Brown . Hamlett.

in the letter of a statute is not within the statute unless it be within the intention of the law makers: State v. Clarksville, etc., T. Co., 2 Sneed, 88; Perkins v. Gibbs, 1 Baxt., 175; Gold v. Fite, 2 Baxt., 249. When we examine the act before us, we find the declared legislative intent, and the sole object of its enactment, to be the establishment of a new county out of portions of four old counties, and by definite boundaries which are set out. If now, we construe the sign in controversy as the degree sign, and the figures preceeding the word miles, literally, we have first the arc of a circle of 93 miles, with a radius of 11 miles, which, as the circumference of a circle is three times. its diameter, would complete the circle, and run partially around it again. So, if we extend the south line, called for in the second in the second quotation above, 52 miles, we must, as complainant's counsel has himself argued, judicially know that it would extend beyond the limits of the State into the territory of another sovereignty. The calls, moreover, would inter sese have no possible connection. On the other hand, by reading the figures, as contended for by defendant, "12093," "1°52" as 12% and 10% we are assured, by actual measurement, that the intention of the Legislature will be carried out. Besides, the sign in question is also used in the same section in giving the numbers of square miles in the new county, thus: "278°77 square miles," where it is impossible to read it as meaning degrees. And, lastly, the mark cannot be read as the degree sign in the cases in contest, because it is not followed by any reference to the points

Brown v. Hamlett.

of the compass, which is essential to confer upon it the usual meaning. In the only place in which it is thus used, it is it is properly used, as follows: "Thence north 61° east 9 miles; thence north 263° east to the Henderson and Marion county line." We cannot doubt that the sign was used by the printer as a decimal point in other places. Whether it is used in the enrolment of the act in the office of the Secretary of State, does not appear.

The bill seeks to avoid the act upon the ground that its boundaries will reduce the county of Henderson below its constitutional area of territory. But the allegation to this effect is denied in the answer, and there is no legal proof to sustain it. One witness says that by taking the aggregate number of acres assessed for taxes in Henderson county, for the year 1879 or 1880, as shown to him by the counsel of complainants, and dividing by 610, he found that the residue in square miles would be 582, the county being entitled to 500 square miles. Another witness is of opinion, without any measurement at all, that the fraction taken from Henderson county would amount to 100 square miles. The testimony of both witnesses was excepted to, and was clearly inadmissible. And, if admitted, would only have amounted to a probability of a probability; not proof.

The only other point relied on is that the line of the new county approaches the county seat of Henderson county within the constitutional limit of eleven miles. Here again, the allegation of the bill is denied by the answer, and the complainants have in47-VOL. 8.

Brown . Hamlett.

troduced no legal proof. It does appear that about the county surveyor of Hardeman instance of the county court, sur

the year 1876,

county, at the

He

veyed a straight line of eleven miles from the court house in the direction of the nearest point of the line of the county, and put up a stake at the end thereof. The line of the new county is eighty yards beyond the stake. The line run by the surveyor was a straight line along the surface of the ground. and another witness express the opinion that an air line, not following the inequalities of the ground, would extend between a half and three-quarters of a mile further. But both admit that they have made no measurements or calculations to ascertain the fact, and the principal witness frankly says that he has not sufficiently investigated the matter to decide upon it. The testimony was excepted to, and being mere opinion, was inadmissible. If it be conceded, therefore, that the proper mode of measurement was by an air line, the complainants have failed to make the necessary proof.

It is suggested that if the chancellor's decree is reversed, the case should be remanded for a survey of the line, and of the contested areas. But the issue was made by the pleadings, and it was the duty of the complainants to make out their case. Whatever may be the rights of the county of Henderson, these complainants are not entitled to litigate further.

The decree will be reversed, and the bill dismissed with the costs of the cause.

Boone e. State.

HENRY D. BOONE v. THE STATE.

CRIMINAL LAW. Convicts. Corporal punishment Convicts in the penitentiary, cannot be punished except as authorized by statute, except by authority of the Board of Inspectors of the prison. The warden of the penitentiary has no power to inflict corporal punishment, except the Board, in its discretion, authorize such punishment in each particular case. The Board has no authority to delegate this discretion to inflict such punishment to the warden.

FROM SHELBY.

Appeal in error from the Criminal Court of Shelby county. L. B. HORRIGAN, J.

LUKE E. WRIGHT for Boone.

ATTORNEY-GENERAL LEA for the State.

MCFARLAND, J., delivered the opinion of the court.

The defendant has been convicted in two cases of assault and battery. The questions in each case are the same, arising upon an agreed state of facts. The defendant was assistant warden of the State penitentiary and in charge of a branch prison in Shelby county, established by the lessees under the act of the Legislature of the 26th of March, 1877.

The pris

oners assaulted were convicts in said prison, and one of them "refused to obey the lawful orders given him to work, and became mutinous and refused to work or labor as he was required to do," and as a pun

Boone v. State.

ishment, the defendant struck said convict ten "licks" with a whip or leather strap.

The other convict attempted to escape from custody and was in the act of running away, and for this was punished by the defendant with fifteen "licks" with the whip or strap. It is agreed that the punishment in each case was moderate, and, if lawful at all, was not unreasonable or excessive. The question is whether the defendant was, by law, authorized to inflict punishment of this character to any extent.

It is argued that the authority must exist to enforce the judgment of the law sentencing the convicts to hard labor in the penitentiary; otherwise, by refusing to obey the orders to work, and submit to prison regulations and discipline, he might practically defy the law. It is further argued that such means of enforcing obedience upon the part of the convict, may be resorted to as has been recognized by the common law-and that the common law has recognized corporal punishment as one of its means. It is una discussion of the common necessary to enter into law authority upon the subject, as we think the matter is regulated by our own statutes.

Under the head of "Police Regulations of the Penitentiary," section 5518 of the Code, provides that: "If any convict neglects or refuses to perform the labor assigned him, or wilfully injures any of the materials, implements, or tools, or engages in conversation with any of the convicts, or in any other manner violates any of the regulations of the penitentiary, he may be punishined by solitary confinement for a period