was

city, and that the conductors, brakemen, and trainmen and agent of defendant at its depot in Brownsville had knowledge of such practices and habit of the plaintiff and other boys, and that the said conductors, agents, or brakemen, or other employes of the defendant, willingly permitted and encouraged the plaintiff to so ride on and jump on and off of such moving trains, and that the agent or assistant agent of defendant and the conductor of the freight train by which plaintiff was hurt knew that plaintiff was at the depot or in the yards of defendant, or near the train, ready and likely to try to jump on said train when it might be put in motion, and that said train was so put in motion and moved off, and that plaintiff was hurt by being thrown under the wheels thereof while swinging to one of the freightcars or while running along by one of said cars endeavoring to swing on the same, and that no effort or precaution taken by said conductor or said assistant agent of defendant possessing such knowledge as aforesaid, then, in that event, I charge you, the plaintiff would be entitled to a verdict for some damages against the defendant; and, if you find such to be the facts, you should return a verdict for the plaintiff.' It is stated that the bill of exceptions is to the judgment of the court in overruling the objections to the admission of testimony, and also in overruling the motion for new trial, and in arrest of judgment. It does not appear that the court was asked to instruct the jury, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish; and it is evident, from the extracts above given from the charge of the court, that the trial judge must have been of opinion that a verdict for the plaintiff could be sustained upon some view that might be properly taken.

The railroad company assigned 13 errors in the supreme court of the state as grounds for the reversal of the judgment of the circuit court. Nearly all of these questioned the rulings of the court in relation to the admission of*testimony, and in different parts of the charge. The first error assigned was in permitting, under the pleadings, the plaintiff below to make proof of boys besides himself, "at other times prior to the one when plaintiff below was injured, swinging to trains of defendant below other than the freight train which ran over and injured him." The second error was as follows: "Because the proof introduced in accordance with the pleadings wholly fails to show that defendant below was guilty of any negligence whatever in running its freight train as alleged, at the time and place alleged, over the plaintiff below, but, on the contrary, shows that plaintiff's injury was the result of his own gross negligence. This second error, therefore, rested on essentially the same ground as the first, in that it claimed there was a failure of proof, if the evidence were confined to that contended to be alone admissible under the pleadings. The thirteenth error reads thus: "Because, from the uncontroverted facts in the record, the verdict should have been for defendant.

The assignment nowhere specifically alleged that the circuit court erred, as matter of law, in the entry of judgment, because there was no evidence to go to the jury, nor is there any allusion to the statute hereafter referred to. The supreme court of Tennessee affirmed the judgment in these words: "This cause was heard upon the transcript of the record from the circuit court of Haywood county, and the court adjudges that there is no evidence to support the verdict of the jury, but the defendant having obtained three verdicts of separate juries upon different trials, two of which have been heretofore set aside by the circuit judge; and now, alone upon this ground, the statute of Tennessee forbidding the granting of more than two new trials in the same cause on the facts, which statute is not in conflict with the constitution of the United States, fifth and fourteenth amendments, it is considered by this court that said judgment be affirmed, and that defendant in error, Eddie Woodson, by W. H. Lea, as next friend, recover of the plaintiff in error, the Louisville and Nashville Railroad Company, the sum of three thousand dollars, ($3,000,) amount of judgment of court below, and the costs of said court," etc. "A writ of error was sued out from this court upon the ground that the validity of a statute of the state of Tennessee was drawn in question as being repugnant to the fourteenth amendment to the constitution of the United States, and that the decision was in favor of its validity. A motion is now made to dismiss the writ of error, and with it is united a motion to affirm the judgment.

In each of the constitutions of the state of Tennessee of 1796, 1834, and 1870, it is declared that "the right of trial by jury shall remain inviolate," and also that "judges shall not charge juries with respect to matters of fact, but may state the testimony, and declare the law." Const. 1796, art. 11, § 6; article 5, § 5; 1834, art. 1, § 6; article 6, § 9; 1870, art. 1, § 6; article 6, § 9. The purpose of this latter provision was stated in Ivey v. Hodges, 4 Humph. 155, to be to put a stop to the practice, in summing up, of "telling the jury, not what was deposed to, but what was proved." In Claxton v. State, 2 Humph. 181, it was held that where the court charged the jury that, if they should find a special verdict which presented the testimony of one of the witnesses as the facts of the case, he should declare it a case of manslaughter, "this charge announced a conclusion of law upon a hypothetical state of facts, and did not trench upon the constitutional rights of the defendant. And so, in Williams v. Norwood, 2 Yerg. 329, the court decided that "a party has a right to the opinion of the court, distinctly as to the law, whether certain facts constitute probable cause or not, if the jury believe the facts as stated were proved." Since 1801 there has been upon the statute-book of the state of Tennessee the following provision: "Not more than two new trials shall be granted to the same party in any action at law, or upon the trial by jury of an issue of fact in equity.' Acts 1801, c. 6, § 59, (Laws Tenn. 1831, p. 229;) Code 1858, § 3122, p. 590;

810.

66

Code Tenn. 1884, § 3835, p. 735. In Trott v. West, 10 Yerg. 499, 500, (1837,) the supreme court of Tennessee says that this statute means that where the facts of the case have been fairly left to the jury upon a proper charge of the court, and they have twice found a verdict for the same party, each of which having been set aside by the court, if the same party obtain another verdict, in like manner, it shall not be disturbed. But this act did not intend to prevent the court granting new trials for error in the charge of the court to the jury; for error in the adinission of, or rejection of, testimony; for misconduct of the jury, and the like." Turner v. Ross, 1 Humph. 16, (1839;) Railroad Co. v. Hackney, 1 Head, 170, (1858.) In Iron Co. v. Dobson, 15 Lea, 409, 416, (1885,) it is said that "this court has uniformly held that the statute was intended to limit the power of the courts over the findings of fact by the jury upon regular proceedings and a correct charge. If the court, in the same case, has set aside, upon the motion of the same party, the verdicts of two juries, upon the ground that the evidence is not sufficient to sustain them, the power of the court is at an end to grant another new trial to the same party upon the facts or merits. The statute does not prevent the granting of new trials for errors committed by the court, or for improper conduct which may vitiate the verdict. Wilson v. Greer, 7 Humph. 513. In Tate v. Gray, 4 Sneed, 594, it was held that it is the duty of the circuit judge “to grant a new trial in all cases where he believes the preponderance of the proof is decidedly against the finding;" and that, “although, by the theory of our system, the jury are the proper and exclusive triers of the facts, yet the law requires the circuit judge, who is presumed to have more practice and skill in the investigation of truth to set aside their verdicts whenever, in his opinion, they have disregarded or misconceived the force of proof, that a new trial may be had.

From these decisions it is clear that in Tennessee, as elsewhere, although the jury are the judges of the facts, yet the judge has power to set aside the verdict when, in his judgment, it is against the weight of the evidence, but that that supervisory power cannot be exercised under the statute when the triers of the facts have three times determined them the same way. This manifestly refers to a state of case where, in the opinion of the judge, the verdict should have been otherwise than as rendered, because of the insufficiency of the evidence to sustain it, but not to a case where there is no evidence at all. It is the settled law of this court that "when the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside," the court is not bound to submit the case to the jury, but may direct a verdict for the defendant, (Randall v. Railroad Co., 109 U. S. 478, 482, 3 Sup. Ct. Rep. 322; Gunther v. Insurance Co., 134 U. S.-, ante, 448;) while, on the other hand, the case should be left to the jury unless the conclusion follows,

as matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Dunlap v. Railroad Co., 130 U. S. 649, 652, 9 Sup. Ct. Rep. 647. In such case the practice of a demurrer to the evidence can be resorted to, or a motion to exclude the evidence from the jury, or to instruct them that the plaintiff cannot recover, which motions are in the nature of demurrers to evidence, though less technical, and have in many of the states superseded the ancient practice of a demurrer to evidence. Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359. Such a motion, like the demurrer to evidence, admits not only what the testimony proves, but what it tends to prove. The ultimate facts, in other words, are admitted. In Bacon v. Parker, 2 Overt. 57, it was decided that an involuntary nonsuit could not be ordered, but a demurrer to evidence was allowed in Bedford v. Ingram, 5 Hayw. (Tenn.) 155; and it must be that, as the duty devolves upon the judge "to declare the law," he may be requested, in some form, to advise the jury that the plaintiff cannot recover, when that is the conclusion of law arising upon the record, and should do so, though not specifically directed. It is true that it was held in Kirtland v. Montgomery, 1 Swan, 452, that it was error for the trial judge to assume to answer both the questions of law and the questions of fact involved in that case, which was one, however, in which there was evidence raising questions of fact to be determined; and in Ayres v. Moulton, 5 Cold. 154, it was held error in the circuit judge to charge the jury that, from the facts as proven, the plaintiffs were "entitled to recover of the defendant the sum sued for,' because" the facts to be deduced from the evidence must be left exclusively to the jury." But that, also, was a case where it evidently did not follow from the ultimate facts that the plaintiffs were entitled as matter of law, to recover as stated. To the same effect is Case v. Williams, 2 Cold. 239, where it was ruled that if the charge of the trial judge“ be equivalent to a determination of the facts involved a new trial will be granted." This is and must be so whenever there are deductions of fact to be drawn by the jury; but where that is not the case, although a direct instruction to return a verdict for the defendant may not be in accordance with the practice in Tennessee, yet the decisions show that the question whether a recovery can be had at all or not can be presented in some appropriate form in that state. Thus, in Whirley v. Whiteman, 1 Head, 616, it is said: “In trials by jury the court is to decide questions of law; and the jury, questions of fact. What are called mixed questions,' consisting of both law and fact as questions in respect to the degree of care, skill, diligence, etc., required by law, in particular cases are to be submitted to the jury, under proper instructions from the court as to the rules and principles of law by which they are to be governed in their determination of the case. The truth of the facts and circumstances offered in evidence in support of the allegations on the record must be determined by the jury. But it is

623

for the court to decide whether or not those facts and circumstances, if found by the jury to be true, are sufficient in point of law to maintain the allegations in the pleadings. And this must be done in one of two modes: Either the court must inform the jury, hypothetically, whether or not the facts which the evidence tends to prove will, if established in the opinion of the jury, satisfy the allegations; or the jury must find the facts specially, and then the court will apply the law, and pronounce whether or not the facts so found are sufficient to support the averments of the parties. 1 Starkie, Ev. 447. The principles of law by which the jury must be governed in finding a verdict cannot be left to their arbitrary determination. The rights of parties must be decided according to the established law of the land as declared by the legislature, or expounded by the courts, and not according to what the jury, in their own opinion, may suppose the law is, or ought to be; otherwise the law would be as fluctuating and uncertain as the diverse views and opinions of different juries in regard to it." Gas Co. v. Williamson, 9 Heisk. 314, 341; Gregory v. Underhill, 6 Lea, 211. Tested by this rule, whenever the statute is applied, it must be upon the assumption that, although the court would have found a different verdict because of the weakness of the evidence, yet there was some evidence tending to establish the cause of action. Courts rarely grant a new trial after two verdicts upon the facts in favor of the same party, except for error of law; and the statute, in the interest of the termination of litigation, makes that imperative which would otherwise be discretionary. For decisions under similar statutory provisions see Silsbe v. Lucas, 53 Ill.479; Railroad Co. v. Patterson, 93 Ill. 290; Carmichael v. Geary, 27 Ind. 362; Boyce v. Smith's Adm'r, 16 Mo. 317; Wildy v. Bonney's Lessee, 35 Miss. 77; Rains v. Hood, 23 Tex. 555; Watterson v. Moore, 23 W. Va. 404. We can perceive nothing in the statute thus applied which amounts to an arbitrary deprivation of the rights of the citizen, and concur with the supreme court of Tennessee that this act, which had been in force for more than 60 years before the adoption of the fourteenth amendment1 was not invalidated by it, while the fifth amendment had no application whatever.

The statement in the judgment of affirmance is that" the court adjudges that there is no evidence to support the verdict of the jury," and if this were taken literally it would follow that no recovery could be had, as matter of law; and we therefore suppose that the language used indicates simply the opinion of the court that the jury ought not to have found the verdict that they did, and that the judgment of the court below refusing to grant a new trial upon the facts would have been reversed but for the existence of the statute, which made it error to award it. Iron

1 Const. U. S. Amend. 14, provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any perof life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Co. v. Dobson, 15 Lea, 409, 418. Assuming that the validity of the statute was drawn in question, yet there was clearly color for the motion to dismiss, and the case may be disposed of upon the motion to affirm. That motion is sustained, and the judg ment is accordingly affirmed.

LEE V. SIMPSON.2

(April 7, 1890.) POWERS-EXECUTION.

*

(134 U. S. 572)

Testatrix bequeathed property to her daughter for life, and provided that "my daughter A. is hereby authorized and empowered by her last will and testament, duly executed by her, to dispose of this bequest * * " as she pleases. The daughter in her will recited "Whereas, I am entitled to legacies under the last will of my deceased mother, and to a distributive share in the several estates of my deceased sister, * and my brother, * and, notwithstanding my coverture, have full testamentary power to dispose of the same," and devised "the entire property and estate to which I am now in any wise entitled, or which I may hereafter acquire, of whatever the same may consist, to my beloved husband." Held, that this was a valid execution of the power given by the mother's will.

Appeal from the circuit court of the United States for the district of South Carolina.

Le Roy F. Youmans, J. P. Carey, and A. C. King, for appellant. Augustin T. Smythe, Joseph H. Earle, and James L. Orr, for appellee.

BLATCHFORD, J.* This is an appeal from a decree of the circuit court of the United States for the district of South Carolina, dismissing the bill of complaint of Isabella Lee, an infant, by her next friend, Gideon Lee, against Richard W. Simpson. The following are the material facts involved in the case: On May 13, 1854, Mrs. Floride Calhoun was seised and possessed of the tract of land situate in that part of Pickens district which is now Oconee county, in the state of South Carolina, on the east side of the Seneca river, known as the "Fort Hill Place," containing 1,110 acres, more or less, and on that day she and her daughter Cornelia M. Calhoun sold and conveyed that tract of land, together with certain personal property, to Andrew P. Calhoun, for the sum of $49,000, Cornelia M. Calhoun having no interest in the real estate. Andrew P. Calhoun executed his bond under seal to Mrs. Calhoun and Cornelia, conditioned for the payment of $40,200 to Mrs. Floride Calhoun, and the remaining $8,800 to Cornelia, and, to secure the payment of the bond representing the purchase money, and as a part of the same transaction, at the same time executed and delivered to Mrs. Calhoun and Cornelia separate mortgages of the same tract of land and of the personal property, to secure the payment of the sums of money mentioned in the bond. On the 27th of June, 1863, Mrs. Calhoun made her last will and testament, whereby, among other things, she devised and bequeathed as follows: '(2) To my daughter Anna Maria, wife of Thomas G. Clemson, of Maryland, I give, devise, and bequeath, during

Affirming 39 Fed. Rep. 255.

*574

two hundred dollars, I hereby give and bequeath to my daughter Anna M. Clemson, to be enjoyed by her under clause twenty of the will, and according to the provisions of that clause to vest in the same trustee, and to be subject to all the powers, trusts, conditions, and limitations of that clause, precisely as the bequests therein made were subject to them, with this exception and alteration: that my daughter Anna is hereby authorized and empowered, by a last will and testament duly executed by her, to dispose of this bequest of three-fourths of said bond and mortgage debt as she pleases. If she does not thus dispose of it at her death, I give and bequeath it, the said threefourths, to her daughter, Floride, and, | should the said Floride die without leaving issue, I give and bequeath it at her death to her brother, Calhoun Clemson; but, nevertheless, Floride shall likewise have power to dispose of it at her death as she pleases, by a last will and testament duly executed by her. By clause second of the will I gave the furniture and every article of the property in my house in Peudleton and upon the premises, with certain reservations, and also my jewelry and some other small articles, to my daughter Anna. I now confirm to her the bequests of aforesaid furniture and all other personal property embraced in said second clause, which it is my will that she shall enjoy for life as her sole and separate estate, and at her death I give and bequeath all this personal property to her daughter, Floride, absolutely. To Anna I also give and bequeath the oil portrait of my mother, which by clause fifth of my will I gave to my daughter-in-law Kate. (3) The remaining one-fourth part of my interest in said bond and mortgage debt against the estate of my deceased son Andrew I give and bequeath to Floride Elizabeth Clemson, my granddaughter; but if she dies without leaving issue, I give and bequeath it to her brother, John Calhoun Clemson. She, nevertheless, is hereby authorized and empowered to dispose of said fourth part as she pleases, by her last will and testament duly executed. (4) Should my granddaughter Floride's death occur before mine, what I have given her in the will and codicil shall not fall into the residuum of my estate, but I give and bequeath it to her mother, my daughter Anna, who shall take it subject to all the trusts, powers, and limitations imposed upon the direct bequest to her; and should my daughter Anna's death occur before mine, what I have given her in the several clauses of the will and codicil shall not fall into the residuum of my estate, but I give and bequeath the same to her daughter, Floride, who shall take and enjoy it as her mother would have done if living, subject to the same trusts, powers, limitations, and conditions; and should both Anna and Floride die before me, what has been given them in the several clauses of the will and codicil shall not fall into the said residuum, but I give and bequeath the whole to my grandson John Calhoun Clemson. (5) Should I at any time col lect the aforesaid bond and mortgage debt, or any part of it, or should Fort

Hill be purchased with it, or the money be invested in any other property, or be retained in hand, the property thus purchased, the property thus obtained by investment, and the money thus retained shall be considered and held to be in the place of, and the same as, the aforesaid bond and mortgage, and shall pass under this codicil as if the same were still in the form of said bond and mortgage; that is to say, shall pass to my daughter Anna and granddaughter Floride, as aforesaid bond and mortgage debt is directed to be divided between them.

On the 12th of March, 1866, Mrs. Floride Calhoun, and Thomas G. Clemson, (to whom letters of administration had been granted in February, 1866, on the personal estate of Cornelia M. Calhoun, who had departed this life intestate and unmarried in that year,) as administrator of the personal estate of Cornelia, exhibited their bill in the court of equity for the district of Pickens, state of South Carolina, against Andrew P. Calhoun and others, for the foreclosure of the mortgage on the tract of land known as the "Fort Hill Place," executed to secure payment of the bond aforesaid, and for the sale of the land for that purpose, and at the July term, 1866, of the court a decree was made, whereby it was adjudged that the mortgage be foreclosed and the land sold, which decree, on appeal, was affirmed by the supreme court of the state of South Carolina, and the cause remanded to the circuit court for further proceedings in accordance therewith. During the pendency of that suit, and on the 25th of July, 1866, Mrs. Floride Calhoun departed this life, leaving in full force her last will and testament, as modified by the codicil*aforesaid; and thereafter, on the* 7th of August, 1866, her last will and testament, and the codicil thereto, were duly admitted to probate, and Edward Noble, one of the persons mentioned as executors therein, duly qualified as such on the same day. In August, 1869, Floride E. Clemson intermarried with Gideon Lee, of the state of New York, and the plaintiff, Isabella Lee, is the only child of such marriage; and on the 27th of August, 1871, the said Floride E. Lee, formerly Clemson, died intestate, leaving surviving her, as her sole heirs at law and distributees, her husband, Gideon Lee, and her daughter, Isabella Lee, the plaintiff. On the 29th of September, 1871, Mrs. Anna C. Clemson made her last will and testament, as follows: "In the name of God, amen. Whereas, I am entitled to legacies under the last will of my deceased mother, Floride Calhoun, and to a distributive share in the several estates of my deceased sister, Cornelia CalLoun, and my brother, Patrick Calhoun, and, notwithstanding my coverture, have full testamentary power to dispose of the same: Now I, Anna Calhoun Clemson, the the wife of Thomas G. Clemson, of the town of Pendleton, in the county of Anderson and state aforesaid, being of sound and disposing mind, memory, and understanding, do make this my last will and testament in manner following: I will, devise, and bequeath the entire property and estate to which I am now in any wise entitled, and which I may hereafter acquire,