interested he may be objected to, as was done in the case of Clapp v. State. This will not answer to help the law, for it must be remembered that the sheriff's interest in that case was held to be a special one of fact, which the law would not tolerate in an officer who might influence a jury. Under the construction given to the act here involved, it is held that the interest it vests in officers to fees upon conviction will not affect them, or be objectionable by defendant; and this holding is a necessity to sustain the law, because these officers are interested in all cases, and if upon defendant's objection they could be disallowed to serve in the cases where their fees are dependent upon results, practically their whole service would be rejected. The very act, therefore, which is upheld because the services can be unobjectionably performed, would be made to mean they were objectionable, and should not be performed if objected to. I cannot, therefore, understand what meaning under this law is to be given to the suggestion in the opinion, "that if any officer is disqualified by interest his place may be supplied, as was indicated in the Clapp Case, 94 Tenn. 188, 30 S. W. 214." It cannot mean that the allowance of cost in case of conviction shall disqualify the officer, for the whole opinion is devoted to combating the idea that there is anything wrong or illegal in this. As applied theretofore in connection with the suggestion that "it will thus be seen that the act jealously guards the prisoner's fess my inability to see how any exception on the grounds implied can be made, or, if made, how it could be sustained, without abrogation of the law. I therefore most earnestly deny that it can "thus" or otherwise "be seen that the act jealously guards the prisoner's right to a fair and impartial jury." under the present law, because the sheriff's fees for summoning the special panel are not taxed to the defendant, but are paid out of the treasury. It is true that under the act of 1882 such cost is taxed to the county. Whether, under the general provisions of the act under consideration, providing that in the majority of criminal cases no costs shall be taxed to the state or county, and only as a result of verdict or conviction in others, this law of 1882 is repealed, it is not necessary to determine here. Let it be granted that it is not affected by the act we are construing, and that this part of the sheriff's costs is not dependent upon the result of the prosecution; this is the smallest item in his account in such cases. The act of 1882 gives only five cents for the summoning of each juror ordered in special venire, while for all other services in the case a much larger charge is provided for, and expressly the compensation for these other services is so dependent. If the law would be objectionable with that in it, as seems to be implied from the reference to it in the majority opinion, it is impossible to see why it is not so with the more largely compensated service in the case so dependent. The same suggestion is made as to the officer attending the jury. The majority assumes this is paid as heretofore, because the expenses of "keeping and boarding" juries is provided for in the act. I think it clear that this expression has reference only to payment of jury expenses proper, that is, if they are but supplied with food, their "boarding" expenses are paid; if they are kept and furnished lodging, this expense of "keep-right to a fair and impartial jury," I must coning." too, is paid; and hence the entire expense of "keeping and boarding" is provided for. This is demonstrated by an examination of former statutes on subject of jury board. The first used the term "boarding and finding." Code, § 4032. In the others the word "keeping" is used as the term for "boarding." Mill. & V. Code, § 6454. This was the act of 1859-60, p. 4, c. 6, § 2, and was amended by an act which in its caption used only the term "boarding," and in the body, as expressing it, the word "keeping." In the succeeding section the bill of person authorized to receive it was to be for "boarding." Shannon's Code, 7607, 7608; Acts Ex. Sess. 1885, p. 76. The officer attending them never was paid under any fee-bill head of "keeping" a jury, which he in no sense does, unless he should happen to be an innkeeper, or temporarily act as such. His compensation has been paid heretofore for attending and waiting on the jury under the fee bill in favor of officers for "attendance on court" (Code, § 4564, subsec. 29; Shannon's Code, § 6402, subsec. 25), and "for attending on grand jury and waiting on court" (Code, $ 4571, 4572, subsec. 8; Shannon's Code, 88 6409, 6410, subsec. 8). It is under these sections the compensation is fixed, and it is these, and only these, which prescribe the amount of his compensation. There is no distinct fee for waiting on a "trial jury" in these terms, but such fee has been paid by accepted construction, because in such service the officer is, in a proper sense, in "attendance on" and "waiting on court." These are the only statutes governing this matter. The item of costs is in the regular fee bill. No reason is perceived why this fee paid heretofore by the public is not now eliminated by the general implied repeal of this statute, under which all charges except those provided for in the act are swept away. But, again, it is to be observed that the officer attending the jury may be the sheriff himself, or a deputy, who has other costs in the case, or a constable, who may have earned preliminary costs in it before a justice; and, whether this special cost of attending the jury be dependent upon the result or not, he may be otherwise more interested in other costs; so that to save this point is not to help the opinion. If it needed to be saved, the remaining cost leaves a remaining interest, which would vitiate equally without this as with it. Here, however, we are told that if any such officer be The various cost statutes to which the majority refers, which are supposed to help in establishing the validity of this law, I need not discuss. It is sufficient to say that no other statute, valid or invalid, just or unjust to the citizen, can afford any aid to this act on the constitutional questions involved. Nor need I discuss the state's abstract right to disallow taxation of costs against itself or its counties, its various divisions of sovereignty, where that power is exercised, or its right of denial of suit to its wronged citizens. It can be readily admitted that the last three propositions, in the abstract, are true, and then as readily proved that it cannot do so if in the same act it provides for demanding the particular services or taking the property of the citizen for a public use without compensation, if that compensation depends upon taxation of costs or right of suit against the state, in which event the refusal to allow taxation and the denial of suit would be admitted by the courts, but the right to demand the service or take the property would be denied; as, for instance, if the state should be without a capitol, and provide by law for suit of condemnation to take from an owner such property as it preferred for that purpose without providing for payment, and in the same act, or by pre-existing act, declare that in such suit no costs should be taxed to the state, and no suit (or remedy) given to the owner for obtaining compensation, the right not to be taxed with costs without its consent would be conceded, the right to deny its liability to suit would be confessed, but the right to take the property and force the owner to incur costs in such a suit would be denied, because of the constitutional provision we have been considering. These propositions, I think, are not relevant. I am presenting specific objections to the validity of this law. It is no more valid if other statutes are invalid than invalid if they are valid. Each must stand on its constitutional merit. Some of them perhaps have as little as this, but want of time and space to me, even more than irrelevancy In them, forbid extending this opinion for their analysis and discussion. I wish to present one more constitutional objection to this act, and that is that it is class legislation, arbitrarily capricious, and therefore void. Article 1, § 8, of the constitution declares that "no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land." Under this provision it has been held that an act is not the "law of the land" when the classification upon which it is based is unnatural, arbitrary, and capricious. Stratton Claimants v. Morris Claimants, 89 Tenn. 541, 15 S. W. 87. Whether the 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 arbitrary. If the classification is made under this section for the purpose of subjecting a class to the burden of some special disability, duty, or obligation, there must be some good and valid reason why that particular class should alone be subject to the burden. Id. Distinctions in these respects must not only be natural, and not arbitrary, but must rest upon some reason upon which they can be defended, some sound legal reason. Cooley, Const. Lim. 390; Dugger v. Insurance Co., 95 Tenn. 258, 32 S. W. 5. Elsewhere I have shown that the general object of the act was to take the principal expense and burden of criminal prosecutions off of the whole body of the state, and devolve it upon a few; and in this sense the law in its general scope and purpose is obnoxious to this provision of the constitution. But, analyzing it, its special classifications are, if possible, even more unnatural and arbitrarily capricious, and in my judgment absolutely indefensible. I quote here the admirable analysis of defendant's counsel on this point: "When the act passed. February 3, 1897, the law was, and long had been, that witnesses for the state should be paid in all cases, regardless of the disposition which might be made of them. Such being the law, this act, discriminating among the class called witnesses as follows, was passed: (1) The witnesses in eight named kinds of felonies are paid when the case proceeds to a verdict, and consequently the witnesses in such cases which do not proceed to a verdict are not paid. It often happens that after repeated continuances, mistrials, and reversals a felony case (of one of these eight kinds) is nollied, or the case terminated by the death of the accused. The witnesses have attended alike in all cases. In no case do they control it. In one case there was a verdict. In the other the case was nollied. In the third the defendant died. Can any one give even the pretense of a reason why the witnesses should be paid in one case, and not in the others? An apt illustration exists in the following case: A murder is committed in a remote district. Henry and James are suspected and indicted. They sever. After repeated continuances and mistrials, Henry is acquitted. After repeated continuances and mistrials, James dies. The witnesses are from the same neighborhood, pass through the same tollates, cross the same ferries, or come on the same train, and alike leave their plows standing in the field. The witnesses in Henry's case are paid. The witnesses in James' case are not. As the witnesses ride home, discussing the situation, what argument can the witnesses in Henry's case, with the money in their pockets, make to the witnesses in James' case, who returned empty. handed, which will satisfy them of the justice of the discrimination? Again, why should the witnesses in a manslaughter case be paid if the case proceeds to a verdict, and not be paid in a case of assault with intent to commit murder, which has proceeded to a verdict? Why, in cases of rape, but not in cases of attempt to rape? Or in bigamy, but not in attempt to poison? Why in embezzlement, but not in fraudulent breaches of trust? Why should they not be paid when the case proceeds to a verdict in railroad wrecking, official bribetaking, corrupting jurors, suborning witnesses, horse stealing, and masked marauding? Witnesses living more than five miles distant, going to another county, are paid, while those liv ing within five miles are not. Conceding, for argument, that the discrimination as to mileage can be defended, that as to witness fees cannot. A day at court is a day of time, whether the witness came five miles or ten. The truth is that, whether the nature of the crime, or s effects upon the public, or the degree of punishment be considered, the classification is arbitrary, indefensible, and absurd. But, if it be possible, a more indefensible classification yet remains to be noticed. The witnesses for the state in eight named felonies are to be paid when the case proceeds to a verdict; but in fifty other felonies, and many misdemeanors, they cannot be paid, even though the case has proceeded to a verdict, unless it be one of conviction. The inconvenience to the witness, and the loss of time, and the fares and tolls are not determined by the legal nature of the case, but by the circumstances of the witness. They are the same to him in all cases. Moreover, he cannot absolutely control, however much, under this act, he may influence, the verdict. Consequently, a statute which discriminates between witnesses, in respect of their compensation in criminal cases, according to the jury's_verdict, is cruel, arbitrary, and indefensible. It is indefensible and arbitrary because it unreasonably discriminates between witnesses; it is cruel because it stabs the accused." I need add nothing, if, indeed, anything can be added, to this view of the act on this question. What is presented in it is, to my mind, absolutely conclusive. Though I have extended this opinion to great length, and am conscious that I will be less heard for much speaking, I am also aware, and suggest in conciliation of adverse judgment, that much is omitted which might have been, and perhaps ought to have been, said, and particularly as the clear. able, and thoroughly matured opinion upholding the validity of the act presents all that can be said in its support, fully suggesting the objections, and meeting or attempting to meet them all, evading none. Then, too, the question is a great one, and deserves the profoundest consideration. These, and my earnest conviction that the law is in violation of some of the dearest rights which citizens of Tennessee have enjoyed for a hundred years, are my excuse-if not justificationfor the length and earnestness of this dissent. But I am aware that strength of conviction is often quite inconclusive of accuracy of judg ment, and that this is still more often true when the conviction is not in accord with that of any other member of the court, all of whom are as earnest, as fixed in opinion, and certainly as able to exercise as good, if not better, judgment than my own. With the construction given, however, in favor of the act, I desire to record my dissent as fully and as strongly as I am able to express it. END OF CASES IN VOL. 41. INDEX. ABANDONMENT. Of homestead, see "Homestead." ABATEMENT. Of price of land, see "Vendor and ACCOUNT, ACTION ON. A petition on an account which alleges that ABATEMENT AND REVIVAL. Of action of forcible entry and detainer, see A failure to plead misnomer in abatement A plea to the jurisdiction in quo warranto is An action cannot be revived against the widow Death of party after appeal perfected to court A general power in a will to sell real estate does Heirs of defendant in ejectment are proper par- Estoppel by, see "Estoppel." ACTION. Against carrier, see "Carriers." husband or wife, see "Husband and Wife." Between firms, see "Partnership." By assignee, see "Assignments"; "Bills and By attorney for services, see "Attorney and By city, see "Municipal Corporations." By county clerk for fees, see "Counties." By stockholders against corporation, see "Corpo- For breach of bond, see "Bonds." of contract of sale, see "Sales." of contract to purchase land, see "Vendor Of assignment, see "Assignments for Benefit For failure to deliver telegram, see "Telegraphs ACCIDENT. See "Negligence." At crossing, see "Railroads." ACCOMPLICES. Testimony of, see "Criminal Law." ACCORD AND SATISFACTION. See "Payment." 41 S. W. and Telephones." For injury to passenger, see "Carriers." to servant, see "Master and Servant." For price of land, see "Vendor and Purchaser." tion.' ccupa- Misjoinder of causes, objection first raised on On administrator's bond, see "Executors and On bills and notes, see "Bills and Notes." On note for price of land, see "Vendor and Pur- (1113) taxes, see "Taxation." land, shall sue the person in possession or be after paid taxes, held, that his collection of dam- A daughter while living on the premises with To set aside fraudulent conveyance, see "Fraud- Hopkins (Mo.) 784. One has no right of action against a merchant Where persons owned pasture land as part- See "Statutes." ACTS. ADEQUATE REMEDY AT LAW. ADJOINING LANDOWNERS. ADJOURNMENT. See "Continuance." ADMINISTRATION. See "Executors and Administrators." ADMISSION. A statement that one had been in actual con- tinuous possession implies peaceable possession, One who has acquired title by limitation is Possession of tenant in common is not adverse Defendant in ejectment held entitled to tack to AFFIDAVITS. For change of venue, see "Venue." In proceeding to compel judge to vacate the On surrender of principal, see "Bail." To procure issuance of land patent, see "Public Verification of pleading, see "Pleading." An instrument not signed by the party is in- AFFIRMANCE. As evidence, see "Criminal Law"; "Evidence." See "Appeal and Error." ADULTERATION. AGENCY. Evidence held to show a local sale of a pro- See "Principal and Agent." AIDER BY VERDICT. See "Pleading.". ALTERATION OF INSTRUMENTS. Judgment record, see "Records." Release of surety, see "Principal and Surety." AMENDMENT. Of pleading, see "Pleading." Of statute, see "Statutes." ANCIENT INSTRUMENTS. See "Evidence." ANIMALS. Injured or killed by locomotives, see "Rail- To authorize a recovery for the service of a |