Clark v. Keith permitting them to suspend specie payment temporarily, certainly was not a fit time for the State to withdraw from the bank, of which it was the sole owner, and whose prosperity had, from its beginning, been a cherished object, the support which, up to that time, had been assumed to be a necessity. The State undoubtedly had the right to waive the requirement of the 12th section of the charter, so far as it required the notes referred to in it to be payable in gold and silver coin on demand. And were we to admit that the act of January, 1861, had the effect of making notes of the Bank of Tennessee, issued after its passage, payable differently from those issued before that date, we should rather conclude that the State waived the requirement that the notes issued after that date. should be payable in gold aud silver on demand, than that it intended wholly to withdraw its guaranty from such notes. It is quite probable that this last question has been closed by the decisions already made in this case by the Supreme Court of the United States, and by this court, and is not now open for consideration. When this case was last here, this court said: "If the notes were not issued in aid of the rebellion, it is manifest that it was the duty of the defendant, as tax collector, to receive the bills tendered by plaintiff, in payment of his taxes:" Keith v. Clark, 4 Lea, 723. The question suggested in the quotation seems to have been the only one which the court then regarded as undecided. Without determining whether that was SO or not, we have thought it best to consider the 8L 732 16L 39 8L 732 117 639 Brown v. Hamlett. question and to give our conclusion upon it as if it was properly presented for decision. We have not particularized in this opinion all the instructions asked for by the appellant and declined by the court, as they are quite numerous and cover many pages of the record. We have passed upon all the questions suggested in the oral arguments, and in the briefs of the counsel, and all that occurred to us as properly presented by the record. To have discussed the instructions not noticed separately, would have been an unnecessary waste of time. The result is, that we find no error in the record, and the judgment of the court below must be affirmed. JOHN BROWN et al. v. JOEL F. HAMLETT et al. 1. STATUTES. Construction. In construing an act of the Legislature, the intention will be allowed to prevail over the literal sense of the terms used. 2. SAME. Same. Where, therefore, in an act of the Legislature creating a new county, and providing for its organization out of fractions of four old counties, the boundaries of the new county were set out, and its area designated, the calls for distance in the lines, and of quantity in the area being put in figures with the usual sign of a degree, instead of a decimal point, between the figures, the calls being altogether unmeaning, if the sign be taken in its ordinary sense, but entirely consistent and appropropriate if read as a decimal notation, the lat ter reading will prevail. Brown . Hamlett. 3. CHANCERY PLEADINGS AND PRACTICE. New counties. Evidence. Burden of proof. Upon a bill filed by citizens of an old county to enjoin the organization of a new county, because it will reduce the old county below its constitutional area, and because the line of the new county will run within the constitutional distance from the county seat of the old county, the burden of proof is upon the complainants, and they must make out their case before the hearing by competent legal testimony, that is, by actual surveys and measurements, not by mere opinions upon insufficient and improper data. FROM HENDERSON. Appeal from the Chancery Court at Lexington. GEO. H. NIXON, Ch. JOHN M. TAYLOR for complainant. MUSE & BUFORD, CAMPBELL & JACKSON, L. S. WOODS and MCCORRY & BOND for defendants. COOPER, J., delivered the opinion of the court. The Legislature, by an act passed on the 4th of March, 1879, undertook to establish a new county out of fractions of Madison, Henderson, McNairy and Hardeman counties, to be known as Chester county. The second section of the act purports to give the boundaries and number of square miles of the new county, plainly implying that the lines had already been run, and the area contained therein ascertained. The com missioners appointed to organize the new county, took the census of the qualified voters of the several fractions of, territory to be taken from the old counties, and held an election in each fraction, at which twothirds of the legal voters were found to be in favor Brown v. Hamlett. of the establishment of the new county. The commissioners then gave public notice of an election for county officers on September 24, 1879; when they were enjoined from further proceedings by this bill. The bill is filed by three citizens and tax payers of the county of Henderson, neither of whom resides, or owns any property in the fraction of territory proposed to be taken from the county to form a part of the new county. Upon final hearing, the chancellor made the injunction perpetual upon the ground that the act of the Legislature was void, because of the uncertainty in the calls of the boundary lines of the new county, and the defendants appealed. The uncertainty upon which the chancellor based his decree, and which is mainly relied on in this court for affirmance, grows out of the use, in the printed act, of a sign between the figures of several calls of the boundary lines. The complainants contend that the sign used is the normal sign for degrees in the calls for course, while the defendants insist that it was intended as a decimal mark in the calls for distance. One of these calls reads thus: "Thence with the are of a circle with the radius of 11 miles from the town of Lexington 12°93 miles." Two other calls are: "Thence south with the McNairy and the McNairy and Hardin line 1952 miles; thence west 1°39 miles." In the first of these quotations, as printed, there is a semi-colon after the words "11 miles," but it is so palpably a clerical or typographical error, that it need not be further noticed. Neither the intention of the law maker, nor the intention of a private individual, private individual, when clear, is Brown v. Hamlett. allowed to be prejudiced by bad punctuation, or bad grammar, or both. The act of the Legislature, as we have seen, fairly implies that the boundaries of the proposed new county have been run out, and are intended to be given, with the number of square miles embraced therein. The bill of the complainants virtually concedes that the new county has been laid off, the fractions of the old county composing it ascertained, an election held, and the assent of the necessary constitutional majority of the voters obtained to the establishment of the new county. The point now relied on is not distinctly made, either by stating the facts on which it rests, or by an allegation that the boundaries are uncertain. It is only shadowed forth in the averment that the commissioners, instead of following the bounds as set forth in the act, endeavored to establish new lines, and shorter ones, to meet the emergency of the case. Its importance seems to have been an after thought. The commissioners, and the surveyor employed by them, appear to have had no difficulty in understanding and applying the language of the act. And the proof leaves no doubt that, by adopting the construction of the defendants, the boundary lines all harmonize, and the designated area is properly determined. The fundamental rule of construction of all instruments is, that the intention shall prevail, and for this purpose the whole of the instrument will be looked to. The real intention will always prevail over the literal use of terms. Legislative acts fall within the rule, and it has been well said, that a thing which is |