where the judgment creditor buys in the property. And, even if the judgment remained a lien on the land, in this case, for the balance due and unrealized, would not such lien merge in the greater interest acquired by B., upon the purchase? Undoubtedly it would. The question is, whether C., upon redeeming from B., has anything further to fear from B. in the quiet enjoyment of the land. There is a difference in the interest acquired by a redeeming owner of the fee and a redeeming creditor. The former redeems the land: the latter, strictly speaking, the senior incumbrance. The redeeming owner of the fees redeems all the right, title and interest of the purchaser (Pardee v. VanAuken, 3 Barb. 534.) as laid down in Jackson v. Edwards, supra; the purchaser takes a good title, and, as a redeeming owner of the fee, redeems all the right, title and interest of the purchaser; ergo C. redeems the good title acquired by B., on the sale. Two or more separate and existing interests in land, can not be in the same person at one time. The lesser merges in the greater. When B. purchased the premises, the lien of his judgment was extinguished, even if there were a balance due upon his judgment beyond the amount of his bid. The judgment is against the debtor, and not against the property. There is no obligation on C.'s part to pay A.'s indebtedness to B. A.'s land was responsible so far as it would go for the amount of the mortgage. B. looked to C.'s land, exhausted his legal remedy in that direction, and failed to realize the full amount of his claim. For the balance he must look to his judgment debtor. The land brought all it could on the sale, and it cannot be twice disturbed under the same judgment. There is no privity between C. and B., and the lien can not revive to C.'s discomfort, for the balance of the judgment. It could only revive as a lien on the property, where the judgment debtor acquired a subsequent title. (Russell v. Allen, supra.) New York.

(Russell v. Allen, 10 Paige, 249.)

JOHN T. WALSH.

Query 24. [19 C. L. J. 458.] Sec. 13. Art. 19, constitution of Arkansas, declares: "All contracts for a greater rate of interest than ten per centum per annum shall be void as to principal and interest." The act of the legislature of the same State, approved Feb. 9, 1875, enacts that no person shall directly or indirectly take or receive in money any greater sum for the loan or forbearance of money than 10 per cent.; that all contracts whatever, whereupon or whereby there shall be reserved or agreed to be reserved any greater sum for the loan or forbearance of any money than 10 per cent., shall be void. Under this state of the law would a stipulation inserted in a promissory note that if it were not paid at maturity a per cent, exceeding the rate of ten per cent. per annum would be charged as a penalty for nonpayment be void? Would the rule be different if there was no such stipulation in the promissory note, but the parties thereto, after the instrument reached maturity, agreed upon an extra rate of interest exceeding ten per cent. per annum, as a penalty for non-payment.

Answer.-The requisites of a usurious contract are (1) an agreement for a profit in the nature of interest (2) at a greater rate than that allowed by law (3) for the loan or forbearance of money. Lloyd v. Scott, 4 Peters 205; N. Y. Firemens Ins. Co. v. Ely, 2 Cowen, 678; U.S. Bank v. Waggener 9 Peters, 400, 401; Agricultural Bank v. Bissell 12 Pick. 586; Bardwell v. Howe, 1 Clarke, 281; Stevens v. Davis 3 Metcalf, 211. Any contract lacking any one of these attributes is not usurious, and hence not subject to the penalties imposed, by statutes fixing the rate of interest to be charged, for their breach.

1. In regard to the first question, by subjecting the case stated to the test of this rule, we find that the excess to be paid over the legal rate of interest, being a penalty from which the debtor may relieve himself by punctuality,it cannot be considered as usury,and therefore neither the agreement to pay the principal, nor the excess, is void under the statute. Lloyd v. Scott, 4 Peters S. C. R. 203; Cotton v. Dunham, 2 Paige Rep. 267; Campbell v. Shields, 6 Leigh,517; Coster v Dilworth 8 Cow. 299; Ketchum v. Barber 4 Hill 224; Boulware v. Newton, 18 Grat. 708. But under the general power of equity, undoubtedly a court of chancery would relieve against the penalty, and allow only the principal with lawful interest. Aylett v. Dodd 2 Atk. 239; Astley v. Weldon 2 B. & P. 350, 354; Lampman v. Cochran 16 N. Y. 275; Clement v. Cash, 21 N. Y. 253, 260; Rogan v. Walker, 1 Wis. 527; Gregg v. Landis, 21 N. J.; Hagar v. Buck, 44 Vt. 285; Sloman v. Walter, Bro. Ch. 418.

2. With respect to the second question, the rule would be different thus far: while the subsequent agreement, after maturity of the note to pay interest at a rate exceeding that allowed by law would be void under the statute, that subesquent unlawful agreement will not invalidate the right to enforce the former legal one. Parker v. Ramsbottom, 3 B. & C. 257; Gray v. Fowler, 1 H. Bl. 462; Parker v. Cousins, 2 Grat. 387; Rankin v. Rankin 1 Grat. 155; Bank of Washington v. Arthur, 3 Grat. 173, 186; Chit. on Bills, 89. Louisville, Ky.

N. F. MARTINE.

Query 60. [19 C. L. J. 479.] Is a nolle prosequi, by the States Attorney a sufficient legal termination of a criminal cause to maintain an action for malicious prosecution? And especially so when made in words as follows: "And comes now the State's Attorney and represents to the court that he has no evidence to prosecute this cause, and, with the permission of the court this cause is nolle prosequi."

Answer. Stanton v. Hart, 27 Mich. 539, decides this question in the affirmative. The court say: "Upon this question there is some conflict in the authorities, but we think the weight of reason is in favor of the action. The mischief is done by the arrest and disgrace caused by a charge of crime, and by the expence and annoyance attending the proceeding." "As soon as the proceedings have come to an end, by such an order or discontinuance as well prevent a further prosecution without a new complaint, there is no longer any occasion for such a presumption. It is more reasonable to assume that it has been found that the charge ought not to be further pressed. And it would be doing great injustice to refuse a remedy for such a wanton injury to liberty and reputation, on a ground which is purely technical, and is not reasonable." The opinion then cites Clark v. Cleveland, 6 Hill, 344, and adds: "Discharge by a magistrate, discontinuance of a private action, and ignoring bills by grand juries, when the party is discharged, have all been made the basis of an action for malicious prosecution." Citing Smith v. Ege, 52 Pa., St. 419; 1 Am. Lead. Cas. 221; Straus v. Young, 36 Md. 246; Burhaus v. Sanford, 19 Wend. 417; Fay v. O'Neill, 36 N. Y. 11.

Also, in favor of the same rule, see Minor (Ala.) 203; 36 Conn. 56; 4 Am. Rep. 35; 45 Ind. 440; 1 B. Monr. 358; 7 Iredell (Law), 390; 3 McCord, 461; 44 Vt. 124. See also 41 N. J. Law, 22. As against the rule, the following cases may be cited, the courts holding a nolle prosequi, without any judicial action by the court, not sufficient to support a suit for malicious prosecution Blalock v. Randall., 76 Ills. 224; Bacon v. Toune, 4 Cush. 217; Bunn v. Lakeman, 12 id. 482; Hamilburgh v. Shepard, 119 Mass., 30. Also see Kirkpatrick v. Kirkpatrick, 39 Penn St. 288. I also find the case of Driggs v. Burton, 44 Vt. 124, cited against the proposition, as well as in its favor. Not having the report, I

WHETHER AN ASS IS A HORSE WITHIN THE MEANING OF EXEMPTION LAWs.-The Supreme Court of Texas has decided that a jackass is a horse, and has followed in this opinion the Supreme Court of Tennessee, quoting with apparent approval the following language of the Tennessee court: "We are not without high philological authority for construing the word 'horse,' used in the statute, as including the 'ass.' Mr. Webster, in his unabridged and illustrated dictionary, defines an ass to be a quadruped of the genus Equus, (E. Asinus), having a peculiarly harsh bray, etc. * Then, the ass is a species of the genus equus or horse." The obvious fallacy in this reasoning of the Tennessee court lies in the last two words of this quotation, namely, in the assumption that the "genus equus," and the "horse" are identical, and thus confusing the part with the whole. The fact is, and a little further search in Webster would have shown it, that the term genus signifies a class embracing usually two or more species; and that in zoology a test of species is that the individuals composing it are capable of indefinitely continued fertile reproduction through the sexes. The "genus Equus" does not mean "the horse;" it means a class of animals including at least three species, equus caballus, the horse, equus zebra, the zebra, and equus asinus, the ass. It is well known that the progeny of the horse and ass are not fertile. The mule has neither pride of birth nor hope of posterity; and this test shows at once that the horse and the ass are not of the same species, though belonging to the same genus. The deer and the giraffe have been classed by some under the same genus, Cerrus. Would a Swedish statute exempting reindeer include giraffes? The poodle and the wolf are both of the genus C'anis. Would a wolf be included in a statute respecting dogs? The "harmless necessary cat" is of the same genus as the leopard: Is the leopard included in a statute respecting cats? Mr. Webster correctly states that the genus Solanum, in botany, includes the potato, the egg-plant, the deadly nightshade, and the tomato: Would a statute in regard to potatoes include egg-plants, night-shades and tomatoes? If the syllogism of the Tennessee court is not fallacious, it would be equally easy to show by its instrumentality that a horse is an ass, that a horse is a zebra, that an ass is a zebra, that a zebra is a horse and that a zebra is an ass. In the Texas case it would seem that Robertson, having judgment against Robinson, presumed to levy on a jackass belonging to the latter, although a Texas statute exempted, inter alia, two horses. For this presumption he is visited with costs and probably with damages. When such results are reached,-where judges declare that a part is equal to the whole, that animals are of the same species because they are of the same genus, that a giraffe is a reindeer and an egg-plant is a potato, is it not time for the simple citizen to introduce another variety into the genus Equus and say with the well-known character of Dickens that "the law is an ass."

1 Robinson v. Robertson, 18 Rep. 604.

2 Richardson v. Duncan, 2 Heisk. 220.

H.

JETSAM AND FLOTSAM.

OUR NEW DEPARTURE.-A learned correspondent writes: "I see that you have opened a new department in your LAW JOURNAL, called 'Jetsam ahd Flotsam.' Why did you not call it 'Jetsam, Flotsam and Ligan?" " Answer: We omitted "Ligan" because we claim to be men of truth.

-AN INSTANCE OF CLASS LEGISLATION.-The most odious instance of class legislation which has come to our attention is the law of South Carolina, which exempts capital from taxation when engaged in manufactures. It seems that they have a similiar law in Louisiana. The constitutions of these two States must be singular instruments, if these laws can be upheld as valid. Capital engaged in manufacturing enjoys the benefit of a high protective tariff, from which benefit agriculture is almost wholly deprived. Is that not enough?

THE CURL IN COURT.—Mr. Choate:-He has seen fit to quote for your entertainment a description of my face and features that he gathered from a newspaper. Mr. Conkling:-A periodical, some publication. Mr. Choate:-The periodical may have risen to the rank of an illustrated weekly. I don't like to lie down under that imputation, and I will return it, but not, gentlemen, from any newspaper. No, no. I will paint his picture as it has been painted by an immortal pen. I will give you his description as the divine Shakespeare penned it, for he must have had my learned friend in his eye when he said:

See, what a grace was seated on this brow:
Hyperion's curls: the front of Jove himself;
An eye like Mars, to threaten and command;
A combination and a form, indeed,

Where every God did seem to set his seal,
To give the world assurance of a man.
Mr. Conkling:-Correct; you have recited that first-
class."-N. Y. Sun.

LINCOLN'S ESTIMATE OF EVARTS.-The candidacy of Wm. M. Evarts, for the U. S. Senate is drawing considerable attention to his character às a lawyer and a public man. Among other things which have appeared in press, is the following from the pen of Schuyler Colfax, in the Congregationalist, which shows that if the good sense of Mr. Lincoln had had its way, Evarts would have been appointed Chief Justice of the United States, instead of Salmon P. Chase. The difference between the two men was conspicuous; Chase was a statesman, but not a lawyer; Evarts was a lawyer, but not, at that time, a statesman:-"Less than four months after Secretary Chase's resignation, (followed, as I regret to say, by some ill-tempered remarks from the ex-Secretary against the President, which I am sure he soon regretted) the great office of Chief Justice of the Supreme Court became vacant; and, in Congress, as well as amongst press and people, there was developed a strong and rapidly increasing public opinion in favor of the appointment of ex-Secretary Chase. It happened that, by the request of numerous fellowmembers of the House in which I presided, it devolved upon me to spend an evening with the President, to present their desires. After urging every possible consideration, namely, that as Chief Justice, Mr. Chase would give up that ambition for the Presidency which had dominated his later life, and that on the bench we felt that he could not fail to stand by the war-measures he had assisted in shaping in the Cabinet, etc., Mr. Lincoln replied: "I am satisfied that it is the wish of a large majority of my supporters that I should appoint Mr. Chase, and I intend to do so, although I think myself, that William M. Evarts is, by his legal attainments, the fittest man for the place."

ST. LOUIS, JANUARY 16, 1885.

CURRENT EVENTS.

THE OHIO SCOTT LIQUOR LAW ENCONSTITUTIONAL.―The Supreme Court of Ohio has, of course, been roundly abused for deciding that the recent statute of that State, known as the Scott liquor law, is unconstitutional. The decision was by a divided court, three judges agreeing to it, and two dissenting. The press and public have jumped at the conclusion that it was merely a political decision. We have read the opinion of the court, which does not purport to have been written by any one judge, but which is given as the joint opinion of Okey, Owen and Follett, JJ., and we are not able to come to any conclusion as to whether it is a political or judicial decision, because the statute which the court has declared unconstitutional is not set out in the opinion. The point decided was, that the statute, in so far as it provided for a lien on real estate occupied by a tenant who was a dealer in liquors was, in effect, a license law, within the meaning of the following clause of the constitution of Ohio: "No license to traffic in intoxicating liquors shall hereafter be granted in this State, but the general assembly may, by law, provide against evils resulting therefrom." The act in its title was called "an act further to provide against evils resulting from the traffic in intoxicating liquors." It provided for the levying and assessment of a tax on the business of trafficking in intoxicating liquors, and where the business was carried on by a tenant, it made the tax a lien upon the premises of the landlord. It was held, following a decision of the same court in State v. Hipp,' and Butzman v. Whitbeck, unreported, that, in so far as it provided for this lien upon real estate occupied by a dealer in liquors as a tenant, it was void. It plainly seems that the court might have stopped here; but it went further, and held that, in as much as it was plainly unreasonable and improbable that

138 Ohio State, 199. Vol. 20-No. 3.

Scott law with the provision giving a lien for the tax on premises occupied by tenants eliminated therefrom, the whole act, in so far as it provided for an assessment of the tax, was unconstitutional and void. Whatever may be said of the decision, it is plainly contrary to the intent with which the constitutional provision above quoted was enacted. The meaning of that provision was, that the liquor traffic is a nuisance which the legislature shall not license, though it may pass laws to discourage or suppress it. That provision was consequently against the liquor interest; but this decision is wholly in favor of the liquor interest, by breaking down what was supposed to be an effective measure toward abating and suppressing it.

THE NICARAGUA TREATY.-Just now it is in order to say something about one of the most important treaties that ever went before the Senate for ratification. Briefly, this convention gives to our government the right to construct a ship canal from ocean to ocean through the Republic of Nicaragua, the same to be maintained by a joint commission appointed by the two republics, the president of the commission to be appointed by the United States, and to have the casting vote in case of a tie; the profits of the canal to be divided, two-thirds to the United States, and one-third to Nicaragua; the United States to enter into perpetual alliance with Nicaragua, to guarantee forever the integrity of her territory, and to use her friendly offices toward establishing a confederated representative government among the republics of Central America; and, finally, the United States to lend to Nicaragua four million dollars at three per cent. interest, to enable that Republic to prosecute certain other works of internal improvement. It must be confessed, in 'passing, that this four million dollar loan, which is payable in installments, smells like a mere bribe to Nicaraguan statesmen, to secure their continued support and good offices toward carrying out the treaty. They will, no doubt, put. the money where it will do the most good. But with that we have nothing whatever to do. The treaty is supposed to involve complex questions of international law. We do not see anything complex about

it, except that it involves an abrogation on our part of a provision of the Clayton-Bulwer treaty. Our position is, that England has broken this treaty already, and that we are hence absolved from keeping it, so far as it relates to an interoceanic canal. We had better take the frank position that we can no longer endure that provision of the ClaytonBulwer treaty. There can be no such thing as an absolute, inviolable and unchangeable sanctity in any convention between nations. One generation can not for all time thus tie the hands of future generations. A few years ago, Russia abrogated the onerous provisions of the treaty imposed upon her at the close of the Crimean war, respecting the naval armament she should be permitted to keep in the Black Sea. We must, of course, be careful to do no injustice to England, or to any other power. Three years ago, when Mr. Blaine was Secretary of State, our position was, respecting the De Lesseps Canal, that no canal should be dug across the Isthmus and operated, except under our control. That position was an extreme assertion of what is called "The Monroe Doctrine." It was rid-. iculed by the more conservative press, and it terminated with the death of President Garfield and Mr. Blaine's retirement from the office of Secretary of State. The logic of this Nicaragua Treaty essentially changes our position, and makes it a very simple oneone so simple and so just that we ought to be ready to fight for it. It is this: We propose to dig by ourselves, and for ourselves, an inter-oceanic canal, through the territory of a friendly republic, over which we have assumed a protectorate, in order to get a speedy communication by water between the Eastern and Western shores of our great country. We propose to operate it for ourselves. We do not purpose to hold it in trust for other nations, or to neutralize it for their benefit. We propose to pass our ships of war to and fro through it, both in time of peace and in time of war. At the same time, we propose to allow other nations to dig as many interoceanic canals as they can, to fortify them as they will, and to neutralize them as much as they please. We simply say to Europe; "Gentlemen, all we ask is to be let alone. This canal is our little affair. M. de Lesseps' canal, and any other canal which you may choose to dig, will be your

little affair, and in respect of them we will let you alone."

RAILWAY RECEIVERSHIP IN THE FEDERAL COURTS. The following is clipped from a St. Louis newspaper:

"In the United States Circuit Court this morning a citation of contempt was issued against Jacob W. Stemmel, constable of Millard, Blair County, Mo., to appear and show cause why he should not be fined for executing a writ on a judgment against the Wabash Road in favor of John McCarthy for $50 damages for killing a cow, when the road was in the hands of the receivers at the time of executing the writ."

This simple statement of a matter which, on its face, seems unimportant, calls up a question which ought to receive the attention of Congress. It has become a practice, whenever a railway company gets into financial difficulties, for some trustee or holder of its debentures to go into the Circuit Court of the United States and ask for a receiver. These applications have of late years come to be granted in some of these courts almost as a matter of course. In one case, that of the Ohio and Mississippi Railroad, a great trunk line extending through three states, was operated by a receiver so appointed for about seven years. In the case in which the country constable named in the above paragraph attempted to levy execution on property of the Wabash Railway Company, a receiver had been appointed by the simultaneous action of several Circuit Courts of the United States for different districts, and in different States, on a bill filed by the railroad company. Did any lawyer ever before hear of a receiver of the property of an insolvent debtor being appointed by a court of equity upon a bill filed by the debtor himself? This extraordinary aid of a court of equity had been hitherto supposed to be extended only to creditors, and then only granted ad interim, pending the foreclosure of a mortgage or the winding up of a partnership. The sententious remark of Lord Edon, when he was was asked to appoint a receiver of a brewing company composed of some three hundred members, on the ground that the managing partners were mismanaging its affairs, that the court could not take upon itself the management of every play-house and brewery in the

kingdom,1 seems to have been quite forgotten by some of the Federal Courts when applied to appoint receivers of railways. These receivers have been appointed by a sort of preconcerted movement between the moving litigant and the judges, which is so out of keeping with the open and customary course of justice as to demand profound attention. Then, it seems not to have occurred to these courts that they have not the facilities for conveniently managing every railway in the country.

But one of the most serious matters connected with it, is the injury done to small litigants along the lines of these railways-a matter which is emphasized by the paragraph above quoted. Under ordinary circumstances, if a farmer's cow or horse is killed by a railway company, he can bring an action before a justice of the peace in his own neighborhood and have the matter settled near at home. But when the railroad is in the hands of a receiver, persons having these small claims must go hundreds of miles to the place of sitting of the United States Circuit Court, with their witnesses, file an intervening petition there, have it referred to a master in chancery, forego the right of trial by jury, and get what the master and the court choose to give them. Of course the master and the court will generally do them justice; but the expense necessary to reach the result, is so great that it works to them a practical denial of justice.

Another aspect of the case is not creditable to the administration of justice. A receiver is an officer of the court which appoints him. He is the right arm of the court, acting continually under the court's orders. But these railroads which are in the hands of receivers, appointed by the Federal Courts, are notoriously engaged in "pooling" combinations with other railroads, which combinations are designed to stifle competition between competing carriers, and to keep up the rates of charges. They are hence against public policy and void. This is so well understood that no railroad company has the hardihood to go into a court of justice to enforce a contract of this kind. And yet here is the spec

Carlen v. Drury, 1 Ves. & B. 154, 158. Compare Waters v. Taylor, 15 Ves. 10; Ex parte Ford, 7 Ves. 67; Ex parte O'Reily, 1 Ves. 112.

tacle of a court of justice itself becoming.an active party to such a contract.

NOTES OF RECENT DECISIONS.

1

APPEAL IN CASES OF CONTEMPT.-In Teller . People the Supreme Court of Colorado decided that no appeal lies from a conviction of Criminal Contempt. The court cited ex parte Crittenden,2 and New Orleans v. Steamship Co., as authority on this point. This was a general rule of common law procedure, based upon the principle that every superior court of record is the exclusive judge of contempts against its own dignity or authority. But this rule is not universal; and it seems that in what are termed remedial proceedings as for contempt to enforce civil remedies, which proceedings are in the nature of process of execution of orders, judgments. or decrees, and which are regarded rather as controversies between private parties. than

13 W. C. Rep. 132. 2 62 Cal. 534.

20 Wall. 392.

+ Rex v. Dean & Chapter, 1 Strange, 536; s. c. 8 Mod. 27, per Fortesque, J.; Groenwelt v. Burwell, 1 Salk. 144; s. c. 1 Ld. Raym. 454, per Lord Hale, C. J.; Tyler v. Hammersley, 44 Conn. 393, 409; State v. Tipton, 1 Blackf.166; Lockwood v.State,1 Ind.161; Watson v. Williams, 36 Miss.331; State v. Galloway, 5 Coldw. (Tenn.) 326, 331; Shattuck v. State, 51 Miss. 50; Phillips v. Welch, 11 Nev. 187; Ex parte Kearney, Wheat. 38; New Orleans v. Steamship Co., 20 Wall. 387; Hayes v. Fischer, 102 U. S. 121; Butler v. People, 2 Col. T. 295; Ex parte Bradley, 7 Wall. 376; Ex parte Robinson, 19 Wall. 595; Hagan v. Alston, 9 Ala. 627; Ex parte Martin, 5 Yerg. 456; Re Cooper, 32 Vt. 253; Ex parte Summers, 5 Ired. 149; Cossert v. State, 14 Ark. 538; Bunch v. State, Id. 544. [Compare Neel v. State, 9 Ark. 259]: State v. Woodfin, 5 Ired. 199: First Congregational Church v. Muscatine, 3 Iowa, 69; Floyd v. State, 7 Tex. 215; Casey v. State, 25 Tex. 380, 385; Crow v. State, 14 Tex. 12, 14; State v. Giles, 10 Wis. 101; Kernodle v. Cason, 25 Ind. 362; Larrabee v. Selby, 52 Cal. 506, 508; Cal. Code Civil Procedure, § 1222; State v. Mott, 4 Jones L. 449; State v. Thurmond, 37 Tex. 340; Vilas v. Burton, 27 Vt. 56; McMicken v. Perin, 20 How. U. S. 133; Easton v. State, 39 Ala. 551; Wyatt v. Magee, 3 Ala. 94, 97; State v. Towle, 43 N. H. 540, 546: Clark v. People, Breese (Ill.) 111, 266.

5 Matter of Pryor, 18 Kas. 72; Haines v. People, 97 Ill. 161; Baltimore, etc. R. Co. v. Wheeling, 13 Gratt. 40, 57; Stuart v. People, Breese (Ill.) 395; Stokely v. Com., 1 Va. Cas. 330; Ingle v. State, 8 Blackf. 574: State v. Hunt, 4 Strobh. L. 322, 338; Er parte Robins, 65 N. C. 309: Matter of Walker, 82 N. C. 95; Brickley v. Com., 2 J. J. Marsh. 572, 575; Turner v. Com., 2 Met. (Ky.) 619, 624; Whittem v. State, 36 Ind. 196, (overruling former decisions); Ex parte Wright, 65 Ind. 504, 508; Beck v. State, 72 Ind. 250; Bond v. Bond, 69 N. C. 97: Hundhausen v. Ins. Co., 5 Heisk. (Tenn.) 702.