to the hands, as the value of its services were to some extent dependent upon the cost of the crew. Greasley v. Codling, supra. If the plaintiff during the period of detention had provided other means of transporting the cotton seed around the bridge to the mill above, the rule would have been the same as that applicable to detained passengers (Hansley v. Jamesville & W. R. Co. 115 N. C. st page 609, and authorities there cited), and the reasonable cost of carrying them by another route might have become an element of the damage assessed. In the case of Rose v. Miles, supra, Lord Ellenborough said: "He [the plaintiff] has been impeded in his progby the defendants wrongfully moving their barge across, and has been compelled to unload and to carry his goods over land, by which he has incurred expense, and that expense caused by the act of the defendants. If a man's time or his money are of any value, it seems to me that this plaintif has shown a particular damage." Bayley, J., said that the plaintiff had placed the defendant in a situation that he unavoidably must incur expense in order to carry his goods another way, while Dampier, J., said: property could plaintiff have in the fish in their wild state, before they ascended to the water flowing over his land? In animals fera naturæ a man may have a qualified property which continues only while they are in his possession or under his control; and so long they are under the protection of the law. But the defendant has the same extent of ownership in them, in virtue of which he might have caught them in his own waters, and thus have done an equal injury to the plaintiff's fishery." The cotton seed which the plaintiff was transporting up the river was its property, and was in a boat, which was private property, and was entitled, under the protection of the law, to pass over the high-ress way without obstruction and damage grow ing out of detention. We understand the court to broadly intimate that, had the injury complained of in Dunn v. Stone, supra, grown out of the detention of property instead of fish by the obstruction, a different principle would have applied. Though any and every person had the right to transport goods and chattels along the river, just as the whole public might have enjoyed the use of the highway which was traversed by the ditch, a right of action accrued only to those who The expense was incurred by the immediate attempted to avail themselves of this privi- act of the defendants, for the plaintiff was lege, and suffered by the detention of goods in forced to unload his goods, and carry them the one case and from injury, to their persons over land. If this be not a particular damor property in the other. Rose v. Miles, supra. age. I scarcely know what is.' Chichester v. Navigable waters include all those which Lethbridge, supra. But the plaintiff, instead afford a channel for useful commerce. Such of procuring another conveyance for the cotwaters are public_highways of common ton seed, left them exposed, so that they were right. 16 Am. & Eng. Encyclop. Law, p. injured. The measure of damage, therefore, 236. "It is not necessary that such waters was the reasonable cost of the boat, which be fit for navigation at all times, but their was in the employment of the plaintiff durcapacity therefor must recur with regular-ing the period of detention. It is true that, ity. İd. 243, note 1; Burke County Comrs. upon a familiar principle, the defendant v. Catawba Lumber Co. 116 N. C. 736. might have claimed a deduction from the aggregate value of its services during such time, of any sum which the boat and crew actually earned, but no evidence of that nature was introduced. Hassard-Short v. Hardison, 114 N. C. at page 487. A different case might have been presented if the plaintiff had been transporting a cargo to a market above, and had lost the advantage of the market (Dudley v. Kennedy, supra), but the gravamen of the complaint here is the cost incurred by detaining the boat. See Greasley v. Codling, supra. We conclude, therefore, that there was error in the instruction given as to the proper measure of damage, while there was no error in the other rulings complained of, and a new trial will be awarded only upon the question of the amount of damage which the plaintiff is entitled to recover. Tillett v. Lynchburg & D. R. Co. 115 N. C. 666. Upon the testimony, which was not controverted, the defendant clearly had no cause to complain of the instruction which left the question of navigability to the jury under the foregoing rule. We are of opinion, however, that the court erred in allowing the jury to consider the cost of loading and unloading the cotton, and of damage to the cotton seed by exposure after they were unloaded. The damage to the cotton seed was caused directly by leaving them exposed, not by the obstruction. If they had been kept in the boat, or stored in a well-constructed warehouse, they would have remained uninjured after being detained with the boat for want of a draw in the bridge. The plaintiff was clearly entitled, as damages, to the reasonable worth of the boat for such time as it was detained by the obstruction; and in determining what the boat was worth it was competent to consider wages, if reasonable paid 29 L. R. A. New trial as to damage. KENTUCKY COURT OF APPEALS. Appellant got, a day or two after the election, the proper certificate, and had this certificate when he received notice of his election and before the contest by appellee was begun. This was a full compliance with the constitutional requirement. Those who claim that any citizen, selected by his fellow citizens to fill any office, is disqualified to do so, should be able to point to some provision of the organic law that creates the disqualification in express terms. Speed v. Detroit, 98 Mich. 360, 22 L. R. A. 842; State v. Murray, 28 Wis. 96, 9 Am. Rep. 489; Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301; Demaree v. Scates, 50 Kan. 275, 20 L. R. A. 97; Brown v. Goben, 122 Ind. 113; State v. Trumpf, 50 Wis. 103; Smith v. Moore, 90 Ind. 294; Fed. Const. art. 1, § 100. The first clause of the section requires certain facts to exist at the time of the election; the last clause relates, not to a fact, but an evi dence of a fact. When the makers of the constitution omitted in this clause the words "at the time of the election," contained in the first clause, it must be presumed they changed their phraseology because the meaning was not the same. All words in an instrument of the dignity of a constitution must receive some meaning. The construction is best which gives to every word, and every section, and every clause, some meaning; this meaning, when given must be uniform. Cooley, Const. Lim. 67. NOTE. As to the time at which eligibility of an officer is to be determined, see also, in support of the above case, State v. Van Beek (Iowa) 19 L. R. A. 622; Demaree v. Scates (Kan.) 20 L. R. A. 97; and opposed to these, the case of State v. Sullivan (Minn.) 11 L. R. A. 272. See also 44 L. R. A. 446. | "Legally qualified" is the meaning that should be given to the word "eligible." Smith v. Moore, 90 Ind. 294; Brown v. Goben, 122 Ind. 113; State v. Smith, 14 Wis. 497; State v. Murray, 28 Wis. 96. 9 Am. Rep. 493; Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301; Demaree v. Scates, 50 Kan. 275, 20 L. R. A. 97; Vogel v. State, 107 Ind. 374; People v. Hamilton, 24 Ill. App. 609. The votes cast for an ineligible candidate are not void but must be counted. Cooley, Const. Lim. 781. If the votes must be counted and appellant was "eligible to the office" when notified of his election, why should the choice of the people be defeated? Privett v. Bickford, supra. Messrs. I. W. Twyman and D. H. Smith for appellee. Hazelrigg, J., delivered the opinion of the court: The appellant and appellee were rival candidates for the office of county court clerk of La Rue county at the November election, 1894. Appellant received a majority of the votes cast, and was awarded a certificate of election by the canvassing board. Appellee contested his election upon the ground that he had not, at the time of his election, procured from the proper officer a certificate of his qualifica tion as required by law. It was agreed that the appellant, on the 8th day of September, 1894, had obtained from the clerk of the La Rue circuit court a certificate showing his qualification, and that on the 10th day of November, 1894, he had procured from his circuit judge a certificate stating that he had been examined by the clerk of the Metcalfe circuit court under the supervision of the judge, and that the applicant was qualified for the office of county court clerk, the first certificate being issued before and the second after the election. The contesting board held the appellant to have been ineligible at the time of his election, and hence not qualified to hold the office, which was therefore declared vacant. On appeal to the circuit court, that finding was approved, and from that judgment Kirkpatrick prosecutes this appeal. It is not contended that the certificate of September, 1894, has any efficacy, but it is insisted by the appellant that the requirements of the constitution were met upon the procurement of the certificate of the circuit judge after the election and before the term began for which he was elected. The controlling provision of the constitution reads as follows: "No person shall be eligible to the offices mentioned in sections ninety-seven and ninety-nine, who is not at the time of his election twenty-four years of age (except clerks of county and circuit courts, who shall be twenty-one years of age), a citizen of Kentucky, and who has not resided in the state two years, and one year next preceding his election in the county and district in which he is a candidate. No person shall be eligible to the office of commonwealth's attorney unless he shall have been a licensed | quired as of the date of the election, words practicing lawyer four years. No person are used to make the meaning indisputable. shall be eligible to the office of clerk unless So, in no less numerous instances, we find he shall have procured from a judge of the the words "eligible to the office" without court of appeals, or a judge of a circuit court, additional words relating to the time of a certificate that he has been examined by the election. We think, therefore, that the clerk of his court under his supervision, and words in themselves, as used in the constituthat he is qualified for the office for which tion, mean "qualified for the office," not at he is a candidate." Section 100. For the the time of election, but at the time when appellant, it is said that so much of this sec- the office is to be first assumed. Considering tion as refers to the age and residence of the care with which the constitution was prethe candidate relates to the time of the elec- pared, and the scholarly distinction of many tion, because it is so expressed; but that the of its framers, we do not suppose that the rest of the section relates, not to the time of same meaning is to be attached to the words the election, but to the time of holding the "eligible to election" and "eligible to office" office; that the words "eligible for the or "ineligible to re-election" or "ineligible office," and "eligible to election," or "eligi- to office." Our conclusion, therefore, is that, ble when elected," are purposely used to con- under the first part of the section under convey different meanings. On the other hand, sideration, the words "eligible to the offices" the appellee contends that the word "eligi- mean "qualified for the offices," and, except ble" has a well-defined legal signification, for the words "at the time of his election, and the expression "eligible to the office" is the eligibility required of the candidate but a brief and concise form of stating, would relate to the time when he was about "capable of being legally chosen or elected to hold or assume the office, and that the same to the office." Each party appeals to his words, "eligible to the office," used in the favorite lexicographer to support his con- latter part of the section, relate to the same tention in the use of the word "eligible, time, and are without words fixing the date of and it is evident that the construction of the the eligibility at the time of the election. section cannot be made to depend on the This construction, it seems to us, is in accord definitions given by these learned compilers. with a general and manifest purpose on the The word is variously defined as proper to part of the framers of the constitution. The be chosen," "legally qualified as eligible to changes of phraseology found in the various office," and we are thus left to ascertain sections were not, we think, the result of in some other way the sense to be attached to mere chance. The words "office of clerk," the words as used in the section. Primarily, mentioned in the last sentence of the section, the word "eligible," from the Latin "eligere" embraced the offices of circuit and of county (to elect), means "capable of being elected," court clerks; and, as descriptive of the paror, if we may temporarily coin a word, ticular office for which the applicant should 'eligible" means "electible." The use of obtain a certificate of qualification, the words the word is not at all confined to this primary "for the office for which he is a candidate" meaning, and, if we attempt to substitute were used. We think the words were used this meaning in the various sections of the without an intention to indicate the time constitution where the word is used, we reach when the applicant for the office was to obquite absurd results; whereas, if we sub- tain his certificate. At best, the use of these stitute the definition "legally qualified," as words would raise only a presumption that the insisted on by appellant, we obtain a certificate was to be procured before the elecconsistent and natural construction of all the tion, and we should not allow such a presumpsections. In section 114 we read: "No per- tion to override what we conceive to be the son shall be eligible to election as judge of general purpose in view by the use of the the court of appeals," etc. In section 130 we terms in controversy. To do so "would be read: "No person shall be eligible as judge to suppose," says Mr. Story," that the framers of the circuit court who is less than thirty- weighed only the force of single words, five years of age when elected," etc. Mani- as philologists and critics, and not whole festly, the words do not import in these sec clauses and objects, as statesmen and practical tions more than that the person shall be reasoners. While the provisions of the sec"legally qualified," and, because that legal tion under consideration are a substantial qualification is required to exist at the time readoption of section 2, article 6, of the old of the election, other words were added to so Constitution, there seems to have been no indicate the purpose in view by the framers adjudication by this court affecting the quesof the constitution. By section 93 certain tion here involved. In Stevens v. Wyatt, officers are made eligible to re-election, and 16 B. Mon. 542, relied on by appellee, by section 165 a notary public and officers of Garrett was held ineligible by the lower the militia are declared not ineligible to hold court, first, because he had no certificate of or exercise any office, etc. The framers of qualification, and, second, because he had the constitution in thes sections used the not been a resident of Montgomery county for word in the sens o legally qualified" for one year next preceding the election; and this office, or "qualified to hold office." Thus, court said, "As the facts respecting Garrett's "No person shall be qualified for election as ineligibility were agreed, no doubt is enterjudge of the court of appeals," etc., "or tained of the propriety of the action of the qualified as judge of the circuit court who board in refusing him a certificate of elec is less than thirty-five years of age when tion." Here was an entire absence of any elected," etc. And so in numerous instances certificate obtained either before or after the it is apparent that, where eligibility is re-election, and, manifestly, if Garrett had ob ROBERTS V. MITCHELL 705 McMillen, 23 Neb. 385, and the Minnesota and California cases, as well as the earlier Indiana Moore, 90 Ind. 294, reviewed their former cases. But the Indiana court, in Smith v. decisions, and adopted a different construction, saying that "legally qualified" is the meaning that should be given to the word "eligible" as used in the section of the constitution under consideration. To the same effect are the cases of State v. Murray, 28 Wis. 96, 9 Am. Rep. 489; Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301, and Demares v. Scates (1893), 50 Kan. 275, 20 L. R. A. 97, where the whole question is discussed and largely, and in some respects the conclusion authorities reviewed. These cases discuss is made to depend on, the etymology of the word "eligible," and in this respect we think the contention of the appellant is supported by the better argument. But, what is more important than this, we believe the framers of the constitution had in view a difference in meaning when they provided in one clause for "eligibility for office" and in another "eligibility to election." tained his certificate after the election, or | To the same effect are the cases of State v. even before, the result would not have been different, as he was ineligible for another and conclusive reason. There was no controversy on Garrett's part, and the opinion makes no reference to the point now involved, nor was the argument of counsel so directed. A few other cases from this court are referred to as touching the question, but throughout them all the question now in issue remained undetermined. Nor does the statute (Gen. Stat. § 1531, subsec. 8) providing for a new election in the event the person returned as elected is found not to have been legally qualified to receive the office at the time of the election affect the question. tests of eligibility are to be applied under Many of the the various statutes as of the time of the election, and if, when the term begins, the person elected cannot qualify, a vacancy necessarily occurs which may be filled as provided by law. The Nevada case of State v. Clarke, 3 Nev. 570, sustains the appellee's contention as to the meaning of the word "eligible," holding it to signify, when used in statutory and constitutional clauses such as we are considering, one "capable of being elected or chosen," and hence the "eligi-ings consistent with this opinion. The judgment below is reversed for proceedbility" must relate to the time of the election. TENNESSEE SUPREME COURT. J. S. ROBERTS R. L. MITCHELL. (94 Tenn. 277.) The right to set off independent judg. ments rendered in different suits growing out of different causes of action is subject to attorneys' liens or claims for services. (January 17, 1895.) Set-off al MOTIO ment recovered for his client, as the result of his professional labor, has been recognized and enforced in this state in a variety of cases, yet, so far as we have been able to discover, the exact question here involved has proper rule in a case like the present has been not been determined. Elsewhere, what is the the subject of much difference of opinion; and the result is, the practice of the courts of England, and of many of the states of this Union, has been very inharmonious. In the English courts, the claim of the attorney to have his fees and disbursements in a suit paid out of the judgment he obtained has been pleas, however, it was held that this claim long recognized. In the courts of common or lien was subordinate to the defendant's right of offset. The same rule obtained in of king's bench held that the attorney's lien the English chancery courts, while the court In this cause, on a former day of the pres-set-off. Hall v. Ody, 2 Bos. & P. 28; Emdin was superior to the defendant's right to such ent term, a money decree was rendered in favor of Mitchell against complainant, Rob- Lamb, 40 Eng. L. & Eq. 59; Taylor v. Popv. Darley, 1 Bos. & P. N. R. 22; Simpson v. erts. On a still earlier day of the term, in ham, 15 Ves. Jr. 79; Ex parte Rhodes, Id. 541. another and independent suit, a decree was Afterwards, however, in the courts of compronounced in favor of Roberts against Mitch- mon pleas the practice was changed; and the ell; and a motion is now made by Roberts to right of the attorney, against set-off, has been set off these judgments, one against the other, secured by the adoption of the rule so long under section 3835 of the Code (Milliken & enforced in the court of king's bench. SimpVertrees). This motion is resisted by the solicitors of Mitchell, unless it be granted sub-fore stated, in the American courts the same ject to their lien for services in obtaining the difference of opinion and practice has obson v. Lamb, 49 Eng. L. & Eq. 59. As beat an early day, it was held that this lien tained. In the supreme court of New York, would prevent one judgment from being set off against another in such a manner as to deprive the attorney of his costs. Cole v. Beard, J., delivered the opinion of the court: first decree. While the attorney's lien upon the judg NOTE.-For right of set-off of judgments as affected by assignment, see note to Benson v. Haywood (Iowa) 23 L. R. A. 835. 29 L. R. A. See also 41 L. R. A. 852. 45 Grant, 2 Cai. Cas. 105; Devoy v. Boyer, 3 Johns. 247. In the states of Maine, New Hampshire, Nebraska, Florida, and Kentucky the right of set-off of the defendant is held to be subordinate to the attorney's lien for fees, or costs and disbursements, as may be. Stratton v. Hussey, 62 Me. 288; Currier v. Boston & M. Railroad, 37 N. H. 223; Johnson v. Ballard, 44 Ind. 270; Boyer v. Clark, 3 Neb. 161; Carter v. Davis, 8 Fla. 183. On the contrary, the courts of West Virginia, Vermont, Iowa, and Alabama maintain the right of set-off as superior to the attorney's lien. Renick v. Ludington, 16 W. Va. 378; McDonald v. Smith, 57 Vt. 502; Tiffany v. Stewart, 60 Iowa, 207; Mosely v. Norman, 74 Ala. 422. We think the better and more equitable rule is the one that subordinates the right of set-off of independent judgments rendered in different suits growing out of different causes of action, to the attorney's lien or claim for services rendered in the particular suit, and we do not hesitate to adopt it as the rule of practice in this state. On this subject, and in elaboration of our views, we quote the language of Chancellor Walworth in Dunkin v. Vandenbergh, 1 Paige, 624, 2 L. ed. 776: "The question in all these cases is, What is equitable and just between the parties and the attorney or solicitor? Where different claims arise in the course of the same suit, or in relation to the same matter, it is undoubtedly equitable and just that these equities should be arranged between the parties without reference to the solicitor's or attorney's lien. His lien is only on the clear balance due to his client after all these equities are settled. But where other claims arising out of different transactions, and which could not have been a legal or equi table set-off in that suit, exist between the parties, the court ought not to devest the lien of the attorney or solicitor which has already attached on the amount recovered for the costs of that particular litigation. When the solicitor has been at the labor and expense of prosecuting or defending a suit, it is equitable and just that his costs should be paid out of the result of that litigation." Nor is section 3635 of the Code to be construed so as to militate against this view. By that section it is provided that "judgments of the same court may be set off against each other on motion." But we hold that this section must be read as if it contained the implied condition that this set-off will not be allowed in derogation of the attorney's lien for his services in prosecuting the suit and obtaining the particular judgment. We think this construction gives full force to this provision of the code, and at the same time it preserves the equities of the parties interested. This was the view taken of a statute similar in character by the supreme court of New Hampshire, in Shapley v. Bellows, 4 N. H. 347. In the case at bar an order will be entered allowing the set-off, but subject to the lien of the solicitors, which will be declared by a proper order. v. TEXAS SUPREME COURT. R. D. BILLS, Plff. in Err., HIBERNIA INSURANCE CO. (87 Tex. 547.) Brown, J., delivered the opinion of the court: The Hibernia Insurance Company issued to R. D. Bills, upon his gin house and machinery, a policy of fire insurance in the sum of $1,430, the gin house being specified in A policy of insurance on a building and the face of the policy as insured in the sum various articles of personal property of $370, and the other items of property, therein, separately valued, is not forfeited as to separately valued at different amounts, mak the personal property by virtue of a lack of title ing the total amount of insurance. The preto the land, under a provision that the entire pol-mium for the whole was the sum of $114.40. icy shall be void if the "subject of insurance be a building on ground not owned by the insured in fee simple," since the building is not alone the subject of insurance. See also 40 L. R. A. 358. All the property was situated in and connected with the gin house, so as to be subject to destruction by the same fire. The gin house was situated upon a tract of land leased by Bills. The policy contained the followshall be void ing clause: "This entire policy if the subject of insurance be a building on ground not owned by the insured in fee simple." The building and all the personal property were destroyed by fire, and suit was instituted upon the policy. Defendant pleaded the above condition of the policy, and alleged that the building was upon ground not owned by Bills in fee simple, and therefore the policy was void as to the whole. It was admitted that the gin house was on leased ground, and plaintiff's counsel conceded that he could not recover for the gin house, but claimed that the policy was valid as to the other property. Upon trial the plaintiff recovered for |