14, § 39-43; Smith v. Chapman, 1 Hen. & M. 240, 290-294.

The question is whether this disposition is altered by the eleventh clause, so that Edward and George, instead of taking life estates merely, take estates in fee simple under the rule in Shelley's Case [1 Coke, 88-107].

Furthermore, the estates are not only to de scend; they are to descend to heirs and assigns. The connection is significant, for the words heirs and assigns are the common words of in heritance or limitation.

If the word heirs had been used alone, it might be supposed that it was used, not in its If in place of the words, "and after them technical sense, to signify the entire line of deequally to their children, their heirs and as-scent, but popularly to signify the immediate signs, forever," in the fifth clause, we substitute the words in which the testator states his intention and meaning, we shall have, first, a devise to Edward and George, as follows: "For and during the term of their natural lives;" and then the following, to wit:

"And after the decease of Edward N. and George W. Browning, or either of them, one half of said estate is to descend to said Edward's heirs and assigns, and the other half to descend to said George's heirs and assigns."

heirs, or the persons answering to the description of "heirs," at the death of the first taker. The joinder of the two words heirs and assigns militates against this view; for mere tenants for life could have no assigns to take their estates after them, whereas, tenants in fee could devise their estates, and the devisees would be their testamentary assigns. Baily v. De Crespigny, 10 Best & S. 1, 12.

The two expressions both conflict with the supposition that Edward and George were inIf the clause had been originally so written, tended to take only as life tenants; and, conwe think there can be no doubt that, notwith-sidering the rigor of the rule in Shelley's Case standing some inaptnesses of expression, it would have to be construed as a devise to Edward and George for life, as tenants in common, with remainders to their heirs and assigns, respectively, which, under the rule in Shelley's Case, would be a devise of one undivided half of the estate to each of them in fee simple.

The eleventh clause, however, purports to be simply explanatory of the fifth, and must be considered in that light; and the question is whether, considering it is, we reach any different conclusion. The construction in this view is not wholly free from doubt, but the eleventh clause contains two expressions which, as they are connected with each other, seem to us to merit special attention. The clause declares: One half of said estate is to descend to said Edward's heirs and assigns, and the other half to descend to said George's heirs and assigns." If the first takers take simply life estates, there will be nothing to descend from them to their heirs. The implication is that a fee was intended to be given to Edward and George. There are cases in which the word descend has been taken in this sense. Eaton v. Tillinghast, 4 R. I. 276, 280; Criswell's App. 41 Pa. 288.

and the technical stringency of the precedents, we are of opinion that said Edward and George must be held to have taken the estates in fee simple. And see Re Angell, 13 R. I. 630, and Burges v. Thompson, 18 R. L. 712, and cases cited.

The manner in which the legacies are charged favors this construction. The form of the charge is this, to wit:

The devise is to Edward and George, as before stated.

"They, said Edward and George, paying out of the same $500 to each of my half-sisters, Ida May Browning and Roby Ann Browning, within five years from my decease, to be paid to them in annual installments of $100 on the 25th day of December in each year."

We therefore declare it to be our opinion that Edward Browning took under the will of the late Abijah Browning an undivided half of the land, described in the fifth clause thereof, in fee simple, and can by his deed convey to his brother George an indefeasible estate in fee simple therein.

Order accordingly.

NOTE.-Departments of government; one cannot | Titusville Iron Works v. Keystone Oil Co. 1 L. R. A.

usurp the functions of the other.

The Legislature cannot suspend the operation of a general law in favor of an individual. Holden v. James, 11 Mass. 396.

Nor can courts transcend the law of their creation; nor can their jurisdiction be enlarged by intendment. Solon v. State, 5 Tex. App. 301; Jennings v. State, 5 Tex. App, 298.

861.

Constitutionality of statutes.

The constitutionality of a statute is to be tested by the limitation imposed on the legislative power by the State Constitution; and when such a statute is in undoubted conflict with the Constitution, it is void; and it is the duty of the courts to so declare. Bank of St. Mary's v. State, 12 Ga. 475; Cutts v.

Legislative Acts cannot be performed by the ju- | Hardee, 38 Ga. 350; Eakin v. Raub, 12 Serg. & R. diciary. Galesburg v. Hawkinson, 75 Ill. 152. See 330: Pa. R. Co. v. Riblet, 66 Pa. 164; People v. Ma

See also 11 L. R. A. 75; 19 L. R. A. 584; 23 L. R. A. 525.

A

(February 9, 1889.) PPEAL by defendant, from a judgment of the Wilson County Circuit Court entered upon a verdict finding him guilty of an assault with intent to commit manslaughter. Reversed. The indictment charged defendant with an assault upon one Sullivan with intent to commit (1) murder in the second degree; (2) manslaughter. The trial judge (Cantrell, J.) refused to put the jury in charge of an officer, to which refusal defendant excepted. The jury returned a verdict of guilty under the second count, and motions for new trial and in arrest of judgment having been overruled, defendant appealed to this court:

See McLain v. State, 10 Yerg. 242. The right of trial by jury, and that jury to be so guarded that it would only reflect by its verdict the law and facts of the cause, has been the boasted birthright of every citizen.

See Potter's Dwar. Statutes, p. 428, chap. 13; Janes v. Reynolds, 2 Tex. 251; Wally v. Kennedy, 2 Yerg. 555; Vanzant v. Waddel, 2 Yerg. 269-271; State Bank v. Cooper, 2 Yerg. 599-607; Budd v. State, 3 Humph. 483-486; Alexandria v. Dearmon. 2 Sneed, 105-125; Reynolds v. Baker, 6 Coldw. 221; State v. Staten, 6 Coldw. 233; Knox v. State, 9 Baxt. 202; Memphis v. Fisher, 9 Baxt. 239; Nashville v. Althrop, 5 Coldw. 555; Fogg v. Union Bank, 4 Baxt. 535; Morgan v. Reed, 2 Head, 276; State v. Burnett, 6 Heisk. 186; Mynatt v. Hubbs, 6 Heisk. 320; Webster v. Rose, 6 Heisk. 93; Pope v. Phifer, 3 Heisk. 682; Rice v. State, 3 Heisk. 221; Mayes v. State, 3 Heisk. 430; Alexander v. State, 3 Heisk. 475; Brown v. Haywood, 4 Heisk. 357; Officer v. Young, 5 Yerg. 320; Tate v. Bell, 4 Yerg. 202; Fisher v. Dabbs, 6 Yerg. 119; Ragio v. State, 86 Tenn. (2 Pickle) 275, 276; Burk This Act is a radical violation of the rule of | holtz v. State, 16 Lea, 71; Green v. State, 15 the common law, and is clearly at the expense | Lea, 708; Woodard v. Brien, 14 Lea, 520; Daly of the right of the citizen to a fair and impartial trial.

Messrs. R. E. Thompson and J. J.Turner for appellant:

This being a felony case and the defendant not having waived the same, the action of the court in permitting the jury to disperse and in not placing them in charge of an officer was clearly error, unless it is justified by the Act of March 23, 1887, chap. 158, p. 169.

For the rule as to the conduct and regulation of the jury, see

2 Mil. Dig. § 1082, subsec. 15, pp. 12351237; Spain v. State, 8 Baxt. 516; Clark v. State, Id. 592-595; Maynard v. State, 9 Baxt. 225, 226; Devereaux v. State, Sept. Term, 1875. This court has been very jealous about defendants waiving any right.

See Gleason v. State, I Legal Rep. 365; Hopkins v. State, 10 Lea, 206, 207.

The Act of 1887 is obnoxious to the Constitution of Tennessee, art. 1, § 8; art. 11, § 8.

General laws must operate alike upon all subJects of legislation, and upon all citizens and persons uniformly and in the same manner where they stand in the same category, in respect to the privileges and immunities conferred by the Constitution. People v. Judge of Twelfth Dist. 17 Cal. 554; Pre-.ch v. Teschemaker, 24 Cal. 544; Bourland v. Hildreth, 26 Cal. 256; Brooks v. Hyde, 37 Cal. 366. General laws are those which relate to or bind all within the jurisdiction of the law-making power. People v. Cooper, 83 Ill. 585.

Criminal law; protection of rights of accused.
No person can be deprived of his liberty on the
ground of neglect to assert his rights. Allen v.
Sarah, 2 Harr. (Del.) 434.

A prisoner can consent to nothing-at least in the course of his trial. Reg. v. Bertrand, L. R. 1 Priv. C. C. 520.

He cannot waive what the law requires. Park Gate Iron Co. v. Coates, L. R. 5 C. P. 639,

The consent or acquiescence of the prisoner does aot cure an irregularity in a discharge of the jury, and at a new trial the admission of testimony heard at the former trial and read over by the judge from his notes. Reg. v. Bloxham, 6 Q. B. 528; Graham v. Ingleby, 1 Exch. 651; Reg. v. Thornhill, 8 Car. & P. 575; Ex parte Best, L. R. 18 Ch. Div. 488.

See also 8 L. R. A. 774.

|

v. State, 13 Lea, 228; Hatcher v. State, 12 Lea, 368; Chattanooga v. Nashville, C. & St. L. R. Co. 7 Lea, 561; Neely v. State, 4 Lea, 316.

As a constitution speaks from the time of its adoption, the fact of the right to jury trial, which is ascertained to have existed at that time, must necessarily determine the meaning of the clause which recognizes and preserves that right.

See Copp v. Henniker. 55 N. H. 179-195, East Kingston v. Towle, 48 N. H. 57–65; Stilwell v. Kellogg, 14 Wis. 461; Tims v. State, 26 Ala. 165; Koppikus v. State Capitol Comrs. 16 Cal. 248; Whallon v. Bancroft, 4 Minn. 109;

Defendant cannot waive his right to a jury trial. With regard to capital cases and the graver crimes, it is generally held that the defendant cannot waive his right, nor consent to be tried by a less number than twelve jurors; although it has also been held that in crimes of a lesser grade there can be such a consent. Cancemi v. People, 18 N. Y. 128; People v. O'Neil, 48 Cal. 257; Carpenter v. State, 4 How. (Miss.) 163; Bell v. State, 44 Ala. 393; Jackson v. State, 6 Blackf. 461; Bowles v. State, 5 Sneed, 360; Wilson v. State, 16 Ark. 601; State v. Mansfield, 41 Mo. 470; Williams v. State, 12 Ohio St. 622; Brown v. State, 16 Ind. 496; Com. v. Dailey, 12 Cush. 80; Murphy v. Com, 1 Met. (Ky.) 365; Com. v. Shaw, 1 Pittsb. 492.

Separation of jury in.

In capital cases a separation of the jury without the consent of the prisoner is a sufficient cause to set aside the verdict rendered against him. Adams v. People, 47 Il. 376; Caw v. People, 3 Neb. 357; State v. Prescott, 7 N. H. 287; State v. Parrant, 16 Minn. 178; State v. Brannon, 45 Mo. 329; People v. Douglass, 4 Cow. 26; State v. Camp, 23 Vt. 551; State v. Babcock, 1 Conn. 401; State v. Miller, 1 Dev. & B. L. 500; Wyatt v. State, 1 Blackf. 257; People v. Ranson, 7 Wend. 423; McCreary v. Com. 29 Pa. 323; People v. Symonds, 22 Cal. 348; Quinn v. State, 14 Ind. 589.

A separation of the jury during trial in such cases is fatal to the verdict; so held in Massachusetts (Com. v. Roby, 12 Pick. 496);

Mississippi (Boles v. State, 13 Smedes & M. 398;
Woods v. State, 43 Miss. 364);

Tennessee (McLain v. State, 10 Yerg. 241);
Texas (Cannon v. State, 3 Tex. 31); and
Virginia (Com. v. McCaul, 1 Va. Cas. 271).

Ross v. Irving, 14 Ill. 171; Lake Erie, W. & St.
L. R. Co. v. Heath, 9 Ind. 558; Byers v. Com.
42 Pa. 89; Howe v. Treasurer of Plainfield, 37
N. J. L. 145; Murphy v. People, 2 Cow. 815;
People v. Fisher, 20 Barb. 652; Wynehamer v.
People, 13 N. Y. 378; Dr. Bonham's Case, 8
Coke, 107 (a); Day v. Saradge, Hobart, 85;
Jones v. Robbins, 8 Gray, 342; Taylor v. Porter,
4 Hill, 140-153; 2 Kent, Com. 13; Wright v.
Wright, 2 Md. 429, 56 Am. Dec. 723.

Mr. G.W. Pickle, Atty-Gen., for the State.

Turney, Ch. J., delivered the opinion of the

court:

Chapter 158 of the Acts of 1887, passed March 21, 1887, is entitled "An Act to change the practice in the circuit and criminal courts of the State in regard to putting criminal juries under the rule," and provides "That in all criminal trials, when the minimum degree of punishment for the crime charged in the indictment is not above one year in the penitentiary, it shall not be necessary for the presiding judge to place the jury in charge of an officer; but the jury may, in the discretion of the court, disperse as in other cases; and the State shall not be chargeable for their board."

This statute does not, in terms or by implication, repeal the general law requiring juries in felony cases to be placed in charge of an officer, and kept apart from other citizens. It under takes to confer upon each judge of the crim. inal and circuit courts the power to suspend the general law, the judge's discretion being the only rule for his conduct.

he may be reviewed, we ask how are we to inaugurate the proceedings of review?

Nothing has happened at the trial to show an improper exercise of discretion, and therefore no record of the trial can put him in error. Then the question must arise on motion for new trial, supported by affidavits or other testimony of witnesses with counter testimony, which would make the trial in this court a departure from the trial in the inferior court, the only question here being, Was the discretion properly exercised?-in which it would often be attempted to inquire into and impugn the motive of the judge.

It is the duty of the Legislature to make the law, and of the courts to enforce. The Legislature cannot say to the courts: "You may enforce the law or not in your discretion, or you may suspend it or not in your discretion."

The general law remaining, it must be enforced in all cases, unless the judge shall by this statute be permitted to say, "I suspend it.' When he makes the order on his minutes to that end, he has performed a legislative and not a judicial act; an act the law has not commanded; an act that was not the law until he saw proper to declare it so; an act that he may do and undo at will. He may disperse the jury to-day, and put the same jury under rule tomorrow. He is bound to no rule of action, and accountable to no one for his actions. He is a legislative and a judicial compoundsomething not recognized in our institutions.

If this had been a general law, authorizing the court to disperse juries in the character of cases mentioned, except upon cause shown for the rule, or even without qualification, the question would have been different.

Other objections taken to action of the court are not sustained.

The statute before us permits the judge to have one rule in one case, and the opposite rule in another case, in the same county, and at the same term of the court. Under it he may have a discretion to be exercised in one county, and the reverse of that discretion in another county. The statute being unconstitutional, it was There is nothing in the Act defining, control error to permit the jury to disperse, and the ling or limiting that discretion. He is not re-judgment is reversed. quired to give or have a reason for its exercise the one way or the other; and therefore, when he says the jury in this criminal case may disperse, and the jury in that criminal case shall go, under the rule, the question is settled. Whether be is influenced in the one case by personal con

Dollie J. WEEKS, Appt.,

V.

siderations for one or more of the jury, or in W. H. RUSSELL, Admr. of Stewart Mays,

the other by motives of public policy, can make no difference. He is the sole judge of the question, and his reasons are his own; and there is no authority anywhere to inquire into

them.

The statute is a broad conference of legislative power to abolish, suspend, modify or enforce a general law. Acting under the authority of this statute, we will necessarily have different rules in different circuits, and in different counties of the same circuit.

Deceased, et al.

(....Lea....)

An action for breach of contract of marriage necessarily tenders an issue as to the plaintiff's character, and is within the exception of Mill. & V. Tenn. Code, § 3560, which provides that actions shall not abate by the death of either party, except actions "for wrongs affecting the character of the plaintiff."

(February 28, 1889.J

ant.

Wherever the testator is bound by covenant the

death; but if it is to be performed by the person of

A statute that cannot be reduced to a general rule, to operate in all parts of the State alike, is not a general law. To make a general law, NOTE.-Abatement of action by death of defendit must be so drawn as to be susceptible of one construction as applicable to the entire State. The discretion, as already said, is for the judge alone. His determination is the law of the particular case in which he has exercised it, and is not subject to review or revision. The inducement to his action is his individual secret. Suppose, however, it shall be conceded that

executor is bound, if it be not determined by the the testator the executor cannot perform it. Bacon, Abr. title, Executors, p. 1.

The right to recover damages in such a suit is not a debt (Ex parte Charles, 14 East, 198); and a conveyance to defeat recovery would not be fraudu

See also 20 L. R. A. 851; 33 L. R. A. 110.

lent and void. Lewkner v. Freeman, Prec. in Ch. | v. Nottle, 1 Maule & S. 355; Lacy v. Levington, 2 Lev. 105: 1 Eq. Cas. Abr. 149. 26; 1 Vent. 176.