A. (N. S.),
960. And see, Scott's Adm'r v. Scott (Ky.), 77 S. W.,
1122 ; Bouldin v. Mclntire; 119 Ind., 574, 21 N. E., 445,
12 Am. St. Rep. f 453 ; Parsons v. Grand Lodge A. O. U.
W., 108 Iowa, 6, 28 N. W., 676; Alabama & V. Ry. Co.
v. Beardsley 79 Miss., 417, 30 South., 660, 89 Am. St.
Rep., 660 ; Potter v. Clapp, 203 111., 592, 68 N. E., 81,
96 Am. St. Rep., 322 ; In re Rash's Estate, 21 Mont., 170,
53 Pac, 312, 69 Am. St. Rep., 649; In re Thesis' Estate,
217 Pa., 307, 66 Atl., 519 ; Lyon v. Lash, 79 Kan., 342,
99 Pac, 598; Maier v. Brock, 222 Mo., 74, 120 S. W.,
1167, 133 Am. St., Rep., 513; Wingo v. Rudder (Tex.
Civ. App.), 120 S. W., 1073.

There is no testimony in this case that the court rec-
ords of Lauderdale county, where Sam Rucker and Mar-
tha, his former wife, resided until they died, had been
searched to ascertain whether they contained anything
concerning a divorce between these parties. The only
evidence relied upon to rebut the presumption of a di-
vorce is that Martha was residing with Sam at the time
the marriage with Clary was entered into ; that, while
she was aware of the wedding ceremony at the time it
was performed between Sam and Clary in front of the
porch, she did not actually go out and hear or see the
ceremony ; that, while the marriage was in progress, she

16 Cates] APRIL TERM, 1911. 419

Gamble v. Rucker.

said to some one in the room where she was sitting that
Sam did not take another woman until she was old ; that
afterwards she was seen to shed tears on one occasion,
and it was supposed by the witness that she was crying
because her husband had married Clary; and that she
died a year or two later. As against this evidence it is
shown that Sam had been living with Clary as his wife
for eight or ten years prior to this time, during which
period eight children were born to them ; that Clary lived
in a room across the hall from Martha; that Sam
had several other women on his place, with whom he co-
habitated for a series of years; that Martha cooked for
him, and all the other women worked the land for him ;
that during this period he stated that he was not mar-
ried. There is no evidence that Martha ever complained
of his relations with Clary, or with the other women
located on his place. Clary testified that when the sub-
ject of her marriage with Sam was broached, Martha said
it was time he was marrying some one. It is shown that
the relations of Sam with Clary caused the church of
which he was a member to make complaint to him, and
to threaten him with discipline. A committee was ap-
pointed to call upon him, and state that he must either
marry Clary or cease his relations with her. He first
replied that the church had nothing to do with his man-
ner of living, but finally yielded this view, and consented
to marry Clary, and he finally did so. The wedding took
place, as already stated, in front of his porch, on which
occasion another colored couple was married. During

420 TENNESSEE REPORTS. [124 Tenn.

Gamble t. Backer.

the controversy in the church arising ont of Sam's man-
ner of living, no suggestion seems to have been made
that he already had a wife. It seems to hare been under-
stood, in fact, that he had no wife, bat that he was living
with five or six women as his concubines, including Mar-
tha and Clary. Taking all this evidence together, we do
not think that the presumption is rebutted that a divorce
had taken place between Sam and Martha before the sec-
ond marriage was entered into.

It results that both marriages were legal, and the
children of both are legitimate ; that Clary, as the widow,
is entitled to homestead and dower, and the children
born of the two marriages are entitled to the land, sub-
ject to the widow's rights.

A decree will be entered, adjusting the rights of the
parties on this basis, and remanding the cause to the
court below for further proceedings.

The costs of this court will be borne equally by the
two sets of heirs. The costs of the court below will be
disposed of as may be hereafter decreed by the chancel-
lor.

16 Cates] APRIL TEEM, 1911, 421

Jackson v. Manufacturing Co.

Mary Alma Jackson, by next friend, etc., v. Weis &
Lbsh Manufacturing Company. *

(Jackson. April Term, 1911.)

1. STATUTES* Not Invalidated by failure of legislative Journal
to show passage on aecond reading or to show concurrence In
amendment, when signed by the speakers and governor.

The mere fact that the senate journal falls to show the passage
of a bin on Its second reading win not affect Its validity,
where the house Journal shows that It was passed on three
several readings In the house, and the senate Journal shows
that It was passed In the senate on Its first and third readings,
and the respective journals show It was signed by the speaker
of each house in open session, and it is approved by the gov-
ernor; nor does the mere fact that the journals show a bill is
amended and returned to the house of its origin without any
reference then to the amendment Invalidate It as a legislative
amendment, where It la afterwards signed by the respective
speakers of the two houses in open session, and approved by
the governor; for where a legislative act has been signed by
the respective speakers of both houses In open session, and that
fact is noted on the respective journals, and has been approved
by the governor aa required by the constitution, every reason-
able presumption and inference will be made in favor of the
regularity of Its passage, and it will be upheld, unless the
journals affirmatively show the absence of compliance with
some constitutional requirement. (Post, pp. 423-425.)

Acta cited and construed: Acts 1893, ch. 169.

Cases cited and approved: State v. McConnell, 3 Lea, 333; State
v. Algood, 87 Tenn., 162.

•Constitutionality of statute as to child labor, see note in 17
L. R. A. (N. S.), 602.

422 TENNESSEE REPORTS. [124 Tenn.

Jackson v. Manufacturing Co.

2. CONSTITUTIONAL LAW. Amendatory act whose title does
not enlarge the restrictive title of the act sought to be amend-
ed, but whose body enlarges the scope of legislation beyond
such restrictive title, Is unconstitutional and void.

Where the title of a legislative act is restrictive in making it un-
lawful to employ a child less than twelve years of age in cer-
tain work, and the title of an amendatory act does not enlarge
such title of the original act sought to be amended, the amend-
ment contained the original act, and cannot enlarge the scope
of legislation beyond the limits of the restrictive title of the
original act; and therefore, such amendatory act, undertaking
in its body to raise the age of children for such employment,
is unconstitutional and void, as legislation attempted upon a
subject not expressed in the title of the original or amended
act (Post, pp. 423, 426-428.)

Acts cited and construed: Acts 1893, ch. 159; Acts 1901, ch. 34.

Constitution cited and construed: Art 2, sec. 17.

Cases cited and approved: Hyman v. State, 87 Tenn., 109; State
v. Algood, 87 Tenn., 163; State v. Bradt, 103 Tenn., 684; State
v. Brewing Co., 104 Tenn., 728; Railroad v. Byrne, 119 Tenn.,
291.

FROM MADISON.

Appeal from the Circuit Court of Madison County.
-S. J. Everett, Judge.

Pope & Pope, for plaintiff.

W. G. Timberlake, for defendant.

16 Cates] APRIL TERM, 1911. 423

Jackson v. Manufacturing Co.

Mr. Justice Lansden delivered the opinion of the
Court.

This is an action for personal injuries received by
plaintiff in error, Mary Alma Jackson, while in the
service of the defendant in error removing skewer pins
from the hopper of one of the machines used by defend-
ant in error in the manufacture of such pins, which
resulted in the loss of one of her thumbs. There are three
counts in the declaration, the first and third of which
predicate liability of defendant upon an alleged viola-
tion of what is generally known as the "child labor law,"
and the second count placed liability upon common-law
negligence. The trial judge directed a verdict in favor
of the defendant below upon the first and third counts,
and there was a trial before the court and jury upon the
second count, which resulted in a verdict for defendant.
Motions for new trial were made and overruled, and the
errors assigned here go to the action of the circuit judge
in holding that chapter 159, Acts of 1893, and chapter
34, Acts of 1901, amendatory thereof, were unconstitu-
tional and void.

The circuit judge was of opinion that chapter 159, Acts
of 1893, was not constitutionally passed, and the infirm-
ities appearing in the legislative journals, which satis-
fied him that this was true, he states as follows :

"It appears from the house journal of 1893, that this
child labor law was introduced as Bill No. 6, and it
passed regularly its first, second, and third reading, and
was sent to the other house, the senate, where it passed

424 TENNESSEE REPORTS. [124 Tenn.

Jackson v. Manufacturing Co.

its first reading. The journal does not affirmatively
show that it passed its second reading, or that it was re-
ferred to any committee, but does show that it was taken
up for passage on its third reading by unanimous con-
sent, and, while pending its third reading, an amendment
was offered — and a material amendment^ too — to this
bill, and the amendment was adopted by the senate, and
the bill then passed on its third reading. The journal
fails to show that in reporting this bill back to the house
any statement was made or anything on the journals to
show that the bill was amended on its third reading in
the senate, and it simply shows an enrollment to the
house, and does not show any concurrence by the house in
the senate amendment. Hence this act is invalid. It did
not pass according to the constitutional methods, and
you cannot consider either the first or third counts in
this declaration ; that is going to the statute of employ-
ing a child under fourteen years of age."

We infer that his honor was of opinion that, inasmuch
as the original act of 1893 was invalid for the reasons
stated by him, the subsequent act of 1901, amending the
act of 1893, must likewise fall, because it is amendatory
of the original act only.

We cannot concur with the trial judge in the conclu-
sion reached by him with respect to the validity of the
act of 1893. His holding is in direct conflict with the
opinion of this court in State v. McConnell, 3 Lea, 333,
and State v. Algood, 87 Tenn., 162, 10 S. W., 310. The
first case cited is direct authority for the proposition

16 Gates] APRIL TERM, 1911. 425

Jackson v. Manufacturing Co.

that the mere fact that the journals of the senate fail to
show the second reading of a bill will not affect its
validity as an act, when it appears that it was passed on
three several readings in the house, and two readings in
the senate, one of them purporting to be the third read-
ing, and that it was signed by the speaker of each house
in open session, and approved by the governor; and the
second case cited is direct authority for the further
proposition that the mere fact that the journals may
show a bill is amended and returned to the house of its
origin ^ithout any reference to the amendment, but is
afterwards signed by the speakers of the two houses in
open session, and approved by the governor, does not in-
validate it as a legislative enactment. All of our cases
firmly establish the proposition that where an act of the
legislature has been signed by the respective speakers of
both houses in open session, and that fact noted on the
journals, and has been approved by the governor as re-
quired by the constitution, every reasonable presump-
tion and inference will be made in favor of the regu-
larity of its passage, and it will be upheld, unless the
journals affirmatively show the absence of some consti-
tutional requirement-
Learned counsel for defendant in error insist, how-
ever, that, whatever view the court may take of the. con-
stitutionality of the act of 1893, this act was superseded
by chapter 34, Acts of 1901, which amended the original
act of 1893, by substituting an entirely new enactment
for the original, and this latter act is unconstitutional,

£26 TENNESSEE EEPORTS. [124 Tenn.

Jackson v. Manufacturing Co.

because it violates article 1, section 8, and article 2, sec-
tion 17, of the State constitution.

The title assigned to chapter 34, Acts of 1901, is as
follows : "An act to amend chapter 159 of the Acts of
1893, being an act entitled 'An act to make it unlawful
to employ a child less than twelve years of age in work-
shops, mines, mills op factories in this State.' " The
title of chapter 159, Acts of 1893, is as follows : "An act
to make it unlawful to employ a child less than twelve
years of age in workshops, mines, mills, op factories in
this State."

We are of opinion that chapter 34, Acts of 1901, is vio-
lative of article 2, section 17, of the constitution, which
provides, among other things, that "no bill shall become
a law which embraces more than one subject, that sub-
ject to be expressed in the title." The title assigned by
the legislature to chapter 159 of the Acts of 1893 is a re-
strictive one. The legislation indicated by the title is
with respect to the employment of children less than
twelve years of age in workshops, mines, mills or fac-
tories. It would have been competent for the legislature
to have enacted the law in question under a general title,
and to have prohibited such employment of all children,
had it seen proper to do so ; but this was not done. The
subject of legislation was expressly limited to the em-
ployment of a child* less than twelve years of age. Un-
der all of our cases, the only legislation permissible
under the title of the act of 1893 is such as relates to the
employment of children less than twelve years of age in

16 Cates] APRIL TERM, 1911. 427

Jackson v. Manufacturing Co.

workshops, mines, mills, or factories. The same is true
of the title to the amendatory act of 1901. There is no
attempt to enlarge the title of the act of 1893; but, on
the contrary, its title is literally copied in the title of the
amendatory act. Therefore the amendment must fall
within, and be germane to, the title of the original act.
Hyman v. State, 87 Tenn., 109, 9 S. W., 372, 1 L. R. A.,
497; Railroad v. Byrne, 119 Tenn., 291, 104 S. W., 460;
State v. Bradt, 103 Tenn., 584, 53 S. W., 942; State v.
Brewing Co., 104 Tenn., 728, 59 S. W., 1033, 78 Am. St.
Rep., 941.

This amendment incorporates itself into the original
act, and the two become one piece of legislation as com-
pletely as if enacted at one time in one bill, and the
scope of the bill as amended must be limited to the title
of the original act. Railroad v. Byrne, supra ; Hyman v.
State, supra; State v. Algood, 87 Tenn., 163, 10 S. W.,
310. Comparing the amendment with the title of the
original act, we find that legislature has made it unlaw-
ful to employ a child less than fourteen years of age in
workshops, mines, mills, or factories, under a title which
limits the scope of legislation to such employment of a
child less than twelve years of age.

While it has long since been settled that this section
of the constitution is to be liberally construed in order
to prevent the failure of useful and beneficial legislation,
and the courts will not give a strained and narrow con-
struction to the terms employed by the legislature in
carving out the subject-matter of legislation, but will
look to the objects and purposes to be accomplished,

428 TENNESSEE REPORTS. [124 Tenn.

Jackson v. Manufacturing Co.

rather than restrictive details of the title, nevertheless
the constitutional prohibition against duplex legislation
is mandatory, and where it clearly appears that the body
of an act, either original or amendatory, is broader than
its title, the courts must so declare. If it were permis-
sible to sustain the amendment involved in this case,
raising the age of children forbidden to be employed by
the original act from twelve to fourteen years* it would
be equally permissible to raise the age to any number of
years, so long as the age classification could fairly be
said to include children. This is not immaterial. The
number of children within the State between the ages of
twelve and fourteen must necessarily be very large. The
legislature and the general public, in reading the title
of the original act as copied into the amendatory act,
could not reasonably have known that the amendment
proposed was to raise the age of children forbidden to
be employed from twelve to fourteen years. Many might
readily agree to the enactment of a law which would for-
bid the employment of children under twelve years of
age, who would actively oppose the prohibition of the
employment of that great number of children between
the ages of twelve and fourteen. But, however this may
be, it is perfectly plain that the amendment enlarges the
scope of legislation far beyond the limits of the title of
the original act, and it is equally clear that the body of
the amendment must fall within the original title.

We are of opinion that chapter 34 of the Acts of 1901,
is unconstiutional and void. It results that the judg-
ment of the circuit court is affirmed, with costs.

16 Cates] APRIL TERM, 1911. 429

Murphy v. Sullivan.

P. J. Murphy v, Annie Sullivan et al.
(Jackson. April Term, 1911.)

APPELLATE JURISDICTION. Bills for reformation of deeds, or
to set up a trust In lands, are not ejectment suits, and appeals
from chancery decrees In such cases lie to the court of civil
appeals; transfer by supreme court.

Where a bill is filed for the reformation of a deed made to com-
plainant as "guardian," and to have the word "guardian"
stricken out, upon the ground that it was inserted by inadver-
tence; and the defendants, the wards of complainant, answered
denying the grounds of relief, and by cross bill sought to re-
cover the land from complainant and his grantees, upon the
ground that he held the land as their guardian, and that his
grantees, by reason of the form of the deed to complainant,
took with notice that he held the land in a trust capacity, it
is held that such suit is not an ejectment suit, because com-
plainant seeks no recovery of the land, but is merely asking for
the reformation of a certain deed, and because the defendants
have no "valid subsisting legal interest" in the land, and have
no "right to the immediate possession thereof," but only have
purely equitable rights therein that can only be set up in chan-
cery* and their effort is in fact merely one to set up a trust
in the land. Therefore, the appeal from the chancery decree in
such case lies to the court of civil appeals, and if erroneously
taken to the supreme court, the cause will be transferred to
the court of civil appeals.

Code cited and construed: Sec. 4970 (S.); sec. 3953 (M. ft V.);
sec. 3229 (T. & S. and 1858).

Acts cited and construed: Acts 1907, c£, 82, sec. 7, Acts 1909,
ch. 192.

1

430 TENNESSEE KEPORTS. tl24 Tenn.

Murphy y. Sullivan.

FROM SHELBY.

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

Canada & Phelan, for complainant.
Randolph & Randolph, for defendants.

Mb. Justice Green delivered the opinion of the Court*..

This cause was appealed to this court from the chan-
cery court of Shelby county, and a motion has been made
to transfer it to the court of civil appeals, upon the the-
ory that it is a case in which the appeal should have been
taken to the latter court, under chapter 82 of the Acts of
1907.

The original bill herein was filed to procure a reforma-
tion of a certain deed formerly made to the complainant
as guardian. The allegation of the bill is that the land
was purchased with the individual funds of the com-
plainant, that it was his own property, and that the addi-
tion of the word "guardian" to his name was an inadver-
tence in the drafting of the deed.

There were named as defendants to this bill certain

r

16 Cates] APRIL TERM, 1911. 431

Murphy v. Sullivan.

minors, who were wards of the complainant, of whom
he had been appointed guardian by the county court of
Shelby county.

These defendants answered, and denied that the com-
plainant was inadvertently described or mentioned as
guardian in the deed, but set up that the land was pur-
chased with their own funds; that the complainant in
fact held the land as their guardian and for their bene-
fit; that he had incumbered the land; and they sought
to recover it from him and his conveyees, charging that,
by reason of the form of the deed to the complainant,
his conveyees took from him with notice of the fact that
he held the land in a trust capacity, and that the con^
veyees accordingly were not innocent parties.

The motion to transfer this cause to the court of civil
appeals is resisted on the idea that the cross bill is a suit
for the recovery of land in the nature of an ejectment
suit, and that the case, therefore, falls within one of the
excepted classes, appellate jurisdiction of which is re-
served to this court by the act of 1907 above referred to.
•That act provides (section 7) "that the jurisdiction of
the court of civil appeals shall be appellate only and
shall extend to all cases brought up from courts of equi-
ty or chancery court, except cases in which the amount
involved, exclusive of costs, exceeds $ 1,000, and except
cases involving the constitutionality of the statutes of
Tennessee, contested elections for office, State revenue
and ejectment suits."

This act has been repeatedly construed by this court

432 TENNESSEE REPORTS. [124 Tenn.

Murphy v. Sullivan.

and its plain meaning given effect. No appeal from the
chancery court lies to this court, except in one of the
classes of cases just mentioned and quoted from the act.

This is not an ejectment suit. Shannon's Code, sec-
tion 4970, provides that "any person having a valid, sub-
sisting, legal interest in real property and the right to
immediate possession thereof, may recover the same by
an action of ejectment."

The complainant in this case, as has been seen, seeks
no recovery of this land, but is merely asking for a refor-
mation of a certain deed.

The cross-complainants have no rights respecting this
land for which they could maintain an ejectment suit,
and their cross bill is in no sense an ejectment bill.

They have no "valid, subsisting, legal interest" in this
property, nor have they a right to the "immediate pos-
session thereof." Their rights in this land are purely
equitable, and are such as can only be set up in a court of
equity. They could not maintain ejectment at all re-
specting this land, on the facts appearing in their plead-
ings. Their effort is in fact merely one to set up a trust-
in the land.

For the reasons stated, the motion must be granted,
and an order will be entered here transferring this case
to the court of civil appeals under the authority of chap-
ter 192 of the Acts of 1909.

16 Cates] APRIL TERM, 1911. 433

Box Co. v. Ferguson.

Mengel Box Company v. J. B. Feeguson.
(Jackson. April Term, 1911.)

1. DEED8 OF CONVEYANCE. Beneficial owner's 'conveyance of
land, though the legal title Is In trustees, will estop him to as-
sert any adverse claim against his grantee or his vendees.

A conveyance by husband and wife of land In which the wife
owns the beneficial and usufructuary life interest, when the

legal title is in trustees, will effectually estop her from assert-
ing any right, title, or interest in the land against their gran-
tee or his vendees. (Post, pp. 438, 439.)

2. 8AME. 8a me. Deed conveying land for a valuable considera-
tion, but operating by estoppel to convey only certain Interests,
is not void, and will support suit for breach of covenants of
warranty and seizin.

A deed based upon a valuable consideration, and conveying land
in fee simple, but operating only by estoppel to convey a life
estate in the whole, and an undivided one-fifth interest therein
In fee, Is not void as a nude pact, and is sufficient in law to
support a suit for the breach of the covenant of warranty
and seizin contained in the deed. (Post, pp. 439-442.)

3. 8AM E. Measure of damages for breach of covenant of war-
ranty of title Is the consideration paid, with interest, when;
indemnity Is the rule.

In a suit at law or in chancery, for the breach of the covenant
or warranty of the title to the land conveyed, the measure of
damages as between the original parties is the consideration
or purchase price paid, together with interest thereon from the
date of the deed to the date of the judgment, and not merely
from the date of the eviction, where the warrantee is com-
pelled to account for mesne profits; and where there is a par-
tial failure of title, the vendee may elect to retain the title

124 Tenn.— 28

434 TENNESSEE EEPOETS. [124 Tenn.

Box Co. v. Ferguson.

bo far as the title is good, and have an abatement of the pur-
chase price to the extent of the value of the land lost, and the
abatement is to be estimated in the relative proportion of the
value of the whole land at the agreed price, with interest; but
where such vendee has not suffered the loss of mesne profits
to the holder of the paramount title, or is not liable therefor,
interest should be allowed only from the date of the eviction;
for the measure of damages recoverable is limited to the
actual injury sustained so as to afford indemnity only. (Post,
pp. 436, 437, 442-446.)

Cases cited and approved: May v. Wright, 1 Ov., 387; Talbot v.
Bedford, Cooke, 457; Elliot v. Thompson, 4 Humph., 99; Shaw
v. Wilkins, 8 Humph., 652; Crittenden v. Posey, 1 Head, 321;
Key v. Key, 3 Head, 449; Frazier v. Tubb, 2 Heisk., 669;* Moses
v. Wallace, 7 Lea, 419; Mette v. Dow, 9 Lea, 96; McGuffey
v. Humes, 85 Tenn., 26.

Cases cited and distinguished: Crutcher v. Stump, 5 Hay., 100;
McNew v. Walker, S Hum., 185; Stipe v. Stipe, 2 Head, 169.

4. SAME. Action for breach of warranty of title for failure of
part of the title.

Where the title to only part of the land, or to a certain fractional
part thereof, fails, the warrantee can retain the part of which
the title is good, and sue for the breach of the warranty of
title of that part to which the title failed. (Post, p. 446.)

Case cited and approved: Moses v. Wallace, 7 Lea, 419.

6. 8AM E. In an action for breach of warranty of title, the war-
rantee may recover of warrantor the costs of unsuccessful but
proper defense, when.

In an action for the breach of warranty of title by eviction by
paramount title in a suit against the warrantee, he may recover
the taxable costs of his unsuccessful but proper defense, where
he notified the warrantor of the suit, who failed to defend
(Post, pp. 442, 446, 447.)

Cases cited and approved: Hopkins v. I&ne, 9 Yerg., 79; Wil-
liams v. Burg, 9 Lea, 456.

16 Cates] APRIL TERM, 1911. 435

Box Co. v. Ferguson.

6. 8AM E. In an action for breach of warranty of title, warrantee
cannot recover counsel feet In unsuccessful defense of title.

In an action for the breach of the warranty of title, the war-
rantee cannot recover counsel feeB properly expended in an
unsuccessful defense of the suit resulting in his eviction
(Post, pp. 447, 449.)

Case cited and approved: Williams v. Burg, 9 Lea, 456.

7. SAME. In an action for breach of warranty of title, warrantee
cannot recover taxes paid, if not incumbrances at date of deed.

In action for the breach of warranty of title, the warrantee is not
entitled to recover the taxes paid on the land from the date
of the deed to his eviction, where they were not incumbrances
when the deed was executed. (Post, pp. 448, 449.)

FROM LAUDERDALEL

Appeal from the Chancery Court of Lauderdale Coun-
ty. — Jno. S. Cooper, Chancellor.

Draper & Price and Randolph & Randolph, for com-
plainant.

S. G. Latta and K. W. Tanner, for defendant.

Mr. Justice Buchanan delivered the opinion of the
Court.

The Mengal Box Company filed its original bill in the
chancery court of Lauderdale county against J. B. Fer-

436 TENNESSEE REPORTS. [124 Tenn.

Box CO. v. Ferguson.

guson. The bill was predicated on the breach by Fergu-
son of the covenants of warranty and seizin contained
in a deed made by Ferguson to the company, dated June
27, 1902, and purporting to convey to the company a
tract of land in Dyer county. The consideration express-
ed in the deed, and paid by the company to Ferguson,
was f 10,000 cash.

The bill averred an eviction of the company from an
undivided four-fifths interest in the land, and a decree
of the chancery court of Dyer county holding that the
company by the deed from Ferguson acquired no title
to the said undivided four-fifths, and an appeal by the
company from said decree, and the affirmance of said
decree by the supreme court of Tennessee at its April
term, 1909, all of which occurred prior to the filing of
the bill in this cause, and that under said decree the only
title and interest acquired by the company in or to the
land in said deed described was an undivided one-fifth

•

interest ; that when the suit which so resulted began the
company notified Ferguson of the fact, and called on him
to defend the title, which Ferguson failed to do, though
at all times advised of the progress of the suit ; that the
company made proper defense to said suit at its own ex-
pense. The items of damage laid by the bill were as fol-
lows :

First, for the four-fifths of the $ 10,000 of considera-
tion money; second, for interest on said four-fifths con-
sideration money from June 27, 1902, which was the
date of the deed; third, for taxes paid by the company

16 Cates] APRIL TERM, 1911. 437

Box Co. v. Ferguson.

after the execution of the deed; fourth, for court costs
paid by the company in defending the title to said land
in said eviction suit.

The prayer of the bill was for a decree for the amount
due by reason of said breaches of covenants of warranty
and seizin, and for such other both general and special
relief as it might be entitled to under the pleadings and
proof in the cause.

The chancellor granted a decree in favor of the compa-
ny:

First, for four-fifths of the consideration money ; sec-
ond, for interest on same from June 27, 1902, until the
date of the decree ; third, for costs paid by the company
resulting from its loss of the eviction suit

Both parties excepted to this decree, and each party
appealed therefrom, and each has assigned errors here.

The land described in the deed from Ferguson to the
Company, on the breach of the covenants of which this
suit is based, comprised 1,000 acres, and this land and an
additional 1,000 acres was conveyed by Isaac Sampson,
owner of the fee therein, -on the 8th day of July, 1861, to
M. D. Pate and W. B. Sampson, or the survivor of them,
as trustee for the sole and separate use and benefit of
Lou P. and Sarah B. Sampson, during their natural
lives, free from the contracts, debts, and control of any
future husband either of them may have, and to the
issue of their bodies at their death. The conveyance
of said land to said trustees was as one tract. Subse-
quently by a partition proceeding the 2,000 acres were di«

438 TENNESSEE REPOBTS. [124 Tenn.

Box Co. v. Ferguson.

vided, and that part of the land described in the Fergu-
son deed was set apart in severalty, to Sarah B. Samp-
son ( who had by marriage become Sarah B. Carson ) and
those claiming the remainder interest under her. From
her and her husband Ferguson bought said land in 1899,
paying therefor the sum of $2,500 cash, and accepted a
deed from them purporting to covey the land, on advice
of counsel that the title was good

Thereafter, Ferguson executed the deed to the Mengel
Box Company ; the latter acting under the advice of coun-
sel that the title was good. After the latter pur-
chase, when the company was about to cut timber on the
land, the suit was instituted in the chancery court of
Dyer county against the company by Sam S. Carson,
G. F. Carson, Maggie Carson, Lou Carson, and Cleo K.
Carson, the only children and heirs at law and issue of
the body of said Sarah B. Carson. This suit was filed in
1907, and before it was finally heard the mother of the
complainants died, and her death was suggested, and the
bill amended, setting up the falling in of the life estate,
and that complainants were entitled to the fee in the
land.

The chancery court so decreed as to all of the com-
plainants, except Sam S Carson, who by his conduct in
acting as salesman of the land for his mother and father
to Ferguson was held to be estopped to set up any claim
of title to an undivided one-fifth interest in the land
against the company, Ferguson's vendee, and this decree
as already stated, was by the supreme court affirmed.

16 Cates] APRIL TERM, 1911. 439

Box Co. v. Ferguson.

1 m I i | MM ■-, *

The covenants in Ferguson's deed to the company were
as follows: "We covenant with the Mengel Box Com-
pany that we are well seized of the said tract of land,
that we have a good right to convey the same, and that
it is unincumbered, and that we will warrant and for-
ever defend the title thereto to the said Mengel Box Com-
pany, its successors and assigns." It is important to note
that the complainant in the present suit is asserting a
legal demand against the defendant, that is to say, a de-
mand not belonging to the exclusive jurisdiction of
courts of equity, and the defendant is not here calling up-
on a court of equity for the exercise of remedies peculiar
to such courts. The demand in this suit and the prayer
of the bill, is for damages for the breach of covenants
of seizin and warranty, which under the rulings of the
courts determine the measure of damages and the amount
of recovery.

It is also to be noticed that the present suit is not one
for damages for a total breach of the covenant contained
in the deed. It is manifest, from what has already been
stated, that neither of the covenants sued on has been
wholly breached; for, whatever may be said as to the
lack of power in the grantors of Ferguson to convey title
to him, because the same was vested in the trustees, it
cannot be denied that the deed by the grantors of Fergu-
son would have effectually estopped the usufructuary
life tenant from asserting any right, title, or interest in
the land against Ferguson, or his vendees. Nor can it
be denied that the deed by the vendors of Ferguson

440 TENNESSEE REPORTS. [124 Tenn.

Box Co. v. Ferguson.

coupled with the acts which constituted the estoppel
against Sam S. Carson, operated to place in Ferguson
the title to an undivided one-fifth interest in the land.
It must follow that the deed from Ferguson to the
Box Company was not void; for, under it, rights
and title to an undivided one-fifth interest in the
land passed to the Box Company. Ferguson held this
undivided one-fifth interest in the land from the date of
the deed to him in 1899 to the date of the deed by him
to the Box Company in 1902. There is no insistence in
the present suit that the deed by Ferguson to the Box
Company was void for champerty, or for failure of con-
sideration, or any other cause which might invalidate it.
The sole contention in respect of its invalidity is made
in the answer of the defendant, on the ground, as claimed
by the answer, that the decree of the chancery court,
which was affirmed by this court, pronounced the deed to
Ferguson void. This contention in the answer results
from a misconception of the decree of the chancery court.
It does not adjudge the deed to Ferguson void. Nor did
the decree of this court, affirming the decree of the chan-
cery court, amount to such an adjudication. The adju-
dication was that the title to the land was, at the date
of the deed to Ferguson, vested in two trustees, and that
the grantors of Ferguson lacked the power to convey
the title, so as to defeat the rights of the remaindermen,
but that Sam S. Carson was estopped by his conduct to
assert title against the grantee, Ferguson, or his vendee,
the Box Company.

16 Cates] APRIL TERM, 1911. 441

Box Co. t. Ferguson.

It is therefore clear that Ferguson's deed to the Box
Company conveyed to it an undivided one-fifth interest
in the land. This, and the consideration which was paid
by the Box Company, is sufficient in law to support the
deed against the assault that the deed was a nude pact,
and as such insufficient in law to support this suit for the
breach of its covenants.

The first and fourth assignments of error made by Fer-
guson were, in substance, that the court erred in holding
that he was liable for four-fifths of the f 10,000 considera-
tion in the deed, and that the court further erred in fail-
ing to require the company to account for the value of the
one-fifth interest, to which it acquired good title under
the deed.

These assignments of error are without merit. This
is not a suit for a rescission of the contract, or deed of
conveyance, but, on the contrary, is a suit, as stated, for
breach of the covenants in the deed. A stipulation ap-
pears in the record by which it appears that the un-
divided one-fifth interest in the land, to which the
company acquired good title, has been sold by it for
the sum of $2,0J90, and by this suit the company
has elected to stand upon its rights under the law,
arising out of a breach by the defendant of his
contracts and covenants of warranty and seizin. The
company has elected to affirm and accept the benefits of
the deed, in so far as the deed conveyed to it good title to
the undivided one-fifth interest, and to disaffirm, and
sue on the covenants broken, as to the undivided four-

442 TENNESSEE REPORTS. [124 Tenn.

Box Co. y. Ferguson.

fifths interest, to which it acquired no title under the
deed.

The defendant was not sued for the fall consideration
which he received for the deed, but was sued for only
four-fifths thereof, so that the complainant has in fact
accounted to the defendant for the value of the undivid-
ed one-fifth interest in the land to which it acquired title
under the deed.

That part of the foregoing assignment of error predi-
cated on the contention that it was error to hold the de-
fendant liable for the four-fifths consideration money
sued for was evidently based upon the idea, set out in the
answer, that the deed from Ferguson to the company
was void, which, as we have heretofore seen, is untenable.

The second and third assignments of error by the de-
fendant raise three questions :

First, that the decree was erroneous, in allowing any
interest to the company on the consideration money for
which it sued; second, that, if allowed at all, interest
should have been allowed only from the date of the evic-
tion ; third, that it was error to allow the company any
amount for costs paid by it in the eviction suit.

The first and second questions above may be disposed
of together. The rule at law, in cases of this kind, as to
the measure of damages was settled in a case reported
in the third Tennessee report (Cooke) as follows:

"The measure of compensation ought to be the value
of the land when the deed was executed, together with
interest on that sum until a judgment is recovered. We

16 Cates] APRIL TERM, 1911. 443

Box Co. v. Ferguson.

will incidentally remark that cases may occur where only
a part of the land is lost. The just rule then would be to
take the whole tract at what it cost, with interest, and,
calculating it in parcels according to the particular
value of each parcel, and in proportion to the cost and
interest of the whole. In this manner the particular
value of the part lost may be ascertained." Talbot v.
Bedford's Heirs, Cooke, 457.

And in another case, which was a suit at law, the rule
is stated thus : "And in an action for breach of covenant
of warranty or other covenants in a deed the purchase
money with interest thereon." Shaw v. Wilkins, Adm'r,
8 Humph., 652, 49 Am. Dec, 692.

These cases have been repeatedly cited and never over-
ruled.

"The rule of equity, well settled in this State, is that,
where there is a partial failure of title, the vendee may
elect to retain the title so far as the title is good, and have
an abatement of the purchase price to the extent of the
value of the land lost. But it has been uniformly held in
such cases that the abatement is to be estimated in the re-
lative proportion of the value of the whole land at the
agreed price, with interest. Moses v. Wallace, 7 Lea,
419 ; Frazier v. Tubb & Stokes, 2 Heisk., 669 ; May v.
Wright's Adm'rs, 1 Overt, 387; Elliot v. Thompson, 4
Humph., 99, 40 Am. Dec, 630; Crittenden v. Posey, 1
Head., 321 ; Key v. Key, 3 Head, 449.

It appears from the foregoing that the measure of
damages, as settled by our cases, is practically the same

444 TENNESSEE REPORTS. [124 Tenn.

Box Co. t. Ferguson.

in sols in equity as in suits at law. The defendant relies
upon the case of Mette v. Dow, 9 Lea, 96, to sustain his
contention that interest should not be allowed, or, if al-
lowed, that it should ha^e been computed only from the
date of eviction ; but, as we understand that case, it is not
in conflict with the rule laid down in Moses v. Wallace,
and upon examination of these two cases, it will be noted
that the opinion in each of them was delivered by Mr.
Justice Cooper, and in Mette v. Dow he states the rule
thus:

"The measure of damages as between the original par-
ties is undoubtedly the consideration, with interest.
But, as we have seen, this is the full extent to which dam-
ages can be recovered under any circumstances."

That opinion announces the further rule that, where
interest is allowed, it is done to counterbalance mesne
profits, which the owner of the paramount title may re-
cover, and makes it quite clear that where the vendee,
complaining of eviction and suing on covenants of war-
ranty, has not suffered the loss of mense profits to the
holder of the paramount title, or is not liable therefor,
interest should be allowed only from the date of the evic-
tion.

That opinion further holds as follows :

"If, now, the measure of damages may be cut down
by a deduction of the interest when necessary to attain
the ends of justice, no reason occurs why a deduction of
the principal may not also be made in a proper case. The
covenant is a peculiar one, and not like an ordinary

16 Cates] APEIL TERM, 1911. 415

^ ^ — — — — -^— ^— ^ * — ^i^— ^i » i ■ ■ ■■ ■■■»■■ ■■— — ^» ^^^

Box Co. v. Ferguson.

covenant for so much money. It is rather in the nature
of a bond with a fixed sum as a penalty, the recovery
on which will be satisfied by the payment of the actual
damages. Each vendor subject to this rule may be treat-
ed as the principal obligor to his immediate sendee, and
as the surety of any subsequent vendee to hold him harm-
less by reason of the failure of the title ; and the ultimate
vendee, when evicted, is entitled to be subrogated to the
rights of his immediate vendor against a remote vendor
to the extent necessary to indemnify him."

The opinion then quotes from a North Carolina case,
concluding :

"In other words, the damages recovered were limited
to the actual injury sustained." '

The principles controlling in Alette v. Dow were also
applied in McGuffey v. Humes, 85, Tenn., 26, 1 S. W.,
506.

As we see the case of Mette v. Dow, it supports the de- j

cree of the chancellor on the point of the allowance of
interest from the date of the deed. If the company is en-
titled to indemnity on the breach of the covenants in the
deed, then it is entitled to f 8,000 of the consideration
money paid by it for the four-fifths undivided interest in
the land, and also to interest on such consideration
money at the legal rate from the date of the deed to the I

date of the decree ; and this the decree awarded the com-
pany. Nothing short of this would have been indemnity j
for the actual injury sustained.

The company was compelled to respond and account

446 TENNESSEE REPORTS. [124 Tenn.

Box Co. v. Ferguson.

to the owners of the paramount estate in the suit by
which it was evicted for all mesne profits upon the undi-
vided four-fifths interest in the land which it lost in that
suit. The company did receive the mesne profits on the
one-fifth interest as to which in that suit its title was
upheld ; but these mesne profits the company was entitled
to, as it was decreed to be the owner of that one-fifth in-
terest Under Moses v. Wallace, and many other au-
thorities in this State it had the right to retain that in-
terest and sue for a breach of the covenants in the deed
as to the four-fifths undivided interest to which its title
was held to be bad.

The defendant relied in his brief on Stipe v. Stipe, 2
Head, 169, McNew v. Walker, 3 Humph., 185, and
Crutcher v. Stump, 5 Hayw., 100, to sustain his conten-
tion that interest if at all, should run only from the date
of the eviction; but, as we understand these cases, the
point in common decided by each of them is that an evic-
tion must be shown in order to maintain a suit on a cov-
enant of warranty broken.

These cases, as we understand them, do not touch
the question in support of which the defendant cited
them.

It results that the assignments of error by defendant
as to allowance of interest by the decree from the date
of the deed are overruled.

The defendant's assignment of error as to allowance
of costs remains to be disposed of.

The rule in Tennessee as to the measure of damages

16 Cates] APEIL TERM, 1911. 447

Box Co. v. Ferguson.

in suits for breach of covenants of warranty seems to
have remained without change or enlargement as herein-
before shown until 1882, except in so far as it was
changed by the case of Hopkins v. Lane, 9 Yerg., 79, in
which case a judgment for costs paid in defending title
was affirmed. But in 1882 the first announcement of an
enlargement of the measure of damages in such cases was
made in the opinion of the court by Mr. Justice McFar-
land in the case of TYilliams v. Burg, 9 Lea, 456, where
the measure of damages was enlarged to the extent of al-
lowing the covenantee, where a judgment had been ren-
dered in favor of the paramount title, and where the
covenantor had received notice of the suit, and failed to
make defense, and a proper, but unsuccessful, defense
had been made by the covenantee, and costs had been
taxed against and paid by him, to recover the amount
thereof from the covenantor. That case is in all material
aspects analogous to the case at bar, and we think it sus-
tains the decree of the chancellor on this point, and this
assignment of error by the defendant is therefore over-
ruled.

The company has made two assignments of error :
First, that the court in not allowing recovery for the
amount of the attorney's fees paid by the company in
defense of the title in the eviction suit.

There is a stipulation in the record that the amount
of the attorney's fees, which the company claims should
have been allowed is reasonable for the services rendered
in the eviction suit.

448 TENNESSEE REPORTS. [124 TeniL

Box Co. y. Ferguson.

Second, that the court erred in not allowing in favor
of the company the recovery of the amount of taxes paid
by it between the date of the deed and the date of the
eviction.

The record shows that none of these taxes were incum-
brances upon the land at the date of the deed.

As we understand the case of Williams v. Burg, that
case settles the question of the allowance of attorney's
fees against the company. To be sure, the opinion in
that case indicated that the court was much impressed
with the idea that allowance should be made; but, not-
withstanding this, the court in that opinion said :

"Such fees have never been allowed in the courts of this
State. It is within the recollection of some members of
the court that we have decided against the claim in a
case precisely of this character. We have certainly so
decided in analogous cases, and the chancellor's decree
on this point will be affirmed. Nor do we think the com-
plainant entitled to the other expenses claimed."

It does not appear from the opinion published in that
case what the "other expenses" referred to were. We con-
fess that it is difficult, if not impossible, on the principles
of equity, to justify the disallowance of taxes in suck a
case as this; but, in view of the reluctance heretofore
manifested by this court to enlarge the measure of dam-
ages in suits of this character, we are constrained to ad-
here to the well-settled rule already existing. Some cases
of hardships may be expected under any rule. The meas-
ure, as we now understand it, is the recovery of the con •

I

16Cates] APRIL TERM, 1911. 449

Box Co. v. Ferguson.

sideration money and interest thereon, and the taxable
costs of the eviction suit. This much, and no more, was
allowed by the decree.

It results from these views that the assignments of
error made by the complainants must be overruled, and
that the decree of the chancellor will be affirmed, and the
defendant will be taxed with the costs of the cause.

124 Tenn.— 29

450 TENNESSEE KEPORTS. {124 Tenn.

Fisher v. Insurance Co.

J. B. Fisher v. Travelers' Insurance Company. *
(Jackson. April Term, 1911.)

1. EVIDENCE. Of experiments tending to show that accident
could not have happened as contended Is competent and ad-
missible, and its exclusion was reversible error.

Where, in a suit on an accident policy insuring the decedent
against death from "bodily injuries, effected directly and inde
pendently of all other causes, through external, violent, and
accidental means * * •, while riding as passenger and
being in or on any" such car as that on which the accident
happened, the complainant contended that the insured's death
resulted from injuries by being thrown against the seats of
the car by its motion and swerve when rounding a curve, while
the defendant claimed that the motion and swerve of the car
when rounding the curve could not have caused a person to
fall as the deceased did, and that her fall resulted from her
physical condition, evidence of the result of experiments made
by witnesses with the same car in going around the same
curve at various rates of speed from two to ten miles, indicat-
ing or tending to show that the motion and swerve of the
car would not disturb the balance of any person walking the
aisle as the insured was unless the curve was rounded at
comparatively high speed, and then it would cause a person to
fall in the direction opposite to that in which it was contended
by complainant that the insured fell, was competent and ad-
missible, and its rejection or exclusion was reversible error.
{Post, pp. 462-473.)

Cases cited and approved: Boyd v. State, 14 Lea, 161; Lipes v.
State, 15 Lea, 125; Railroad v. Ayers, 16 Lea, 725; Byers v.
Railroad, 94 Tenn., 345 (and citations); Railroad v. Champion
(Ind.), 32 N. E., 874, 23 L. R. A., 861.

♦Experiments in presence of jury, see note in 15 L. R. A., 221.

16 Cates] APBIL TERM, 1911. 451

Fisher v. Insurance Co.

2. CHARGE OF COURT. Proper as to failure of complainant to
testify about matters peculiarly within his knowledge.

In a suit on an accident policy for the accidental death of the
complainant's wife, based upon the alleged ground that she
died as the result of being thrown against the seats of a street
car as it was rounding a curve, it was shown that complain-
ant was a physician; that he and his wife did not live happily
together; that shortly before her death, another physician,
who had been attending her, had visited her, and she then
showed no dangerous symptoms, but soon after he left, while
complainant was alone with her, her pulse began to decrease,
and she died soon thereafter; that, in a prior action against
another insurance company to recover upon a policy on her life,
complainant had testified, and had been cross-examined at
length, and his misconduct and unfaithfulness to his wife was
disclosed; that falling to offer himself as a witness in the
present suit, the defendant proved parts of his testimony in the
former case, showing facts which complainant alone could ex-
plain, and which tended to show a motive for ridding himself of
his wife; whereupon the court properly charged the Jury, sub-
stantially, among other things, that the failure to call an
available witness possessing peculiar knowledge as to essential
facts, especially if such witness would naturally be favorable
to the party's contention, raises an inference, sometimes de-
nominated a "strong presumption of law," that the testimony
of such uninterrogated witness would not sustain the con-
tentions of the party, and that such rule applied with peculiar
force to a party to a suit who refuses to testify, and was appli-
cable to complainant. (Post, pp. 473-483.)

Cases cited and approved: Dunlap v. Haynes, 4 Heisk., 476, 480;
Jackson v. Blanton, 2 Bax., 63, 66, 67; Bennett v. Insurance Co.,
107 Tenn., 371; Standard Oil Co. v. State, 117 Tenn., 676;
Railroad v. Ellis, 54 Fed., 481, 483, 4 C. C. A., 454, 456; Pacific
Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed., 180, 36 C.
C. A., 135; Blatch v. Archer, Cowp., 63, 65.

452 TENNESSEE REPORTS, [124 Tenn.

Fisher v. Insurance Co.

8. 8AM E. Improper as to failure of complainant to testify about
matters peculiarly within his knowledge, though his former
testimony was proved, when.

After delivering a proper charge as stated in the preceding head-
note, the court then improperly charged the Jury, substantially,
that if the jury believed that complainant's testimony, taken
on the trial of a former case, contained all the evidence within
complainant's knowledge which was favorable to defendant,
the jury should take that into consideration, since it was not
right that the defendant should introduce all the testimony
of complainant against bis interest and in favor of defendant,
and then, in addition, have the full benefit of the presump-
tion against him arising from his not testifying. This charge
was erroneous, because there were other facts proven in the
record, as to which complainant might have testified, than
those contained in the cross-examination, and proved by the
record in the previous case. {Post, pp. 473-483.)

1. 8AM E. Proper as to presumptions against a complainant fail-
ing to testify and to explain facts peculiarly within his knowl-
edge and seemingly adverse to him.

Where. In a suit on an accident policy for the accidental death of
the complainant's wife, complainant failed to testify, notwith-
standing the proof of facts showing that he must have had
peculiar knowledge of many facts, not known to others, con-
cerning his wife's death, tending to show that her death was
not caused by an accident in the meaning of the policy but
imputing to him her death, it was proper to charge the jury
that his failure to testify was unaccountable upon any other
reasonable hypothesis than that he could not deny the truth-
fulness of the testimony given against him as to his conduct
about the time of his wife's injury and death, and as to the
admissions made by him at a former trial of another case.
(Post, pp. 483-489.)

Cases cited and approved: Dunlap v. Haynes, 4 Heisk., 476;
Jackson v. Blanton, 2 Baz., 63; Bennett v. Insurance Co., 107

16 Cates] APRIL TERM, 1911. 453

Fisher v. Insurance Co.

Tenn., 371; Dick Co. v. Belke Co. (C. C.)> 86 Fed., 149; Societe,
etc., v. Allen, 90 Fed., 815, 817, 33 C. C. A., 282, 284; Bank v.
Stone, 50 Me., 595, 599; Dickinson v. Bentley, 80 Iowa, 482.

5. EVIDENCE. Litigants are not excused from testifying because
of the humiliation to which they may be subjected on cross*
examination.

Where, in a suit on an accident policy for the accidental death
of the complainant's wife, the defendant proved facts tending
to show or to justify an inference that complainant caused
her death, and consequently that her death was not caused by
an accident within the meaning of the policy, it was not a
sufficient explanation of complainant's failure to testify that
he shrank from the humiliation of having to repeat his infi-
delities to his wife and other discreditable conduct on his
part at the time of and during their marriage, as he had been
compelled to do on cross-examination in a former action upon
a policy on his wife's life in another insurance company.
(Post, pp. 473-489 and especially 489.)

6. CHARGE OF COURT. 8peclal request for instruction as to
failure of a party to testify that Is too strong and too direct,
and that invades the province of the Jury, is properly refused;
suggested modification.

Where, In a suit on an accident policy for the accidental death
of the complainant's wife, the defendant specially requested
the court to charge, in substance, that it is the duty of a party
to a suit in a court of equity to make a disclosure of all ma-
terial and relevant facts in his possession bearing upon the
issues, and to withhold none, so that the merits of the con-
troversy may be fairly and properly determined; that plaintiff
is a competent witness, and has not testified; and that his fail-
ure to testify is unaccountable upon any other hypothesis than
that he could not deny the truthfulness of the testimony given
against him as to his conduct about the time of his wife's in-
Jury, and as to his admissions at the former trial; nor can
his failure to testify concerning the symptoms, conditions, and

454 TENNESSEE REPORTS. {124 Tenn.

Fisher v. Insurance Co.

appearance of his wife, after the injury, be accounted for upon
any other reasonable ground, except that, if he testified, his
testimony would have tended to disprove that her death re-
sulted from accidental means, such request is stated in lan-
guage too strong and too direct, and, if given, would have in-
vaded the province of the Jury, and it was, therefore, properly
refused. An instruction might have been properly given that
the jury would be Justified in presuming against complainant,
and in assuming as true the facts which he might have dis-
proved by his own testimony if untrue, if they should see proper
to do so. (Post, pp. 484, 489, 490.)

7. SAME. As to complainant's right to recover notwithstanding
his bad character and motives, if he made out a case of acci-
dental death of his wife under an accident policy, Is not Im-
proper, when.

Where, In a suit on an accident policy for the accidental death
of the complainant's wife, the court Instructs the jury that If
they find evidence tending to show discord between complain-
ant and his wife, his bad treatment of her, immoral conduct on
his part, his forgery of her will, or that he was guilty of other
wrongful conduct, they can consider said evidence as part of
the circumstances surrounding and preceding her death, in
determining the cause of her death; but that, if the jury con-
clude, from the preponderance of the evidence, that the Injury
received on a street car, directly and independently of all
other causes, through external, violent, and accidental means,
resulted in and caused her death, then the fury should not
allow any prejudice against complainant, by reason of evidence
reflecting on his character, to affect the verdict; and if the
jury believe from the proof that complainant's character is bad,
they may consider this as bearing on the probability or improb-
ability of bad conduct on his part, and as bearing on the ques-
tion whether he was impelled by good or bad motives; but if he
has made out his case by a preponderance of the proof, he
is entitled to recover, no matter how bad his character may
be, such instruction, when fairly construed, means that the

16 Cates] APRIL TERM, 1911. 455

Fisher v. Insurance CO.

jury should consider all the facts proven, in determining where
the preponderance of the evidence lies as to the cause of death,
and is not objectionable as segregating the testimony intro-
duced by the defendant as to the probable cause of the deced-
ent's death from that part of the testimony which immediately
concerned the alleged accident in the car, and as authorizing
the jury to consider the latter evidence apart from the former
in reaching their conclusion as to the cause of the death.
(Post, pp. 490, 491.)

8. 8AM E. Correct as to consideration of testimony as to for-
gery of will in husband's suit upon accident policy for acci-
dental death of his wife.

Where, in a suit on an accident policy for the accidental death
of the complainant's wife, evidence was introduced which
tended to raise an inference that complainant had caused his
wife's death, and also that he had forged her will, an instruc-
tion that testimony with reference to the forgery of the will
was material only as a part of the circumstances surrounding
and antedating his wife's death, and as bearing upon the ques-
tion of what, if any, motive complainant had to cause her
death, and could be considered only in that connection, was
correct, and not improper. (Post, pp. 491, 492.)

9. 8AM E. Immaterial Instruction likely to mislead, jury should
not be given.

Where, in a suit on an accident policy for the accidental death
of the complainant's wife, the defendant contended that com-
plainant himself caused his wife's death, and had forged her
will in his own favor covering certain lands of hers in the
State of Mississippi, an instruction was given to the jury, in
effect, that, under the law of Tennessee, a will must be proved
and recorded, and letters testamentary granted, in a court of
the county where the testatrix had her residence at the time
of her death, and that if the jury find that her will was proved
and recorded in a certain county where she resided at her
death, then that would be the legal way of proving the will,

456 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

and no inference derogatory to complainant can be drawn
from his proving it there, though she may have had lands in
Mississippi*, such instruction was immaterial, and should not
have been given, because it was of a nature likely to mislead
the jury. (Post, pp. 491, 492.)

10. 8AM E. 8a me. As to law of inheritance of another State as
argument against forgery of will is improper where alleged
forger Is not shown to have known such law.

Where the court, continuing the charge stated In the preceding
headnote, instructs the Jury that under the laws of Mississippi,
where a wife dies leaving no children, the husband, by virtue
of the marital rights, and independent of any will, inherits
the real estate of his deceased wife, and therefore that it Is
Immaterial whether said will was proved in Mississippi, or not,
in so far as his inheritance of such real estate is concerned,
such instruction was improperly given, because there was no
evidence or presumption that complainant knew what the law
of Mississippi was when the will is said to have been forged
by him; for the existence of such law, when not known to
him, is no argument against his forging the will. (Post, pp.
491, 492.)

11. EVIDENCE. Expert's copy of signature Is no evidence that a
less skilled person could copy It; and exclusion of such evl-
dence is not error.

Where, in a suit on an accident policy for the accidental death
of the complainant's wife, it was contended by defendant that
complainant had forged his deceased wife's will, the fact that
a controversy arose between counsel as to whether a forged
signature should resemble the original in order to be a decep-
tive forgery did not authorize the admission of a copy of de-
cedent's alleged signature, made by a handwriting expert, and
offered by defendant as an illustration of the ease with which
the decedent's name could be forged, to show the expertness of
the witness, and in support of defendant's theory as to how
the signature was forged with an indelible pencil, which the
expert used in making the illustration, and there was no error

16 Cates] APRIL TERM, 1911. 457

Fisher v. Insurance Co.

in the court's exclusion of such evidence ; for the expert's
imitation of the signature would be no reason for believing
that any other less skilled person could make a similar Imita-
tion with equal ease, and, therefore, the evidence was wholly
immaterial and irrelevant (Post, pp. 492, 4930

12. CHARGE OF COURT. As to medical treatment and autopsy
that is not erroneous as eliminating other evidence, especially
In the absence of a special request thereon.

Where, in a suit on an accident policy for the accidental death
of complainant's wife, the defendant claimed that she died
from the result of drugs administered to her in the course
of medical treatment, and not from the result of an accidental
injury* &s claimed by complainant; and the court charged that
the evidence showed, after it was claimed that the
insured was injured, that morphine and other poisonous
drugs were given her in the course of medical treatment; that
it was immaterial whether such treatment was proper or im-
proper, or whether, it was the intention of saving or prolonging
life, but if the Jury found from the evidence that such medical
treatment caused or in any wise contributed to or acted in
conjunction with the injuries to bring about her death, or has-
tened her death, there could be no recovery; and further in-
structing the Jury, the court said "You may, however, consider
whether or not the said medical treatment was In accord with
the practice of reputable physicians, and, if you find it was,
you may look to this in determining whether or not said med-
ical treatment contributed to or hastened her death;" and
after giving instructions on another subject, the court then
also charged that the purpose of an autopsy Is to ascertain
the exact cause of death, and that the chemical analysis of
the contents of the stomach of the insured decedent was for
the purpose of ascertaining whether or not there was any poi-
sonous substance therein, so if the Jury found that an autopsy
was made on defendent's body by competent physicians and
chemists, and no morphine was found therein, then they might

458 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

consider such facts determining whether or not she came to
her death by morphine poisoning, accidental or otherwise, or
as the result solely of the accident, the said Instruction on au-
topsy and the quoted portion of the preceding instruction were
not erroneous as eliminating other evidence that the decedent's
stomach, from the time of her alleged injury to her death,
was torpid and unresponsive, and that under such circum-
stances morphine, even in small doses by hypodermic injec-
tions, would probably be fatal, though it might not be disclosed
by a post mortem examination and analysis of the contents of
the stomach, in the absence of a special request presenting
such phase of the testimony. (Post, pp. 493-499.)

13. 8AM E. That expert evidence must be received with "great
caution," and that the Jury "must not be misled or confused"
thereby, Is erroneous, as discriminating too strongly against
expert evidence. .

A charge instructing the jury that they must receive and con-
sider expert testimony with great caution; that they must make
a careful and painstaking investigation of all the facts, with
the view of reaching the truth, and must not be misled or
confused by expert testimony, because, while such testimony
is sometimes the only means or the best way to reach the
truth, yet it is largely a field of speculation, beset with pit-
falls and uncertainties, and requires patient and intelligent
investigation to reach the truth, was erroneous, as discrimi-
nating too strongly against such class of evidence in warning
the jury that they "must not be misled or confused by expert
testimony," and also in charging, in respect of all of the ex-
pert testimony in the case, that it must be received with "great
caution." (Post, pp. 499-506.)

Cases cited and approved: Persons v. State, 90 Tenn., 291;
Wilcox v. State, 94 Tenn., 106, 112; Bateman v. Ryder, 106
Tenn., 712, 715; Atkins v. State, 119 Tenn., 458, 472.

16 Cates] APRIL TERM, 1911. 459

Fisher t. Insurance Co.

14. SAME. That the nonexistence of one fact In a hypothetical
question asked an expert renders his opinion valueless con-
tains no error.

A charge instructing the Jury that, in weighing the answers
of experts to hypothetical questions, they must look to all the
evidence, and determine whether the facts, supposed to exist
in the hypothetical questions asked, did actually exist, "he-
cause, if one fact, supposed to be true, included in the hypo-
thetical question, is untrue, that is, not supported by the evi
dence, then the opinion of the expert would be valueless,"
and because the expert witness gives his opinion upon a cer-
tain state of facts supposed to be true, and it cannot be known
what his opinion would be if one of those facts was withdrawn,
is in substantial accord with the authorities, and contains no
error. (Post, pp. 506-508.)

15. 8AM E. That presumptions might be overcome by facts and
circumstances which "establish" the contrary contains no re-
versible error in the use of the word "establish."

Where, In a suit on an accident policy for the accidental death
of the complainant's wife, the court charged the jury that the
complainant was entitled to the presumption that his wife did
not commit suicide, and that she was not murdered by him or
any one else; that each of these presumptions might be over-
come by facts and circumstances which "establish" the con-
trary; but that such presumptions stand until they are over
come by the preponderance of the evidence, sufficient for that
purpose, does not contain reversible error, because of the use
of the word "establish," when taken in connection with the
rest of the paragraph, though its such use in a civil case is
unfortunate. (Post, pp. 508, 509.)

Cases cited, distinguished, and approved: Insurance Co. v. Ben-
nett, 90 Tenn., 256; Knights of Pythias v. Steel, 107 Tenn., 1,
7, 11.

460 TENNESSEE REPORTS. [124 Tenn.

■ Fisher t. Insurance Co.

m
#

16. SAME. Same. Requiring the establishment of a fact to tho
satisfaction of the Jury la Improper as requiring too high a de-
gree of proof.

A charge that it was incumbent upon a party "to establish the
fact to the satisfaction of the jury" is equivalent to saying; to
them that he must make it appear beyond a reasonable doubt,
and is, therefore, improper as applied to the party upon whom
the burden of proof rests in a civil case, in that it requires a
degree of proof entirely too high. {Post, pp. 508, 609.)

Cases cited, distinguished, and approved: Insurance Co. v. Ben-
nett, 90 Tenn., 256; Knights of Pythias v. Steel, 107 Tenn., 1,
7, 11.

17. ACCIDENT INSURANCE. Evidence stated and held to be In-
sufficient to prove the fact that proofs of death were sent to
the Insurer.

Where, in a suit on an accident policy for the accidental death of
the insured, the insurer's agent testified that he could not say
whether proofs of death were handed Into his office or sent di-
rectly to the insurer, without, examining his record, such evi-
dence did not show that the proofs were sent either to the
office of the agent or to the office of the Insurer, especially where
such agent testified that he was not in his office at the time the
alleged accident occurred, and did not know whether any notice
had been sent there or not, and did not profess to know what
was on the records of the insurer at the home office, where
the notice was required to be sent; and there was no other evi-
dence upon the subject, except a physician testified that he
made out the proofs of death, but had no knowledge as to
whether they had been sent to the insurer; such evidence can-
not be taken as sustaining In any sense the fact that the proofs
of death were sent as required by the policy. {Post, pp. 510,
511.)

16 Cates] APRIL TERM, 1911. 461

Fisher v. Insurance Co.

18. CHARGE OF COURT. 8pecla| request for Instruction to Jury
to find that proofs of death were not furnished as required by
accident policy should be given, when.

Where, In the case shown In the preceding headnote, if nothing
else appeared, and there was no waiver of proofs of death,
a special request for an instruction to the Jury that there was
no evidence that the proofs were furnished in the manner re-
quired by the policy, and that they should find accordingly,
should have been given; but where such proofs of death were
waived by the insurer's demand for an autopsy such request
was properly refused. (Post, pp. 610, 511, 612.)

19. ACCIDENT IN8URANCE. Policy requiring proofs of death to
be sent to home office Is not complied with by submitting
same to office of local agent.

Where an accident policy requires proofs of death to be sent to
the insurer's home office, this requirement is a condition pre-
cedent to a recovery, unless it be waived; and submission of
such proofs to the office of a local agent of the insurer is not
a compliance with such requirement (Post, pp. 611, 512.)

20. 8AM E. Insurer's demand for autopsy waives proofs of death.

The insurer's demand for an autopsy to discover the cause of
death constitutes a waiver of the proofs of death required by
the policy as a condition precedent to a recovery. (Post, p.
611.)

31. A88IGNMENT OF ERROR. For refusal of new trial for newly
discovered evidence will not be considered where the case is
reversed upon other grounds resulting In a new trial.

It is unnecessary for the supreme court to consider an assign-
ment of error based upon the refusal of the trial Judge to grant
a new trial on account of newly discovered evidence, where
the case must be reversed upon other grounds, resulting in a
new trial, and such newly discovered evidence may be intro-
duced at the next trial, if then deemed material. (Post, p. 612.)

462 TENNESSEE REPORTS. {124 Tenn.

Fisher v. Insurance Co.

22. ACCIDENT INSURANCE. Reception and retention of prem-
iums operates as a waiver of insured's signature to certificate,
and estops Insurer to object for want of same.

Where a. beneficiary supplement, insuring the complainant's
wife against accident in his favor, was attached to an accident
policy issued to complainant, and the premium was received
and retained by the insurer, without requiring the wife's signa-
ture to the certificate, such beneficiary supplement haying
been lost, and a new one issued in lieu thereof, the insurer
was estopped to object to the validity thereof, upon the ground
that it was not signed by the wife in person, but by plaintiff
for her; and a charge of the court in accordance with this view,
and the court's refusal to charge special requests contrary to
such view, constituted no error. (Post, pp. 512-515.)

FROM SHELBY.

Appeal from the Chancery Court of Shelby County. —
F. H. Heiskell, Chancellor.

Carroll & McKellar^ for complainant.

Pitzhugh & Biggs and Canada & Phelan, for defend-
ant.

Mr. Justice Neil delivered the opinion of the Court.

The complainant, J. Baxter Fisher, procured of the de-
fendant an accident insurance policy in the sum of $ 10,-
000 on the 5th of November, 1906. This policy contained

I •

16 Cates] APRIL TERM, 1911. 463

Fisher v. Insurance Co.

the usual clauses with respect to accidents producing a
partial injury, and also a provision that, in event of
death, the principal sum should be paid to his wife, Lula
A. Fisher, if surviving; otherwise, to the executors, ad-
ministrators, or assigns of the insured. This policy is
known in the record as "D34802." Attached to it was
what is called a beneficiary supplement, in which the
life of the wife was insured against accidents. This pro-
vided that, in case death should occur to the wife from
"bodily injuries, effected directly and independently of
all other causes, through external, violent, and acci-
dental means (suicide, sane or insane, not included),
while riding as passenger and being in or on any rail-
way passenger car using steam cable, compressed air, or
electricity as a motive power, or while in a passenger ele-
vator, or while traveling as a passenger on board a steam
vessel licensed for the regular transportation of passen-
gers, or caused by the burning of a building" while the
wife was therein, $10,000 should be paid to the husband,
J. Baxter Fisher. For injuries not resulting in death, this
supplement provided that money accruing under the pol-
icy should be paid to the wife. On the 16th of June,
1907> the complainant took out another policy of accident
insurance on his own life in the sum of $5,000. This
policy also provided that, in the event of death, the prin-
cipal sum of $5,000 should be paid to the wife, Lula A.
Fisher. It is known in the record as "E33739." There
was prepared to go with this policy a beneficiary supple-
ment on the life of the wife. Its terms are similar to

464 TENNESSEE REPORTS. {124 Tenn.

Fisher t. Insurance Co.

those contained in the supplement already referred to,
except the sum expressed, that is, $5,000, instead of
$10,000, and except this clause: "That the beneficiary
signs consent below to the insurance herein given, and
warrants all the following statements to be true." Then
follow statements as to her age, weight, and residence;
that J. Baxter Fisher is her husband, and her occupation
that of housewife ; that she has no other accident insur-
ance, except thflt in the former policy; that she is in
sound condition mentally and physically, and except
the following at the close of the paper : "I consent here-
to, and warrant the above statements to be true-" Then
follows a blank space for the signature. Under this are
the following words: "Beneficiary under this supple-
ment.^ This supplement is known in the record as
"Beneficiary Supplement No. 82887." It is dated May
20, 1907, while the policy to which it was intended to be
attached is dated, as we have already said, on the 16th
day of June — at least, the policy was to begin on the 16th
of June, according to its terms. The supplement pro-
vided that the insurance under it shall commence "on
the date below." The date below is the 20th day of May,
1907. The supplement was countersigned by Paul B.
Jefferson, one of the agents of the company, and handed
to J. Baxter Fisher. Mr. Jefferson says in his deposition
that he handed it to him to be signed by the wife and re-
turned for attachment to the policy. On cross-examina-
tion says he does not remember this, but he so states
from his usual course of business. He, however, did

16 Cates] APRIL TERM, 1911. 465

Fisher y. Insurance Co.

hand it to J. Baxter Fisher. Subsequently, on July 16,
1907, the following paper was handed to the company.
In the meantime Paul B. Jefferson had ceased to be its
agent It is on the letter head of the company's office
at Memphis, and reads as follows:
"Agency at Memphis, Tennessee,

"July l'6th, 1907.

"We, J. Baxter Fisher and Lula A. Fisher, hereby cer-
tify that Beneficiary Supplement No. 82887, issued
through the agency of Marks & Bensdorf, district mana-
gers, Memphis, Tennessee, on the life of Lula A. Fisher,
has been lost, mislaid, or destroyed, and that the same
is not now in force, and in consideration of (1.00 to us
in hand paid, the receipt of which is hereby acknowl-
edged, we hereby agree to hold the Trailers' Insurance
Co., of Hartford, Conn., harmless from all or any claims
or liability under said beneficiary supplement; and it
is further agreed that, in case said beneficiary supple-
ment should be found at any time, it shall be at once
forwarded to the office of the company in Hartford,
Conn.

"[Signed] Lula A. Fisher, Assured.

"J. B. F.

"Witness : F. H. H."

Three days before the date of the paper just quoted —
that is, on the 13th of July, 1907, there was issued an-
other beneficiary supplement in the place of No. 82887,
and known in this record as "Beneficiary Supplement
No. 96377." It contained the same provisions as No.

124 Tenn. — 80

466 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

82887, as to the signature of the wife. It was counter-
signed by Paul B. Jefferson, but not until after he had
left the service of the company. However, Mr. Bensdorf ,
one of the district managers of the company at Memphis,
testified that this was issued in lieu of No. 82887, and
that the premium on the latter had been paid, and had
never been returned. This purports to be signed by
Lula A. Fisher, but there was evidence that her name
was written by J. Baxter Fisher himself. The suit was
first brought on No. 82887, and by subsequent amend-
ment No. 96377 was added. It appears that No. 82887
turned up before the suit was brought. This explains
issues 2 and 3 referred to in the charge of thfe court to
the jury, which will be mentioned in the course of the
opinion.

A jury was called for by the complainant, and issues
were submitted to them. These issues need not be re-
ferred to more particularly than they are set out below
in disposing of the charge of the court.

There was a verdict for the complainant for the full
amount of both supplements and interest, and the de-
fendant, after its motion for new trial had been over-
ruled, appealed to this court, and has here assigned
errors.

The first assignment of error is based on the refusal
of the trial judge to permit the witnesses Caruthers Ew-
ing, Henry J. Livingston, H. R. Miller, J. I. Foster, and
T. N. Oorham to testify before the jury as to the experi-
ments made with the same street car on which the alleged

16 Gates] APRIL TERM, 1911. 467

Fisher v. Insurance Co.

accident occurred at the same curve, and under substan-
tially the same conditions as those which existed at the
time of the alleged accident, as tending clearly to show
that the deceased, Lula A, Fisher, could not possibly
have been injured in the manner alleged in the bill, and
as claimed by the complainant's witness Leibkeman, and
the exclusion, over the defendant's objections, all the tes-
timony of said witnesses.

As set out in another portion of defendant's brief, the
defendant offered evidence of the witnesses referred to,
in substance to the effect that experiments were made
with the same car at the same curve, and under substan-
tially the same conditions that existed at the time of the
alleged accident, which tended to show that it was physi-
cally impossible for any swerve of the car, while going
east around the curve in question, to cause a person walk-
ing in the aisle to the rear to fall towards the north, or
to the side; that these experiments were made with the
car running at various speeds, and the witnesses testified
that in going at only three or four miles per hour around
the curve it would not disturb the balance of any one
while walking in the aisle ; but when running at a high
rate of speed the effect upon a person so walking towards
the rear, exactly as Mrs. Fisher was doing, and in the
same part of the car, was invariably the opposite of
Leibkeman's testimony ; in other words, that, where there
was the slightest tendency to fall, it was invariably to-
wards the left, that is, towards the outside of the curve,
or the direction in which the car was going before it

468 TENNESSEE EEPORTS. ]]124 Tenn.

Fisher v. Insurance Co.

struck the curve, which constituted a partial obstruc-
tion.

Dr. Leibkeman testified that he was on the same car
on which Dr. Fisher and his wife were riding at the time
the accident is said to have occurred ; that when the car
was near the place where Dr. Fisher and his wife were to
stop, Mrs. Fisher, who was sitting near the
end of the car, perhaps the second or third seat
from the back of the car, rose to walk out, and had gotten
in the aisle of the car, and was going towards the back
of the car, and that the car made a swerve, and she fell
or was thrown upon the railing of a seat in front of her,
and sank to the floor with her hands or arms on the end
of the seat, and was picked up by her husband and car-
ried from the car when it stopped. It is shown that the
swerve was made at the curve. It appears from the evi-
dence that the car was going in a southeast direction,
and that the curve in the track was to the south, and
hence that the swerve must have been to the south. It
appears from the testimony of Dr. Leibkeman that she
fell to the north, and that the alleged injury upon which
the action was brought, and which is said to have caused
the death of Mrs. Fisher, was to the right side; it being
claimed that four ribs were broken, and that she died
from the shock caused by this injury. The evidence of
the motorman of the car is that the car was going three
or four miles an hour at the time Mrs. Fisher fell. Now,
it is, of course, possible that Mrs. Fisher may have had
a sudden fainting spell, and have fallen upon the rail-

I

16 Gates] APRIL TEEM, 1911. 469

Fisher v. Insurance Co.

ing of the seat, without being thrown thereon by the mo-
tion of the car. However, the contention of the com-
plainant in the court below was that she was so thrown
by the swerve of the car, and there was no evidence that
she had fainted, further than might have been inferred
from the mere fact of her falling. Since the case went be-
fore the jury upon the theory of the swerve of the car and
the consequent throwing of Mrs. Fisher upon the railing
of the car, it was important to the defendant that the evi-
dence offered and rejected should have been admitted,
as it tended to show that she could not have been hurt
in the manner claimed for the complainant. The testi-
mony was therefore relexant. The chancellor seems to
have excluded it on the ground that the experiments
would probably confuse the jury, rather than enlighten
them. We cannot see how such a result would follow.
The experiments gave a concrete example of the effect of
the motion of the car. The chancellor said that it was
a law of motion that a body would fall in the direction
of the swerve, and that counsel could argue this without
experiment. This is not an answer to the right of the de-
fendant to show by a vivid example how the law of mo-
tion would really operate under exactly similar condi-
tions. Such an experiment would have enabled the jury
to grasp and understand this law of physics more firmly.
It is insisted in behalf of the complainant that the con-
ditions were not similar. But the witnesses show that
they were-rthe same car, the same track, unchanged,
and running at various speeds from two miles an hour

470 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

to ten miles an hour. It is said that the persons who
made the experiments were men, and the one who was
injured was a woman, a small one at that. This would
not alter the result. A large body would fall more heav-
ily, but not more surely than a small one.

As to the competency of experiments, this has been
settled in Tennessee by numerous cases. Byers v. Rail-
road, 94 Tenn., 345, 29 N. W., 128, and cases cited there-
in ; Boyd v. State, 14 Lea, 161 ; Lipes v. State, 15 Lea,
125, 54 Am. Rep., 402; Mississippi & Tennessee R. R.
Co. v. Ayers, 16 Lea, 725.

In Byers v. Railroad, supra, it was assigned as error
that the court excluded the testimony of one Henry
Mangrum, who, at the request of the company, made an
actual test to see whether the train that caused the
death could have been stopped after the engineer saw,
or could have seen, the man on the bridge. This witness
proposed to prove that he ran the same train on a differ-
ent, day after the accident over the same place and
bridge ; that he had the same number of coaches ; that in
making the test, as soon as he could, being on the look-
out, see an object standing on the center of the bridge,
he applied every means known to him or other skillful
engineers, and used every endeavor to stop his train ;
and that it was impossible to stop such a train before
passing over the bridge, and that his entire train passed
over the bridge before he was able to stop it. He further
would have testified, if allowed, that he applied his air
brakes, reversed his engine, and used every means known

16 Gates] APRIL TERM, 1911. 471

Fisher v. Insurance Co.

■

to engineers to effect the stop, but was unable to do so.
The test was made by Mangrum for the purpose of mak-
ing him a witness, and proving the result of the test. On
objection, this evidence was not allowed to be given. The
judgment of the trial court was reversed for this error.
The court said : "We are of opinion that the trial judge
was in error in not allowing evidence of this test to be
introduced under instructions to the jury as to its
weight. We cannot speculate on what might have been
the verdict of the jury if this evidence had been allowed
to be introduced. It was upon a vital point in the con-
troversy."

So, in the present case, the evidence was on a vital
point in the controversy, because, unless Mrs* Fisher
received the injury upon some railway car propelled by
steam, compressed air, or electricity, there could be, un-
der the terms of the beneficiary supplement of the policy
' sued on, no recovery.

In Byers v. Railroad, the case of Chicago, St L. <& P.
B. B. Co. v. Champion (Ind.), 32 N. E., 874, 23 L. R. A.,
861, was referred to with approval. In that case it ap- •
peared that the plaintiff brought an action for injury
due to the negligence of a fellow servant, one Theodore
Leonard, a yard brakeman, who it is alleged was inexpe-
rienced, incompenent, unskillful, and negligent, and that
appellant, at the time of his employment, and during the
time he was in the service of appellant, had knowledge
of such incompetence ; that, while appellee was perform-
ing his work in appellant's yard, appellee undertook to

472 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

couple a car, which Leonard was riding down upon a sid-
ing, to a car which was standing upon the siding;
and that when he was in the act of making the
coupling, and when the moving car was within from six
to eight inches from the other car, Leonard negligently
loosened the brake on the moving car, which caused it
to spring or jump forward, and catch and mash the
plaintiff's hand between the draw bars. To prove that
under such circumstances a car would not spring for-
ward when the brakes were loosened the appellant pro-
duced evidence of experiment made with a similar car
which the same brakeman in similar weather operated
on the same track in the same manner. The exclusion of
this evidence was held error, on the ground that the con-
ditions under which the experiment was made were sub-
tially the same as those under which the accident oc-
curred. The court said :

"In the offer to prove in this case, many circumstances
were included that were wholly unimportant, such as
the fact that the same brakeman was on the car and
handled the brakes in both instances. The important
fact sought to be established by the experiment was
whether or not a car moving at a slow rate of speed,
down a slight incline, with the brakes set, would, when
the brakes were suddenly loosened, jump or spring for-
ward. If it would do so in one instance, it would, under
ordinary conditions, repeat it every time the experiment
was tried ; for it would be the result of the operation of
the laws of motion. The rate at which the car was mov-

16 Cates] APRIL TERM, 1911. 473

Fisher v. Insurance Co.

^ .__ ^ maai __^__ _■ mi mm— .a aao m ^ — ^— ^

ing, the.suddenness with which the brakes were loosened,
the degree of the inclination of the track, might affect
the celerity of the mowment, but would not affect the
nature of the movement. If the question for investiga-
tion was the distance which it would jump, or the
celerity of the movement, all these things might be im-
portant ; but in determining whether it would or would
not jump, they are comparatively unimportant. In our
opinion, the circumstances under which the experiment
was made were sufficiently similar to the facts surround-
ing the happening of the accident to make it admissible
in evidence, for what it was worth, and for this error the
judgment must be reversed."

See, also, the following text-book: 2 Elliott on Evi-
dence, sections 1249 to 1252, inclusive.

We are of opinion that the chancellor committed error
in excluding the evidence referred to, and the first as-
signment must be sustained.

The second assignment is based on that portion of the
judge's charge to the jury which is as follows :

"The plaintiff in this suit has been present in court
during the trial and heard the testimony of witnesses re-
lating to his conduct about the time his wife is alleged to
have received the injury. There haw also been admis-
sions made by him, under oath, at a former trial in this
court, reflecting upon his character and otherwise bear-
ing directly upon the issues in this suit. The proof also
shows that the plaintiff was with his wife most, if not
all, of the time after it is claimed she was injured until

474 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

her death, which occurred some twenty-seven hours af-
terwards, and that during the greater part of this period
he was the only person with her. Under the issue, in
this case, the symptoms, conditions, appearance, and
medical treatment after the injuries are facts relevant
and proper for consideration in determining the issue in
this case, as to whether the injury alleged to have been
sustained by her in fact caused her death, independenty
of all other causes, or whether the morphine, or other
drugs, given her, or some other causes apart from the in-
juries, caused or contributed to her death.

"The failure to call an available witness possessing
peculiar knowledge concerning facts essential to the
party's cause, direct or rebutting, or to examine such
witness as to the facts covered by his special knowledge,
especially if the witness be naturally favorable to the
party's contention, relying instead upon the evidence of
witnesses less familiar with the matter, gives rise to an
inference, sometimes denominated a 'strong presump-
tion of law,' that the testimony of such uninterrogated
Witness would not sustain the contentions of such party
to the suit. This rule applies with peculiar force to a
party to a suit who refuses to testify, and it is applicable
to Dr. Fisher in this case.

"If, however, you believe that the testimony of Dr.
Fisher, taken on the trial of a former case and intro-
duced by the defendant on this trial, contained all the
evidence within the knowledge of Dr. Fisher which is
favorable to the defendant, you should take this into con-

16 Cates] APRIL TERM, 1911. 475

Fisher v. Insurance Co.

sideration, in this connection. In other words, it is not
right that the defendant should introduce all the testir
mnoy of Dr. Fisher against his interest and in favor of
defendant, and then, in addition, have the full benefit of
the presumption against him arising from his not testi-
fying in the case/ 1

The last paragraph is the one to which objection is
made. We write this in italics for convenience of
reference.

In order to a proper understanding of this portion of
the charge, it should be stated that the complainant had
been a witness in the suit which he had brought to re-
cover on a policy which he had in the Pacific Mutual Life
Insurance Company; that his testimony was taken down
in that case by a stenographer. He was cross-examined
there at great length. In the present case the transcript
which the stenographer had made from his notes was
used by counsel for the defendant. He placed the
stenographer on the witness stand, and read to him from
different parts of the cross-examination in the case re-
ferred to, and proved by him that the complainant made
the statements which were selected for evidence by the
said counsel for defendant. The stenographer also tes-
tified that he thought counsel for defendant made a full
examination of the complainant in that case, who is also
complainant in this case.

The admissions of the complainant which were thus
placed in evidence were to the effect that a short time
before he married his wife, who was then a widow hav-

476 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

ing some estate, he borrowed f 700 from her on pretense
of being in trouble about shooting a man in Arkansas,
for which there was no foundation in fact ; that, instead
of marrying in Memphis, where they both lived, he took
her over into Arkansas and married her there ; that his
pretense for taking her there was that he had a negro
patient that he wished to visit, whose name he did not
remember, and whom he had never seen before ; that im-
mediately upon the marriage ceremony being performed
he left his newly made wife, and went up into Obion
county, this State, and thence into Lake county, and was
gone sometime ; that she tried to find him ; that she did
subsequently find him, and that they took a wedding trip
together, his wife paying all the expenses ; that before he
married and after his marriage he was criminally inti-
mate with a Mrs. James and with several other women ;
that one of these women lived immediately across the
street from his own home, or his mother's home, to
which he had taken his wife.

It was further proven from the cross-examination re-
ferred to that he always treated his wife "nicely," yet
she was very jealous; that she was jealous of his little
niece, three years old, and also his mother; that she
could not bear for him to show attention to any one;
again, that he knew that his wife was not happy, because
she was always jealous of some one. It was also proven
that his wife's little daughter, who lived with them, was
charged by him for medical attention, and also for
board; that his wife paid everything; that during this

16 Cates] APRIL TERM, 1911. 477

Fisher v. Insurance Co.

time he was allowing the Mrs. James referred to, and
several other women of loose character, to buy goods on
his credit at the stores of Memphis ; that he did not be-
lieve that his wife was jealous about Mrs. James, be-
cause he did not think she had knowledge of her, or of
his relations with her; that he would not deny that he
was out buggy riding with Mrs. James very shortly after
his wife'B death; that he was with her shortly after-
wards at all events ; that he induced this woman to leave
for Chicago to keep her from being a witness.

With reference to the condition of his wife during her
illness, it was proven from the cross-examination re-
ferred to that her pulse was somewhere from a 100 to
110; that it got slower "as the disease, the injury, ad-
vanced." Being asked why he wanted to have Dr.
Haynes, the physician for the street railway company, at
his house to see his wife just after she died, it is proven
that he said, "I don't know any reason why;" that he
had reached a conclusion before Dr. Haynes got there;
that during her illness he did not put any bandages at
her side for the broken ribs; that he had a hot water bag
at her side ; that he examined her skin during her illness,
and it seemed normal.

The foregoing was all in the record that the trial
judge could refer to when he told the jury that if they
believed that the testimony of Dr. Fisher, taken on the
trial of the former case, "contained all of the evidence
within the knowledge of Dr. Fisher which was favorable
to the defendant," they should take this into considera-

478 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

tioD in applying the presumption, and in saying to them
that it was not right that the "defendant should intro-
duce all of the evidence of Dr. Fisher against his in-
terest and in favor of defendant, and then, in addition,
havie the full benefit of the presumption against him,
arising from his not testifying in the case."

There were other facts proven in the record upon
which the complainant might have thrown light, which
were not touched upon in the cross-examination just re-
ferred to so far as the present record shows. There were
circumstances proven by Mrs. Noel as to his cruel treat-
ment of his wife in her home ; also his cruel treatment of
her while at Clarksdale; accusations made against him
by his wife relating to the death of her child ; strong cir-
cumstances referred to in the letters of his wife to Mrs.
Noel, bitterly accusing her husband; grave circum-
stances proven by Dr. Haynes on the night of the death
of the wife ; circumstances relating to the alleged forgery
of the will, and forgery of one of the beneficiary supple-
ments; his securing a signature thereto of the former
agent of defendant after his wife's death ; circumstances
testified to by Mr. Brewer as to the compromise of a suit
in Mississippi about some land of his wife, in which he
was openly and directly charged with being responsible
for the death of his wife. These were facts and circum-
stances proven by independent testimony, and not by the
admissions of the complainant.

The letters of the wife referred to are as follows : "I
am real sorry that I could not come down to see you, but

16 Cates] APRIL TERM, 1911. 479

Fisher v. Insurance Co.

don't look like I will ever get to go anywhere else. When
you hare a devilish, contrary man, to ask all the time,
like I do, you have to stay at home to keep peace. I cried
all day yesterday and last night, and my eyes are swollen
so bad this morning I can hardly see. I don't see what a
man wants to be so mean for ; but when one sees that he
can make a woman do, he certainly will. I just give up
to Dr. Fisher to keep from having a fuss. Say, Ida,
don't wait on me. Do come up some day and spend the
day with me, as I am so lonely. I want to see you so
badly. Now, for God's sake, don't go back on me, as I
feel like you are the only friend I have. Oh, what a
miserable life I do have to live. Ida, you know I have had
lots of trouble in my life, and have shed lots of tears;
but I have just shed about as many in the last ten
months as I have in all my life put together, and this is
saying a whole lot. I just can't see anything bright in
the future for me. What a fool I was for marrying
again. Hope your life will be different from mine. How
can any one be so deceived? Ida, don't let any one see
this, as I have got the blues so bad, I don't know hardly
what I did write. Now, be sure and come up Sunday and
spend the day with the old deserted woman. Will close,
hoping this letter will find you well. Please write me a
long letter. Ida, how is George? Tell him howdy for
me, and ask him to write me a few lines of cheer. Give
my best regards to Mr. Noel and baby, and write soon."
This letter was written on July 30, 1907.
The other letter was written August 28, 1907, and was

480 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

as follows : "I got home all O. K., but was so sick and
nervous, was almost crazy. Was in bed all day, and not
a soul to band me a drink of water. I have not been to
the table since I came back. All I have to say is I am a
big fool. Yes, he was here, and had the devil in him so
big he was about to pop, and has been ever since I got
back. But just let him keep it up if he wants to. I
asked him why he didn't write as he promised, and he
said he had started to and thought to himself, 'I will be
damned if I write her a word. 9 I asked him last night
not to be mad at me any more; 'let's make up/ and he
said, 'No, not me; you can just sweat it out.' Oh, God
knows my heart is so full I hardly know what I am writ-
ing. I can't eat, sleep, or do anything else but cry. I
feel so bad I have not got good sense, and if things don't
change in the next few days you need not be surprised to
see me at any time. As I told you at the depot, I just
wouldn't live the next six months as I have the last six.
He is the biggest fool I ever saw, and that old mammy of
his makes him worse than he really would be. Oh, I
pray to God to die and get out of this miserable old
world ; but I don't want to take my life, as it is a sin,
and I do want to go to rest when I die. Well, as I feel
so bad, will close. Now, Ida, answer this. Give my best
to Mr. Noel and baby, and the rest yourself."

It was also proven, at the time of her marriage to com-
plainant, August 28, 1905, the intended wife had a f 2,000
policy on her life in the New York Life Insurance Com-
pany. On the 4th of June, 1906, the beneficiary clause

16Cates] APRIL TERM, 1911. 481

Fisher v. Insurance Co.

. — —

was changed from executors, administrators, and as-
signs, as named in the policy, to J. Baxter Fisher, hus-
band ; that on November 5, 1906, he took out a beneficiary
supplement on his wife's life in his favor for $10,000, ac-
cident policy; that on the 13th of July, 1907, he took
out, or attempted to take out, another beneficiary sup-
plement on his wife's life in his favor for f 5,000 ; that
within two months after his marriage he took out an
accident insurance policy in the Pacific Mutual Life In-
surance Company of California for $ 10,000 on his wife's
life, for his benefit.

Since the case must be reversed, we shall not discuss
these facts, nor state their tendency toward any particu-
lar conclusion. It is certain, however, that, all of them
being matters within the knowledge of complainant,
it was incumbent upon him to speak in reference to them.
The chancellor had no right to assume, and so direct the
jury, nor did the jury have a right to assume, that all of
these facts had been proven in the case of the Pacific
Mutual Life Insurance Company, and that they were
embraced in the transcript of the evidence of complain-
ant in that case which the counsel for defendant held in
his hand when he examined the statement ; or, even if it
were proper to entertain such an inference, still there
may have been something which was omitted by counsel
in the former examination, or a reference to some other
topics. In addition to this, the fact that there had been
proven against him the admissions above referred to,
taken from his cross-examination in the case of Pacific

124 Tenn.— 31

482 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

Mutual Life Insurance Company, so far from exonerat-
ing him from the duty of going upon the witness stand,
only gave added reasons therefor, in order that, if in
possession of other facts which might qualify the ad-
missions made, he might add them. It would be just as
reasonable to say that, if a witness should prove in the
presence of one of the parties that the latter had made
a certain admission, this would prevent the party so re-
lying upon the admission from having the benefit of the
presumption of silence against the party so charged with
the admission. This would practically abrogate the
rule. The reason given by the chancellor in the excerpt
italicized is, as we think, altogether untenable. The
basis for that reason is that, inasmuch as certain admis-
sions had been proven against a party in his hearing, he
need not go on the stand to deny or explain them, and
that his silence must be treated as nothing against him.
The italicized language, in fact, completely destroyed
the effect of the presumption, and we think constituted
clear and reversible error. The authorities in this State
are directly and forcibly in favor of that portion of the
judge's charge preceding the language italicized. See
Dunlap v. Haynes, 4 Heisk., 476, 480; Jackson v. Blan-
ton, 2 Baxt., 63, 66, 67; Bennett v. Massachusetts Life
Insurance Co., 107 Tenn., 371, 64 S. W., 758; Standard
Oil Co. v. State, 117 Tenn., 676, 100 S. W., 705, 10 L. R-
A. (N. S.), 1015. Even a stronger statement would be
justified by the cases of Dunlap v. Haynes and Bennett
v. Mass. Ins. Co. To same effect, Pacific Coast S. S. Co.

16 Cates] APRIL TERM, 1911. 483

Fisher v. Insurance Co.

v. Bancroft-Whitney Co., 94 Fed., 180, 36 O. C. A., 135 ;
Railway Co. v. Ellis, 54 Fed., 481, 483, 4 0. C. A., 454,
456. In the case last cited it is said :

"It is a well-settled rule of evidence that when the cir-
cumstances in proof tend to fix a liability on a party who
has it in his power to offer evidence of all the facts as
they existed, and rebut th6 inferences which the circum-
stances in proof tend to establish, and he fails to offer
such proof, the natural conclusion is that the proof, if
produced, instead of rebutting, would support, the in-
ferences against him, and the jury is justified in acting
upon that conclusion. 'It is certainly a maxim,' said
Lord Mansfield, 'that all evidence is to be weighed ac-
cording to the proof which it was in the power of one
side to have produced, and in the power of the other side
to have contradicted.' Blatch v. Archer, Cowp., 63, 65.
It is said by Mr. Starkie in his work on Evidence
(volume 1, p. 54) : 'The conduct of the party in omit-
ting to produce that evidence in elucidation of the
subject-matter in dispute which is in his power and
which rests peculiarly within his own knowledge fre-
quently affords occasion for presumptions against him,
since it raises strong suspicion that such evidence, if
adduced, would operate to his prejudice.' "

The assignment of error is well taken, and must be
sustained.

The third assignment is on the same general subject.
It is based upon the refusal of the trial judge to give the
jury in charge special request No. 26 offered by counsel

484 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

for defendant. This special request, after repeating all
of the judge's charge as set forth under the preceding as-
signment except the paragraph in italics, continues as
follows :

"It is the duty of a party to a suit in a court of equity
to make disclosure of all of the material and relevant
facts in his possession bearing upon the issues in the
suit, and to withhold none, so that the merits of the con-
troversy may be fairly and properly determined. The
plaintiff, J. B. Fisher, is a competent witness under the
laws of this State, but has not testified as a witness in
this suit. His failure to testify is unaccountable upon
any other reasonable hypothesis than that he could not
deny the truthfulness of the testimony given against him
as to his conduct about the time of his wife's injury, and
as to the admissions made by him at the former trial;
nor can his failure to take the stand and testify con-
cerning the symptoms and conditions and appearance
of his wife after the injury be accounted for upon any
reasonable ground, except that, if he testified, his testi-
mony would have tended to disprove that her death re-
sulted from accidental means."

This was in effect what the trial judge said, aside from
the matter which we have reproduced in italics under a
former assignment in the paragraph just quoted.

As we have stated in disposing of the former assign-
ment, the trial judge might have gone much further
than he did, and yet been within our authorities. In
Durilap v. Haynes, supra, the question was whether a

16 Cates] APRIL TERM, 1911. 485

Fisher ▼. Insurance CO.

certain conveyance was fraudulent. The fraud had been
charged in the bill and denied in the answer, and evi-
dence had been given tending to show the fraud. John
Haynes was the conveyor, and W. D. Haynes was the
conveyee, in the alleged fraudulent conveyance. They
did not go upon the witness stand. The court said :

"John Haynes and W. D. Haynes were both compe-
tent witnesses, and could have made the proof in sup-
port of their answer. Their failure to do so was unac-
countable upon any other reasonable hypothesis than
that the payment had not been made."

In Bennett v. Massachusetts Mutual Life Insurance
Co., it is said :

"It appears that there is no testimony whatever to
contradict that of complainants. The soliciting agent of
the company, as well 'as the medical examiner, were
present when the answers were given, and neither one
was examined, and this raises a presumption that they
would not have contradicted the statement of the com-
plainant. The, case is, in effect, a charge of fraud as
against them, and this amounted to a challenge to them
to testify. Jackson v. Blanton, 2 Baxt, 63; Dunlap v.
Haynes, 4 Heisk., 476. In the absence of any testimony
from them contradicting the statement of the assured,
we think the chancellor was warranted in finding the
facts as stated by the complainants."

In 1 Moore on Facts, section 571, it is said :

"Where facts are in evidence affording legitimate in-
ferences going to establish the ultimate facts that the

486 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

evidence is designed to prove, and the party to be af-
fected by the proof, with an opportunity to do so, fails
to deny or explain them, they may well be taken as ad-
mitted, with all the effect of the inferences afforded. In
denying a defendant's motion for a new trial, Mr. Jus-
tice Story spoke of the 'most reprehensible and studied
refusal of the defendant' to testify at the trial. 'He con-
tented himself with a profound silence as to evidence of
bis own conduct, leaving the plaintiffs to grope their
way through the cause, by doubtful and glimmering
lights, gathered from his own imperfect confessions. If
he has suffered by the verdict, it has been his own folly
and gross negligence.' The inference justly to be drawn
against a party thus neglecting to testify is habitually
stated by the courts in strong terms. 'Judicial tribunals
are established to administer justice between litigants,
and the first and most important step to that end is the
ascertainment of the truth of the controversies which
come before them. It is only when the truth is ascer-
tained that the law can be properly applied in the just
settlement of disputes. Litigants owe the duty of assist-
ing in every legitimate way in the elucidation of the
truth. When a defendant can, by his own testimony,
throw light upon matters at issue, necessary to his de-
fense and peculiarly within his own knowledge, if the
facts exist, and fails to go upon the witness stand, the
presumption is raised, and will be given effect to, that
the facts do not exist.' In a patent infringement suit,
Judge Coxe said the evidence of prior invention, as a

16 Cates] APRIL TERM, 1911. 487

Fisher v. Insurance Co.

defense, was so full and circumstantial that he would
have accepted it as conclusive, were it not for the fact
that the alleged prior inventor failed to appear as a wit-
ness, and no sufficient reason was given for his nonap-
pearance. 'No matter from what point of view the ques-
tion was approached,' said the judge, 'there was always
the suspicion that if he could have corroborated the
other witnesses he would have done so/ and the defense
was held not to have been proved."

We make the following excerpts from the notes to the
above section :

"The defendant does not offer his own testimony. He
prefers the adverse inferences, which he cannot but per-
ceive may be drawn therefrom, to any statements he
could truly give, or to any explanations he might make.
He prefers any inferences to giving his testimony. Why?
Because no inferences can be more adverse than would
be the testimony he would be obliged, by the truth, to
give." Union Bank v. Stone, 50 Me., 595, 599, 79 Am.
Dec., 631, per Appleton, J.

"In a suit for infringement of a patented ink, the
plaintiff's expert testified that an analysis showed the
presence in the defendant's ink of constituents in the
plaintiff's combination, and the defendant's neglect to
deny their use left 'no doubt' that the analysis was sub-
stantially correct." A. B. Dick Co. v. Belke & Co. (C.
C.), 86 Fed., 149.

"The ordinary rule is that one who has knowledge pe-
culiarly within his own control, and refuses to dfrulge

488 TENNESSEE REPORTS. [124 Term.

Fisher v. Insurance Co.

it, cannot complain if the court puts the most unfavor-
able construction upon his silence, and infers that a dis-
closure would have shown the fact to be as claimed by
the opposing party." gociete, etc., v. Allen, 90 Fed., 815,
817, 33 C. C. A., 282, 284, per Taft, C. J.

"In a civil action to abate a liquor nuisance, the de-
fendant did not contradict direct testimony to his un-
lawful sale of liquor. 'With his property thus in peril,
and his building likely to be closed under the proceed-
ings, we must believe he would have spoken the truth, if
it would have been in the interest of his protection,' said
the court. 'We regard the case, upon the whole, as a
practical confession of the defendant's guilt' " Dickin-
son v. Bentley, 80 Iowa, 482, 45 N. W., 903, per
Granger, J.

In the present case there were certain facts within the
complainant's knowledge to which no one could have tes-
tified but himself. He alone was with his wife at the time
of the alleged accident, and knew what her physical con-
dition was. He alone knew what could have caused her
to fall or sink down in the car when there was not the
slightest evidence of a jar or a jolt, and when the swerve
of the car which it is claimed produced the fall would
under the operation of natural, physical laws ha^ie
thrown her in the opposite direction. He alone could ex-
plain all the circumstances surrounding the alleged ac-
cident, for he was in touching distance of his wife, and
between her and Dr. Leibkeman. He alone could ex-
plain why she did not endeavor to support herself or

16 Cates] APRIL TERM, 1911. 489

Fisher v. Insurance Co.

catch bold of the seat on either side to prevent her sink-
ing to the floor. He alone could explain why there was
not the slightest exclamation or moan when she thus
sank down. He only could tell exactly what she received
in the way of drugs during all the time that he was alone
with her, and when Dr. Farris, the only other attending
physician, who saw her only once every four hours, was
absent. Only he could explain how it was that, when
Dr., Farris retired at 10 o'clock, leaving the* patient in
as good condition as she had been since the alleged in-
jury, she should have taken a turn for the worse, and
that, notwithstanding this, while he alone was with her,
he should have claimed to have fallen asleep, and did not
awaken for thirty or forty minutes, until she was in the
agonies of death.

We think these fafcts, and other facts referred to un-
der the preceding assignment, made it extremely import-
ant that the complainant should have gone before the
jury. It is not a sufficient explanation of his failure to
do so that he shrank from the humiliation of having to re-
peat again his infidelities to his wife, and his having
borrowed money from her to get married on, and to take
his bridal trip on. These were important matters, but
not to be compared with the dark inferences which de-
fendants sought to draw from his silence.

However, the request under consideration was stated
in language too strong, and direct, and would have re-
sulted in invading the province of the jury if it had been
given. The assignment must therefore be overruled.

490 TENNESSEE REPORTS. [124 Tenn.

^ ^— ■ — — ^^ . i ■ i .

Fisher t. Insurance Co.

The jury might properly have been instructed that they
would be justified in presuming against complainant,
and assuming as true the facts which he might have dis-

«

proven by his own testimony if untrue, if they should see
proper so to do.

The fourth assignment of error is based upon the fol-
lowing excerpt from the charge :

"If you find that there is evidence in the case tending
to show discord between Dr. and Mrs. Fisher, or bad
treatment of Mrs. Fisher by Dr. Fisher, or immoral con-
duct of Dr. Fisher, or that he forged the will purporting
to be the will of Lula A. Fisher, or was guilty of other
wrong conduct, you can consider said evidence as a part
of the circumstances surrounding and preceding the
death of Mrs. Fisher, in determining the cause of her
death; but if you conclude, from the preponderance of
the evidence, that the injury received on the street car,
directly and independently of all other causes, through
external, violent, and accidental means, resulted in and
caused her death, then you should not allow any preju-
dice against the complainant, Fisher, by reason of evi-
dence reflecting on his character, to affect your verdict.
If you believe from the proof that his character is bad,
you may consider this as bearing on the probability or
improbability of bad conduct on his part, as bearing on
the question whether he was impelled by good or bad mo-
tives; but, if he has made out his case by a preponder-
ance of the proof, he is entitled to recover, no matter
how bad you may believe his character to be."

16 Cates] APBIL TERM, 1911. 491

Fisher v. Insurance Co.

The criticism upon this part of the charge is that it
segregates the testimony introduced by the defendant as
to the probable cause of the death of Mrs. Fisher from
that part of the testimony which immediately concerned
the alleged accident in the car, and told the jury, in
effect, that they might consider the latter evidence apart
from the former in reaching their conclusion as to the
cause of the death. We do not think this is a proper
criticism. The portion of the charge quoted, when fairly
construed, means that the jury are to take into con-
sideration all of the facts proven in determining where
the preponderance of the evidence lies as to the cause of
the death.

This assignment is therefore overruled.

The fifth assignment is based on the following ex-
. cerpt from the charge :

"Evidence is introduced in regard to the execution of
a will by Mrs. Lula A. Fisher. This testimony is ma-
terial only as a part of the circumstances surrounding
and antedating her death, and as bearing upon the ques-
tion of what, if any, motive Dr. Fisher had to cause his
wife's death, and you can consider this testimony only
in this connection.

"The court charges you that the Code of Tennessee
provides that a will shall be proved and recorded, and
letters testamentary granted, in a court of the county
where the testatrix had her residence at the time of her
death, and that if you find that Mrs. Lula A. Fisher's
will was proved and recorded in Shelby county, then this

492 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

would be the legal way of proving said will, and no in-
ference derogatory to complainant can be drawn from
his proving it here, though the testatrix may have had
land in Mississippi.

"The court charges you that, under the laws of Mis-
sissippi, where a wife dies leaving no children, the hus-
band, by virtue of the marital rights, and independent
of any will, inherits the real estate of his deceased wife,
and, therefore, that it is immaterial whether said will is
proven in Mississippi, or not, in so far as his inheritance
of such real estate is concerned."

We are of opinion that the first paragraph was cor-
rect.

The second paragraph was immaterial, and should not
have been interposed, because it was of a nature likely
to mislead the jury.

The third paragraph was also improperly given to the
jury, since it does not appear in the evidence that the
complainant knew what the law of Mississippi was at
the time the will is said to have been forged by him, nor
would there be any presumption that he was informed
of the law of the foreign State. If he had known such
foreign law, it would probably have been an argument
against his forging the will, but not otherwise.

The assignment is sustained as to the second and third
paragraphs.

The sixth assignment is based on the exclusion by the
court of Exhibit No. 1 to the testimony of David N.
^arvulho, which was a copy of the alleged signature of

16 Cates] APRIL TERM, 1911. 493

Fisher v. Insurance Co.

Mrs. Lula A. Fisher to the will in question, made by the
witness while on the stand, and offered in evidence by
the defendant as an illustration of the ease with which
the name could be forged, as well as of the expertness of
the witness, and in support of his theory as to how the
signature was forged with an indelible pencil, which he
used in making the illustration.

We think there was no error in this action of the court.
The argument in support of the assignment is that there
was a controversy between counsel as to whether a
forged signature should resemble the original in order to
be a deceptive forgery. That fact goes without saying.
No useful purpose could have been served by permitting
the witness to imitate the signature of Mrs. Fisher. The
witness Carvalho testified that he was a very expert
man, and had testified in trials more than 1,300 times.
If it had been conceded that he could imitate the signa-
ture with great ease, owing to his skill, that would not
be a reason for believing that any other less skilled per-
son could make a similar imitation with equal ease. The
evidence was wholly immaterial and irrelevant.

We shall consider together the seventh and eighth as-
signments. These two assignments are based upon cer-
tain excerpts from the charge of the court. In order
that we may properly understand the bearing of these
two portions of the charge, it is necessary that we should
read in connection therewith other parts of the charge.
The eighth assignment is based on that part of the
charge which is first reproduced in italics in the excerpt

494 TENNESSEE EEPOETS. {124 Tenn.

Fisher v. Insurance Go.

below. The seventh assignment is based on the second
portion in italics, which second portion relates to the
autopsy. The portions of the charge which we desire to
read in connection with the two excerpts complained of
are as follows :

"The fourth issue is: 'Did the said Mrs. Lula A.
Fisher, on or about the 6th day of October, 1907, during
the period covered by said policy, receive a bodily injury,
while riding as a passenger, in a railway passenger car
of the Memphis Street Railway, propelled by electricity,
which injury, directly and independently of all other
causes, and through external, violent, and accidental
means, resulted in the death of the said Mrs. Lula A.
Fisher, on or about October 8, 1907 V

"In determining this issue, you will consider, first,
whether or not Mrs. Lula A. Fisher received a bodily in-
jury while riding as a passenger in a car of the Memphis
Street Railway; second, if she did receive a bodily in-
jury in this way, did said injury result in her death, di-
rectly and independently of all other causes, and
through external, violent, and accidental means?

"There is no controversy as to the fact of the death of
Mrs. Fisher, or the time of it. There is no conflict as to
the time and place of the alleged accident on the street
car.

"The defendant insists that Mrs. Fisher received no
injury capable of producing death, and, therefore, her
death resulted from other causes. The defendant also
contends that, even if the injury was capable of causing

16 Cates] APRIL TERM, 1911. 495

Fisher v. Insurance Co.

death, the death did not result from said injury, directly
and independently of all other causes.

"If you find that she was not injured in the manner
claimed, or that the injury so received did not cause her
death, you should answer this fourth issue, 'No.'

"If, however, you find that she was so injured, and
that the injury caused her death through external, vio-
lent, and accidental means, then it will be necessary for
you to consider whether said injury caused said death
directly and independently of all other causes. If you
find this to be so, you should answer this issue, 'Yes.'
Otherwise, you should answer, 'No.'

"If the injury was caused by an unintentional fall
against a seat on a street car, it would be through ex-
ternal, violent, and accidental means, within the mean-
ing of the policy, but you would still have to determine
the other questions indicated.

"The plaintiff, J. B. Fisher, cannot recover upon
either policy of insurance sued upon in this suit unless
it appears from a preponderance of the evidence that the
death of Lula A. Fisher was the direct result of injuries
caused by accidental means, and independently of all
other causes. The expression, 'independently of all
other causes/ as used in each of these policies, has a
definite meaning, and requires the plaintiff to prove, by
a preponderance of the evidence, that the injuries
claimed to have been sustained by Lula A. Fisher were
proximately the sole cause of her death, or, in other
words, that the injuries were alone responsible for her

496 TENNESSEE REPORTS. tl24 Tenn.

Fisher v. Insurance Co.

death. So, if you believe from the evidence that mor-
phine, or any other drug given to her in the course of
medical treatment, caused or directly contributed to her
death, the company would not be liable; or, if you be-
lieve that the injuries and the drugs given Lula A.
Fisher, acting together, caused her death, the company
would not be liable ; and, in either event, you should an-
swer issue No. 4 in the negative.

"The evidence introduced in this suit shows that Lula
A. Fisher, after she had claimed — after it had been
(Claimed — that she was injured, had morphine and other
poisonous drugs given her in the course of medical treat-
ment. The company in this case show that Lula A.
Fisher, after it had been claimed that she was injured,
had morphine and other poisonous drugs given to her in
the course of medical treatment. It is immaterial
whether such treatment was proper, or improper, or
whether it was the intention and purpose of saving or
prolonging her life. If you find from the evidence that
the medical treatment caused, or in any wise contributed
to, or acted, in conjunction with the injuries, to bring
about her death, or hastened her death, there can be no
recovery, and you should answer issue No. 4 in the nega-
tive. You may, however, consider whether or not the
said medical treatment was in accord with the practice
of reputable physicians, and if you find it was you may
look to this in determining whether or not said medical
treatment contributed to, or hastened her death.

"In determining this fourth issue, you may look to all

16 Cates] APBIL TERM, 1911. 497

Fisher v. Insurance Co.

the circumstances antedating and surrounding the death
of Mrs. Fisher, as bearing upon the question of the cause
of her death."

Then follow some instructions upon the subject of the
will alleged to have been forged, the probate thereof in
Tennessee, the presumption against suicide, and then
the charge upon the autopsy, which was as follows :

"The court further charges you that the purpose of an
autopsy is to ascertain the exact cause of death, and that
a chemical analysis is for the purpose of ascertaining
whether or not there was any poisonous substance in the
stomach of the said Lula A. Fisher; so that, if you find
that the body of Lula A. Fisher was exhumed in five or
six days after its burial, and an autopsy thereon made
by competent physicians and that a chemical analysis
was afterwards made of the contents of the stomach by
competent physicians and chemists, and no morphine
was found in the contents of said stomach, then the court
charges you that you may consider these facts in de-
termining whether or not Lula A. Fisher came to her
death by morphine poisoning, accidental or otherwise, or
came to her death as the result solely of the accident"

The objection made in the seventh assignment to the
charge upon the subject of the autopsy is that it unduly
emphasized this particular feature of the testimony, and
tended to mislead the minds of the jury with respect to a
leading theory relied upon by the defendant, based upon
the testimony of physicians, which was as follows:
There was evidence showing that certain articles of un-

!
I

124 Tenn.— 32

498 TENNESSEE REPORTS. [124 Tenn.

Fisher t. Insuranee Go.

digested food were, by the autopsy, found in the stomach
of Mrs. Fisher — some pieces of apple skin, some starchy
food, and some meat There was evidence tending to
show that she was not in a condition to eat any of these
things after she received her injury, and that they had
therefore lain in her stomach undigested for twenty-
seven hours; that is, from the time of her alleged injury
up to the moment of her death. Based on this fact, the
medical men testified that the stomach was torpid and
unresponsive — in fact, was not discharging its functions
at all ; that under such circumstances the giving of mor-
phine, even in doses of one-eighth of a grain only every
four hours from the time of the injury, although by
hypodermic injections into the circulation, would very
probably produce a fatal result, because it would accu-
mulate in the system, the circulation being bad, and it
not being transferred to the stomach and there elimi-
nated. In support of this theory other evidence was in-
troduced to the effect that shortly before her death her
breathing was of a character called "stertorous" and
the evidence is that this was indicative of morphine
poisoning, and does not occur where the death is from
shock. Now, it is insisted that the charge upon the sub-
ject of the autopsy tended to obscure this portion of the
defendant's evidence, and to lead the jury to believe that
if no morphine was found in the stomach there could be
no death by morphine poisoning ; that is to say, it is in-
sisted that the trial judge unduly emphasized the fact
last referred to (that is, that no morphine was found in

16 Cates] APRIL TERM, 1911. 499

Fisher v. Insurance Co.

the stomach), and did not refer to the other subject He
does make no reference, it is true, to the other subject;
but. when this portion of the charge is taken in connec-
tion with the other parts which we have copied under
this assignment, we cannot say that this was affirmative
error. Counsel for the defendant should have prepared
their instruction upon the phase of the evidence present-
ing their theory, in order to prevent any misconception
of the charge upon the subject of the autopsy.

We think there was no error in the matter objected to
in the eighth assignment, which appears, as we have
stated, in that portion of the above excerpt which we
have first italicized.

The ninth assignment is based upon the charge which
the trial judge gave upon the subject of expert evidence.
His instruction upon this subject was as follows :

"A number of expert witnesses have been introduced
in this case, and the court charges you that you must re-
ceive and consider this class of testimony with great cau-
tion, and you must make a careful and painstaking in-
vestigation of all the facts, with the view of getting at
the truth, and must not be misled or confused by expert
testimony, because, while expert testimony is sometimes
the only means of, or the best way to, reach the truth, yet
it is largely a field of speculation, beset with pitfalls and
uncertainties, and requires patient and intelligent in-
vestigation to reach the truth ; and I charge you further
that, in weighing expert testimony, you must look into
all the evidence, and determine whether the facts which

500 TENNESSEE REPORTS. {124: Tenn.

Fisher y. Insurance Co.

are supposed to exist in the hypothetical questions that
are asked of the expert witnesses do actually exist, and
whether the facts supposed to exist be true, or not, be-
cause, if one fact supposed to be true, included in the
hypothetical question, is untrue — that is, not supported
by the evidence — then the opinion of the expert would
be valueless. He gives his opinion upon a certain state
of facts supposed to be true, and we do not know what
his opinion would be if one of those facts was with-
drawn. And I charge you further that, in weighing such
testimony, you may consider the capability of the wit-
ness, the fact whether or not he has been employed by
one side or the other, his interest or lack of interest in
the result of this suit, and you may consider whether the
testimony of the experts concur or disagree."

In order to consider the objections raised to this in-
struction, it should be divided into two parts : First,
that portion which refers to expert evidence in general ;
and, secondly, that portion which refers to that part in-
troduced by the method of stating hypothetical ques-
tions.

As applied to the general subject of expert evidence,
the court said :

"You must receive and consider this class of testimony
with great caution, and you must make a careful and
painstaking investigation of all the facts, with the view
of getting at the truth, and must not be misled or con-
fused by expert testimony, because, while expert testi-
mony is sometimes the only means of, or the best way to,

16 Gates] APRIL TERM, 1911. 501

Fisher v. Insurance Co.

reach the truth, yet it is largely a filed of speculation,
beset with pitfalls and uncertainties, and requires
patient and intelligent investigation to reach the truth."

It is insisted that his honor, in this part of the instruc-
tion, discriminated too strongly against this class of evi-
dence, especially in warning the jury that they must jiot
be "misled or confused by expert testimony."

This language we suppose was drawn by his honor
from an expression used in the opinion of this court in
the case of Wilcox v. State, 94 Tenn., 106, 112, 28 S. W.,
312. The language referred to was not quoted by the
judge who delivered the opinion in that case from the
charge under examination, but used merely in stating
the reason why the trial judge gave the charge that he
did. What was quoted from the charge, and approved,
was this : "While expert testimony is sometimes the
only means of, or the best way to, reach the truth, yet it
is largely a field of speculation, beset with pitfalls and
uncertainties, and requires patient and intelligent in-
vestigation to reach the truth." The court said : "This
is only the closing extract from a long and lucid charge
as to the weight to be given to such testimony, both that
of nonexpert and that of expert, and the whole is sub-
stantially in conformity to the rule laid down that ex-
pert testimony is to be received with caution" — refer-
ring to Persons v. State, 90 Tenn., 291, 16 S. W., 726.

In that case the trial judge said, in his charge : "The
retaining of experts by a fee proportioned to the import-
ance of their testimony is now, in cases in which they are

502 TENNESSEE REPORTS. [124 Tenn.

Fisher t. Insurance Go.

required, a* customary as is retaining lawyers. No
court would take as authority the sworn statement of
the law given by counsel retained on a particular side,
for the reason that the most high-minded men are so
swayed by an employment of this kind as to lose the
power of impartial judgment ; and so intense is this con-
viction that there is no civilized community in which a
fudge who receives a present from a suitor is not buried
in disgrace. Hence it is that, apart from the partisan
temper more or less common to experts, their utterances,
now that they as a class have become retained agents of
parties, have lost all judicial authority, and are entitled
only to the weight which a sound and courteous criti-
cism would award such utterances. This is true of such
expert testimony, not because it is intentionally false,
but on account of the tendency of the mind in all manner
of criticisms to adopt the view most favorable to a client
or friend. But, as a matter of law, such employment and
remuneration do not render them inadmissible as wit-
nesses."
In considering this charge this court said :
"It was highly proper in the court to instruct the jury
to scrutinize the testimony of experts. It was his duty
to instruct them to look to their character, manner, and
capability, to the circumstances that brought them in as
witnesses, to the fact of compensation, and to what ex-
tent, if any, under all the circumstances, their credibility
might be affected thereby ; but it was error to say in al-
most direct terms that, while the medical experts intro-

16 Cates] APRIL TERM, 1911. 503

Fisher r. Insurance Co.

duced by defendant were admissible in law as witnesses,
they were not entitled to credit"

In the case of Bateman v. Ryder, 106 Tenn., 712, 715,
64 S. W., 48, 49, 82 Am. St. Rep., 910, the following oc-
curs upon the subject of expert evidence.

"It is said that the trial judge erred in charging the
jury that 'the testimony of experts, introduced for the
purpose of establishing insanity or mental unsoundness,
if paid for, should be received with great caution and
carefully weighed by the jury/

"The court charged further upon this feature of the
case that 'it was lawful and proper for an expert phy-
sician to charge a reasonable compensation or fee for his
professional opinion or services/

"We think that the rule laid down by the trial judge
is in substantial conformity to that announced in Per-
sons v. State, 90 Tenn., 291 [16 S. W., 726], and Wilcox
v. State, 94 Tenn., 112 [28 S. W., 312.]"

In Atkins v. State, 119 Tenn., 458, 472, 105 S. W., 353,
356, 13 L. R. A. (N. g.), 1031, the charge under examina-
tion was as follows :

"Expert and nonexpert witnesses have been allowed
to testify to you as to the truth or falsity of the plea of
defendant of unsound mind. In reference to the expert
testimony offered you in this case, and which you should
weigh and consider along with the other proof in the
case, I charge you in regard to it that expert testimony
should be received with caution. While expert testi-
mony is sometimes the only means of, or the best way to

504 TENNESSEE REPOBTS. [124 Tenn.

Fisher v. Insurance Co.

reach the truth, yet it is largely a field of speculation,
beset with pitfalls and uncertainties, and requires pa-
tient and intelligent investigation to reach the truth.
You should give just such weight as you do all the
other testimony in the case, governed by a rule to arrive
at the truth, giving fair and impartial estimation of all
the evidence adduced in the casa"

Commenting upon this part of the charge, this court
said:

"It is said that this portion of the charge singles out
expert evidence and discriminates against it, practically
telling the jury that it is without value. We do not
think this is an accurate criticism. The judge merely
cautions the jury against the infirmities attaching to
this particular species of evidence, and he adds in the
last sentence that the jury must give it such weight as
they do all the other testimony, having in view a purpose
to arrive at the truth, and being careful, at the same
time, to give to this evidence a fair and impartial esti-
mate or value, as they must do to all the evidence ad-
duced."

Now, in the charge commented on in that case, the
trial judge first told the jury that expert evidence must
be received with caution, and gave as a reason for it that
this kind of evidence is "largely a field of speculation,
beset with pitfalls and uncertainties." He then told
them that they should be careful to give such evidence
patient and intelligent investigation to reach the truth.
Further, he said to them, in substance, that, having in

16 Cates] APRIL TERM, 1911. 505

Fisher v. Insurance Co.

view this admonition as to the spirit in which the in-
quiry should be prosecuted — that is, with caution — and
the method by which this caution should be directed,
with patient and intelligent investigation to reach the
•truth, when they should in this manner reach the truth,
they should give to that truth, drawn from such evi-
dence, just such weight as they did to all other testimony
in the case, giving a fair and impartial estimate to all of
the evidence adduced in the case, governed by the pur-
pose to arrive at the truth.

In 2 Elliott on Evidence, section 1047, it is said :
"The better rule, and that which seems to be sup-
ported by the weight of authority, is that the opinions of
experts are not conclusive, at least where there is other
evidence from which a contrary conclusion may be legiti-
mately drawn; nor, on the other hand, are they neces-
sarily entitled to less weight than other evidence, and
it is error to instruct the jury that they are entitled to
less weight and must be received with caution. They are,
in general, to be received and weighed by the jury like
other evidence. Some courts, however, have held that it
is not error to instruct that they are not entitled to the
same weight, or that they should be received with cau-
tion."

This court, by the cases already cited, is thoroughly
committed to the doctrine that such evidence must be re-
ceived with caution, and that where it is paid for, it must
be received with great caution ; but further than this we
have not gone. There is evinced in the case of Atkins v.

506 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

State, an inclination to bring our authorities as nearly as
possible into line with the current of authority, without,
in terms, modifying the prior cases. We do not think that
any of these cases would justify the trial judge in warn-
ing the jury that they "must not be misled or confused by
expert testimony." We think this is discriminating too
heavily against that class of evidence, and that the trial
judge committed error in this respect. We also think
he committed error in charging, in respect of all of the
expert testimony in this case, that it must be received
with "great caution."

The second part of the charge upon this subject has
reference to that part of the expert evidence which was
based qpop responses to hypothetical questions. The
objections is that he instructed the jury that in weigh-
ing the answers of experts to such questions, they must
look into all the evidence and determine whether the
facts supposed to exist, in the hypothetical questions
asked, did actually exist, "because, if one fact supposed
to be true included in the hypothetical question, is un-
true, that is, not supported by the evidence, then the
opinion of the expert would be valueless. He gives his
opinion upon a certain state of facts supposed to be true,
and we do not know what his opinion would be if one
of those facts was withdrawn." We think this is in
substantial accord with the authorities. In the section
above referred to of Elliott on Evidence, it is said :

"It has also been held proper, where the opinion of a
medical expert is based on a hypothetical question, to
instruct the jury that if the assumed facts, or any of

16Cates] APEIL TERM, 1911. 507

Fisher v. Insurance Co.

them, are not true, the opinion should be rejected" The
author adds : "But it would seem that such instruction
would be too broad, at least, in some cases." The in-
struction is also supported by section 392 of 1 Brick-
wood's Sackett's Instructions to Juriea

The objection made by counsel for the defendant is
that there might be an immaterial variation between the
fact assumed in the hypothetical question and the evi-
dence supporting it. Of course, those who prepare hypo-
thetical questions must be careful to embody only mate-
rial facts. The jury is not supposed to be able to dis-
criminate between the material and immaterial facts in
such cases. They act only upon the evidence submitted
to them, and upon all of the evidence. The expert is a
scientific person, and it cannot be known to the jury what
he regards as material or immaterial in making up his
answers. By cross-examination the immaterial matters
are frequently sifted out, and the net residuum is found
on which the real opinion of the expert is based. If this
is not done, however, the hypothetical question is put at
the peril of the party who propounds it. If he has doubts
as to the materiality of certain points in the question,
or as to whether certain items of a supposed fact contain-
ed therein are sustained by the evidence, he may frame
other hypothetical questions, leaving those out. But,
whether the questions framed be one or many, he must
stand on each separate question as framed. Of course,
there may be small, trifling, variations as to dates and
names, times and places, etc., which would not affect, in

B08 TENNESSEE REPORTS. [124 Tenn.

Fisher v. Insurance Co.

a given case, the general result of the opinion expressed
by the expert. These matters, however, it is impossible
to forecast, or to govern by any general rule, and they
must be left to the skill of counsel in framing special
instructions in particular cases to guard against the gen-
eral instruction above mentioned, which expresses the
rule.

The tenth assignment is based on the following ex-
cerpt from the judge's charge:

"The court further charges you that the complainant
is entitled to a presumption that his wife did not commit
suicide, and that his wife was not murdered by him or
any one else. Each of these presumptions may be over-
come by facts and circumstances which establish the con-
trary ; but the court instructs you that they stand until
they are overcome by the preponderance of the evidence,
sufficient for that purpose."

The special objection raised to this portion of the
charge is based upon the use of the word "establish,"
which was defined in Knights of Pythias v. Steel, 107
Tenn., 1, 7—11, 63 S. W., 1126, 1128, to mean "to settle
certainly or fix permanently what was before uncertain,
doubtful, or disputed." In that case it was used in con-
nection, however, with the words "to the satisfaction of
the jury," and the words "satisfaction" was held to im-
port a degree of evidence amounting to placing a disput-
ed proposition beyond the pale of reasonable doubt. So
that the instruction that it was incumbent upon a party
"to establish the fact to the satisfaction of the jury" was

16 Cates] APRIL TERM, 1911. 509

Fisher v. Insurance Co.

*

equivalent to saying to them that he must make it appear
beyond a reasonable doubt In view of the authorities
just referred to, the use of the word "establish" by the
trial judge was unfortunate ; but, when taken in connec-
tion with the rest of the paragraph, we do not think it
could be held reversible error. In the latter part of the ex-
cerpt it is said : "But the court instructs you that they"
[these presumptions] "stand until they are overcome by
the preponderance of the evidence, sufficient for that pur-
pose" — that is, sufficient to overcome the presumptions.
We do not think the jury could have gotten from the
whole excerpt the idea that it was intended by the cir-
cuit judge to charge that these presumptions must be
overcome by evidence showing the fact to be otherwise
beyond reasonable doubt. Of course, we take it that in
the next trial his honor will omit the use of the word
"establish," and use some other word less liable to mis-
conception.

Complainant's counsel say that this portion of the
charge was taken from a charge approved in Insurance
Co. v. Bennett, 90 Tenn., 256, 16 S. W., 723, 25 Am. St
Rep., 685. The word "establish" was used in the charge
referred to, but no point was made upon it, and the ques-
tion was not considered in that case, and that was not
the point of inquiry at all. In the later case it was con-
sidered, as we have shown.

As to the eleventh assignment, we think the objection
made is hypercritical, and this need not be further no-
ticed.

510 TENNESSEE REPORTS. 1124 Tenn.

Fisher r. Insurance Go.

As to the twelfth and thirteenth assignments of error,
these refer to a merely formal defect in the evidence as
to whether the car on which the alleged accident is said
to have occurred was operated by one of the agencies
contemplated by the policies of insurance. Such defect
can easily be supplied in the next trjal, and need not be
farther referred to.

The fourteenth assignment is based upon the refusal
of the circuit judge to give in charge the following spec-
ial request or instruction offered by the defendant be-
low:

"Both policies of insurance sued upon in this suit re-
quired the plaintiff, J. B. Fisher, to furnish the defend-
ant, the Travelers' Insurance Company, at the home office
at Hartsford, Conn., affirmative proofs of the death of
Lula A. Fisher, after the happening of the injuries. This
requirement is a condition precedent to a recoTOry, and
it is incumbent upon the plaintiff to prove upon the trial
of this case such proofs of death were furnished as re-
quired by the policies. The court charges you that there
is no evidence in this case that the proofs were furnished
in the manner required by the policies, and you should
answer issue No. 5 in the negative."

The complainant endeavored to prove, by Dr. Farris,
that the proofs had been sent to the company'; but, on
cross-examination, this witness testified that he only
knew that he had made out the proofs, but he had no
knowledge as to whether they had been sent to the com-
pany.

16 Cates] APRIL TERM, 1911. 511

Fisher y. Insurance Co.

Mr. Bensdorf, the agent of the company, was intro-
duced, and he denied any knowledge on the subject. His
testimony is referred to by the counsel for the complain-
ant, in which he was asked : "Will you say whether or
not the complainant handed in proofs of loss to your
office under policies Nos. 3918578 and 2086026, beneficia-
ry supplements Nos. 1953 and 82887, about the 26th of
November, 1907. A. I could not say whether they were
handed into our office, or sent directly to the company,
without examining my record."

It is insisted that this was an admission that they were
either handed into the office or sent to the company ; but
in another part of the same deposition he says that he
was not in the office at the time the alleged accident oc-
curred, and he did not know whether any notice had been
sent there or not. He did not profess to know what was
on the records of the company in Hartford. We do not
think his evidence can be taken as sustaining in any sense
the fact that the proofs were sent either to his office or to
the company. Moreover, the policies required that notice
should be sent to the home office at Hartford, and this
would have to be complied with.

So, if nothing else appeared, except what has just been
stated, the instructions should have been given. How-
ever, it appears that the company demanded an autopsy,
and, of course, this was a waiver of the proofs of loss.
It was necessarily implied from this requirement that
the company considered itself bound, in case an accident
had occurred from which death proximately followed,
independent of all other causes.

512 TENNESSEE REPORTS. 1121 Tenn.

Fisher v. Insurance Co.

The request, therefore, was properly refused.

The fifteenth assignment is based upon the refusal of
the trial judge to grant a new trial on account of newly
discovered evidence, as set forth in the affidavits of M.

F. Griffin, Irene Haynes, W. M. Griffin, T. B. Turley and

G. T. Fitzhugh, filed as exhibits A, B, 0, And D, respect-
ively, to the written motion for new trial.

It is unnecessary to consider this assignment, because,
as the case must be reversed on other grounds, the evi-
dence referred to may be introduced at the next trial, if
then deemed material.

The sixteenth assignment of error is based upon the
action of the trial judge in giving the following instruc-
tions to the jury :

"The second and third issues are practically the same
in regard to the beneficiary supplements on the other pol-
icy. The second and third issues are intended to present
the same question as to the other policy, No. E33730.
In this instance, however, there are two beneficiary sup-
plements attached to the policy — one, No. B. S. 82887,
dated May 20, 1907; the other, No. B. S. 96377, dated
July 13, 1907. It is the purpose of those issues to have
you say whether or not either of these beneficiary sup-
plements was in force on the 6th, 7th, and 8th days of
October, 1907. These supplements contain this lan-
guage : 'Provided, second, that the beneficiary signs con-
sent below to the insurance herein given and warrants
all the following statements to be true.' They also con-
tain at the bottom a blank line, intended evidently for

16 Cates] APRIL TERM, 1911. 51*

Fisher v. Insurance Co.

the signature of the beneficiary under the supplement.
The first supplement contains no signature purporting
to be that of the beneficiary, Lula A. Fisher. The second
supplement does contain such a signature, which the de-
fendant insists was not signed by Lula A. Fisher, nor by
any one for her, by her authority, and with her knowl-
edge and consent. It is also insisted that the first supple-
ment was released by J. B. Fisher and his wife. In order
that you should answer either of these issues, 'Yes,' you
should find either that Lula A. Fisher signed one of
them, or that she knew of and consented to the signature
of her name by some one else, or that the defendant com-
pany waived such signature. If the agent of the compa-
ny knew that the original supplement, dated May 20,
1907, was not signed, and did not insist on that signa-
ture, and did not intend to insist on said signature,
and the company collected the premium, then the
company could not be heard to say afterwards that the
supplement was void. If the purpose of J. B. and Lula
A. Fisher, in releasing said first supplement, was merely
because it was lost, and in order to substitute another,
and you find that the signature to said first supplement
was waived, then you may answer either or both of said
issues in the affirmative.

"If, however, you find that the purpose of Mrs. Lula
A. Fisher in releasing said first supplement was to pre-
vent any such insurance being in force as to her, and
that she did not know, or consent to, the second supple-
ment, you should answer these issues, 'No.' "

124 Tenn.— 33

514 TENNESSEE REPORTS. [124 Term.

Fisher v. Insurance Go.

The seventeenth assignment is based upon the refusal
of the trial judge to give in charge request No. 24, as fol-
lows:

"The court charges the jury that in the express pro-
visions of the contract known as 'Beneficiary Supplement
B. S. 96377, it must be signed by the beneficiary, Lula
A. Fisher, before the same is valid and binding on the de-
fendant company.

"The court charges you that the undisputed evidence
is that Lula A. Fisher did not sign her name thereto,
but that her name was signed thereto by some one else.
You should therefore answer issue No. 3 in the nega-
tive."

The eighteenth assignment makes the point that there
is no material evidence to support the findings of the jury
on Nos. 3 and 8, or either of them, as to beneficiary sup-
plement No. 96337, for $5,000, and asserts that the un-
disputed evidence is that the signature thereto was
forged by complainant, and that, as matter of law, this
signature was essential to the validity of the supple-
ment.

These three assignments must be overruled. Aside
from the question whether beneficiary supplements Nos.
82887 and 96337 should have been signed by the wife in
the ordinary course of dealing, we think the defendant
is estopped in the present case from making the point.
We base this conclusion upon the fact that No. 82887
was issued to complainant, and the premium paid, and
kept by the company, without requiring the signature

16 Cates] APRIL TERM, 1911. 515

Fisher v. Insurance Co.

of the wife, and, when that was lost, No. 93977 was issued
in lieu of it. Under these circumstances the defendant
is estopped to rely upon the fact that No. 93977 was not
signed by .the wife in person, but by her husband for her.
Under such circumstances the company would be bound
by the certificate, e^n without the wife's signature.

We need not consider assignments Nos. 19 and 20,
these being now immaterial in this court, since under
other assignments already considered there must be a
new trial.

The same observation is true of assignment No. 21.

This disposes of all of the assignments.

Let the judgment be reversed, and the cause remanded
for a new trial. The complainant will pay the costs of
the appeal.

516 TENNESSEE REPORTS. {124 Tenn.

Blackwell v. Railroad.

Mrs. Nannie E. Blackwell v. Memphis Street Rail-
way Company. *

(Jackson. April Term, 1911.)

1. STATUTES OF LIMITATIONS. Legislative intent to pre-
scribe a bar to all suits, whether specifically mentioned or not.

Section 4466 of Shannon's, Code evinces a legislative purpose
and intent to prescribe a bar for all suits at law, whether
specifically mentioned or not. (Post, p. 520.)

Code cited and construed: Sec. 4466 (S.); sec. 3466 (M. ft V.);
sec. 2769 (T. ft S. and 1858).

Cases cited and approved: Alvis v. Oglesby, 87 Tenn., 181;
Hughes v. Brown, 88 Tenn., 589; Ballard v. Scruggs, 90 Tenn.,
588; Scott v. Wagstaff, 120 Tenn., 258.

2. PERSONAL INJURIES. Statute giving parent an action for
injury to minor child means for Injury to the person of the
child.

The statute (section 4503 of Shannon's Code), giving a parent a
right of action for the expense and actual loss of services re-
suiting from an injury to a minor child in the parent's serv-
ice or living in the family must be construed to mean or refer
to an injury to the person of the child. (Post, pp. 620, 521.)

■

Code cited and construed: Sec. 4503 (S.); sec. 8503 (M. ft V.);
sec. 2803 (T. ft S. and 1858).

8. 8AM E. In statute limiting time of action "for" Injury to the
person, "for" means "on account of" or "because of."

In the statute (section 4469 of Shannon's Code), providing that
"all civil actions for injury to the person shall be commenced

•As to parent's right of action at common law for loss of services
of minor child whose death is caused by negligence, see note in
18 U R. A. (N. S.), 316.

16 Cates] APRIL TERM, 1911. 517

Blackwell v. Railroad.

within one year after the cause of action accrued/' the word
'tor" means "on account of* or "because of," so that the words
"for injury to the person" mean "on account of or because of
injury to the person." (Post, p. 521.)

Code cited and construed: Sec. 4469 (S.); sec. 8469 (M. & V.);
sec. 2772 (T. ft S. and 1858).

4. STATUTES OF LIMITATIONS. Parent's action for Injury to
minor child Is barred by the one year statute of limitation;
statutes construed together.

The statutes mentioned and construed in the preceding headnotes
must, because of their manifest and intimate connection, be
read and construed together and with relation to each other;
and. when so read and construed, they clearly mean that the
parent's right of action for injury to the person of a minor

' child is barred after one year from the time of the injury; and
the statute (section 4478 of Shannon's Code), prescribing a
limitation of ten years in all cases not expressly provided for,
does not apply in such case, because the other said statutes
are construed as expressly providing a limitation of one year
in such case. (Post, pp. 519-523.)

Code cited and construed: Sees. 4448, 4466, 4469, 4473, 4503 (S.);
sees. 3451, 3466, 3469, 3473, 3503 (M. ft V.); sees. 2757, 2769,
2772, 2776, 2803 (T. ft S. and 1858).

5. PERSONAL INJURIES. Parent's right of action is not af-
ected by minor child's previous recovery.

The right of a parent to maintain suit under the statute (section
4503 of Shannon's Code) for injuries to the person of a minor
child is not affected by a previous recovery by the child for
injuries sustained. (Post, p. 522.)

Code cited and construed: Sec. 4503 (S.); sec. 3503 (M. & V.);
sec. 2803 (T. ft S. and 1858).

Case cited and approved: Foray the v. Manufacturing Co., 103
Tenn., 498.

518 TENNESSEE REPORTS. [124 Tenn.

Blackwell v. Railroad.

6. 8AM E. Parent's recovery for Injury to minor child, If not ex-
cessive, will stand, though amount of damages are not shown
by exact calculation.

Though the parent may not be able to show by exact calculation
the amount of damages resulting from the loss of services of
the minor child, yet the suit of the parent may be maintained;
and a recovery, if not excessive, will be allowed to stand; for
the right of the parent to sue arises out of, or Is based upon,
the Injury to the child. {Post, pp. 619, 522.)

Code cited and construed: Sec. 4503 (S.); sec. 3503 (M. ft. V.);
sec. 2803 (T. ft S. and 1858).

Cases cited and approved. Forsythe v. Manufacturing Co.,
103 Tenn., 498; Manufacturing Co. v. Cotton, 108 Tenn., 63;
Maxson v. Railroad, 112 N. T., 659 (overruling Groth v. Wash-
burn, 34 1 Hun, 509).

FROM SHELBY.

Appeal from the Circuit Court of Shelby County to
the Court of Civil Appeals, and by certiorari from the
Court of Civil Appeals to the Supreme Court. — A. B.
Pittman, Judge.

C. L. Coynbr and L. H. Estes, for plaintiff.

Roane Waring, for defendant.

Mr. Justice Buchanan delivered the opinion of the

Court.

The plaintiff, Mrs. Nannie E. Blackwell, brought suit
against the Street Railway Company, in the circuit court

16 Cates] APRIL TERM, 1911. 519

Blackwell v. Railroad.

of Shelby county, Tenn. The suit was predicated on the.
negligent operation of one of the cars of the company,
by which it was alleged that the plaintiff's daughter was
injured, and that as a result of such injury the plaintiff
sustained certain damages, in the declaration averred,
to wit, loss of service, and expenses of nursing and car-
ing for plaintiff's daughter, and expenses of medicinei
furnished by the plaintiff.

The declaration averred the date of the injury, and the
company demurred to the declaration, on the ground that
the suit was barred by the one-year statute of limita-
tions, section 2772 of the Code of 1858, carried into Shan-
non's Code as section 4469.

The circuit court, Judge Pittman presiding, sustained
the demurrer and dismissed the suit. The plaintiff ap-
pealed to the court of civil appeals, where the judgment
of the circuit court was reversed ; and the case is before
us on certiorari granted, but not finally disposed of, at
the last term of this court.

The controverted question in the case is, Which stat-
ute of limitations applies? The company insists that it
is one-year statute, and the plaintiff insists that it is the
ten-year statute, which is section 2776 of the Code of
1858, and carried into Shannon's Code as section 4473.
That the question is one of first impression in this State
is conceded by both sides. The plaintiff insists that her
right to the services of her daughter, and the other ele-
ments of damage, claimed in her declaration, are prop-
erty, and that the gravamen of her suit is the recovery of

620 TENNESSEE REPORTS. [124, Tenn.

Blackwell v. Railroad.

property rights, and that her suit is therefore not within
the one-year statute.

The defendant insists that the plaintiffs suit arises
out of the alleged injuries to the person of plaintiff's
daughter, and is therefore within the terms of the one-
year statute.

The plaintiffs right to maintain this suit, if brought
in time, is fixed by section 2803 of the Code of 1858,
which is section 4503 of Shannon's Code. This section
provides that the father, or in case of his death or deser-
tion of his family, the mother, may maintain an action
for the expense and actual loss of service resulting from
an injury to a minor child in the parent's service or liv-
ing in the family.

It is well settled that the section 2769 of the Code of
1858, which is section 4466 of Shannon's Code, evinces
a legislative purpose and intent to prescribe a bar for all
suits at law, whether specifically mentioned or not. Alvis
v. Oglesby, 87 Tenn., 181, 10 S. W., 313; Hughes v.
Brown, 88 Tenn., 589, 13 S. W., 286, 8 L. B. A., 480;
Ballard v. Scruggs, 90 Tenn., 588, 18 S. W., 259, 25 Am.
St Rep., 703; Scott v. Wagstaff, 120 Tenn., 258, 107 S.
W., 976.

It is to be noted that the right of the parent to sue
under section 2803 of the Code of 1858 (section 4503 of
Shannon's Code) arises out of, or is based upon, the in-
jury to the child. This is apparent from the language
of the statute.

We think the statute must be construed to refer to an
injury to the person of the child. The one-year statute

16 Cates] APRIL TERM, 1911. 521

Blackwell v. Railroad.

of limitations, section 2772 of the Code of 1858, carried
as section 4469 of Shannon's Code, and the section under
which the parent's right to sue arises, each appears in
the Code of 1858, and must, we think, because of their
manifest connection, be read and construed with rela-
tion to each other. Eliminating all irrelevant matter,
in so far as this suit is concerned, and the legislation
accomplished by sections 2769 and 2772 of the Code of
1858 was as follows :

"All civil actions for injury to the person sail be com-
menced within one year after cause of action accrued,"

The word "for," above used in connection with and
preceding the words "injury to the person," can have no
other meaning than on account of or because of injury
to the person > and in this well-known meaning, the word
"for" is the connecting link which binds the statute giv-
ing the parent a right to sue to the one-year statute of
limitations. There is no such manifest and intimate
connection between the statute giving the parent a right
to sue and the ten-year statute as we have pointed out
to exist between the former and the one-year statute.
The ten-year statute names a number of different kinds
of suit to which it applies, and then adds, "all other
kinds not expressly provided for;" but, of course, as to
kinds expressly provided for it does not apply. To hold
that the ten-year statute does apply would be give this
legislation a construction wholly unreasonable. It would
be to say that the legislature intended to cut off the per-
son who sustained the injury, and suffered the physical

522 TENNESSEE REPORTS. [124 Tenn.

Blackwell v. Railroad.

pains, and perhaps permanent injury thereof one year
from the date when such person would become sui juris,
as would be true under section 2757 of the Code of 1858,
and section 4448 of Shannon's Code, but to allow the
parent of the person injured, the parent usually being
a person sui juris at the date of the injury, ten years
from that date in which to sue, and this in a case where
each right of action springs from the same negligent act
of the same defendant.

We think it clear that the legislature intended no such
result in the passage of these statutes. It has been held
that the right of the parent to maintain a suit under the
statute is not affected by a previous recovery by the child
for injuries sustained. Forsythe v. Central Mfg. Co.,
103 Tenn., 498, 53 S. W., 731.

Although the parent may not be able to show by exact
calculation the amount of damage resulting from the loss
of service of the child, yet the suit of the parent may
be maintained, and that a recovery, if not excessive, will
be allowed to stand. Central Mfg. Co., v. Cotton, 108
Tenn., 63, 65 S. W., 403.

In Forsythe v. Central Mfg. Co., supra, it is said the
right of action in one case is different from that in an-
other, and that, of course, is true in so far as the ele-
ments constituting the measure of damages are con-
cerned; but each cause of action undoubtedly springs
from the same negligent action and the same personal
injury to the child, and we think the legislature must
have intended that the one-year statute should apply to

16 Cates] APKIL TERM, 1911. 523

Blackwell t. Railroad.

each action. Of course, if the parent should be under
disability of minority at the time of the injury, the bar
of the statute of limitations of one year would not be
complete against the parent until one year after the re-
moval of the disability of minority of the parent. And, as
we have seen, the bar of the one-year statute of limita-
tions would not be complete against the minor until one
year from date of the removal of the disability of minor-
ity of the minor. x
, We have been cited by plaintiff's counsel to the case
of Waller v. Chicago, 11 111. App., 209, and to the case
of Groth v. Washburn, 34 Hun (N. Y.), 509, as sustain-
ing their contention ; but it appears that the last-named
case was overruled by Maxson v. Delaware R. B. Co. 112
N. Y., 559, 20 N. E., 544. We have not had access to
either one of these cases, nor do we consider it necessary
that we should, since the construction which we have
given these statutes seems the only one possible, in the
absence of any express decision of our own court to the
contrary of the view we have announced in this opinion.
It results that the judgment of the court of civil ap-
peals must be reversed, and the judgment of the circuit
court affirmed, and the suit dismissed, at plaintiff's cost.

524 TENNESSEE REPORTS. [124 Tenn.

Morris v. Railroad.

N. O. Mobbis v. Illinois Central Railroad Company.

(Jackson. April Term, 1911.)

1. 8UPREME COURT JURISDICTION. No direct appellate Juris,
diction where money recovery sought cannot exceed one thou-
sand dollars.

The supreme court has no direct appellate jurisdiction in a
chancery suit to recover the rental value of complainant's land
as damages or compensation during the time he was wrongfully
deprived of its use on account of nonaccess to it caused by
defendant's wrongful obstruction or destruction of his only
way of Ingress and egress to and from it, where the recovery
could not in any event amount, under the pleadingB, to as much
as od e thousand dollars; for, under the statute (Acts 1907, ch.
82, sec. 7), the supreme court has direct appellate Jurisdiction
only in those equity cases in which the amount Involved or
the money recovery sought exceeds one thousand dollars, with
certain exceptions inapplicable in this proposition. {Post, pp.
626, 527.)

Acts cited and construed: Acts 1907, ch. 82, sec. 7.

Case cited and approved: Chattanooga v. Railroad, 123 Tenn. 497.

2. SAME. No direct appellate Jurisdiction of suit Incidentally
seeking to recover damages exceeding one thousand dollars,
but mainly seeking to recover or procure a right of way.

The supreme court has no direct appellate Jurisdiction in a
suit to compel the defendant railroad company to provide for
complainant, over its tracks, a suitable way of ingress and
egress to and from his land, upon the ground that he is enti-
tled to such right of way, and that the defendant had wrong-
fully deprived him of such way by the manner of the construc-
tion of its tracks and maintenance of its adjacent property, and
also to recover the rental value of his land as damages or com-
pensation during the time that he was wrongfully deprived

16 Cates] APRIL TERM, 1911. 525

Morris v. Railroad.

of Its use on account of nonaccess to it, caused by the defend-
ant's wrongful obstruction or destruction of bis only way of in-
gress and egress to and from it, even though the damages re-
coverable might exceed one thousand dollars, because the
main object of the bill was the procurement of a right of way,
and the damages claimed were only incidental. (Post, pp. 526,
527.)

Acts cited and construed: Acts 1907, ch. 82, sec 7.

8. 8AM E. Suit to obtain or recover a right of way Is not an eject-
ment suit authorizing a direct appeal to the supreme court.

A suit to compel the defendant railroad company to provide com-
plainant with a right of way over its tracks, and to recover
the rental value of the land, as shown in the preceding head-
notes, is not an ejectment suit, and the supreme court has no
direct appellate jurisdiction under the statute (Acts 1907, ch.
82, sec 7) authorizing direct appeals to the supreme court ia
ejectment suits. (Post, p. 527.)

Acts cited and construed: Acts 1907, ch. 82, sec. 7.

4. 8AM E. 8upreme court will transfer to the court of civil ap-
peals a case erroneously appealed to It instead of the court
of civil appeals.

. Where the direct appellate jurisdiction is in the court of civil
appeals, and not in the supreme court, the latter court will
enter an order transferring to the former court a cause er-
roneously appealed to the supreme court. (Post, p. 527.)

FROM OBION.

Appeal from the Chancery Court of Obion County.-
Jno. 8. Cooper, Chancellor.

526 TENNESSEE REPORTS. [124 Tenn.

Morris v. Railroad.

Waddell & Waddell and T. O. Mobbis, for complain-
ant.

SWIGGABT & COBB, GHAS. N. BUBCH, BLBWETT LEE,

and 0. L. Sivley, for defendant

Mb. Justice Gbeen deliveared the opinion of the
Court.

This suit was brought by the complainant in the
chancery court of Obion county to force the railroad
company to provide him a right of way. The allegations
of his bill are that a certain tract of land which he owns
near the town of South Fulton is so situated that he
has but one way of ingress and egress, and that this way
lies over the property and tracks of the railroad com-
pany.

The prayer of the bill is that the company be com-
pelled to provide for him a suitable right of way, of
which he says he has been deprived by reason of the
manner of its construction and maintenance of its ad-
jacent property.

The other prayer of the bill is that he be allowed as
damages the rental value of his tract since 1903, when
his right of way is alleged to have been obstructed.

From an examination of this record, we are of opinion
that this court is without jurisdiction of this case. This
court, under Acts 1907, ch. 82, section 7, has direct appel-
late jurisdiction of only those equity cases in which the
amount involved exceeds f 1,000, and those involving the
constitutionality of the statutes of Tennessee, contested
elections for office, State revenue, and ejectment suits.

16 Cates] APRIL TERM, 1911. 527

Morris v. Railroad.

It appears from the record that the rental value of
complainant's tract, for which he seeks to recover, is
seven or eight dollars per acre per year. His tract con-
tains twenty-seven acres. His bill was filed August 15,
1906. His right of way, as before stated, was obstructed
in the year 1903. A simple calculation will therefore
demonstrate that he could not possibly recover upon the
pleadings in this case a money judgment of as much as
f 1,000. Therefore, this is not a chancery case in which
the amount involved exceeds $1,000, as this provision of
the act referred to has uniformly been construed by this
court. See Chattanooga v. Belt Line B. R. Co., 123
Tenn., 497, 130 S. W., 840.

Even if the damages recoverable here could exceed
f 1,000, still this would be a case for the court of civil
appeals. The main object of the bill is to procure a right
of way, and the damages claimed are only incidental.
As pointed out in the case of Chattanooga v. Belt Line
B. B. Co. } the mere fact that a money recovery is inci-
dentally sought which may exceed f 1,000 will not affect
the question of appellate jurisdiction, where such re-
covery is not the real purpose for which the suit is
brought.

A suit to obtain a right of way is, of course, not an
ejectment suit, and manifestly this case does not fall
within any of the other special classes, jurisdiction of
which is reserved to this court.

An order will accordingly be entered transferring this
cause to the court of civil appeals.

528 TENNESSEE BEPOBTS. [124 Teniu

Crenshaw v. Moore.

Thomas B. Crenshaw et al. v. Charlotte Blood Moore

et al.

(Jackson. April Term, 1911.)

L INHERITANCE' TAX. It a privilege and special tax; construc-
tion of law against government and In favor of taxpayer.

Inheritance and succession tax is a privilege tax imposed on
the right of acquiring property by succession; and it is like-
wise a special tax, and the rule is that laws imposing such
taxes are to be construed strictly against the government, and
favorably to the taxpayers. (Post, p. 531.)

Cases cited and approved: State v. Alston 94 Tenn^
674; English v. Crenshaw, 120 Tenn., 531; Knox v. Emerson,
123 Tenn., 409.

2. YEAR'8 SUPPORT. Widow does not succeed to husband's
title, but acquires the title adversely to his administrator, by
virtue of statute.

The year's support for the widow is given to her by statute (sec.
tions 4020 and 4021 of Shannon's Code) ; and she does not suc-
ceed to the husband's title to the property set apart to her
as a year's support, but she acquires the same adversely to his
administrator, by virtue of the said statute conferring the
right. It is a special provision made for her in law for the «vp-
post of herself and family. (Post, pp. 531, 632.)

Code cited and construed: Sees. 4020, 4021 (S.); sees. 3125, 3126
(M. ft V.); sees. 2285, 2286 (T. ft S. and 1858).

Cases cited and approved: Bayless v. Bay less, 4 Cold., 363; Rail-
road v. Kennedy, 90 Tenn., 185.

8. DOWER. Possesses same qualities as at common law, but the
quantity Is less.

The widow's right of dower in this State possesses the same
qualities as the common law right of dower, but its quantity

16 Gates] APRIL TERM, 1911. 529

Crenshaw v. Moore.

Is cut down by limiting It to one-third part of all the land of
which her husband died seized and possessed, or the equitable
owner, and not allowing it in all the lands seized by the hus-
band at any time during the coverture, though aliened by him.
{Port, pp. 632-534.)

Code cited and construed: Sec. 4139 (S.); sec. 3244 (M. ft V.);
sec 2398 (T. ft S. and 1858).

Cases cited and approved: Combs v. Young, 4 Yerg., 226; Ful-
wood's Case, 4 Co., 65.

4. 8AME. Widow does not succeed to husband's title but takes
by virtue of the marriage, and adversely to the inheritance
from the husband.

The widow's right to dower is not in succession to the title
of her husband upon his death; for she does not succeed, in her
dower estate, to the husband's title by the intestate laws, but
she derives it by virtue of the marriage and in her right as
wife, to be consummated in severalty to her upon the susband's
death, and she takes it adversely to the inheritance from the
husband. {Post, pp. 634, 635.)

Case cited and approved: Boyer v. Boyer, 1 Cold., 14.

Case cited, distinguished, and disapproved: Billings v.. People,
189 111., 472..

5. INHERITANCE TAX. Widow's year's support and dower are
not subject to inheritance and succession tax.

Neither the year's support for the widow given by statute (sec-
tions 4020 and 4021 of Shannon's Code), nor her dower in her
• - deceased husband's land given by statute (section 4139 of
Shannon's Code), is subject to the inheritance and succession
tax imposed by statute (section 724 of Shannon's Code, as
amended by Acts 1909, ch. 479, sec. 20).

Code cited and construed: Sees. 724, 4020, 4021, 4139 (S.);
sees. 3125, 3126, 3244 (M. ft V.); sees. 2285, 2286, 2398 (T. ft
S. and 1868).

Acts cited and construed: Acts 1909, ch. 479, sec. 20).
124 Tenn.— 34

530 TENNESSEE REPORTS. [124 Tenn.

Crenshaw v. Moore.

FROM SHELBY,

Appeal from the Circuit Court of Shelby County.
P. Young, Judge.

Gilmer P. Smith, for plaintiffs.
Thos. M. Scruggs, for defendants.

Mr. Justice Lansden delivered the opinion of the
Court.

William R. Moore died in Shelby county testate, and
his widow, Mrs. Charlotte Blood Moore, dissented from
his will. Such proceedings were had in the county court
of Shelby county that she was assigned a year's support,
to the value of f 20,000, and dower of one-third of his real
estate. The complainant brought this suit to collect from
her an inheritance or succession tax on both her year's
support and dower, under the act of 1893 (Shannon's
Code, section 724), as amended by chapter 479 of the
Acts of 1909.

The act of 1893 imposed a tax upon "all estates, real,
personal, and mixed, of every kind whatsoever, situated
within this State, whether the person or persons dying
seized thereof be domiciled within or out of this State,
passing from any person who may die seized or possessed

16 Gates] APRIL TERM, 1911. 531

Crenshaw y. Moore.

of such estates, either by will or under the intestate laws
of this State, or any part of such estate or estates, op in-
terest therein, transferred by deed, grant, bargain, gift,
or sale, made in contemplation of death, or intended to
take effect in possession or enjoyment after the death of
the grantor or bargainor," passing to collateral kindred
of the owner ; and section 20, ch. 479, Acts of 1909, pro-
vided "that inheriances not taxed under the present laws
shall pay a tax as follows: All inheritances of f 5,000
and over, but less than $20,000, a tax of one per centum
of their value. All inheritances of $20,000 and over, a
tax of one and one-fourth per centum of their value, to
be collected by the county clerk of each county."

This is a privilege tax imposed on the right of acquir-
ing property by succession. State v. Alston, 94 Tenn.,
674, 30 S. W., 750, 28 L. R. A., 178 ; Knox v. Emerson,
123 Tenn., 409, 131 S. W., 972. Likewise it is a special
tax, and the rule is that laws imposing such taxes are to
be construed strictly against the government, and favor-
ably to the taxpayer. English v. Crenshaw, 120 Tenn.,
531, 110 S. W., 210, 17 L. R. A. (N. S.), 753, 127 Am. St.
Rep., 1025.

The widow's year's support is given her by statutory
provision, which is found in sections 4020 and 4021 of
Shannon's Code. It is inconceivable that the legislature
intended to le\y the tax in question upon this bounty of
the widow, given her by the law out of her husband's
personal estate. She does not succeed to the husband's
title to the property set apart to her as a year's support,

632 TENNESSEE REPORTS. [134 Tenn.

Crenshaw v. Moore.

but acquires it adversely to his administrator by virtue
of the statute. By the act of separation of the per-
sonalty assigned to her by the commissioners, and the
subsequent confirmation of their report by the court, the
title to the specific property thus set apart becomes ab-
solutely vested in the widow. The obvious intention of
the legislature in passing this statute was to provide a
temporary support for her and her family immediately
on the death of her husband. It is an extension by law
of her right of support out of the personal estate of her
husband for one year after his death, and is founded in
a sound public policy, which has for its purpose a con-
servation of the family upon the death of the husband.
The widow does not succeed to the right of the husband,
nor does she take the property under the intestate laws
of this State. It is a special provision made for her in
the law for the support of herself and her family. Bay-
less v. Bayless, 4 Cold., 363 ; Railway Co. v. Kennedy, 90
Tenn., 185, 16 S. W., 113.

Nor do we think that the widow's dower is subject to
this tax. By the common law, if a husband acquire an
estate which is subject to descend to his heirs, the wife,
at the same time the husband acquires his title, has
vested in her the right of dower ; and although the hus-
band aliened the estate, the wife's dower would attach.
By the acts of 1784 and 1823, carried into Shannon's
Code at section 4139, the widow is dowable in one-third
part of all the lands of which her husband died seized
and possessed, or of which he was equitable owner. In

16 Cates] APRIL TERM, 1911. 533

Crenshaw v. Moore.

all other respects, the widow's right of dower in this

State is the same as it was at common law. It has the

same qualities as the common-law right of dower, but its
quantity was cut down by the statutes referred to. This

right originates with the marriage. It is an incum-
brance upon the title of the heir at law, and is superior
to the claims of the husband's creditors. Its origin is
so ancient that neither Coke nor Blackstone can trace it,
and it is as "widespread as the Christian religiotf and
enters into the contract of marriage among all Chris-
tians."

"By a fiction of law, the estate in dower relates to the
marriage. It is adjudged in Fulwood's Case, 4 Co., 65,
that the widow shall hold her dower discharged from all
judgments, leases, mortgages, or other incumbrances
made by her husband after the marriage, because her
title, being consummated by his death, has relation to
the time of the marriage, and, of course, is prior to all
other titles. She claims by and through her husband,
has the oldest title, is under him for the valuable con-
sideration of marriage, the best respected in the law, and
cannot be disturbed by any other claiming under the
husband." Combs v. Young, 4 Yerg., 226, 26 Am. Dec.,
225.

The preamble to the act of 1784, which was the first
passed in this State reducing the quantity of the widow's
dower estate, recites, in substance, that the dower
allotted by law in lands for widows, in the then unim-
proved state of the country, was a very inadequate pro-

534 TENNESSEE REPORTS. [124 Terni.

Crenshaw v. Moore.

vision for the support of such widows ; that it was only
just and reasonable that those who, by their prudence,
economy, and industry had contributed to raise up an
estate to their husbands, should be entitled to share in
it — thus showing that the legislature recognized that the
widow's dower under this act had the same origin and
was of the same quality as her dower existing at common
law.

So, it is seen that, whether it be considered that the
widow holds her dower in the nature of a purchaser from
her husband by virtue of the marriage contract, or
whether it be merely a provision of the law made for her
benefit, it cannot be considered that her right is in suc-
cession to that of her husband upon his death, or that
the husband bestows it upon her in contemplation of
' death. While it is true that her right to dower is not con-
summated until the death of the husband, and that it is
carved out of only such realty as he owned at at his
death, it does not follow from this premise that the
widow succeeds to his title by the intestate laws. She
derives it by virtue of the marriage, and in her right as
wife to be consummated in severalty to her upon the
death of her husband. Boyer v. Boyer, 1 Cold., 14.

The supreme court of Illinois, in Billings v. People,
189 111., 472, 59 N. E., 798, 59 L. R. A., 807, upon a con-
struction of the inheritance tax law of that State, to-
gether with the laws governing the descent and distribu-
tion of the property of persons lying intestate reached a
different conclusion from that reached by us. The rea-

16 Catesl APRIL TERM, 1911. 535

Crenshaw v. Moore.

soning of that court is predicated chiefly upon a con-
struction of the' statutes of that State, which are essen-
tially different from those of this State. It is stated,
however, that, while the husband cannot deprive his
wife of her inchoate right of dower, the State may, and
that she does not hold by contract, but holds by laws
which the State may change. Without undertaking to
meet all of the arguments set forth in support of this
very able opinion, we are content to hold that, under a
proper construction of the statute in question, the legis-
lature did not intend to tax the widow's dower as an in-
heritance from the estate of her husband, or a succession
to his rights therein. As stated heretofore, she does not
inherit from her husband, but derives her right by virtue
of her marriage, which is consummated upon her hus-
band's death, and becomes an incumbrance upon the
inheritance of the heirs at law, and is, to that extent, an
interest adverse to the inheritance from the husband.
For the same reason she does not succeed to the rights of
the husband. Her dower is intended for her support and
maintenance, and an intention to tax it will not be im-
puted to the legislature, except where the language em-
ployed makes it plainly imperative to do so.

Billings v. People, supra, is the only case cited by
counsel which discusses the question at issue in any way,
and no case is cited discussing the liability of the
widow's year's support for the tax involved here. But,
upon reason, we are content to hold that neither the
year's support nor dower is subject to the tax. It re-
sults that the decree of the court below is affirmed, with
costs.

536 TENNESSEE REPORTS. [124 Tenn.

Hotel t. Ewing.

Arlington Hotel Company v. Caruthebs Eweno.
(Jackson. April Term, 1911.)

1. CONTRACT8. For suspension of enforcement or operation of
a valid criminal law Is illegal and unenforceable.

Where an attorney contracted with certain persons engaged
in the liquor business, to test the constitutionality of a pro-
hibition act, and for an additional stipulated fee, in the event
he succeeded "In suspending the enforcement or operation
of the act until the meeting of the next supreme court In the
spring of 1910," such contract, in so far as it provided for the
suspension of the enforcement of the act, and thereby to ren-
der a valid criminal law of the State nugatory, was illegal and
unenforceable, and the attorney cannot recover the additional
stipulated fee for that particular service. (Post, pp. 538-552,
and especially 548, 549.)

Acts referred to and construed: Acts 1909, chs. 1 and 10.

Cases cited and approved: Allen v. Dodd, 4 Humph., 131; Hale
v. Henderson, 4 Humph., 199; Yerger v. Rains, 4 Humph., 259;
Isler v. Brunson, 6 Humph., 278; Lea v. Collins, 4' Sneed, 393;
Nichols v. Cabe, 3 Head, 92; ParkB v. McKamy, 3 Head, 297;
Rhodes v. Summerhill, 4 Helsk., 204; Heart v. Brewing Co.,
121 Tenn., 71.

2. 8AM E. Enforcement or operation of a valid criminal statute
cannot be legally stayed or enjoined.

There are no means known to the -law whereby the operation of
a valid criminal statute can be legally suspended or its enforce-
ment stayed; for such a statute cannot be enjoined, and if par-
ties are indicted thereunder, and they are defended, this does
not legally stay the operation of the statute, since each addi-
tional offense under the statute is an additional crime, for which
a new indictment may be found and a new prosecution waged.
(Post, pp. 549, 550.)

16 Cates] APRIL TERM, 1911. 537

Hotel v. Swing.

3. 8AM E. Lawful by Its terms is legal, though Illegally per-
formed; but contract to violate the law Is Illegal, though
legally performed.

If a contract can, by its terms, be performed lawfully, it will be
treated as legal, even if performed in an illegal manner; while
a contract entered into with intent to violate the law is illegal,
even if the parties may, in performing it, depart from the con-
tract, and keep within the law. {Post, p. 660.)

4

4. SAME. To test the constitutionality of a constitutional stat-
ute Is valid; but contract to suspend or nullify Its operation Is
void.

A lawyer may properly undertake to test the constitutionality
of a criminal statute, which is in fact constitutional, and such
contracts are often made; but, if, in addition to his undertak-
ing to test its constitutionality, he contract that he will, pend-
ing such test, suspend or nullify its operation, the contract is
void. (Post, p. 662.)

6. SAM E. No recovery as on a quantum meruit In an action on an
Illegal contract.

Where a lawyer sues on an illegal contract for services rendered
thereunder, he cannot recover as on a quantum meruit. (Post,
p. 562.)

6. PEREMPTORY INSTRUCTIONS. Erroneously refused by the
trial court will be granted by the supreme court, and the suit
dismissed, when.

Where the trial court should have granted the peremptory in-
structions asked for by the defendant, the supreme court,
rendering such judgment as the trial court should have ren-
dered, will sustain the motion, and dismiss the suit, with
costs. {Post, pp. 548, 552.)

538 TENNESSEE REPORTS, [124 Tenn.

Hotel t. Swing.

FROM SHELBY.

Appeal from the Circuit Court of Shelby County. — H.
M. McLaughlin, Judge.

Greek & Greer, for Hotel Company.

Perot Finlay, fop Ewing.

Mr. Justice Neil delivered the opinion of the Court.

This action was originally brought before a justice of
the peace of Shelby county, and a judgment rendered,
from which judgment an appeal was prayed to the cir-
cuit court of that county, and a judgment there pro-
nounced in favor of the defendant in error. An appeal
was then prosecuted to the court of civil appeals, where
the judgment was affirmed, and from this judgment the
plaintiff in error prosecuted a petition for certiorari to
this court, and here assigned errors. The petition was
granted, and the case was placed on the docket and fully
argued by counsel.

The suit is based upon the following contract :
"It is agreed that Caruthers Ewing is to be employed
to represent us and our interests in the matter of what
is known as the 'Prohibition Act,' and he is to, in our
behalf, or such person as we may name, contest the con-
stitutionality thereof on the following terms :

16 Cates] APRIL TERM, 1911. 539

Hotel v. Ewlng.

"f 1,250.00 to be paid in cash, from which he is to pay
the expense incident thereto, in the way of stenog-
rapher's fees, printing briefs, etc., which is estimated at
1250.00. His fee is to be f 1,000.00 in the event the fight
is unsuccessful. In the event he succeeds in suspending
the enforcement or operation of the act until the meet-
ing of the next supreme court in the spring of 1910, he is
to he paid f 4,000.00 additional. In the event the fight is
successful, and the act declared unconstitutional and de-
feated in toto y he is to be paid (9,000.00 additional.

"I agree to pay my pro rata, but not to exceed one-
tenth of the above charges."

The portion of the contract on which the present suit
is based is italicized by us for convenience of reference.

The only evidence introduced in the court below was
that of Mr. Ewing himself. There were frequent breaks
in the evidence, caused by objections made by counsel
and arguments thereon, during the course of the hear-
ing before the trial court. These matters we omit, and
place the questions propounded to the witness, and his
answers, in solid form, not using an asterisk or star, but
a dash, to show the interruptions in the text. What we
reproduce presents the full substance of his testimony.

"Q. Please state the reason why the employment was
made, and the contract which was made, and all of the
facts concerning it. — Q. Well, I don't mean the reason
exactly, but the circumstances under which it was made.
— A. The legislature had passed what is known as the
'extension of the four-mile law' so that whisky was not

540 TENNESSEE REPORTS. [124 Tenn.

Hotel v. Ewlng.

to be sold in Memphis, and on about the 25th to the 28th
of June I was approached by Mr. Bert Parker and Mr.
Sam Baumgarten, representing certain individuals and
themselves, and was asked to go into the constitu-
tionality of this law with reference to determining
whether, in my opinion, it was a valid law. The law was
to become operative on July 1, 1909, and therefore it
was necessary to know in advance of that date whether
they should close as soon after that as possible, their
statement being that the closing and stopping of busi-
ness would vitally injure them and cause all of these
gentlemen great loss. I was asked on what terms I
would do this work, and I told them that I would inves-
tigate the act, with a view of determining whether I
could do anything, without any charge whatever, for if
my work was not to accomplish anything I didn't want
them to pay for it. That is a small matter. — The con-
tract was presented to me, after working on this matter
At very great length, and quitting everything else at
their request because of its importance to them; — Well,
I withdraw that statement I spent three weeks, pos-
sibly, night and day, on it. — I concluded and believed
that the act was unconstitutional, explaining, however,
that it might be declared constitutional, because it was
whisky legislation; that the courts look with a little
more favor on that sort of legislation than they would on
legislation having no moral purpose, but that I thought
there was a good fighting chance, and that we would
make the fight. The test case we were to make ; that was

16 Cates] APRIL TEEM, 1911. 541

Hotel v. Swing.

the original plan. We got Mr. Ernest Miller to buy
some whisky from a fellow and indict him, to raise thfe
question of the constitutionality of the law. Mr. Miller
bought it, or said he had, and indicted the party, and I
made a motion to quash the indictment, which was the
proper legal way to raise the question I was employed
to raise. When that matter came up in the criminal
court there was some technicality in the indictment ; in
other words, my motion could have been sustained and
the constitutionality of the act not be decided. There-
fore the attorney-general, recognizing this was a test
case, conceded the motion to quash was good and re-
committed the test case in which we were interested to
the grand jury. — Well, this took up considerable time,
preparation, and study and work. The grand jury
didn't indict that man, but the attorney-general pro-
cured other indictments. A number of the saloons had
closed at first, but in view of the fight we were making
some of them here and there, and those I represented
were all open. The question then, we concluded, under
my employment, would be determined by trying the
cases in which indictments had been returned as the best
way to test the case. Then there were, I think, seven
indictments, possibly more. — One of the signers of this
paper was indicted; that is, Mr. Parker. He was in-
dicted, and that made a test case for us, and I went to
court, I think, seven or eight times, ready for trial al-
ways, anxious for trial, and prepared for trial. For one
reason or another they continued the case, one time be-

542 TENNESSEE REPORTS. [124 Tenn.

Hotel y. Swing.

«

cause a witness for the State was not there, and another
time because the prohibitionists were negotiating to get
them some lawyers to fight the questions out with me,
and they couldn't raise the fee, or they didn't, and it
went over a week to give them that time, and another
time a lawyer was sick, but all in all I was up there
either five or seven times, I forget which; — Well, this
resistance and this fight, of course, put a stop to the en-
forcement of the law unless they could convict some one,
and I was in court all of those times ready for trial, and
we never could get them to try. . Maj. Wright had filed a
bill for the manufacturers to test the validity of the
manufacturers' act, which was a kindred law passed at
the same time. — We concluded we could get our test
made from the manufacturers' suit, because, if the su-
preme court would say that the retail liquor law was un-
constitutioanl, that would be effective in the manufac-
turers' case. Thereupon I went to work and prepared a
very elaborate brief on this act, which I was prepared to
assail, and did assail it, and turned that over to Maj.
Wright, who printed that part in his brief on the manu-
facturers' case. This was by agreement of the two gen-
tlemen who had acted for all the signers of the contract,
and it was under their instruction. Then I arranged
with, or requested, Judge Beard, chief justice of the
supreme court, to permit me to orally argue the act
which I had been employed by this contract to assail, so
that I could be heard on it, and I had prepared it at
great length, and we felt it would be better for a man

16 Cates] APRIL TERM, 1911. 543

Hotel v. Ewlng.

who had from the outset been devoting himself to this
act to present it to the supreme court, so that it would
not just be passed without sufficient argument. — Judge
Beard stated that he would give me this time, but that
particular case went by the boards because the manufac-
turers' case had not been raised properly. — Well, I next
took up, inasmuch as we could not get a trial on indict-
ment where it would come up direct, I then took up the
question of an injunction, and investigated that very
fully, with a view of filing a bill to enjoin the enforce-
ment of this act. It was then concluded — time had been
passing along, and we had at each place been ready to
fight, and the public was seemingly losing interest in the
enforcement of the law, and we were preventing its being
enforced, and had prevented its being made effective,
and that was the thing we had started out to do — we
then agreed to abandon the injunction, because we had
accomplished what we had started out to do. — There-
upon the supreme court met in April, 1910. This con-
tract recited that I was to prevent the enforcement of
the law until the spring of 1910, and I took no steps
about it until June, 1910. Then I demanded compensa-
tion under this contract, because, my claim being that I
had done that which I had agreed to do, and for which
they had agreed to pay me. All paid me except Mr. Max
Miller, Mr. John Persica, and the Arlington Hotel. — Q.
Now, Mr. Ewing, you stated that after the case which
you had instituted to test the law was dropped by the
State you took part in other cases of a similar kind? A.

544 TENNESSEE REPORTS. [124 Tenn.

Hotel v. Ewing.

Yes, sir. Q. At whose instance was that done? A. At
the instance of Mr. Parker and Mr. Baumgarten, and
then it was my own belief that I was employed to keep
that law from being enforced and to test it, and that it
was left with me as a lawyer to determine, in a large
measure, how that was to be done, having in view the
benefit to the men I represented. Q. State whether op
not it was necessary, in order for you to carry out that
contract, that it was done. A. It certainly was. I
couldn't do anything else. Q; You stated the prosecu-
tion of these suits lagged? A. Yes. Q. When that
stage was reached, were you given any instructions with
reference to thQ matter by your employers ? A. Yes ; we
discussed it ; but my own conception and view was, and
still is, 'Let sleeping dogs lie.' The thing was to carry
it along, and not stir it up, and in that way I could*
accomplish for these gentlemen just as much as by mak-
ing a successful fight ; in other words, by keeping them
open. I was constantly engaged in interviews and al-
ways ready. — Q. Do you know what their desire was with
reference to the law? A. I knew what I was told to do,
and that was to try to save them from this act. — Q. Do
you know whether the defendant continued to run its
barroom? A. It did. — Q. After the prosecution of the
suit ceased, those people, who employed you wanted you
to let it rest as long as it could? A. We worked it this
way, or rather accomplished it this way. This
started on July 1st, and these indictments came
along in July, and it was very hot, and, of course,

16 Cates] APKIL TERM, 1911. 545

Hotel v. Ewing.

I had to have an agreement with the court, because I
couldn't leave, and let them take these cases up on me in
my absence, and I wanted to go off, and after we contin-
ued here four or five weeks, I trying to get a trial and the
other people for one reason or another continuing it, I
asked the court in open court to either make the State
try the cases or continue them as late into the fall as they
could, and finally Judge Palmer set them for, I believe,
November from some time in the summer, and stated that
he would not try any whisky cases with me being absent
from the city, and the whisky people then told me to stay
away forever, and not to come back. That was the agree-
ment under which I left the city. — A. I say that was
the open court agreement with reference to the whisky
cases. Being apprehensive that some person whom I
did not represent would be convicted, it was an offer on
my part to represent these gentlemen, and I agreed to
try any case for anybody without charge to the individ-
ual defendant — Q. I will ask you to state, Mr. Ewing,
whether or not it would be possible, or whether or n^t it
would be proper, to let the question be raised in some
other case than this. A. The question raised in another
case and decided would bind my case, just like it was my
case. It was for that reason that I had to hold myself
open for anybody's fight Q. State whether or not
you rendered every service required undfcr the contract
A. I thought I had rendered every service, and more,
for I have never stopped rendering them yet. Q. Did
the defendant, or any party to the contract, call on you

124 Tenn.— 35

546 TENNESSEE REPORTS, [124 Tenn.

Hotel v. Ewlng.

to perform services under it which you have failed to per-
form? — A. No. Q. Mr. Ewing, I believe you stated
that your dealings with the parties to this contract were
all through Messrs. Baumga!rten and Parker? A. Yes,
sir ; except Mr. Brinkley Snowden, whom I talked to fre-
quently, and I also talked to Mr. Sambucetti, whom I saw
on the street. — Q. State whether or not the law was
suspended till the day mentioned. A. Yes, sir ; and con-
tinued thereafter to be nonenforced, and the indictments
which I undertook to defend under this contract are still
pending, and I, of course, represent the defendant — Q.
Now, did you procure any injunction from any court in
this suit suspending the enforcement of that act? A. No,
sir. Q. Did you have any agreement with the public
officers of this State that they would not enforce the act?
A. No, sir. Q. Is not it a fact that the attorney-general
of this county has announced the act is not enforcable
and published it? A. I don't know it to be the fact, and
I ne^er saw the publication. I have generally heard
that he said that he could not at this time enforce it. Q.
All that you have done is that you have represented a
defendant or several defendants in the criminal court,
is it not? A. I am going to answer it, and then explain.
I answer, No, that is not all I have done. Now I want to
explain the answer. When this law went into effect on
July 1st, it was very easy to enforce it, and it
was perfectly plain to every officer, saloon keeper,
lawver, and citizen that it could then be enforced.
I then represented the retail liquor dealers, and fought

16 Gates] APRIL TERM, 1911. 547

Hotel v. Bwlng.

it off until the summer, and got the matter delayed into
the fall. Now, by holding out and resisting any enforce-
ment for the first four or five months, then I claim I made
it impossible for them to enforce it. — Q. Anyhow there
was no trial in the criminal court in which you as coun-
sel had this act declared illegal or unconstitutional? A.
There never was. Q. You appeared as counsel and made
a motion to quash an indictment that had been returned
in the first case? A. Tes, sir; and that motion was sus-
tained. Q. That was sustained, not on the ground that
the act was unconstitutional? A. Not on that ground
at all; it didn't get that far. Q. The indictment was
quashed? A. Yes, sir. Q. No indictment was returned
afterwards against any one of these parties, until late in
the fall one was returned against Mr. Parker? A. You
are mistaken about that. Q. I understand you to say
that. A. I never made such a statement. On the con-
trary, I stated there were several indictments returned,
which I got continued to the fall. Q. And there were
none against any of the parties? A. I don't know what
you mean by none of them. He was one of the parties.
Q. I thought you said there was not. A. No ; but I said
Mr. Parker, whose name appears on there, was indicted
five or seven times; enough to make it lively for us if we
were mistaken. Q. His case has never been tried? A.
It never has ; I have been in court every time. Q. Now,
Mr. Ewing, is not it a fact that the suspension of this
law has been because the public sentiment of the commu-
nity does not desire its enforcement? A. That is my

548 TENNESSEE REPORTS. [124 Tenn.

Hotel t. Bwlng.

opinion now that that condition has brought this about,
and I don't want to be understood as claiming that I was
solely responsible for that law not being enforced; but I
do claim that the liquor interest at that time thought
they would have been put out of business, except that
some lawyer as the head of the defensive fight be ready,
prepared, and willing to go on with the fight, and at all
times doing it. Now, that is what I claim ; that I accom-
plished what I was employed to do and paid to do."

At the conclusion of the evidence the plaintiff below
moved for a peremptory instruction, and the defendant
below did the like. The trial judge sustained the motion
of the plaintiff below, and overruled the motion of the
defendant below. Thereupon the jury rendered a verdict
pursuant to the instruction, and the defendant below
prayed and prosecuted an appeal, as before stated.

The case must be determined really upon the face of
the contract. We have reproduced the evidence, how-
ever, in order that Mr. Ewing's view may be fully pre-
sented, in his own language.

That portion of the contract on which the present suit
is brought reads : "In the event he succeeds in suspend-
ing the enforcement or operation of the act until the
meeting of the next supreme court in the spring of 1910,
he is to be paid f 4,000.00 additional."

We do not see how any one for a moment could
conceive that a contract of this kind could be en-
forceable in a court. It is a contract to suspend, and
thereby render nugatory, a criminal law of the State.

16 Cates] APRIL TERM, 1911. 549

Hotel t. Swing.

Such a contract is necessarily void, as are all contracts
made with a view to the violation of a statute. Various
illustrations of the principle will be found in the follow-
ing cases : Yerger v. Rains, 4 Humph., 259 ; Hale v. H en-
derson, 4 Humph., 199 ; Allen v. Dodd, 4 Humph., 131,
40 Am. Dec, 632 ; Isler v. Brunson, 6 Humph., 278 ; Lea
v. Collins, 4 Sneed, 393; Nichols v. Cabe, 3 Head, 92;
Parks v. McKamy, 3 Head, 297 ; Rhodes v. Sumtnerhill,
4 Heisk., 204 ; Heart v. Brewing Co., 121 Tenn., 71, 113
S. W., 364, 19 L. R. A. (N. S.), 964, 130 Am. St Rep.,
753.

That the purpose was to nullify the statute above re-
ferred to is not only clear from the language which we
have quoted, but the matter is plainly stated in the dep-
osition of Mr. Ewing, in which he says that, having ac-
complished that result, he is entitled to recover the
amount agreed to be paid ; the suit being against the Ar-
lington Hotel for its one-tenth of the sum agreed to be
paid.

There is no means known to the law whereby the oper-
ation of a valid criminal statute can be legally suspend-
ed, or the enforcement thereof stayed. Such a statute
cannot be enjoined. If parties be indicted under the
statute, and they be defended this cannot legally stay its
operation, since each additional offense under the stat-
ute is an additional crime, for which a new indictment
may be framed, and for which a new prosecution may
be waged.

Of course, every such prosecution might be defended,
and upon conviction had there might be an appeal to the

550 TENNESSEE REPORTS. [124 Tenn.

Hotel y. Ewlng.

supreme court, and here the question of constitutionality
could be finally tested. It certainly would not be a vio-
lation of law for an attorney to defend every such suit,
or let it be known that he would defend every such suit,
and Mr. Ewing's evidence shows that this was substan-
tially all that he did ; that is, that he let it be known that
he stood ready to defend all such cases, and did go to
court from time to time to make such defense, and did
spend much time in preparing himself on the questions
of law involved. These acts, of course, were not, in and
of themselTOS, illegal. It is laid down, however, that if
a contract can by its terms be performed lawfully, it will
be treated as legal, even if performed in an illegal
manner; while a contract entered into with intent to
violate the law is illegal, even if the parties may in per-
forming it depart from the contract, and keep within the
law. 1 Page on Contracts, section 506, p. 707.

As we have stated, there is no lawful means whereby
the operation of a valid criminal statute can be suspend-
ed. As we have said, the purpose of this contract was
to effect such nullification of a valid law. Therefore,
although such acts as were done by Mr. Ewing were, in
themselves, legal, yet, their purpose being to further and
promote an illegal contract, they could not be such acts
as the law would aid him in obtaining compensation for.
Moreover, he concedes in his deposition that these acts
were not wholly efficacious in bringing about the desired
result, but only contributed thereto. He says : "Q. All
that you have done is that you haw represented a de-

16 Cates] APRIL TERM, 1911. 551

Hotel v. Ewlng.

fendant or several defendants in the criminal court, is
not it? A. I am going to answer it, and tlien explain.
I answer, No, that is not all I have dona Now I want
to explain the answer. When this law went into effect
on July 1st, it was very easy to enforce it, and it was per-
fectly plain to every officer, saloon keeper, lawyer, and
citizen that it could then be enforced. I then represented
the retail liquor dealers, and fought it off until the sum-
mer, and got the matter delayed into the fall. Now, by
holding out and resisting any enforcement for the first
four or five months, then I claim I made it impossible
for them to enforce it. . . . Q. Now, Mr. Ewing, is
not it a fact that the suspension of this law has been be-
cause the public sentiment of the community does not
desire its enforcement? A. That is my opinion now that
that condition has brought this about, and I don't want
to be understood as claiming that I was solely responsi-
ble for the law not being enforced; but I do claim that
the liquor interests at the time thought they would have
been put out of business, except that some lawyer as the
head of the defensive fight be ready, prepared, and will-
ing to go on with the fight, and at all times doing it.
Now, that is what I claim ; that I accomplished what I
was employed to do and paid to do." The substance of
which is that the obstructive tactics he employed con-
tributed largely to the result, but the final state of an-
archy upon this subject was brought about by the fact
that the public sentiment in the city of Memphis was
against the enforcement of the law.

552 TENNESSEE REPORTS. [124 lenn.

Hotel v. Ewlng.

We do not wish to be understood as holding that a
lawyer may not properly undertake to test the constitu-
tionality of a criminal statute, that is in fact constitu-
tional. Such contracts are often made. However, if,
in addition to undertaking to test its constitutionality,
he contracts that he will, pending such test, suspend or
nullify its operation, the contract is void.

The court of civil appeals has treated this case as if
Mr. Ewing were suing on a quantum meruit. This is an
entire misconception of the suit. It is perfectly plain,
from the warrant as well as from Mr. Ewing's deposi-
tion, that he himself had no such theory of the case, but
that he regarded himself as suing on the contract, and
he claimed a recovery on the ground that he had perform-
ed the contract.

We are of the opinion that the court of civil appeals
erred in its judgment ; likewise, the trial court.

The trial court should have granted the peremptory
instruction asked by the defendant below.

Rendering such judgment as the trial court should
have rendered, we sustain the motion made by the defend-
ant below, and dismiss the suit, with costs.

16 Cates] APRIL TERM, 1911. 553

State, ex rel., v. Powers.

State, ex rel. Ed. Bigham et al. v. W. W. Powebs,

County Judge, et al. *

f (Jackson. April Term, 1911.)

L CONSTITUTIONAL LAW. A drainage statute whose title
provides for assessment and collection and manner of obtain-
Ing funds for the Improvement, and whose body provides a
system of taxation, to be exercised by the drainage districts*
without limit as to rate or frequency, Is not unconstitutional
as embracing a subject In Its body not included In its title.

Where a drainage law (Acts 1909, ch. 185) Is entitled "An act
to provide for the establishment of levee and drainage dis-
tricts, for the purpose of the draining and reclamation of wet
and swamp lands and lands subject to overflow In the State,
and prescribing the method for so doing, and providing for the
assessment and collection of the costs and expenses of such
Improvements, and the manner of obtaining the means or
funds therefor," even though such act be construed to provide
In its body a system of taxation, to confer on the several drain-
age districts the power of taxation, and give to such districts
unlimited power as to rate or frequency of taxation, the stat-
ute is not unconstitutional as containing In its body, in this
particular, matters not embraced In its title, for all these
matters are fairly included within the clause of the title as
to assessing and collecting and providing the costs and ex-
penses and funds for the work. (Post, pp. 662-564.)

Acts cited and construed: Acts 1909, ch. 185.
Constitution cited and construed: Art. 2, sec 17.

•Procedure for establishment of drains and sewers, see note
in 60 I* R. A., 161.

554 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Powers.

2. SAME. Title of a statute providing for establishment of levee
and drainage districts and for a method for so doing author-
izes a provision in its body for creation of one drainage dis-
trict within another.

Where a drainage law (Acts 1909, ch. 185) Is entitled "An act
to provide for the establishment of levee and drainage dis-
tricts, • • • and prescribing the method for so doing,"
etc., it is entirely appropriate for the body of the act to con-
tain a provision for the establishment of a drainage or levee
district to be created within a drainage or levee district; for
such a provision is not a matter distinct and foreign to the
title. (Post, pp. 664, 665.)

Acts cited and construed: Acts 1909, ch. 185*

Constitution cited and construed: Art 2, sec. 17.

3. 8AM E. Title of a statute providing for establishment of levee
and drainage districts and for a method for so doing author-
izes a provision in its body for establishment thereof by mu-
tual agreement, when.

Where a drainage law (Acts 1909, ch. 185) is entitled "An act
to provide for the establishment of levee and drainage districts,
* * • and prescribing the method for so doing," etc., it Is
entirely appropriate for the body of the act to contain a pro
vision authorizing the owners of land requiring combined
drainage to provide by mutual agreement for the establish-
ment of drainage districts, with the power given to the, other
districts; for such provision only undertakes to prescribe a
method for establishing drainage districts, namely, "by mu-
tual agreement," and Is covered by the title or caption, and
Is entirely harmonious with the other parts of the act (Post,
pp. 664, 565.)

Acts cited and construed: Acts 1909, ch. 185.

Constitution cited and construed: Art. 2, sec. 17.

16 Cates] APRIL TERM, 1911. 556

State, ex rel., v. Powers.

4. SAME. Title of a statute providing for establishment of levee
and drainage districts and for funds to pay for the Improve-
ments authorizes a provision In its body for exercise of emi-
nent domain.

Where a drainage law (Acts 1909, ch. 185) is entitled "An act
to provide for the establishment of levee and drainage districts,
and prescribing the method for so doing, and providing for the
assessment and collection of the costs and expenses of such
improvements," etc., a provision in the body of the act for
the exercise of the right of eminent domain in the establish-
ment of these districts is germane to the title, and also to the
other provisions of the act, and, therefore, does not render the
act unconstitutional. (Post, pp. 565, 566.)

Acts cited and construed: Acts 1909, ch. 185.

Constitution cited and construed: Art 2, sec. 17.

5. 8AM E. Title of statute providing for establishment of levee
and drainage districts and prescribing the method for so do-
ing authorizes provision In Its body requiring the county to
bridge drainage ditches.

Where a drainage law (Acts 1909, ch. 185) is entitled as set out
in the preceding headnote, a provision in the body of the act
requiring the county to build bridges when necessary over
drainage ditches is clearly included in that clause of the title
as to the methods to be used in establishing the levee and
drainage districts. (Post, pp. 565, 566.)

Acts cited and construed: Acts 1909, ch. 185.

Constitution cited and construed: Art. 2, sec. 17.

6. 8AME. None of said provisions treated In the preceding head-
notes are Incongruous with the title of the act or with each
other.

All of the matters urged against the constitutionality of said
act are determined against such contention, and held not to be
incongruous with the title of the act or with each other, but

556 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Powers.

that they are all related to each other and fall well within the
scope of the title. (Post, pp. 564-566.)

Acts cited and construed: Acts 1909, ch. 185.

Constitution cited and construed: Art 2, sec. 17.

7. 8AM E. 8peclal assessments for establishment of levee and
drainage districts are not taxes within the meaning of the
constitution, and may be made or levied according to bene-
fits instead of value of land.

The special assessments authorized by the drainage law (Acts
1909, ch. 185, sec. 11) to be made for the payment of the costs
and expenses of the establishment and construction of levee
and drainage districts, and to be apportioned and levied upon
or against each piece of land within the drainage district
according to the benefits accruing thereto by reason of such
improvements, are not taxes within the meaning of the con-
stitutional provision (art. 2, sec 29), giving the legislature
power to authorize counties and incorporated towns to impose
taxes for county and corporation purposes, respectively, in
such manner as may be prescribed by law, and requiring all
property to be taxed according to value, etc.; and, therefore,
such assessments may, under authority of statute, be made or
levied against each piece of land, not according to its value,
but according to the benefit it may receive from the estab-
lishment of the levee and drainage district. {Post, pp. 562, 563,
666-571.)

Acts cited and construed: Acts 1909, ch. 185, sec. 11.

Constitution cited and construed: Art. 2, sec 29.

Case cited and approved: Arnold v. Knoxville, 116 Tenn., 195.

8. SAME. 8tatute authorizing preliminary expenses of establish-
ing levee or drainage districts to be paid out of general county
funds, to be repaid out of collected assessments, Is not uncon-
stitutional as the lending of the county's credit; because It is

16 Cates] APRIL TERM, Mil. 557

State, ex re!., v. Powers.

not the lending of the county's credit, and, even If It were,
It Is for a county purpose, and may be done without an elec-
tion.

The provision of the drainage law (Acts 1909, ch. 185, sec 39)
that the preliminary expenses for the organization and estab-
lishment of a levee or drainage district may be paid out of the
general county funds, to be refunded to the county out of col-
lections of assessments on the lands benefited; and, if not so
repaid, then to be adjudged against and collected out of the
bonds of the petitioners applying for the establishment of such
district, is not a provision for the lending of the credit of a
county in violation of the constitutional inhibition (art. 2, sec
29) against the giving or lending of the county's credit to or
in aid of any person, company, association, or corporation,
except upon the assent of three-fourths of the votes cast, by
the qualified voters of the county, in an election held to de-
termine the question, but is rather a provision authorizing
counties to appropriate a portion of their general funds for a
newly sanctioned county purpose; but even if the statute be
construed as providing for the lending of the county's credit,
it is not, for that reason, unconstitutional, because the organ-
ization and establishment of such districts is a county purpose
within the rule that a county's credit may be loaned for county
purposes by the action of the quarterly court, without submis-
sion of the question to an election by the qualified voters.

. (Post, pp. 672, 573.)

Acts cited and construed: Acts 1909, ch. 185, sec. 39.
Constitution cited and construed: Art 2, sec. 29.

Cases cited and approved: Lauderdale Co. v. Fargason, 7 Lea,
153; Shelby Co. v. Exposition Co., 96 Tenn., 653; Burnett v.
Maloney, 97 Tenn., 699.

9. SAME. 8tatute authorizing commissioners under the appoint-
ment, direct supervision, and control of the county court to
make special assessments for drainage districts is not uncon-
stitutional as the delegation of the taxing power to bodies other
than the county or a municipal corporation.

558 TENNESSEE EEPORTS. [124 Tenn.

State, ex rel., v. Powers.

The provision In the drainage law (Acts 1909, ch. 185, sec. 11),
authorizing the commissioners appointed by the county court,
wholly as agents of the county, to levy the special assess-
ments necessary for the establishment and maintenance of
levee and drainage districts, to be made under the direct
supervision and control of the county court, to which the said
commissioners are required to report, and under whose direc-
tion they proceed, is not a delegation of the taxing power to
a body of persons other than a county or a municipal corpo-
ration, In violation of the constitutional provision (art 2, sec.
29) authorizing the delegation of the taxing power to the sev-
eral counties and Incorporated towns, because (1) these spec-
ial assessments are not taxes within the meaning of the con-
stitution, and (2) the court clearly Intimates, without expressly
deciding the question, that the taxing power, may be delegated
to other county agencies than the quarterly court (Post, pp.
673-576.)

Acts cited and construed: Acts 1909, ch. 185, sec. 11.

Constitution cited and construed: Art 2, sec. 29.

Cases cited and approved: Cannon Co. v. Hoodenpyle, 7 Humph.,
145; Newman v. Scott Co., 6 Sneed, 700; Arnold v. Knoxville,
115 Tenn., 195.

Case cited and distinguished: Lipscomb v. Dean, 1 Lea, 546.

10. SAME. Statute authorizing special assessments for levee and
drainage districts Is not unconstitutional as taking property
without Just compensation and without due process of law.

The drainage law (Acts 1909, ch. 185), authorizing special assess-
ments against the land benefited, for the purpose of paying for
the establishment and maintenance of levee and drainage dis-
tricts, is not unconstitutional as authorizing the taking of prop-
erty without just compensation and without due process of
law. (Post, pp. 576, 577.)

16 Cates] APRIL TEEM, 1911. 559

State, ex rel., v. Powers.

Acts cited and construed: Acts 1909, ch. 185.

Constitution cited and construed: Art. 1, sec. 21.

Cases cited and approved: Arnold v. Knoxville, 115 Tenn., 195;
French v. Asphalt Co., 181 U. S., 824; Cain v. Davie, 86 N. C, 8.

11. 8AM E. Statute authorizing drainage districts is not uncon-
stitutional as arbitrary class legislation because It exempts
Reelfoot Lake from Its operation.

The drainage law (Acts 1909, ch. 185), authorizing the establish-
ment of levee and drainage districts for the drainage and recla-
mation of wet and swamp lands, is not unconstitutional as
creating an unnatural, arbitrary, and capricious classification
or exemption by the provision contained in its fortieth sec-
tion exempting Reelfoot Lake from the operation of the statute,
because such lake is a navigable water in the ordinary sense,
a great game and fish preserve, with many public uses, giving
the public an interest in its preservation so as to prevent its
drainage, and, on account of its such characteristics, it fur-
nishes a sound, reasonable, and natural basis for such classi-
fication between it and the swamp lands of the State. {Pott,
pp. 577-679.)

Acts cited and construed: Acts 1909, ch. 185, sec. 40.

Constitution cited and construed: Art 11, sec. 8,

Cases cited and approved: Stratton v. Morris, 89 Tenn., 497;
Harbison v. Iron Co., 103 Tenn., 421; State v. Brewing Co., 104
Tenn., 215; Webster v. Harris, 111 Tenn., 668.

12. 8AME. Statute authorizing special assessments for drainage
districts Is not unconstitutional as the taking of private prop-
erty for either a public or private use.

The drainage law (Acts 1909, ch. 185), authorizing the establish-
ment of levee and drainage districts, and special assessments
on the land therein and thereby benefited to pay for the con-
struction and maintenance of the same, is not unconstitutional

560 TENNESSEE REPORTS- [124 Tenn.

State, ex rel., v. Powers.

as taking or authorizing the taking of private property for pri-
vate uses, contrary to the implied prohibition of the constitu-
tion, because (1) there is not a taking of property in the con-
stitutional sense, and (2) the taking is not for a private pur-
pose, but for a county purpose and a public purpose. (Post,
p. 579.)

Acts cited and construed: Acts 1909, ch. 1S5.
Constitution cited and construed: Art. 1, sec. 21.

13. SAME. Statute authorizing special assessments for levee and
drainage districts Is not unconstitutional In imposing such
burden upon homesteads therein; question reserved, with ex-
pression of opinion.

The drainage law (Acts 1909, ch. 185) authorizing special assess-
ments on the land benefited by the establishment and mainten-
ance of levee and drainage districts to pay for the costs and
expenses of the same is not unconstitutional because the as-
sessment may be levied against the homestead and its col-
lection enforced against the homestead, for the reason that
the homestead is not exempt from debts contracted for im-
provements thereon; but the court reserves the question
whether the improvement resulting from the establishment and
maintenance of a levee and drain of district is an improve-
ment within the meaning of the constitution, for which the
homestead would be liable, but clearly expresses a strong opin-
ion that the homestead is not exempt from such assessments
for such Improvements. (Post, pp. 579-581.)

Code cited and construed: Sec. 3799 (S.); sec. 2935 (M. & V.);
sec. 2114a (T. & S.).

Acts cited and construed: Acts 1909, ch. 185.

Constitution cited and construed: Art. 11 ,sec. 11.

Cases cited and approved: Dickinson v. Mayer, 11 Heisk., 516;
Guinn v. Spurgln, 1 Lea, 228; Nichol v. Davidson Co., 8 Lea,
389; Fauver v. Fleenor, 13 Lea, 623; Flatt v. Stadler, 16 Lea,

16 Cates] APRIL TERM, 1911. 561

State, ex rel., v. Powers.

371; McLean v. Letch, 105 Tenn., 693; McBroom v. Whitfield,
108 Tenn., 422.

14. NAVIGABLE STREAMS. Statute authorizing levee and drain-
age districts is interpreted as not undertaking to authorize In-
terference with navigable waters within the control of con-
gress.

The drainage law (Acts 1909, ch. 185) authorizing the establish-
ment of levee and drainage districts for the drainage and rec-
lamation of wet and swamp lands does not undertake to au-
thorize any interference with the free and public use of navi-
gable waters over which congress has control, and does not
attempt to confer upon the county courts the authority to
change or alter such navigable waters; and if the question
was doubtful, the statute would be given that interpretation
which would save it, rather than one which would destroy it
(Post, p. 681.)

Acts cited and construed. Acts 1909, ch. 185.

FROM GIBSON.

Appeal from the Chancery Court of Gibson County. —
Colin P. McKinney, Chancellor.

Cooper & Clark, Deason, Elder & Holmes, for com-
plainants.

Wade, Nichols & Wade, for defendants.

124 Tenn.— 36

562 TENNESSEE EEPORTS. [124 Tenn.

State, ex reL, ▼. Powers.

Mb. Justice Green delivered the opinion of the Court.

This is a mandamus suit, brought in the chancery
court of Gibson county, to compel the county judge of
that county to issue a warrant to pay for certain prelimi-
nary expenses incurred in connection with the proposed
formation of a drainage district This expenditure was
authorized by the Gibson county quarterly court, under
the authority of chapter 185 of the Acts of 1909.

The resolution appropriated f 2500 out of the general
county fund for the purpose, and directed the county
judge to draw warrants for said expenses, which he re-
fused to do.

A demurrer was interposed by the county judge, which
challenged the constitutionality of the legislative act
under which the county court proceeded, and from a de-
cree overruling his demurrer the county judge has ap-
pealed to this court.

As stated, the act assailed is chapter 185, Acts of 1909',
known as the "Drainage Law." Owing to its length,
the entire act cannot be set out in this opinion, but only
such portions quoted as are necessary to explain the
points urged against it.

The objections to the act are made by demurrer, and
the several grounds of demurrer correspond with the as-
signments of error here, and will be considered in the
order made.

The general purposes of the act are concisely stated
in the caption, as follows:

"An act to provide for the establishment of levee and

16 Cates] APRIL TERM, 1911. 563

State, ex rel., v. Powers.

drainage districts, for the purpose of the draining and
reclamation of the wet and swamp lands and lands sub-
ject to overflow in the State, and prescribing the method
for so doing, and providing for the assessment and collec-
tion of the costs and expenses of such improvements, and
the manner of obtaining the means or funds therefor."

It will be seen that the caption indicates an act to pro-
vide for the establishment of drainage districts, with di-
rections as to the methods to be used, with a provision
for assessing and collecting the costs and expenses of the
work, and a further provision as to the "manner of ob-
taining the means or funds therefor."

The first ground of demurrer is that the act violates
section 17, art. 2, of the constitution, providing that "No
bill shall become a law which embraces more than one
subject, that subject to be embraced in the title."

The appellant sets out under seven heads the different
and distinct matters which he alleges are contained in
the act, and which he argues are incongruous with the
title and with each other.

The first three matters mentioned, which are said to
be distinctive and without the scope of the title, are :

(1) "The body of the act provides a system of taxa-
tion, and not only this, but provides for a basis of taxa-
tion according to the benefits bestowed." See section 11
of said act.

(2) "Not only this, but the districts created under
this act are to have the power of taxation without regard
to the quarterly court." See section 11.

564 TENNESSEE BEPORTS. [124 Tenn.

State, ex reL, t. Powers.

(3) "The power of taxation under this act is unlim-
ited as to rate or the frequency of the levy." See section

U.

Section 11 of the act will be quoted and referred to
later in the progress of this opinion,and it will then be
seen that we do not agree that the act, under a proper
construction, can be given the meaning that counsel
ascribes to it in the three paragraphs just above quoted
from his brief. Considering, however, that the act means
what he says, as we may do for the purpose of disposing
of the particular constitutional objection here made, still
we are not able to perceive that three distinct subjects
are here treated of, or that any of the matters mentioned
are incongruous with the caption of the act or with each
other.

If the act did provide for a basis of taxation, and did
confer on the several districts the power of taxation, and
did give such districts unlimited power as to rate or fre-
quency, nevertheless it could be said of none of these
matters that they were not fairly included within that
clause of the title as to assessing and collecting and pro-
viding the costs and expenses and funds for the work.

It is next said that under the fourth heading this act
provides for a drainage or levee district to be created
within a drainage or levee district, and so on ;.and this
is urged as a distinct and foreign matter to the title. The
language of the caption is that the act is to provide for
the establishment of "levee and drainage districts," and
it is not improper that a provision such as the one criti-
cized should be enacted under that part of the title

16 Cates] APRIL TERM, 1911. 565

State, ex rel., v. Powers.

quoted. In addition, it is also said in the caption that
the act shall be one "prescribing the method" for estab-
lishing these districts, and it is entirely appropriate, un-
der the last clause of the caption, to enact that one dis-
trict may be established within another.

The fifth distinct matter supposed to be included in
the act is that portion providing that "the owners of land
which requires combined drainage may provide by mu-
tual agreement for the establishment of drainage dis-
tricts, with the power given to the other districts."

What has been said in disposing of the fourth objection
just above is applicable here. This part of the statute
only undertakes to prescribe a method by which a drain-
age district may be established, to wit, "by mutual agree-
ment ;" and this is covered by the caption, and is entirely
harmonious with the other portions of the act.

It is next said, under the sixth head/that, as appellant
construes the act, it provides for the exercises of the right
of eminent domain in the establishment of these dis-
tricts. If this construction be conceded, it is, we think,
germane to the title, and also to the other provisions of
the act.

It is argued, under the seventh head, that the act pro-
vides that the county shall build a bridge, when neces-
sary, over any drainage ditch. This provision is clearly
included in that clause of the caption as to the methods
to be used in establishing these districts.

So that, upon consideration of all the different matters
alleged to be inharmonious and incongruously included

566 TENNESSEE REPORTS. [124 Tenu.

State, ex reL, v. Powers.

in this act, we are of the opinion that they are not sub-
ject to such criticism, but, on the contrary, they are all
related to each other, and fall well within the general
scope of the act as indicated by its title. The act does
not violate section 17, art. 2, of the constitution in any
of the particulars urged by the appellant.

The second ground of demurrer is that the act violates
section 29, art. 2, of the constitution, providing that
"the general assembly shall have power to authorize the
several counties and incorporated towns in this State to
impose taxes for county and corporation purposes, re-
spectively, in such manner as may be prescribed by law ;
and all property shall be taxed according to value, upon
the principle established in regard to State taxation."

The provision of the act which it is said violates the
above clause of the constitution is section 11 of the act,
which provides for the assessment and apportionment of
the costs and expenses of the work upon each piece of
land, according to the benefits accruing to that land be
reason of these public improvements.

Section 11 of the act is as follows :

"Section 11. Be it further enacted, that when the
drainage or levee district, or other improvements herein
provided for, shall have been located and established as
provided for in this act, the county court shall appoint
three commissioners, one of whom shall be a competent
civil engineer, and two of whom shall be freeholders of
the county, not living within the levee or drainage dis-
trict, and not interested therein, or in a like question,
nor related to any party whose land is affected thereby ;

16 Cates] APRIL TERM, 1911. 567

State, ex rel., v. Powers.

and they shall, as soon as practicable after their
appointment, and after being duly sworn to per-
form their duty faithfully and impartially to the
best of their ability, inspect and classify all the
lands benefited . by the location and construction
of such drainage or levee district in a graduated
scale of benefits, naming the tract or tracts of each owner
and so classifying the same, each tract to be numbered
according to the benefit received, as below provided, by
the proposed improvement; and they shall make an
equitable apportionment and assessment of the costs, ex-
penses, cost of construction, fees and damages assessed
for the construction of any such improvement, and make
report in writing thereof to the county court. In making
said estimate and apportionment, the lands receiving the
greatest benefit shall be marked on scale of one hundred,
and those benefited in a less degree shall be marked with
such percentage of one hundred as the benefit received
bears in proportion thereto. This classification, when
finally established, shall remain as a basis for all future
assessments connected with the objects of said drainage
or levee district, unless the county court, for good cause,
shall authorize a revision thereof. In making such class-
ification, said commissioners are authorized to divide the
land of one owner lying in one body into more than one
tract, and classify each subdivision thereof, if they are
of opinion that portions of such entire tract will be more
benefited than other portions, and especially when such
entire tract is a large one, and that it will be more
equitable and just to so classify it in subdivisions.

568 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Powers.

"In the report of such commissioners they shall speci-
fy each tract of land by reasonable description and the
ownership thereof as the same appears on the tax books
of the county or as the same has been previously adjudg-
ed in the proceeding, and the court shall cause notice to
be served upon each person whose name appears as the
owner, and upon any person in actual occupancy of the
land, which notice shall state the amount of special as-
sessments apportioned to each owner on each tract or lot,
the day set for hearing the same before the court ; that all
objections thereto must be made in writing and filed with
the county clerk on or before noon of the day set for
hearing; and said notices shall be signed by the county
clerk and served at least five days before the time set
for the hearing. If any such owner be a nonresident of
the State, or his name or residence is unknown and can-
not be ascertained after diligent inquiry, then service of
such notice upon the resident agent or attorney of such
person shall be sufficient; if there be no such resident
agent or attorney of such person, then the assessment
may be made without notice just as taxes are assessed
without notice in such cases. When the day set for
hearing has arrived, and the hearing is not continued by
the court for good reason, as it may be, and when the
hearing is had, the county court shall proceed to hear
and determine all objections made and filed to said re-
port, and may increase, diminish, annul, or affirm the ap-
portionment and assessment made in such report, or in
any parts thereof, as may appear to the court to be just

16 Cates] APRIL TERM, 1911. 569

State, ex rel., v. Powers.

and equitable; but in no case shall it be competent to
show that the lands assessed would not be benefited by
the improvement ; and when such hearing shall hare been
had, the county court shall assess such apportionment
so fixed by it upon the lands within such levee or drain-
age district. If the first assessment made by the court
for the original cost of any improvement as provided in
this act is insufficient, the court may make ail additional
assessment in the sarnie ratio as the first

"If for any reason the court annuls in toto, or sets
aside such report of the commissioners, it shall order
them to make a new report, or shall remove them and ap-
point new commissioners to act as in the first instance,
if desired by the parties concerned,"

The objection here made is that these assessments are
a tax, and are not made according to value, as the consti-
tution provides.

This objection at a former period of judicial history
in this State would have been fatal. Acts similar to the
one in question here, providing for like assessments, have
by this court, in earlier times, been held to be in contra-
vention of the constitution.

The court, however, has in a recent holding overruled
the former cases, and held that such assessments are not
taxes within the meaning of the constitution.

In the case of Arnold v. Knoxville, 115 Tenn., 195, 90
S. W., 469, 3 L. R. A. (N. S.), 837, this entire subject is
discussed at much length, and all the authorities there
reviewed, in an opinion by the late Mr. Justice Wilkes.

570 TENNESSEE REPORTS, [124 Tenn.

State, ex rel., v. Powers.

In that case there was a statute providing for the cre-
ation of an improvement district by a municipal corpora-
tion within the corporate limits, and providing for spec-
ial assessments on the property lying therein, abutting
thereon, or adjacent thereto.

It was held by this court that this act was valid and
constitution al, the same objection being made to it that
is urged here. The court said :

'While special assessments are in the nature of taxa-
tion, still they are not taxation for general governmental
purposes in the sense provided for in the constitution in
many respects. Some of these differences are pointed
out in the cases. Thus exemption which applies in cases
of governmental taxes does not extend to special assess-
ments. Special assessments do not recur annually or at
stated periods, but are imposed only as occasion requires.
Special assessments are levied alone upon real estate
and not upon personal property. There are numerous
distinctions pointed out in the cases. 25 Am. and Eng.
Enc. Law, 1168, 1169, and authorities there cited."

The court further said :

"Special assessments are based upon the theory that
property assessed will be specially benefited qbove the
benefits received by the public at large ; and while the re-
suits may not be such as are anticipated, still the prin-
ciple holds good. And it is likewise held that the bur-
den may be apportioned between the public and the prop-
erty benefited, and between the property owners them-
selves, according to actual benefits expected, or accord-

16 Cates] APRIL TERM, 1911. 571

State, ex rel., v. Powers.

ing to value, or in some jurisdictions, according to area
or frontage, as the legislature may direct.

"The most equitable plan of apportionment appears
to be an assessment according to value and benefits re-
ceived, and it has been held that in assessments based
upon value, the worth of the improvements should be

#

deducted." Arnold v. Knoamlle, supra.

The conclusion reached by the court in this case was
attained after a learned discussion at the bar and after
a full consideration by the court, the members of which
did not all concur in the result reached.

The authorities were all reviewed in this opinion, and
we could add little here to what was there said.

Although the court was divided, the result of that case
has been accepted generally, and has since been acted
upon repeatedly by the legislature.

It is sufficient to say that we are satisfied with the
conclusion reached in Arnold v. Knoxville, supra, and
adhere to what was therein said by the majority of the
court.

This being true, the plaintiff's second ground of de-
murrer was properly overruled by the chancellor. The
assessments provided for by section 11 of this act are not
taxes, within the meaning of the constitution, and it is
not necessary that they should be made according to
value, but it was competent for the legislature to provide
that they should be levied against each piece of property
according to the benefit that property may be held to de-
rive from the establishment of the drainage districts.

572 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Powers.

It is also said that the act violates the latter portion
of section 29, art. 2, of the State constitution, which pro-
vides:

"But the credit of no county, city or town shall be
given or loaned to or in aid of any person, company, as-
sociation, or corporation, except upon election to be first
held by the qualified voters of such county, city op town
and the assent of three-fourths of the votes cast. at said
election," etc.

It is argued that section 39 of the act violates this con-
stitutional provision. Section 39 of the act is as fol-
lows:

"That the preliminary expenses of such levee or drain-
age district, ditch, drain or water course, improvement
provided for by this act (not including contract for
construction) may be paid by order of the quarterly
county court of the county in which the lands lie of
such improvement district, out of the general county
funds, the same, if so paid, to be refunded to the county
out of the assessments collected fjrom the lands of such
improvement district when so collected; and if not re-
paid, for any reason, then to be adjudged against and
collected out of the bonds of the petitioners required by
this act, and thus repaid to the county. If the quarterly
county court should not see fit to order such preliminary
expenses so paid, and the parties to whom such expenses
may be owing are not willing to agree to wait till a fund
for their payment can be provided by special assessments
upon such districts, the county court by proper order

16 Cates] APRIL TERM, 1911. 573

State, ex rel., ▼. Powers.

shall require the petitioner or petitioners to pay to the
county court clerk a fund sufficient to pay such prelimi-
nary expenses "

We do not think that this makes out a case of lending
the credit of the county in the constitutional sense, but
that it is rather the conferring of authority upon the
counties to appropriate a portion of their general funds
for a newly sanctioned county purpose. If it be conceded,
however, that this is a lending of the county's credit,
still we have no hesitancy in holding that the establish-
ment of these drainage districts is a county purpose, and
that a lending of the county's credit toward effecting
that purpose may be validly done without any election
being had. It is well settled in this State that a county's
credit may be loaned for county purposes merely by the
action of the quarterly court, and that no election is re-
quired. The matter is fully discussed in the case of
Shelby County v. Exposition Co., 96 Tenn., 653, 36 S.
W., 694, 33 L. R. A., 717, and authorities there cited.
See, also, Burnett v. Moloney, 97 Tenn., 699, 37 S. W.,
689, 34 L. R. A., 541 ; Txiuderdale County v. Fargason, 7
Lea, 153.

The third ground of demurrer is that this act violates
the constitution, in that it delegates the taxing power to
a body of persons other than a county or a municipal
corporation, in contravention of section 29, art. 2.

To sustain this proposition, counsel refer to the case
of Lipscomb v. Dean, 1 Lea, 546, in which an act au-
thorizing the directors of school districts to levy taxes

574 TENNESSEE REPORTS. [124 Tenn.

State, ex rel. t t. Power*.

for school purposes was held to be void. It was said in
that case that the only delegation of the taxing power
permitted by the constitution was to counties and mu-
nicipal corporations. We do not think that case is in
point here.

As we read this act, there is no attempt to delegate
this right of assessment to any other person or body ex-
cept counties in which the districts are to be established.
The commissioners are named merely as agents of the
county, who are to act for the county in levying these
assessments. But they act for the county alone, and not
for themselves. The whole work of these commissioners
is under the direct supervision and control of the county
court of each county, to whom they have to report, and
under whose direction they are required to proceed.

It is said, however, that the quarterly court has no
supervision or control of these assessments, and that it
is through the quarterly court alone that a county can
act in regard to matters of taxation, or a matter like
this.

The constitutions of 1834 and 1870 (article 2, section
29 ) provide that "The general assembly shall have power
to authorize the several counties and incorporated towns
in this State to impose taxes for county and corporation
purposes, respectively, in such manner as shall be pre-
scribed by law," etc.

It has not generally been supposed that the legislature
in delegating the taxing power to a county, was com-
pelled to select or designate the quarterly court as the

16 Cates] APRIL TERM, Mil. 575

State, ex rel., v. Powers.

sole agency through whom the taxes might be levied. So
far as we can find, this exact point has not arisen in any
of the cases; that is to say, the decision of this question
has not been necessary to the disposition of any of our
reported cases. There are, however, several expressions
of this court indicating that it has always been supposed
that the legislature might select a county agency other
than the county court to levy a tax.

In the case of Justices of Cannon County v. Hooden-
pyle, 7 Humph., 145, the court, in discussing the fore-
going constitutional provision, said :

"In pursuance to this power the legislature have by
various statutes authorized and empowered the justices
of the county courts of the several counties to exercise
for county purposes this delegated power of taxation.
The power itself is a portion of the fiscal or taxing power
of the State delegated, as we have said, pursuant to the
constitution, to the several counties. The agency indi-
cated by law for the exercise of this delegated local
power happened to be the justices of the county court;
but the power itself is not judicial, and might have been
confided to any other agency, or to the people of the
counties themselves."

And again, in the case of Newman v. Scott County, 5
Sneed, 700, the court said in like connection :

"As taxation is the appropriate means of raising funds
for the discharge of such debts, the power to impose
taxes for such purposes has been conferred generally
upon the justices of the county court."

576 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Powers.

- — - - — — —

There is an apparent recognition here of the power of
the legislature to delegate the taxing power to other
county agencies than the quarterly court, and, in fact,
an intimation that the power had been so delegated.

We are furnished with no authority for the proposi-
tion that it is beyond the power of the legislature to del-
egate the taxing power to a proper county agency other
than the quarterly court, and we would be slow to reach
such a conclusion. This question, however, does not nec-
essarily arise here. In Arnold v. Knoamlle, as we have
seen, this court held that these assessments were not to
be treated as taxes within the meaning of section 29, art.
2, of the constitution. Therefore, there being no consti-
tutional restrictions on the subject, we do not see how
any valid objection couuld be urged against this legisla-
tive scheme for the levying and collection of these assess-
ments.

The fourth ground of demurrer is : "The power of tax-
ation conferred by said act is unreasonable and void,
and gives the power of confiscation to the beneficiaries of
this act, and it is violative of the constitution."

Although the appellant does not point his finger to the
particular provision of the constitution which this por-
tion of the act is supposed to violate, we assume that he
refers to the constitutional inhibition against the taking
of property without just compensation. Article 1, sec-
tion 21.

This is another question that was settled in Arnold v.
Knoxville, supra. This court reviewed the cases there,

16 Cates] APRIL TERM, 1911. 577

State, ex rel., t. Powers.

and held that special assessments for improvements did
not constitute a taking of property without just compen-
sation and without due process of law, citing and approv-
ing French v. Asphalt Co., 181 U. S., 324, 21 Sup. Ct.,
625, 45 L. Ed., 879 Cain y. Davie County, 86 N. C., 8, and
a number of other cases. In a new work on Taxation by
Assessment, by Page and Jones (volume 1, section 110),
the authors state that by the great weight of authority
these provisions of the various constitutions as to just
compensation are restrictions upon the power of eminent
domain, and, therefore, "have no application to local
assessments, which are a branch of the taxing power."
A great number of cases are cited in support of this state-
ment, from California, Connecticut, Georgia, Illinois,
Indiana, Kentucky, Louisiana, New York, New Jersey,
Massachusetts, Michigan, Mississippi, Missouri, Mary-
land, Ohio, Texas, Vermont, and Wisconsin.

The fifth ground of demurrer is that the act violates
section 8, art. 11, of the constitution, in that it creates an
arbitrary and capricious classification or exemption,
and is, therefore, not the "law of the land." The par-
ticular section of the act to which his criticism is di-
rected is section 40, as follows :

"Be it further enacted, that this act is not intended to
apply to Reelfoot Lake and the waters thereof, or to au-
thorize the draining of the same ; and that this act shall
not be construed to in any way authorized the draining
of said lake."

124 Tenn.— 37

578 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., t. Powers.

It is urged upon us that the exemption of Reelfoot
Lake from the operations of this statute is unnatural
and arbitrary. With the utmost respect to learned coun-
sel who make this contention, it seems to us that a mere
statement of it suggests its own refutation.

This court has held, in the case of Webster v. Harris,
111 Tenn., 668, 69 S. W., 782, 59 L. R. A., 324, that Reel-
foot Lake is navigable water in the ordinary sense; that
it has many public uses ; that the public have an interest
in its preservation ; and that it might not be drained*

There is, of course, a great difference between Reelfoot
Lake and the swampy, marshy, water-covered lands
which are proposed to be affected by this legislation. No
one could be benefited by the continued existence of the
ordinary swamp lands that are intended to be reclaimed
by this act. They are valuable and useful for no pur-
pose, but, on the contrary, are breeders of disease, pesti-
lent insects, poisonous reptiles, and are a menace to the
health of every neighboring community. Reelfoot Lake,
aside from its uses as navigable water, is a great fish and
game preserve. It furnishes a means of livelihood to
many fishermen and others, and is the source of a large
food supply for much of the country.

Surely it cannot be said that a discrimination and a
distinction between Reelfoot Lake and these noisome
swamps does not rest upon a sound and natural basis,
and our cases are uniformly to the effect that, if a classi-
fication or exemption be reasonable and resting on a
sound basis, it will be sustained. State v. Schlitz Brew-

16 Cates] APRIL TERM, 1911. 679

State, ex rel., ▼. Powers.

ing Co., 104 Tenn., 715, 59 S. W., 1033, 78 Am. St. Rep.,
941'; Harbison v. Knoxville Iron Co., 103 Tenn., 421, 53
S. W., 955, 56 L. R. A., 316, 76 Am. St. Rep., 682; Strut-
ton v. Morris, 89 Tenn., 497, 15 S. W., 87, 12 L. R. A.,
70, in which last case is included a review of all those
decided earlier.

There is a subsection of this ground of demurrer, in
which it is said the act operates to take private property

m

for private use, contrary to the implied prohibition of
the constitution, and is, therefore, invalid.

In response, we refer to the former portion of the
opinion, wherein we held that this was not a taking of

property in the constitutional sense, and to the other

«

portion, in which we held that the purpose was not a
private purpose, but was a county purpose and a public
purpose.

We have heretofore covered the objection made to the
act in the sixth ground of demurrer.

The seventh ground of demurrer is that the act violates
section 11, art. 11, of the constitution, with reference to
homestead. It is contended that, under the provisions
of this act, assessments may be levied against the home-
stead, and its collection enforced against the homestead,
and that this violates the section of the constitution
named.

The exact language of the constitution, after provid-
ing for the homestead, is :

"This exemption shall not operate against public taxes
nor debts contracted for the purchase money of such
homestead, or improvements thereon."

680 TENNESSEE REPORTS. [124 Tenn.

State, ex rel., v. Powers.

■ — i ■ n ■ __^^ ^

Under this language of the constitution, this court,
pursuant to legislative enactment, has repeatedly held
that the homestead might be sold for a debt or liability
contracted in its purchase. Shannon's Code, section
3799 ; McLean v. Lerch, 105 Tenn., 693, 58 S. W., 640 ;
Dickinson v. Mayer, 11 Heisk., 516; Nichol v. Davidson
County, 8 Lea, 389; Ouinn v. Spurgin, 1 Lea, 228;
Fauver v. Fleenor, 13 Lea, 623 and other cases.

So, too, the statute and our decisions have given effect
to the other constitutional provision, and established the
law to be that the homestead might be sold for the satis-
faction of any debt or liability incurred for improve-
ments made thereon. Shannon's Code, section 3799;
McLean v. Lerch, 105 Tenn., 693, 58 S. W., 640 ; Mc-
Broom v. Whitfield, 108 Tenn., 422, 67 S. W., 794; Flatt
v. Stadler, 16 Lea, 371 ; Dickinson v. Mayer and Nichol v.
Davidson County, supra.

While we think, for the present, at least, and until
these lands are to some extent improved, this discussion
is academic, for the reason that no homestead is likely to
be composed of lands of this character, still we are
clearly of opinion that the drainage of such land under
the terms of this act is an improvement, within the
meaning of the constitution, for which the homestead
would be liable. In fact, we can conceive of no greater
or more substantial improvement that could be made to
such a homestead. Indeed, it is an essential improve-
ment, without which the homestead would be valueless.

It is, therefore, perfectly competent for the legislature

16 Cates] APRIL TERM, 1911. 581

State, ex rel. f v. Powers.

to enact that a homestead composed of swamp lands
shall be liable for improvements of this character.

The last objection urged against the act is that section
1 gives the county courts of the several co an ties power
to cnange or widen any and all natural watercourses,
and that this power is not limited to water courses hav-
ing their sources and ends within the State. It is urged
that there is nothing in this section to prevent the exer-
cise of this power with reference to the Tennessee or
Cumberland rivers, and that the legislature in this way
put it within the power of the county court to interfere
with the navigation of streams extending beyond the
State. It is said that this is in violation of the federal
laws.

We think the act has no such meaning as this one
which is ascribed to it. Under the well-accepted canon
of construction, we will give the act that interpretation
which would save it, rather than one which would de-
stroy it.

It was never in the mind of the legislature to confer
upon the several counties, by this act, any power to in-
terfere with the free use by the public of navigable
waters over which congress has control. The legislature
had no such power itself, and we will not presume that
it undertook to confer such authority. The language of
the act cannot be fairly so construed.

So that, after a careful review of the entire case, and
a full consideration of all the objections made by the
county judge to this act, we conclude that none of them
are well taken, and the decree of the chancellor will be
affirmed*

582 TENNESSEE REPORTS, [124 Tenn.

Lee v. Bank.

B. W. Lee et al. v. Security Bank & Trust Company

et al*

(Jackson. April Term, 1911.)

1. DEEDS OF TRU8T. Provision for maturing whole indebted-
ness for default as to part Is enforceable both as to foreclos-
ure and personal judgment.

Where a trust deed provides that, upon the grantor's failure to
pay promptly any part of the indebtedness, taxes, etc., as it be-
comes due, all of the indebtedness shall, at the option of the
creditor, and without notice to the grantor, become immedi-
ately due and payable, the creditor may, upon default made,
exercise his option to accelerate the maturity of the notes,
and make them all due for the purpose of a personal suit
thereon as well as for foreclosure, upon the principle that it
is a plain matter of contract, which the parties are entitled to
have enforced according to its terms; and such action on the
part of the creditor is not restrainable in equity, upon the
payment of the amount fallen due, on the ground that it is the
enforcement of a forfeiture. (Post, pp. 585-590.)

2. 8AME. 8ame. Tender of part due, to be effective, must be
made before exercise of option to mature the whole Indebt-
edness.

The creditor secured by a deed of trust must accept a tender
of the amount of that part of the indebtedness that has become
due according to the terms of the contract, when made after
such default, but before he has exercised his option under the
contract to mature the whole indebtedness for nonpayment
of part, and such tender will make the option clause inoperative
under such default, and will prevent the acceleration of the

♦Effect of tender after default of amount due under chattel
mortgage, see note in 15 L. R. A. (N. S.), 1164.

16 Cates] APRIL TERM, 1911. 583

Lee v. Bank.

maturity of the unmatured Indebtedness; but a tender of the
overdue indebtedness, with interest, made after the exercise
of such option and before the sale, or with the accrued costs,
if made after suit brought to enforce the deed of trust, will
not prevent such acceleration. {Post, pp. 588, 589, 590, 591.)

3. SAME. Option to mature whole Indebtedness for nonpayment
of part at Its maturity may be exercised In what way; in-
stances of ways.

The option of the creditor secured by a deed of trust to mature
the whole indebtedness for the nonpayment of any part thereof
at its maturity may be exercised in any clear manner evidenc
ing an unmistakable intention to do so, as by taking decisive
steps for foreclosure, by suit therefor, or by sale out of court
pursuant to the provisions of the instrument; and the ad-
vertisement of the property for sale as provided in the trust
deed is a sufficient exercise of the option. (Post, pp. 588-591.)

4. SAME. Charge in bill that sale was advertised by authority
of 'owner of Indebtedness secured, admitted in the answer,
prevents question as to formal meeting of board of directors
of bank owning such indebtedness.

Where, in the grantor's suit to enjoin the foreclosure sale of
property, attempted to be made under the power of the deed
of trust and under the provision therein authorizing the cred-
itor to mature the whole indebtedness for the nonpayment
of any part thereof at its maturity, the original bill alleged
that the property was advertised for sale to pay the whole
indebtedness by authority of the owner of the notes, which the
answer admitted, the grantor cannot raise the question that
there was no formal meeting by the directors of the bank own-
ing the notes authorizing the trustee to advertise the property
for sale; for the allegation of the original bill, admitted by
the answer, is conclusive of the point. (Post, pp. 589, 691, 592.)

584 TENNESSEE REPORTS. [124 Tenn.

Lee v. Bank.

5. SAME. Creditor It not estopped to mature whole Indebtedness
after expiration of agreed postponement.

Where a deed of trust securing notes empowered the holder
thereof, at his option, to mature the whole indebtedness, upon
the nonpayment of a part thereof, and said holder, after the
nonpayment of a part of said indebtedness, agreed not to
exercise the option until after the decision of a suit in which
the debtor and grantor was interested, and from which he
expected to receive money sufficient to pay off the indebted-
ness, and .after said suit was decided adversely to said debtor,
the holder of the notes caused the trustee to advertise the
mortgaged property for sale for the whole indebtedness, be-
cause of such default, and thereafter the debtor asked the cred-
itor the amount of the indebtedness overdue according to. the
terms of the contract, and having ascertained the amount,
tendered the same, which the cashier of the bank holding the
notes refused to receive, upon the ground that he was not au-
thorized to receive it, unless the whole indebtedness should
be paid, such bank holder was not estopped from exercising
its option to mature the whole indebtedness by refraining to
do so until said litigation was terminated; and the tender after
the exercise of the option to mature the whole Indebtedness
was too late to be effective. (Post, pp. 585-587, 592.)

€. SAME. Option to mature whole Indebtedness for nonpayment
of part may be exercised without notice to debtor, when so
provided In the trust deed.

The holder of notes secured by a deed of trust may exercise
his option therein given to mature the whole indebtedness for
the nonpayment of a part thereof at its maturity, without no-
tice to the debtor, where the deed of trust dispenses with such
notice. (Post, pp. 586, 592.)

16 Cates] APRIL TERM, 1911. 585

Lee y. Bank.

FROM SHELBY.

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

McKellab & Kyser, for complainants.

Thos. M. Scruggs, for defendants.

Mr. Justice Neil delivered the opinion of the Court.

On the 15th day of September, 1909, Mrs. B. W. Lee,
and her husband, James Lee, Jr., being indebted to the
Security Bank & Trust Company by nine promissory
notes, two maturing Jauuary 20, 1910, three of them
January 20, 1911, 1912, and 1913, respectively, two Jan-
uary 20, 1914, and two January 20, 1915, all aggregating
$37,473.32, all executed pursuant to a contract dated
September 9, 1907, and bearing interest at the rate of six
per cent, per annum from date, except one, and all of
them providing for attorney's fees, executed a trust deed
to W. R. Cross, upon certain real estate situated in Mem-
phis, Tenn., for the purpose of securing these notes; also
all taxes and assessments and insurance. The instru-
ment provided that the payee should be at liberty to ad-
vance and pay such sums as might be proper to satisfy
taxes and to maintain insurance and repairs, and to pro-

586 TENNESSEE REPORTS. [124 Tenn.

Lee v. Bank.

tect and preserve the property, and that such amounts so
paid should be held and treated as part of the expense of
administering the trust. The trust deed contained the
usual provision that upon the payment of the indebted-
ness and expenses the title should revest in Mrs. B. W.
Lee, who owned the lot at the time the instrument was
made.

The trust deed also contained the following :
"But if said grantors shall fail to pay any part of said
indebtedness promptly when the same becomes due, or
shall fail to pay any sum necessary to satisfy and dis-
charge taxes before they become delinquent, or to main-
tain insurance or repairs, or the necessary expense of
protecting the property, and executing this trust, then,
or in either such event, all of the indebtedness herein
secured shall, at the option of the owner thereof, and
without notice to the grantors, become immediately due
and payable, principal and accrued interest, and the said
trustee is hereby authorized and empowered to enter and
take possession of said property, and before or after such
entry to advertise the sale of said property for twenty-
one days by three weekly notices in some daily news-
paper published in Memphis, Tennessee, and sell the
said property for cash to the highest bidder, free from
the equity of redemption, homestead, dower and all other
exemptions, all of which are hereby expressly waived,
and said trustee shall execute a conveyance to the pur-
chaser in fee simple, and deliver possession to the
purchaser which the grantors bind themselves shall be
given without obstruction, hindrance or delay."

16 Cates] APRIL TERM, 1911. 587

Lee v. Bank.

Default occurred on two notes maturing January 20,
1910, and in the payment of taxes and insurance. The
bank called Mr. Lee's attention to this. He said he was
unable to meet the debt, but that he had pending, at the
time, a lawsuit in this court against his father's estate ;
that if he should be successful in this suit he would be in
funds sufficient to pay the whole indebtedness ; if not he
would not be able to pay any of it. The bank did not
formally agree to any postponement for the time indi-
cated, but gave him an intimation that it would wait on
him until the suit should be heard from. The suit was
finally decided in the early part of July, 1910. The
president of the bank testified that after this time he
called upon Mr. Lee for the money, and he said he was
unable to pay it. Mr. Lee denies this, and says that at
the time the suit was decided adversely to him in this
court he went on a "spree," and was not up town until
the day the sale of the property was to take place under
the proceedings hereinafter mentioned.

We have carefully read the testimony of the parties
upon this subject, and we are inclined to think that Mr.
Lee may have been spoken to by the bank, and may have
forgotten it, owing to the fact that he was under the in-
fluence of strong drink. In short, taking into considera-
tion his condition as admitted by himself, and the posi-
tive testimony of the president of the bank, we are in-
clined to think that the latter states the facts more ac-
curately. However, this question aside, it appears that
shortly after the result of the case in this court was

588 TENNESSEE REPORTS. [124 Tenn.

Lee v. Bank.

known, the bank caused the property to be advertised, by
the trustee, for sale. This advertisement is dated July
18, 1910, and, so far as necessary to be quoted, reads :

"Default having been made in the payment of the
debts and obligations secured to be paid in a trust deed
executed October 15, 1909, by Bodien W. Lee, and James
Lee, Jr., to the undersigned as trustee, recorded in the
register's office of Shelby county, Tennessee, in record
book 463, page 490, and the owner of the debts secured
having directed me to foreclose said trust deed and sell
the property conveyed to me therein, all of said debts
having matured by default in the payment of a part
thereof, at the option of the owner, this is to give notice
that I will, on Tuesday, August 9, 1910, commencing at
12 o'clock noon, at the southwest corner of Main St. and
Madison Ave., Memphis, Shelby county, Tennessee, offer
for sale," etc., describing the property.

On August 9, 1910, James Lee, Jr., appeared in the
bank with his attorney and asked Mr. Polk, its president,
how much was due on the indebtedness, referring to the
two notes then due. Mr. Polk referred him to the
cashier, Mr. Cross. The latter, after making some calcu-
lations, gave the figures as $8,116.49. The attorney find*
ing he did not have enough money with him to make the
tender, left the bank and returned a few minutes there-
after with the full sum mentioned, and tendered it. Mr.
Polk said that the board of directors was then in session,
and that he was not authorized to receive it unless the
whole indebtedness should be paid. Immediately there-

16 €ates] APRIL TERM, 1M1. 589

Lee y. Bank.

after the original bill was filed, enjoining the sale. This
bill alleged, among other things, that the bank had or-
dered the advertisement to be made which we have men-
tioned above. It is noted that this advertisement recites
that the whole indebtedness had become mature Tinder
the terms of the mortgage, and the property was to be
sold therefor. The answer admitted the facts charged.

The bank filed a cross bill to recover judgment on the
notes, and to have the mortgage foreclosed.

During the course of the evidence Mr. Polk testified
that there had never been any formal directors' meeting
at which a resolution had been passed ordering the prop-
erty to be advertised for sale, and maturing the notes,
but that the directors had talked about the matter.

The chancellor rendered a decree on the cross bill in
favor of the cross-complainants for the full amount of
the indebtedness and for attorney's fees and expenses
which accrued pursuant to the trust deed directing a
sale of the property therefor. Prom this decree the
original complainants appealed to this court, and have
assigned errors. These assignments draw in question
the correctness of the chancellor's decree adjudging that
all of the indebtedness had become mature ; that a per-
sonal judgment could be rendered against the makers of
the notes, and that the mortgage or trust deed should
be foreclosed. There was also an assignment question-
ing the correctness of the chancellor's decree in respect
of attorney's fees. Coverture was not pleaded by Mrs.
Lee as a bar to a personal judgment against her. The as-

590 TENNESSEE REPORTS. [124 Teiln.

Lee v. Bank.

signment on this matter was based as to both of the
original complainants on the contention that even if the
bank had the right to mature all of the notes for the pur-
pose of foreclosure, it did not have the right to advance
the maturity for purposes of personal judgment.

The clear weight of authority is that under instru-
ments containing provisions such as we have quoted
from the trust deed made by the Lees, the mortgagee
may, upon default made, exercise his option to accelerate
the maturity of the notes, and make them all due, not
only for purposes of foreclosure but for purposes of per-
sonal suit thereon. The principle is that it is a plain
matter of contract, and the parties are entitled to have
the contract enforced according to its terms; the trust
deed and the notes being construed together as parts of
one contract. The theory that such action on the part of
the mortgagee is the enforcement of a forfeiture and
should be restrained on that ground in a court of equity
upon payment of the amount fallen due, is supported by
some authorities, but is not recognized as sound in the
majority of the later cases.

The authorities are in conflict upon the effect of a
tender made after default. In our opinion, the better
\iew, supported by the latest cases, is that where a
tender is made after default, but before the mortgagee
has exercised his option, the mortgagee is bound to ac-
cept the money, and the acceleration will not take place.
There are some authorities which hold that the mort-
gagee is bound to accept the money if tendered at any

16 Cates] APRIL TERM, 1911. 591

Lee v. Bank.

time before sale made, even after suit brought, if the
tender of the money and interest due includes also the
costs accrued. We do not think these authorities state
the true rule, and decline to follow them. As we have
said, the question is not whether the court will enforce a
penalty, or forfeiture, since no such matter is involved,
but whether it will recognize a contract which the par-
ties havie made, for advancing the day of payment upon a
contingency which they have provided for in terms
agreed upon between them.

The option may be exercised in any clear manner evi-
dencing an unmistakable purpose to that end, as by tak-
ing decisive steps for foreclosure, by suit therefor, or
sale out of court pursuant to the provisions of the instru-
ment. We think that, in the present case, the advertise-
ment of the property in the terms stated was a sufficient
exercise of the option. The cross-defendants cannot
raise the question that there was no formal directors'
meeting prior to the order given to the trustee to adver-
tise the sale of the property for the payment of the whole
indebtedness, because the original bill alleges, and the
answer thereto admits, that this was done by authority
of the bank, the owner of the paper. This advertisement
declared that all of the notes had become due by reason
of the default made. There is no evidence to show that
the officers of the bank did not hav^e power to order such
advertisement. It may have been within the scope of
their duties as fixed by the by-laws of the corporation.
However, we need not speculate upon this, as we regard

592 TENNESSEE REPORTS. [124 Tenn.

Lee y. Bank.

the allegation of the original bill, admitted by the an-
swer, conclusive of the point. What transpired at the
bank on August 9th cannot alter the result. This did
not show that the bank had not already exercised its
option, but merely that its directors had under con-
sideration the question whether the bank should abandon
the proceedings taken, and restore the original status.

The rights of the bank were not prejudiced by its
agreement to postpone action until after the decision of
the case pending in this court between James Lee and
the estate of his deceased father. Its right remained to
exercise its option, at any time thereafter, if it should
act before lawful tender made by the debtors. Nor was
it bound, before exercising such option, to serve notice
on the debtors, since by the terms of the contract it was
privileged to act without personal notice. The debtors
were not taken by surprise, since they had no ground to
believe or hope that the bank would extend indulgence
after the adverse decision in the case referred to.

There was error in the matter of attorney's fees, which
has been corrected by an entry already made, and need
not be further referred to.

It results that the decree of the chancellor must be
affirmed in all other respects.

16Cates] APRIL TERM, 1911. 593

Caldwell v. Insurance Co.

Aaron Caldwell v. Virginia •Fibb & Marine Insurance

Company.

(Jackson. April Term, 1911. V

1. IN8URANCE. Agent, with authority to Issue and renew the
company's printed policies, cannot orally renew an outstand-
ing policy.

Where the insurance company's commission to its agent pro-
vided that he had been duly appointed as such agent "to issue
and countersign" its policies, with authority to renew and can-
cel them, and to assent to assignments thereof, but that such
authority was subject to the terms and conditions of the "com-
pany's printed policy," which the acts of the agent were not to
contravene, or operate to waive; and where an outstanding
policy, issued by the agent under said commission, provided
that no agent shall have power to waive any provisions or con-
ditions of the policy, except such as by its terms may be the
subject of agreement indorsed thereon or added thereto, and
any waiver must be written upon or attached to the policy,
and that it may be renewed under the original stipulations in
consideration of the premium for the renewed term; and where
it is undisputed that the entire power and authority of the
agent was contained in his said commission and said outstand-
ing policy; it was held that the only authority the agent had
under his said commission was to issue, countersign, renew
or cancel the company's printed policies and to assent to as-
signments of such policies, and that the agent had no author-
ity to make an oral contract of insurance, or renewal insur-
ance, which included the terms of the written policy - then
issued. {Post, pp. 597-607.)

•

124 Tenn.— 38

594 TENNESSEE REPORTS. [124 Tenn.

Caldwell v. Insurance Co.

2. 8AM E. Agent's oral promise to renew certain outstanding pol-
icies at their expiration occurring in the future is only an ex-
ecutory contract.

A fire insurance agent's oral statement, made to the insured,
that he would renew certain outstanding policies at their
expiration occurring in the future, is at most only an execu-
tory agreement to renew, and not an executed contract of In-
surance. {Post, pp. 607, 608.)

3. 8AM E. Insured Is estopped to set up an oral renewal con-
tract of insurance made without authority and in violation
of existing policy as a fraud upon the insured.

Where the insured, at the time an alleged oral contract of fire
insurance was made by the agent, the insured was the holder
of a policy issued by the insurer, which provided that no priv-
ilege or permission affecting the insurance should be claimed
by the insured, unless written upon or attached to the policy,
such insured was estopped to set up an oral contract of in-
surance, made, without authority, by the insurer's agent, while
the written policy was In force, and identical with it as to
parties, amount of indemnity, and subject-matter, because such
oral contract was in fraud of the rights of the insurer under
the policy. (Post, pp. 609, 610.)

4. 8AM E. No relief under allegation of an executed oral con-
tract and proof of an executory oral contract.

The insured is not entitled to any relief where he alleged in his
bill the existence of an executed oral contract of fire insur-
ance while the proof only showed an executory contract to
renew a policy; for the variance in the allegation and the
proof is fatal to any relief. (Post, pp. 610, 611, 612.)

Case cited and approved: Pencil Co. v. Railroad, 124 Tenn., 57.

16 Cates] APRIL TERM, 1911. 595

Caldwell v. Insurance Co.

5. 8PECIFIC PERFORMANCE. Remedy Is controlled by what;
contract must be fair, and Its specific performance not oppres-
sive.

The remedy of specific performance Is governed by the same
rules which control the administration of other equitable rem-
edies, and the contract must be fair and equitable in its terms,
and the situation of the parties must be such that its specific
performance will not be harsh or oppressive. (Post, pp. 611-
615.)

Cases cited and approved: Trigg v. Read, 5 Humph., 549; John-
son v. Insurance Co., 119 Tenn., 609.

6. MAXIMS. Seeker of equity must do equity.

He who seeks equity must do equity. (Post, p. 611.)

7. 8AME. One coming into equity must come with clean hands.
He who comes into equity must come with clean hands. (Pott,

p. 611J

8. 8AM E. Violator of conscience, good faith, or other equitable
principle will be denied affirmative relief in equity.

One who has violated conscience or good faith or some other
equitable principle in his prior conduct will be denied affirma-
tive relief in equity. (Post, p. 612.)

9. SPECIFIC PERFORMANCE. Of oral executory contract of
insurance whose conditions precedent to suit have been vio-
lated will be 'refused where oppressive to the Insurer.

Where the oral agreement to renew a policy of fire insurance,
sought to be enforced as an executed contract of insurance,
was made by the agent without authority or knowledge of the
insurance company, and the terms of the existing policy, which
the oral agreement contemplated, required the insured to
submit the question of the value of his loss to arbitrators, and
to give immediate written notice to the company of any loss,
and provided that the company should be entitled to prorate
the loss with other insuring companies, there being other in-
surance, and for subrogation oi the rights of the insured against

5»6 TENNESSEE REPORTS. [124 T<jnn.

Caldwell v. Insurance Co.

any person causing the loss, which rights so reserved to the
company were made conditions precedent to the maintenance
of any suit by the insured; and where the company was not
notified of the loss until forty-two days after it occurred, it
Was held that the oral contract would not be specifically en-
forced, because its enforcement would not be fair and equitable
to the company, but oppressive to it {Post, pp. 615-617.)

Cases cited and approved: Insurance Co. v. Morton-Scott-Rob-
erton Co., 106 Tenn., 572; Blackmail v. Casualty Co., 117 Tenn.,
678; Hamilton v. Insurance Co., 136 U. S., 242.

10. IN8URANCE. Notice of loss given to agent is not sufficient as
notice to the company required by policy.

Where the policy of fire insurance required notice of loss to be
given to the company, notice to its agents was not sufficient
{Pat, pp. 616, 617.)

Case cited and approved: Johnson v. Insurance Co., 119 Tenn.,
69ft.

FROM LAKE.

Appeal from the Chancery Court of Lake County.-
John S. Cooper, Chancellor.

Burnett & Donaldson, for complainant.

Trezevant, Bartels & Trezevant, for defendant

1 6 Cates] APRIL TERM, 1911. 597

Caldwell v. Insurance Co.

Mr. Justice Buchanan delivered the opinion of the
Court.

The bill was filed November 2$, 1909. It seeks to hold
defendant liable on an oral contract of insurance alleged
to have been made between the complainant and the
agent of defendant on August 29, 1908, whereby said
agent for his principal, the defendant, agreed and un-
dertook for and in consideration of an agreed premium
to write for and on behalf of his principal a contract of
insurance in favor of complainant, covering a storehouse
and stock of goods for a term beginning on September 9,
1908, and continuing for one year from that date, and
the alternative averment appeared in the bill that at the
date aforesaid, August 29, 1908, the complainant w.as the
holder of a written policy of insurance issued by the
defendant, which expired on September 9, 1908, and the
oral contract sued on was in substance that this old con-
tract of .insurance upon its expiration should be renewed
by the issuance of a new policy in writing whereby the
complainant would be protected for an additional term
of one year from the date of the expiration of the policy
held by the complainant.

The bill avers that after the making of the oral con-
tract or contracts sued on, and on or about October 26,
1908, the agent told complainant that he (complainant)
was insured, and that again in the early part of No-
vember, the agent promised to bring the policy to com-
plainant, which it had been agreed should be issued, for
and on behalf of the defendant company as above set out,

598 TENNESSEE REPORTS. [124 Tenn.

Caldwell v. Insurance Co.

and that by this conduct of the agent complainant was
led to believe that the policy agreed on had been written,
and that he (complainant) was folly protected by it, and
that under this impression and belief the complainant
rested until December 2, 1908, when his property was de-
stroyed by fire, and it then developed that by some over-
sight on the part of the agent he had failed to write the
new policy as agreed. on aforesaid; that complainant
then tendered to the agent the amount of the premium
which had been agreed on between them as the con-
sideration for the issuance of the new policy, but the
agent refused to accept the premium, and that complain-
ant then demanded the issuance and delivery of the
policy as agreed on aforesaid, but this also the agent de-
clined to do, whereupon the complainant made proof of
his loss, and forwarded same to the defendant, and de-
manded payment from the defendant of the sum of
1 1,500, which was the amount for which the oral agree-
ment, between the agent and the complainant, provided
that the new policy should be written ; that the above de-
mand for payment was refused by the defendant, where-
upon the complainant brought this suit.

The defenses relied on are as follows : That the agent
had no authority to make the oral agreement on which
the suit is based ; that the making of such agreement was
beyond the scope of the agent's authority ; that the only
authority which the agent had to act for or bind the de-
fendant was in writing, and consisted of a written com-
mission executed by the defendant in duplicate, one
copy of which was held by the agent, and one by the de-

16 Cates] APRIL TERM, 1911. 599

Caldwell v. Insurance Co.

fendant, and certain clauses of the standard contract of
insurance, which was in writing, and which was the only
contract of insurance that the agent had authority to
issue for the defendant, after the same had been execu-
ted by the defendant ; that this standard form of policy
contained certain restriction upon the power of defend-
ant's agent to bind it otherwise than in writing, and that
these restrictions were by the words of the agent's com-
mission embodied in and a part of the commission in
substance and effect, and operated thereby to restrict
and narrow the authority of the agent.

That no knowledge was ever brought home to the de-
fendant either by the agent or by the complainant of the
oral agreement between the agent and the complainant
on which this suit is based, until after the loss of the
complainant's property by fire; that the defendant never
authorized in the first instance the making of the con-
tract on which the suit is based, and never ratified the
making thereof after knowledge of it came home to the
defendant ; that, in short, there was no meeting of minds
between the complainant and the defendant in the mat-
ter of the execution of the oral agreement on which the
suit is based.

The commission of the agent above referred to was as
follows :

"Agent's Commission.
"The Virginia Fire & Marine Ins. Co., Chartered by the
Va. Legislature 1832, Richmond, Va., After a Cen-
tury in Successful Operation, Richmond, Va., Jan.
1, 1906.

600 TENNESSEE REPORTS. [124 Tenn.

Caldwell v. Insurance Co.

"This certifies that B. F. Le Duke (whose sign manual
appears at the foot hereof in token of his acceptance of
this commission oh the terms hereof) residing or haying
a place of business in Tiptonville, Tenn., has been duly
appointed agent of this company for the above town to
issue and countersign its policies on property on which
risks against loss and damage by fire and lighting may
be accepted by him for the purpose of insurance with au-
thority to renew or cancel such policies and to assent to
assignments thereof before loss, but this authority is

subject to the terms and conditions of this company's
printed policy and said agent's acts hereunder are not to
be in contravention thereof, or to operate as a waiver of
them.

"This commission is subject to revocation by the
officers or special agent of said company at will.

B. F. Lb Dukb, Agent.
"In witness whereof the Pres. and Sec'y of the Va.
Fire & Marine Ins. Co. have signed this certificate and
affix the seal of the company at Richmond, the day above
written.

Wm. H. Palmer, Pres.
"W. H. McCarthy, Sec'y.
"Endorsed : B. F. Le Duke, Tiptonville, Tenn.

"Jan. 1st, 1906."
The clauses of the standard insurance policy issued by
the defendant and relied on in its answer as matter of
defense by way of restriction on the powers of the agent
under the commission above set out are as follows :

16 Gates] APRIL TERM, 1911. 601

»

Caldwell v. Insurance Co.

•

"This policy is made and accepted subject to the fore-
going stipulations and conditions, together with such
other provisions, agreements or conditions as may be in-
dorsed hereon, or added hereto, and no officer, agent, or
other representative of this company shall have power to
waive any provisions or conditions of this policy except
such as by the terms of this policy may be the subject of
agreement indorsed hereon or added hereto, and as to
such provisions and conditions, no officer, agent or rep-
resentative shall have such power or be deemed or held
to have waived such provisions or conditions unless such
waiver, if any, shall be written upon or attached hereto,
nor shall any privilege or permission affecting the in-
surance, under this policy, exist or be claimed by the in-
sured, unless so written or attached."

"This policy may by renewal be continued under the
original stipulations in consideration of premium for the
renewed term."

"In any matter relating to this insurance no person,
unless duly authorized in writing, shall be deemed the
agent of this company."

The defendant company in its answer set up the de-
fense that it never received any premium or a considera-
tion from the complainant for the renewal of the policy
which expired on .September 9, 1908, and that there was
in fact no payment by the complainant of the premium
for the renewal of that policy, and that there was in fact
no renewal of that policy, and that complainant is es-
topped in this suit by that policy, and that an oral con-

602 TENNESSEE REPORTS. [124 Tenn.

Caldwell v. Insurance Co.

- i ■ . . _ -.

tract of insurance is not binding or valid in the State of
Tennessee.

On the foregoing issues proof was taken, and on final
hearing the chancellor dismissed complainant's bill,
with costs, from which decree of the chancellor com*
plainant has appealed to this court and assigned errors.

An important point in this case is whether or not the
scope of the agent's authority was broad enough to
enable him to bind the defendant by the oral agreement
on which this suit is based.

The fact is undisputed in this record that the entire
power and authority of the agent in this case was at date
of the alleged oral contract of insurance, contained in
two writings, first, the agent's commission; second, the
terms of the written policy, which the company in its
business issued or as stated in the commission of the
agent, the "company's printed policy" the use of the
words "this company's printed policy," and the word
"countersigned" in the agent's commission are im-
portant facts in this suit. The commission would be
ambiguous but for them; however, as they are used in
the commission it is clear that the agent's authority, and
his only authority at the date of the making of the al-
leged oral contract on which this suit is based, was as
follows :

First. To issue the company's printed policy.

Second. To countersign the company's printed policy
(and by way of parenthesis it is difficult to see how the
agent could countersign any but a printed or written
policy).

16 Cates] APRIL TERM, 1911. 603

Caldwell v. Insurance Co.

Third. To accept risks for purposes of insurance to be
covered by the company's printed policy.

Fourth. To renew the company's printed policy.

Fifth. To cancel the company's printed policy.

Sixth. To assent to assignments of the company's
printed policy before loss.

But all of the above authority vested in the agent is by
the express terms of the commission made subject to the
terms and conditions of the company's printed policy,
and the agent's acts under the commission are not to be
in contravention of the terms and conditions of the com-
pany's printed policy, nor are the acts of the agent to
operate under the commission as a waiver of the terms
and conditions of the company's printed policy.

All of the terms and conditions of the printed policy
of the company which have been hereinbefore set out,
and need not be here repeated, are in substance and
effect that whatever may be done by the agent relative to
insurance must be done by writing indorsed upon the
particular policy which is the evidence of the contract of
insurance.

There is no evidence in this record showing, or tend-
ing to show, that the defendant prior to the making of
the contract sued on expressly or by implication broad-
ened the powers of the agent, nor is there any evidence
showing, or tending to show, that after the making of
the contract sued on the defendant ever ratified the
same. It is therefore clear that in the making of the
contract sued on, the act of the agent was wholly outside

604 TENNESSEE REPORTS. T124 Tenn.

Caldwell v. Insurance Co.

of the scope of his authority and did not bind his prin-
cipal.

We do not find in this record any evidence of conduct
on the part of the defendant which should in equity and
in good conscience be held to estop it from relying on the
lack of authority in the agent to bind it by the contract
on which this suit is based. On the contrary there is in
the record affirmative proof that the defendant had no
knowledge! of any matter which should estop it from
showing the truth.

Mr. Roger W. Cooley in his Briefs on Insurance, vol.
1, p. 345, lays down as a general rule "that the powers
of an agent are prima facie coextensive with the busi-
ness intrusted to his care, and will not be narrowed by
limitations not communicated to the person with whom
he deals, and that in such cases the real question is not
what power the agent has, but what power the company
has held him out as having."

And a large number of authorities are referred to by
the author in support of this doctrine, but there is no
evidence in this record to the effect that the agent was
ever held out by the defendant to the complainant, or to
any one else as having power to bind the defendant by an
oral contract to insure or to renew existing insurance.
On the contrary there is evidence in the record that the
agent was not so held out by the company.

Moreover in this case there is no evidence that the
complainant was ignorant of the limitation's on the
power of the agent. The complainant does testify that

16Cates] APEIL TERM, 1911. 605

Caldwell v. Insurance Co.

the agent had said to him, relative to insurance at
different times, "You are insured from this time," or the
like, and that the agent would thereafter deliver to com-
plainant a policy covering the particular contract of in-
surance referred to in the remark of the agent ; but there
is affirmative evidence in the record that the defendant
had no knowledge that such dealings between complain-
ant and the agent had ever occurred, and there is
affirmative evidence in the record that the defendant
nerar authorized or ratified transactions of that charac-
ter. There is also evidence in the record that complain-
ant had, prior to the date of the oral agreement sued on,
and in respect of another policy, requested the agent to
indorse his signature as agent on said other policy, con-
senting to its assignment. This indicates clearly that
complainant understood that to bind the company the
acts of the agent must be in writing, and further indicat-
ing this same knowledge, the evidence shows that com-
plainant repeatedly asked the agent to bring to him, the
complainant, the identical policy which he claimed was
to be issued under the oral agreement sued on, and com-
plainant admitted on cross-examination, that he did not
know of a single instance in which B. P. Le Duke as
agent for defendant had consented to a change in loca-
tion, use or other matter pertaining to insurance with-
out expressing that consent in writing on the policy.

It further appears from the record that complainant's
place of business was only removed about the distance
of one city block from the office of the agent; that each

606 TENNESSEE REPORTS. [124 Tenn.

Caldwell v. Insurance Co.

of them resided in the town of Tiptonville, a place hav-
ing a white population of about six hundred or seven
hundred people; that the agent was a customer of the
complainant's mercantile establishment buying there-
from his, the agent's, family supplies, and that the op-
portunities for communication between the complainant
and the agent were of almost daily occurrence.

The complainant admits that he never had any com-
munication with the defendant relative to this oral con-
tract on which he sued, that he never communicated to
the company the substance of this contract, or any other
matter in relation thereto until after the destruction of
his property by fire which occurred on December 2, 1908.
The notice, and the first and only notice, which the de-
fendant company ever had from this complainant of his
claim that the defendant was an insurer of the property
at the time of the fire, was by means of a proof of loss
sworn to and subscribed by the complainant on the 13th
day of January, 1909, although complainant must hare
known that, so far as he was concerned at feast, the com-
pany had do notice from him of the contract sued on.
He testifies on cross-examination that he did not look to
or rely upon the agent to renew the policy of insurance,
but looked to the company to do so ; that he did not look
to the agent individually ; that he did not depend on the
agent to renew the policy, but depended upon the com-
pany the agent represented. This was on cross-examina-
tion. On re-examination he stated that he depended on
B. F. Le Duke, as agent of the defendant and other com-
panies, to renew three policies.

16 Cates] APRIL TERM, 1911. 607

Caldwell v. Insurance Co.

On his direct examination the complainant detailed
the conversation which occurred between himself and
the agent on August 29, 1908, constituting the oral con-
tract sued on, as follows :

"Question. Now please state in your own way how said
conversation or agreement took place, and state the sub-
stance of the same just as it occurred?

"Answer. I called him up to my office and told him
that I was going off within a day or two and would be
absent from home for two or three weeks, and as I had
looked over my memorandum, I find that there are three
policies which would expire ; two of them on September
6th, which were the Philadelphia Underwriters, $3,000,
and Continental, on the same date, for $ 1,000. Also on
the 9th, one in the Virginia Fire & Marine Insurance
Company, for $1,500: I told him I wanted him to renew
these three policies with the same companies for the
same amounts for another term of twelve months. He
then said, 'You know the rate is a little higher. It is ten
cents on the thousand higher;' and I told him that I
knew the rate was a little higher, and that I wanted him
to be sure and renew these three policies. He then said
he would, and wouldn't lose any time on the same ; that
the policies would be renewed.

"Question 44. According to said agreement you speak
of, were the policies to be renewed at their expiration or
at some future time?

"Answer. Right at their expiration."

The foregoing statement certainly does not make out a

608 TENNESSEE REPORTS- [124 Tenn.

Caldwell v. Insurance Co.

contract of present insurance, even if the agent had been
clothed with authority to execute an oral contract of in-
surance. The above quoted evidence would not be suffi-
cient to amount to an executed contract of insurance.
It would amount to nothing more in law than an execu-
tory agreement to renew an existing policy of insurance
upon its expiration at a future date.

The complainant did not call the insurance agent as a
witness to confirm his evidence although the record
shows by the clearest inference that the relations be-
tween them were friendly and of long standing, and this
failure is not explained in the record, nor is it explained
why the agent was not called by the company. The fail-
ure of the latter to call the agent as a witness may be

accounted for on the theory that the burden of proof was

«

on the complainant, but it is difficult to account for the
failure of complainant to call this witness, whose testi-
mony if corroborative of his own, would have added
much to its weight.
The complainant testified further as follows:
"The morning after the fire, which occurred about
midnight of December 2d, I went to Mr. Le Duke's office
to get my three policies which he had agreed to renew
and asked him for them. He looked through his papers,
and handed me two policies ; one in the Continental and
one in the Philadelphia Underwriters. I asked him for
the policy in Virginia Fire & Marine Company for
f 1,500. He said, 'Yes, that's right, let me see/ and
looked over his insurance register. He looked up puzzled

16 Cates] APRIL TERM, 1911. 609

Caldwell v. Insurance Go.

like and said, 'Well, what do you think, Aaron, I over-
looked that Virginia policy, and failed to register it. I
don't know how that happened. I don't know what
caused me to do that. I was sure that I had renewed
that policy.' That is what he said, or that in substance.
I thereupon demanded my Virginia policy according to
the agreement he had made with me. He said, 'I don't
know what to do.' He finally said he would not issue me
a policy, but said he would notify the company of the
loss and of the facts."

The substance and effect of the estoppel set up in the
defendant's answer is that on August 29, 1908, the date
of the alleged oral contract sued on, the complainant
was the holder of a policy of insurance issued by the de-
fendant, which expired September 9, 1908, in which
policy there was the stipulation, hereinbefore set out,
precluding complainant from claiming any privilege or
permission affecting the insurance under that policy,
unless the privilege or permission should be written on
the policy or attached in writing to the policy, that of
this stipulation in the policy, by which he was bound,
the complainant had notice carried home to him that
only by writing indorsed on the policy could it be re-
nawed, and that an oral agreement to renew it was in
fraud of the rights of the defendant and therefore that
complainant is estopped to set up the oral contract made
in fraud of the defendant's rights.

We think this equitable estoppel set up as a matter of
defense in the answer is good against the complainant.

124 Tenn.— 39

610 TENNESSEE REPORTS. [124 Tenn.

Caldwell v. Insurance Co.

We know it may be said that the oral contract contem-
plated the execution of a new printed op written evi-
dence of the contract of insurance beginning at the in-
stant of the expiration of the old evidence or policy, and
that each of these evidences constitute in and of them-
selves different contracts, but the answer to this sugges-
tion is that the parties, the amount of indemnity, and
the subject-matter or property, and the cause of the loss,
contemplated by the oral contract were the same as in
the printed policy on which the estoppel is said to arise.

The insurance op risk was the subject-matter — the
property right protected on both sides under the printed
contract in force at the date of the alleged making of the
oral contract sued on. Under that printed contract two
of the mutual covenants were as follows : The insurer
said, I will pay your loss if your property burns before
a time certain. The insured said, You have delivered to
me your printed policy to pay my loss if my property
burns before a time certain, in consideration of which
protection I agree not to set up any claim for indemnity
against you, except it be in writing signed by you or
your agent, if my property, the subject of the present in-
surance, is burned after the date fixed in your printed
policy as the limit of your liability.

These are mutual covenants dependent one upon the
other. If the first is binding upon the insurer, the last
must be equally binding upon the insured. Especially is
this true in an equitable forum, fop we must not lose
sight of the fact that although the complainant alleged

16 Cates] APRIL TERM, 1911. 611

Caldwell v. Insurance Co.

in his bill an executed contract as of date August
29, 1908, and prayed for a decree fop damages as fop a
breach of that contract, yet his proof wholly fails to
show any executed contract of insurance, and so under
the doctrine secundum allegata et probata he may not
expect this court to administer the legal right, which he
averred in his bill, but did not prove. Am. Lead Pencil
Co. v. N. C. & St. L. Ry. Co., 124 Tenn., 57, 134 S. W.,
613, and other authorities there cited.

His hope of relief therefore depends upon his right to
the equitable remedy of specific performance. He can-
not in a court of equity expect a decree for damages for
the breach of a contract of which the court of equity un-
der its peculiar principles would refuse to decree the
specific performance. His proof only shows an oral
agreement of date August 29, 1908, to renew a policy
then existing when it should expire on a future date, and
he is now saying in this forum by the alternative prayer
of his bill "decree for me a specific performance of this
oral contract, I am entitled to it ex equo et bono." Is
he so entitled? Is he not bound by the estoppel, and
otherwise disentitled? The remedy of specific perform-
ance is governed by the same rules which control the ad-
ministration of other equitable remedies; the right to it
depends upon elements, conditions and instances, which
equity regards as essential to its peculiar modes of re-
lief. He who seeks equity must do equity, and he who
comes into equity must come with clean hands. The
contract must be perfectly fair, equal, and just in its

612 TENNESSEE REPORTS. [124 Tenn.

Caldwell v. Insurance Co.

terms and in its circumstances. The contract and situa-
tion of the parties must be such that the remedy of
specific performance will not be harsh or oppressive.
Pomeroy, Eq. Jur., yol. 3, sections 1404, 1405.

Whenever a party, who as an actor seeks to set the
judicial machinery in motion and obtain some remedy,
has violated conscience or good faith or some other
equitable principle in his prior conduct, then the doors
of the court will shut against him in limine, the court
will refuse to interfere on his behalf to acknowledge his
right, or to award him any remedy. Pomeroy, Eq. Jur.,
vol. 1, section 398.

Under the statutory jurisdiction of this court to ad-
minister legal remedies many of the cases relied on by
complainant might have been of weight here if the proof
had sustained the averment of the bill that the contract
sued on was an executed contract, but shorn, as this case
now is, of any semblance of legal right in complainant to
the execution of a legal remedy, the application of au-
thorities is narrowed to those cases involving the ap-
plication of the equitable doctine of specific performance
of contract.

The complainant averred his legal right, but failed to
prove it, and averred in the alternative an executory oral
contract, and thereupon invoked the equitable doctrine
of specific performance, and must be held to abide the
equitable rules which govern that branch of the jurisdic-
tion of this court.

In Trigg v. Bead, 5 Humph., 549, this court, speaking

16 Cates] APRIL TERM, 1911. 613

Caldwell v. Insurance Co.

through Judge Tifrley, quoted as follows from Mr.
Story :

"Mr. Story, in speaking of the power of a court of
chancery to rescind, cancel, or direct a surrender of con-
tracts, securities or deeds, or to enforce them by a
specific performance (section 693) says: 'The applica-
tion to a court of equity for either of the purposes is not
strictly speaking a matter of absolute right, upon which
the court is bound to pass a final decree, but it is a mat-
ter of sound discretion, to be exercised by the court,
either in granting* or refusing the relief prayed, accord-
ing to its own notion of what is reasonable and proper
under all the circumstances of the peculiar casa Thus,
for instance, a court of chancery will sometimes refuse
to decree a specific performance of an agreement, which
it will yet decline to order to be delivered up, canceled or
rescinded. On the other hand, a specific performance
will be decreed upon the application of one party when it
would be denied upon the application of the other. And
an agreement will be rescinded or canceled upon the ap-
plication of one party, when the court would decline any
interference at the instance of the other. So that we
are to understand that the interference of a cour