The opinion originally delivered in this case November 24, 1891, and published in 17 S. W. Rep. 740, is withdrawn.

R. N. Halland and J. T. Simon, for appellant. Leslie T. Applegate and John H. Barker, for appellees.

HAZELRIGG, J. While a contract between a married woman and another may not be enforced specifically, yet not even a married woman may so conduct herself as to defraud another and escape responsi bility if, in the nature of things, reparation can be made. She will not be allowed to take advantage of her own wrong, and will be estopped from interposing her inability to contract, in bar of the consequences of her own fraud. In this case, Mrs. Moore, in conjunction with her husband, sold and covenanted to convey her land to J. C. Lowe. She received $25 of the purchase money, accepted and sold the notes for the remaining purchase price of her land. She put the purchaser in possession, and then refused to convey. Upon this state of case, her land-the subjectmatter of her attempted contract-may be subjected to the payment of the sum paid by Lowe, the purchaser; also to the sum paid by Newman for the notes of Lowe, who refuses to pay them only because he can get no title to the land. It is contended by Newman that he should recover the full face value of the notes, and so should he, if he paid that for them. The measure of recovery is the extent to which he is actually injured or damaged. He must be made whole; reimbursed to the extent of his loss. Mrs. Moore's liability arises, not by reason of the contract of assignment and sale of the notes, but out of the equity fixing her responsibility at a price equal to that expended by the victim of her fraud. Any other criterion of damage would amount to the specific enforcement of a void contract. She insists, however, that she was not summoned on the cross petition of Newman, and that he is therefore not entitled to any relief against her; but she filed exceptions in open court to the commissioner's report fixing the amount coming to New. man, which were sustained by the court, and, as she thus took part in the trial, and by her exceptions combated the claim set up in Newman's action, she cannot be allowed to say that she was not in court. She cannot appear in court, and attempt to defeat the purpose sought to be effected by the cross petition, and yet shelter herself behind the plea that she has not been summoned. We think she thereby entered her appearance. The judgment below fixing the amount due Lowe need not be disturbed save in so far as the accumulation of rents, if any, on the one side, and of interest on the other, may be taken into the account; but to the extent that Newman is denied relief it is erroneous. The issues attempted to be raised by the reply of Lowe are, so far as he is concerned, wholly immaterial, but on a return of the case, if Mrs. Moore desires to plead further, she may be allowed to do so, the object of further investigation being the ascertainment

of Newman's actual loss growing ont of his purchase of the Lowenotes. Wherefore the judgment below is reversed, with directions to allow the case to proceed in accordance with the principles herein announced.

ALLEN v. GOODWIN. (Supreme Court of Tennessee. March 11, 1893.) VICE PRINCIPAL-PERSONAL Negligence.

1. In an action against a master for personal injuries sustained by a servant owing to the negligence of the foreman while at work trimming a stone, the jury should be instructed to distinguish between the foreman's personal neg ligence and his negligence in a matter in which he stands in the place of the master, since the master is liable for the foreman's negligence only in regard to some duty to the inferior im posed by law upon the master, and by him intrusted to the superior servant.

2. The mere fact that one is employed as a foreman by a master, and points out the work to be done by a servant, does not constitute such foreman a vice principal, for whose negli gence the master is liable, but the question is whether he stands in place of the master.

3. The fact that a servant may not have known of the foreman's discharge, and that he continued to obey the foreman's orders as such, will not render the master liable for the foreman's negligence, but the foreman must have been in fact a vice principal, standing in place of the master.

Appeal from circuit court, Maury county; E. D. Patterson, Judge.

Action by J. D. Allen, by next friend, against Frank Goodwin, for personal injuries sustained while in defendant's employ. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Vorheis & Fowler and Sam Holding, for appellant. Fussell & Wilkes, for appellee.

WILKES, J. The plaintiff, a minor, by next friend, sued the defendant for damages for a physical injury received while in the defendant's employ. It is charged that the injury was the result of the negligence of one Gallagher, who, it is alleged, was foreman for defendant in the erection of certain United States arsenal buildings at Columbia, Tenn., in 1891. The case was tried before a jury, and verdict was given for $250 damages, upon which judgment was entered, and an appeal is prayed to this court by defendant. Many errors are assigned, but we deem it unnecessary to pass upon them all. The injury was inflicted under the following circumstances: Plaintiff was engaged in dressing a stone pilaster on the building, and was standing upon a platform about 20 feet from the ground. Gallagher was working above him, near the cornice, trimming a hole in the stoue, and fitting in the same a piece of pipe. This piece of the pipe, about two feet long and five inches in diameter, fell through the hole upon the plaintiff, striking him on the bridge of the nose, cutting through it, and extending downward, causing a permanent scar and disfigurement of the face.

Under the facts in this case, we think there is error in the court in not charging the jury properly and fully as to the dis

tinction between the personal negligence of Gallagher and his negligence in a matter in which he stood in the place of and represented the master, as his vice principal; in other words, between personal and official negligence. The mere fact that an injury results from the negligence of a servant, superior in rank to the injured serv. ant, does not render the master liable; but, in order to charge the master with such negligence, the superior servant must so far stand in the place of the master as to be charged in the particular matter with the performance of a duty towards the inferior servant which, under the law, the master owes the servant. Fox v. Sandford, 4 Sneed, 36; Railroad v. Elliott, 1 Cold. 611; Railroad v. Wheless, 10 Lea, 741; Railroad Co v. Rush, 15 Lea, 151; Railroad Co. v. Handman, 13 Lea, 423; Railroad Co. v. Lahr, 86 Tenn. 340, 6 S. W. Rep. 663; Mining Co. v. Davis, 90 Tenn. 711, 18 S. W. Rep. 387. In Mining Co. v. Davis, 90 Tenn. 718, 18 S. W. Rep. 387, this court said: "When there is proof tending to show negligence of a superior servant, whereby an inferior servant has been injured, the jury should be instructed that the mere superiority of grade or rank will not determine the liability of the common employer, but that they must look and see whether the negligence was in regard to some duty to the inferior inposed by law upon the master, and by the master intrusted to the negligent superior servant." It is true the defendant in this case did not ask for more specific instructions in regard to this distinction, so well recognized in the cases, but so difficult to apply, and ordinarily such failure would constitute a waiver and bar to assigning the same as error; but, on looking to the charge as a whole, we think it was calculated to mislead the jury into believing that if Gallagher was foreman for defend. ant, and pointed out to plaintiff the work to be done by him, therefore he was the vice principal, and the master would be liable for his acts of negligence. A foreman is one who takes the lead in the work, and may or may not have authority over his fellow workmen; and because he takes this lead and points out the work to be done, it does not necessarily follow that he stands in the place of the master. The case of Fox v. Sandford, 4 Sneed, 36, illustrates this distinction. In that case Sandford and Fox were both employed in the construction of a building, and Sandford was "foreman" of the job. The injury resulted from his negligence, but the court held the common master not liable, because Fox and Sandford were fellow servants, engaged in the same employment, under one master. It is well to note that in that case, although the master was not held liable, the foreman was so held. In Railroad Co. v. Rush, 15 Lea, 151, the court says: "Several servants of different grades, when employed in a common service, as an engineer and fireman, foreman of a job and common laborer, are fellow servants. The mere fact that the negligent servant is in his grade of employment superior to the servant injured does not render the master liable." The important point is not what name he

bears, but what authority does he have? The court also charged the jury that if the plaintiff had reasonable grounds to believe that Gallagher was foreman, and that he was obeying his orders as such, and that he had received no information that Gallagher had ceased to be foreman, then, for the purposes of the suit, he must be considered as foreman, even though, as matter of fact, he may have been discharged in the absence of plaintiff, and without his knowledge, and was not such foreman at the time the injury occurred. This also is error. Gallagher must not only have been "foreman" in fact at the time, but he must have been so in the sense of being a vice principal, and standing in the place of the master. For these rea sons the judgment is reversed, and cause remanded.

PALMER v. VAN WYCK et al. (Supreme Court of Tennessee. March 11, 1893.)

AWARD SUBMISSION-FAILURE TO FOLLOW.

1. Where the two arbitrators to whom has been referred the question of damages sustained by a vendee from a breach of covenant against incumbrances fail to agree on the amount, a third person called in by them, as empowered by the submission, is bound by a stipulation therein requiring the arbitrators to view the premises, and an award made without a view of the premises by the third person is not valid and binding.

2. When the person to whom the parties had submitted the legal question as to whether there had been a breach of the covenant and the measure of damages decides that there has been a breach, and that the vendee is entitled to damages according to certain rules laid down by him, an award of the arbitrators selected to determine the amount of damages, which ignores the rules so laid down, and finds that the vendee sustained no damages, must be set aside, as not in accord with the terms of the submission.

Appeal from chancery court, Davidson county; Andrew Allison, Chancellor.

Action by L. D. Palmer against A. Van Wyek and others, for breach of warranty in a deed of land, and to set aside an award. From a judgment for plaintiff, defendants appeal. Affirmed.

W. T. Tierly and W. D. Covington, for appellants. Jas. S. Pilcher and John M. Gant, for respondent.

BRIGHT, Special Judge. The defendants in this case, the Wilkins heirs, sold to complainant, L. D. Palmer, a piece of ground in Nashville, by deed, containing the usual covenants of warranty. The land was described in the deed by metes and bounds, the call of the east line being the middle of Spruce street, and of the north line the middle of an alley. For the purposes of a judicial sale, this and other land adjacent had been previously divided into lots, and the plan registered, and in this division the alley had been widened into a street called "Lee Avenue." At the time of the sale from defendants to complainant, it was not believed that as to this land anything had been done by the city of Nashville to consummate the ap

parent dedication of the streets and alleys. Such proved to be the fact as to all the numerous streets and alleys except Lee a venue, located on the north margin. As to this avenue, the city claimed that the dedication was complete, and, some months after the sale, began to improve it as a street. Complainant tiled a bill, and enjoined the city. The bill was dismissed by the chancellor, and his decree affirmed by this court. Complainant theu claimed that all of the covenants of warranty in the deed had been breached. In the mean time one or more of the purchase notes given for the land had matured, and were unpaid. Palmer claimed. that he was entitled to a credit on the first one to the amount of his damages for the breach of warranty. It was then agreed between the parties that the matters in controversy should be settled by arbitration. It was agreed that all matters of law should be submitted to Hon. W. K. McAlister, his decision to be conclusive, and that if he should decide that the warranty had been breached, and that said vendors were liable therefor, then the question of amount of damages should be settled by three disinterested citizens; that the arbitrators should view the premises, and, in accordance with the principles of law settled by Judge McAlister, determine whether Palmer was damaged, and, if so, how much, and that their decision should be final and conclusive; that, if against Palmer, it should forever estop him, and, if in bis favor, the amount of the award should be credited on his note or notes. Judge McAlister decided that Palmer, by his deed, obtained the fee to the land in controversy subject to the easement, and, therefore, that there had been no breach of any of the covenants, except the one against incumbrances. Judge Whitworth and Lewis T. Baxter were selected as arbitrators, they to select a third arbitrator in case of disagreement, who was to act with them in reaching a conclusion. They failed to agree, and selected H. E. Jones, as the third man. On October 7, 1889, an award was rendered to the effect that there was no damage, but, as it had been decided by Judge McAlister that there was a breach of the warranty, defendants should pay the cost of the arbitration, which they fixed at $75. Defendants paid the $75. Complainant promised generally to pay his notes, and subsequently made two separate promises that, if certain liens were released, he would pay the first and second notes at once, and the third as soon as he could arrange to do so. In both instances the liens were released. He then filed this bill; alleges that the decision of Baxter, Whitworth, and Jones is null and void; and asks that the court render a decree in his favor for $4,500, damages for breach of warranty. For the claim that the award is a nullity, four distinet grounds are laid, viz.: (1) That said aroitrators ignored Judge McAlister's decision, in that they decided that Palmer sustained no damages, whereas, Judge McAlister decided that he was entitled to some substantial damages; (2) that they ignored his decision, in that they considered incidental benefits to the remaining |

property of complainant, resulting from the street in question; (3) that the third arbitrator, Jones, failed to confer with the other two before rendering a decision; (4) that Jones did not view the premises, but examined several real-estate agents in the absence of the other two arbitrators, and in the absence and without the knowledge or consent of the complainant, and based his opinion and decision on the information thus derived. Defendants, in the answer, relied on the award; denied that Judge McAlister's decision had been violated; denied that the rule of damages laid down by him had been violated; that it was not true, in fact, that the award was made without a conference between Jones and the other arbitrators; that they did meet and confer and made the award, all signing same. Defendants further relied on Palmer's acquiescence in award; that Palmer was by his various acts, doings, and promises now estopped from maintaining the bill. Defendants deny that complainant had sustained any damages. Answer alleges that Palmer had ratified the award. The chancellor decreed that the award was void, and same be set aside and for naught held, and referred the case to the master to take proof and report the value of the land, with and without the easement, and the difference, if any, he should report as the damages. The master reported complainant's damage to be $3,500. Upon excep. tions by defendants, the chancellor reduced the amount to $2,500, and allowed damages for $2,500 to be credited upon defend. ants' decree on the note. He decreed in defendants' favor on cross bill for the note and interest $11.237, less the damages, leaving balance $7,932, and defendants appealed and assigned errors. There is one further fact that should be stated. deed was prepared and tendered Palmer to the land, which was refused by him, because reference was made in it to a subdivision of the property, which had been registered in 1884, which subdivision had an avenue or street 40 feet wide on its northern boundary, Palmer saying that he had contracted to buy upon the assurance that an alley, and not a street, bounded the property on the north, and that he had conceived a subdivision on that assurance, and would not conclude his purchase unless it was true. Gaut, the agent of defendants, told him the city bad no claim or right to a street across the property, but that he would write another deed, making no reference to the registered plan of 1884, which he did, and same was accepted by Palmer.

A

The first question presented in the record is, shall or not the award of the arbitrators be set aside? The article or agreement of arbitration between the parties stated, among other things, that "whereas L. D. Palmer insists that the said strip of ground was included in said conveyance and warranty, and that the existence of said easement constitutes a breach of his warranty, and that he is damaged thereby;" and, as we have seen, “all matters of law in controversy between the parties shall be submitted to the arbitrament and award of the Hon. W. K. McAlister,

of Nashville, Tenn., and that his decision thereon shall be final and conclusive upon the parties hereto." It. was further agreed that should Judge McAlister decide that said warranties or warranty had been breached, and that said vendors are liable therefor, then the question of the amount of damages sustained by said Palmer shall be submitted to the arbitrament and award of three disinterested citizens, to be chosen by said Palmer and by John M. Gant, (representing said devisees,) in such manner as they should see fit. Said arbitrators shall view the prem· ises, and, in accordance with the principles of law settled by Judge McAlister, shall determine whether or not said Palmer has been damaged, and, if so, to what amount; their decision to be final and conclusive between the parties. Judge McAlister decided that the warranty against incumbrances had been breached. He laid down the "rule of damages to be the difference between the value of the lot without the easement of this street and the value with the easement, as an incumbrance thereon, considering, of course, its continuance and permanency in determining the market value of the land at the date of sale, any special use which the purchaser may intend to make of it, is not to measure his damages, either to increase or diminish his damages, but all the uses and capabilities of the property may be considered. Upon this basis the referees will assess the damages. By agreement, in writing, Judge James Whitworth and Lewis T. Baxter were selected by the parties to assess the damages sustained by Palmer for the breach of the covenant against incumbrances, so decided by Judge McAlister; and under the rules for the measure of damages laid down by him, in case they should fail to agree, Whitworth and Baxter were authorized to select a third arbitrator to act with them in reaching a conclusion. It was expressly stipulated in this agreement, selecting Whitworth and Baxter, that they should view the premises, and settle the question of damages as Judge McAlister had declared. Whitworth and Baxter failed to agree, and, under the agreement of arbitration, selected one H. E. Jones as the third arbitrator. Jones did not view the premises alone or with Whitworth and Baxter, but says he was well acquainted with the premises. Whitworth and Baxter submitted all the papers to Jones, who rendered a written opinion in the matter, in which he says that "the arbitrators Whitworth and Baxter have disagreed on the question as to whether the value of the land sold by the Wilkins heirs to L. D. Palmer, calling for a frontage along the middle of Spruce street 272 feet to a point opposite the middle of an alley, and thence along the middie of said alley to the Chattanooga & St. Louis R. R., a distance of about 900 or 1,000 feet, is diminished by the presence of a street known as 'Lee Avenue,' as shown on the plan presented, occupying with the alley referred to a space of 40 feet along the northern side of the ground.' Jones says this was the only question referred to him as referee, and decides that

the property was worth more with Lee avenue opened than without it. The arbitrators, Whitworth, Baxter, and Jones, made the following award, in writing: "The court having decided that there was a breach of the covenant against incumbrances, and the referee concurring with one of the arbitrators that there is no damage to the property by reason of the existence of a street on the northern side of the property, we are all of the opinion, by reason of the decision of Judge McAlister, that there was a breach of the covenant, and therefore all the costs of this suit and of the arbitrtators shall be paid by the Wilkins heirs. The arbitrators state that they consider a fee of $25 each

a

reasonable fee, and that the same amount, viz. $25, should be paid to the referee. [Signed] James Whitworth. Lewis T. Baxte.. H. E. Jones, Referee. Jones, as we have seen, did not view the property with the other arbitrators or alone. The agreement of arbitration, as we have seen, expressly stipulated that the arbitrators should view the premises. This included the third arbitrator, as well as the two first selected, for the obvious reason that he should act in conformity with the agreement of arbitration as the two first selected. All the arbitrators must act together during the proceedings. Morse, Arb. p. 152. The same rule obtains where a third arbitrator is called in. Id. 158. An award, to be valid, must strictly conform to the terms of the submission. Mays v. Myatt, 3 Baxt. 309; Toomey v. Nichols, 6 Heisk. 162. Now, Jones says the only question submitted to him was whether or not the value of the lot was diminished by the presence of a street known as "Lee Avenue." He deciding it was not, and one of the other arbitrators agreeing with him, the award was made. The article of submission provided that, should Judge McAlister decide that the covenants of warranty or warranties were breached, then they should select arbitrators, who should view the premises, and, in accordance with the law as settled by Judge McAlister, determine whether or not said Palmer had been damaged, and, if so, how much. Judge McAlister did decide that there was a breach of the covenant against incumbrances, and fixed the rule for the assessment of damages of Palmer. The arbitrators say in their award that Judge McAlister decides that there was a breach of the covenant against incumbrances, but give Palmer no damages, not even nominal damages. The arbitrators did not pursue the submission to them. They ignored the finding and decision of Judge McAlister, in this: the arbitrators found that Palmer sustained no damages, whereas Judge McAlister decided that, upon the breach of covenant against incumbrances, he was entitled to damages. They also failed to pursue the submission, in this: that they ignored Judge McAlister's decision, and considered incidental benefits to the remaining property of complainant resulting from the street in question, instead of considering all the “uses and capabilities" of the property as laid down by Judge McAlister. They also failed to

follow the submission, in Jones, one of the arbitrators, not viewing the premises. The award was properly set aside by the chancellor.

The defendants insist that complainant had acquiesced in the award, and thereby ratified same, and also invoked the doctrine of equitable estoppel. Neither the proof, nor the acts and doings of complainant, sustain this defense. The proof in the cause shows the damages sustained by complainant; and the report of the master, so far as sustained by the chancellor, has the weight of the finding of a jury. Brown v. Dailey, 85 Tenn. 218, 1 S. W. Rep. 884; Turley v. Turley, 85 Tenn. 251, 1 S. W. Rep. 891. The proof fully sustains the report of the master as confirmed by the chancellor. The decree of the chancellor is correct, and is affirmed, with costs.

1. It is not error, on trial of an indictment for seduction committed prior to the taking effect of the act permitting the seduced female to testify, to admit the evidence of such female, since such act does not require less evidence to convict, and hence is not ex post facto.

2. The evidence showed that for four years past the reputation of prosecutrix for chastity was bad; that before defendant's promise of marriage was made, under which she claimed to have been seduced, she was generous and promiscuous in her favors, and specific acts were proved. Held, that it was error to instruct the jury that if defendant and prosecutrix were well acquainted, and defendant, knowing her character in the community, promised to marry prosecutrix, and seduced her by virtue of such promise, he cannot avail himself of her want of chastity as a defense.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Alex Mrous was convicted of the seduction of Tina Gorzell under promise of marriage, and appeals. Reversed.

Jay Minter and Geo. C. Altgelt, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J. Appellant was convicted of the seduction, under promise of marriage, of one Tina Gorzell, and sentenced to a fine of $2,000, from which he appeals to this count.

1. Appellant complains that the court erred in permitting the prosecutrix to testify, because the crime, if any, occurred before the 14th of July, 1891, at which time the act took effect permitting the seduced female to testify, and the action of the court above stated was retroactive and ex post facto in its nature, in violation of the constitution. Of course it is not contended that the crime itself is thereby changed or aggravated, or a greater pun

ishment inflicted. The only ground upon which the objection is based is that it required less evidence to convict by permitting the seduced woman to testify. If this is true, it would be ex post facto. Calder v. Bull, 3 Dall. 389; Murray v. State, 1 Tex. App. 428; Holt v. State, 2 Tex. 363; Dawson v. State, 6 Tex. 347. It is certainly difficult to understand how opening new sources of light, or increasing the means of proving or detecting crime, can be said to require less evidence, or become ex post facto. In Hopt v. Utah, 110 U. S. 574,1 the supreme court of the United States declared a statute which enlarges the class of persons who may be competent as witnesses not ex post facto in its application to offenses previously committed. It does not attach criminality to any act previously done, aggravate past crimes, or increase punishment therefor; nor does it alter the degree or lessen the amount or measure of the proof necessary for conviction. Removing restrictions upon the competency of certain classes of persons as witnesses relates to modes of procedure only, in which no one can be said to have a vested right, and which the state, on grounds of public policy, may regulate at pleasure. Laughlin v. Com., 13 Bush, 261. The objection is not well taken.

2. The appellant objects to the charge of the court to the effect that, if the jury believe that defendant and Tina Gorzell were well acquainted with each other, and the defendant, knowing the character of the said Tina Gorzell in the community, promised to marry her, and subsequently seduced her by virtue of said promise, he cannot now avail himself of the character of the woman for want of chastity as a defense. In Putman's Case, 29 Tex. App. 457, 16 S. W. Rep. 97, it seems to be held that under Pen. Code, art. 314, there must be three concurring facts to constitute the crime of seduction as punishable by law: (1) A promise to marry; (2) seduction; and (3) carnal knowledge. Whether or not there can be such a thing as seduction without carnal knowledge, as asserted in the opinion, we think it is clear there can be a promise to marry and carnal knowledge without seduction, and that is when a woman has already lost her virtue and reputation, and the promise of marriage only induces a change of lovers, whether the promisor knew it or not. The evidence shows that, for four years past, the reputation of the prosecutrix for chastity has been bad; that, before appellant's promise of marriage was made, she was generous and promiscuous in her favors; and specific acts were proved. If this testimony be true, appellant could not be guilty of seduction, whatever may have been his civil liability for breach of promise. Because the court erred in its charge as to the law, the judgment is reversed, and the cause remanded. Judges all present and concurring.

14 Sup. Ct. Rep. 202.