« ForrigeFortsett »
she, saying, "I will beat you over to the store," tripped along ahead of him; and she found the space between the cars so close, that small and delicate as she was for her age, she had to turn sideways to get her body between the cars. From some cause the cars at this place had moved and diminished the space between them, and she was crushed between them at the waist. Her father was about five or six feet behind her. This was not at the crossing on Main street, which was entirely obstructed by the train bound West, but was several feet east of the line of the street, and between the trains bound East and West. The father had crossed at this opening when he went over to the hotel and found it about twenty inches, and another witness who crossed through the aperture only five minutes before the accident found it between fifteen and twenty inches wide. There was from the west of Main street a gradual declivity of the track towards the east, and at the time of the unfortunate accident, there was a lighted (“live”) locomotive at the west end of the train, preparing to start west. The eastward bound train was fastened by brakes and a stick of wood under the wheel near the east end. Of course the diminution of the aperture must have been occasioned either by some impulse imparted by the locomotive at the west end of the train, or by a gradual sliding back of the western bound train which was necessarily not fastened, because on the eve of starting. There was some discrepancy in the testimony as to whether there were any cars at all on the north side-track; but this is evidently immaterial, as the accident occurred on the south sidetrack.
Upon this state of facts some questions of law obviously arise, which may be considered without any detailed examination of the instructions given to the jury on the trial in the circuit court.
The first question which naturally presents itself in view of the facts, is whether the responsibility of the defendant in this case is varied from that which is ordinarily exacted from it towards persons of mature years, by reason of the tender years of the plaintiff. There are cases in which it is determined that the same degree of care is not to be expected or required from a person of immature age, as would be required of one who had reached years of discretion, and, therefore, that what would be contributory negligence in the one case, would not be considered so in the other. The distinction was recognized by this court, in Koons v. I. M. R. R. Co., 65 Mo. 592. These are, however, cases in which the father, guardian or other protector of the party injured, is not present when the injury occurs. In the present case the father and child were together, and it was not simply a permission on his part that his little daughter should cross the railroad at the point she attempted, but the exact place was pointed out to her by her father, and she was proceeding within his view to follow his directions when the injury happened. If, under such circumstances, the father was guilty of negligence, that negligence must be imputable to the child, in a suit by the child for damages. As was observed by the Supreme Court of Massa
chusetts in a similar action (Holly v. Boston G. L. Co., 8 Gray, 132), "she was under the care of her father, who had the custody of her person and was responsible for her safety. It was his duty to watch over her, guard her from danger and provide for her welfare; and it was her's to submit to his government and control. She was entitled to the benefit of his superintendence and protection, and was consequently subject to any disadvantages resulting from the exercise of that parental authority which it was both his right and duty to exert. Any want of ordinary care on his part is attributable to her, in the same degree as if she was wholly acting for herself."
In Waite v. N. E. Railway Co., 96 Eng. C. L. 728, the question was whether, in an action by an infant for injuries caused to him by the negligence of the defendant, it could be set up by way of defence that the negligence of the person in charge of the infant contributed to the accident. The Court of Queen's Bench held that it could, and in this opinion the Court of Exchequer Chamber concurred. Williams J., said: "There was here, as it seems to me, from the particular circumstances of the case, an identification of the plaintiff with the grandmother whose negligence is, therefore, an answer to the action. The person who has charge of the child is identified with the child. If a father drives a carriage in which his infant child is, in such a way that he incurs an accident, which by the exercise of reasonable care he might have avoided, it would be strange to say that though he himself could not maintain an action, the child could." In Ohio and Miss. R. R. v. Stratton, 3 Cent. L. J. 415, the Supreme Court of Illinois held that the negligence of the parent or guardian having in charge a child of tender years, where it is the proximate cause of the injury, by unnecessarily and imprudently exposing it to danger, prevents any recovery from the carrier corporation.
In the present case, the inquiry should have been whether the father was guilty of any contributory negligence, and whether such negligence, if any there was, was the proximate cause of the injury.
The next conspicuous and important fact in this case is, that the injury did not occur at any street crossing, but on a part of the track where there was not even a private or occasional pathway, and where, consequently, the defendant had a right to presume that no one would attempt to cross. It is true the street crossing was entirely obstructed by the train, which obstruction the municipal authoriies of the town might at any time have prohibited, and for which the defendant might have been held liable in damages for any inconvenience occasioned by such obstruction, but this obstruction did not authorize one who was about to cross to attempt to do so at any accidental opening between the cars either of that train or of the adjoining one, except at the peril of the person so attempting to cross.
The obligations, rights and duties of railroad companies and travelers crossing them are mutual and reciprocal, and no greater degree of care is required of the one than of the other. Harlan v. St. L., K. C. & N. post. Whilst the highest degree of
care should be exacted from those who operate such dangerous machinery, a corresponding obligation is imposed on the public, outside of passengers on the train, to observe the like caution. Harlan v. St. Louis, K. C. & N. R. R. Co. 65 Mo., 22. It has been held that the neglect of the engineer of a train to sound its whistle or ring its bell on nearing a street crossing does not relieve a traveler in the street from taking ordinary precautions for his safety; that he is bound to use his senses, to listen and to look, in order to avoid any possible accident from an approaching train, and if he fails to do so, he takes the risk. C. R. I. & P. R. R. v. Houston, 5 Otto, 697, 6 Cent. L. J. 132.
But here there was no street crossing. The space left between the two trains, even when the father of plaintiff went over to the hotel (20 inches), would not indicate any invitation even for foot passengers. There was no evidence in the case that any person other than the father of plaintiff and one other person, who was a witness for defendant, had ventured to cross at the point, and it is clear that if the father had preceded his child so as to observe the diminished size of the aperture he would not have advised her to attempt a crossing. Certainly if he observed the lighted ("live") locomotive at the west end, and made an attempt to cross himself or advised his child to attempt it, its recklessness would have been obvious on which to base instructions to a jury. After a careful examination of the testimony in this case, aided by the maps in the record, we have been unable to conjecture in what respect it is claimed there was negligence on the part of the defendant. It does not appear that any officer or servant of the road was aware that the plaintiff or any one else was proposing or attempting to cross at the point where the injury to plaintiff occurred. It does not appear that any bell was rung or whistle sounded, but this is only required when approaching a crossing. The train was about to leave unobstructed the street crossing over which several of its cars extended. The eastern bound train was securely fastened, and the stick of wood under the wheel had to be taken out before the little girl could be extricated. The western bound train being about to start was of necessity not locked. That when the locomotive was fired this train might recede a few feet, is not unlikely, and, indeed, seems the only rational solution of the contact of the two trains. Had the managers of this train then any right to suppose that east of the street crossing, the slight opening between it and the eastern bound train, never over twenty inches, would invite pedestrians to cross through. Was it a customary place to cross, or were not the plaintiff and her father trespassers? It is useless to analyse the instructions in detail. From what has been said it will be apparent wherein they are objectionable.
Judgment reversed and cause remanded. The other judges concur.
NOTE.-The doctrine of the imputability of the negligence of the parent to the child seems, at first view, to establish a harsh rule, as children of tender years are known to want judgment and discretion; but, on the other hand, the inquiry arises whether this
want of personal judgment and discretion, where it has concurred in producing injuries, shall exempt them from all legal rule when they seek redress by action. So anxious have the courts been, prompted by the instinct of common humanity, to protect those of tender years, that they have with great unanimity established the doctrine that in actions brought by them they can not be charged with the consequences of their concurring negligence. This case undertakes to draw a distinction between those cases where the negligence of the parent consisted in permitting the child to go abroad unattended, and those where the parent was present directing the child when the injury occurred. But, in principle, is there any real distinction? Upon what ground is it that the child can be bound by the act of the parent, or other person standing in that relation? It can rest upon nothing but the fact that he is entitled to the custody and control of her person; that the law clothes him with the authority to guide and control her actions, and imposes on the child the corresponding duty of obedience. In other words, society and the laws of our very nature have constituted the parent the agent to look after, care for and protect the infant, and that obligation of protection on the part of the parent, and of obedience on the part of the child, does not cease the moment the child quits the immediate presence of the parent. I am aware that it was on the ground of agency that Cowen, J., based his opinion in Hartfield v. Roper, 21 Wend. 615, which has been almost universally disapproved, but the reasoning of which has never been answered.
The principle that negligence can not be imputed to an infant of tender years, carried to its logical conclusion, would protect them from actions for any torts committed by them.
The reason assigned for the rule is their want of judgment and discretion. And if this furnishes the test of liability, why should not a lunatic be also excused? And if ignorance of the consequence of the act excuses infants and lunatics, why shall it not excuse any other person when satisfactorily shown?
But the liability to answer in damages for personal torts does not depend upon the mind or capacity of the wrong-doer. "Though a lunatic is not punishable criminally, he is liable to a civil action for any tort he may commit." 1 Chit. Pl. 66, and cases cited. An infant under the age of seven years has been held liable for a personal tort. McGee v. Willing, 31 Leg. Int. 37. And one of twelve years, in trespass for an assault. Bullock v. Babcock, 3 Wend. 391. And it has been said that trespass would lie against an infant though only four years of age. 24 Hen. 6, 116.
Infants, in the same manner as adults, have been held liable for trespass, slander, assaults. etc. Bing. on Infancy, 110. An infant has even been held for a trespass, although he committed it by his father's command, Humphrey v. Douglass, 10 Vt. 71; or through the agency of a third person, Sikes v. Johnson, 16 Mass. 389. In equity, infancy is no protection for the commission of a fraud. 1 Sto. Eq. 385.
It may be said that these are all acts of commission, and that negligence is an act of omission. It would be strange if an infant of tender years can be held for the consequences of his own acts in every instance, except those acts which result in injury to himself.
The rule that the negligence of the parent, or person standing in that relation, when immediately present, is the negligence of the child, has never been denied as incorrect in principle, though the courts have in many instances found reasons, on the particular facts of the case, for refusing its application. Ihle v. R. R. Co., 42 N. Y. 318, was decided upon the express ground that the attendant was not negligent. In the case of B. & I. R. R. Co. v. Snyder, 18 Ohio St. 399, the attendant was only eleven years old, and it was not shown that she had done anything that contributed to the injury. In
North Pa. R. R. Co. v. Mahoney, 57 Pa. St. 187, the child was taken into the arms of one not placed in charge of it a mere volunteer-and by the negli gence of such person was injured. In Pittsburg Railway Co. v. Caldwell, 74 Pa. St. 421, the plaintiff was injured by being pulled off the train by her companion. The court lays store to the fact that the plaintiff was not in charge of that person. In Koons v. St. L. & I. M. R. R., 65 Mo. 392, in discussing the question of the negligence of the parent, Napton, J., said: "There is not a particle of evidence that the father permitted his son to go upon this turn-table," leaving the inference quite clear that if he had permitted the act, it would have been negligence, and if he had directed it he surely would have been grossly negligent. In O'Flaherty v. Union Ry. Co., 45 Mo. 70, the record shows that the child escaped unobserved by its elder sister (only eight years old), and got hurt without her knowledge.
In every case where the parent or person who had a right to command obedience from the infant was immediately present, and could have exercised authority and judgment, the negligence of the parent has been imputed to the child. The authority of Lynch v. Nurden, 1 Q. B. 39, on which Redfield, J., relied in Robinson v. Cone, 33 Vt. 213, is now doubtful. See Lygo v. Newbold, 9 Exch. 302.
The disabilities of tender years should only be taken into account for the purpose of determining the degree of care required of the other party. What would be such care as would excuse an injury in the case of an adult, might be gross negligence in the case of an infant of tender years.
An engineer observing an adult upon the track may act upon the presumption that he will step aside from a position of danger. Indianapolis & Vincennes R. R. Co. v. McClaren, Admr., Supreme Court of Indiana, February 20, 1878. But if he should observe a young child on the track, and drive his engine forward as he might reasonably do in the case of an adult, he would be guilty of wanton recklessness, for which the company would be liable. The test of liability can be measured by the degree of care that our better natures would impel us to attempt in each particular case. The same effort to stop the train would not be exacted when the child was on the track with its father as when alone, because it would be a natural presumption that the child would be governed by its father and removed to a place of safety.
In discussing the question of the negligence of children, Mr. Pierce says: "The knowledge, then, of the company that such disabled persons are in danger is to be taken into consideration in determining whether it has fulfilled the requirements of ordinary care, and in the absence of such knowledge the same acts of negligence which would preclude a person of full age and capacity from redress, would also preclude them." Pierce Am. R. R. L. 280, 281.
The other points decided in the main case are but the announcement of rules that commend themselves to the good judgment of everyone. G. W. E.
AMONG the witnesses at the trial of Hodel, the assassin, was a young man, a very vigorous speaker and active demonstrator, who persisted, when handed the revolver, in pointing it at the President of the Court, just to show how the prisoner had aimed it at the Emperor. "Don't point it at me," exclaimed the Judge, "it's loaded in two chambers." "All right. sir," remarked the witness. "I'll take care, Hodel held the revolver just like this." "Put it down,” shouted the usher. "Take the weapon away from him," shouted one of the court as the judge ducked his head in anticipation of an accident. And the witness was relieved of the pistol and bundled off to his place without more ado.
The question sought to be raised by the demurrer in this case, and argued by the counsel, is whether the lien of an attorney for professional services on land, declared by the court in the suit in which the services were rendered, has priority over the lien of a creditor of the client acquired subsequently by bill filed and decree of this court before the attorneys have taken any step to enforce their lien.
The land in controversy was originally the property of E. B. Bigley, the father of the defendant D. W. Bigley, and was by him conveyed in mortgage to the Nashville Building Association, and afterwards in trust to secure a debt due to one A. J. Baker. The Building Association sold and bought the land under its mortgage and then conveyed it, on the 28th of June, 1870, to the defendant D. W. Bigley. On the 10th of April, 1871, A. J. Baker filed his bill in this court against the Building Association and the Bigleys, seeking to set aside the mortgage to the Association as fraudulent, and to subject the land to the satisfaction of his debt under the trust deed, and, if this could not be done, to redeem. The complainants, Brown & Reid, eminent solicitors of this court, were employed professionally by the Bigleys in that cause, and rendered valuable services in its successful management in behalf of their clients. Such proceedings were had in this suit that, first, by the decree of this court, and, secondly, upon appeal, by the decree of the supreme court, the last decree being rendered on the 27th of February, 1875, Baker's bill was dismissed, and the title of D. W. Bigley sustained. By the same decree, the complainants, Brown & Reid, were declared to have a lien on the land in controversy for the fee due them from the Bigleys for their professional services. On the 8th of March, 1878, they filed this bill for the enforcement of the lien, against D. W. Bigley and certain voluntary grantees under him. On the 13th of March, 1878, the bill was amended by making Benjamin Culbertson, Isaac F. Baker and I. I. Green, parties defendant. The amended bill alleges that these defendants, in November, 1877, recovered a decree in this court against D. W. Bigley and oth
ers, for the sale of the land in controversy, and that, under this decree, the land was sold on the 2d of March, 1878, and purchased by said defendants.
The demurrer is filed by these defendants, and has been argued as if the demurrants were creditors of D. W. Bigley, and, as such, had, by the proceedings commenced since the declaration of the complainants' lien by the supreme court, obtained the decree of November, 1877, for the sale of the land in satisfaction of their debt. But the bill does not disclose the nature of their demand, nor against whom it exists, nor when nor how it originated, nor when the suit was instituted, under which the decree was rendered. It simply states that the complainants are ignorant of the nature and validity of the claim. The fifth cause of demurrer assigned is, that the bill fails to show any equities against the defendants, and is probably well taken. But the demurrer has not been relied on in that view. The argument has been addressed to the respective priorities of the litigants, as if the facts were before the court by the pleadings as they have been orally presented. I will treat the case accordingly, although, it is obvious, the bill ought to be amended so as to show the facts, if the parties expect to have their rights permanently settled by a decree on the demurrer.
A point is made in the demurrer and argument, on the effect of the Act of 1877, Ch. 120. That Act provides: "That the title to real esate shall not be in any manner affected, as to third parties, by any lien acquired by any judgment, decree,bill in equity, judicial attachment, lis pendens, levy of attachment, or levy of execution, without actual notice thereof, till an abstract of such proceedings shall be filed for record in the register's office." But that act is a two-edged sword in the present case as it stands. If the complainants' lien as declared is of no validity without registration, neither is the defendants' decree, for it does not appear to have been registered. The sale and purchase of the land under the decree amounts to nothing until confirmation. The rights of parties must be determined as if no such act had ever been passed. sides, the want of actual notice is a matter of defense by proper pleading, and the complainant's lien is, perhaps, not included in the specific enumeration of the statute. Moreover, the statute does not purport to act retrospectively, and the rule. in such case, is to treat it as operating only upon future rights. Wood v. Orr, 10 Yerg. 505. The stress of the argument, as well as the main point of the demurrer, rests upon the fact that the bill fails to show any registration of the lien as declared by the decree of the 27th of February, 1875, or any step taken to enforce it until after the demurrants, considered as creditors of D. W. Bigley, had acquired their rights by decree. The issue made involves the nature of a lawyer's lien, and the effect of its being declared by decree in the suit in which the services were rendered.
In England, and the rule has been generally followed in this country with an extension to the honorary fees of counsel, the solicitor has a lien upon his client's deeds, or other papers, which ap
plies to all costs as between solicitor and client. This is a lien which he can not actively enforce, and which amounts to a mere right to retain the papers as against his client until he is fully paid.. He is also entitled to a lien upon the fund realized by his services, which is confined to the costs of the particular suit, and which he can actively enforce by order in that cause. Turwin v. Gibson, 3 Atk. 719: Bozon v. Bollard, 4 M. & C. 354; Stedman v. Webb, 4 M. & C. 346; Welsh v. Hole, Doug. 238; Read v. Dupper, 6 T. R. 361; In re Paschal, 10 Wall. 483; McGregor v. Comstock, 28 N. Y. 237: Rooney v. Second Ave., etc., 18 N. Y. 368. The lien is on the recovery, and does not prevent the client from compromising, or receiving payment before judgment, nor afterwards, unless notice of the lien be given to the debtor. Moore v. Anquell, 2 New Pr. Cas. 194; Marshall v. Meech, 51 N. Y. 140; Pulver v. Harris, 52 N. Y. 73. To the same effect was the decision of our supreme court in Hoag v. Avery, at Jackson, April term, 1866, cited in 1 King's Dig., § 970, and Heisk. Dig. § 224. But this case is probably overruled, without being cited, in Pleasants v. Kortretcht, 5 Heisk. 694. In England, the lien has been regulated by statute, 23 and 24 Vic., ch. 127, § 28, and made much more effective. Jones v. Frost, L. R., 7 Ch., App. 773.
In Barnesley v. Powell, Amb. 102, the solicitor filed a petition, stating that he had expended large sums in prosecuting suits on behalf of Barnesley, who was a lunatic, against the defendant, Powell, and praying that he have liberty to enter up a judgment against the lunatic for such moneys, "that thereby he may have a lien on his real estate." Lord Hardwicke thought that the remedy of the petitioner was against the committee of the lunatic who had employed him, but said that the committee had a lien on the lunatic's estate, both real and personal, and that the court would assist the solicitor by declaring him to stand in the place of the committee, and a decree was so entered accordingly. Chancellor Kent refers to this decision in the matter of Southwick, 1 Johns. Ch. 22, and treats it, and the like ruling in Ex parte Price, 2 Ves. 407, as subrogating the solicitor to the lien of the committee, adding that the remedy of the solicitor is, ordinarily, at law. But the report in Ambler makes Lord Hardwicke say: "If a solicitor prosecutes to a decree, he has a lien on the estate recovered in the hands of the person recovering for his bills; but if the client should die, the solicitor has no such lien on the estate in the hands of the heir at law, unless it should be necessary to have the suit revived, and then the lien will revive too." But this dictum, so far as it implied a lien on real estate, was summarily overruled by the House of Lords, in Shaw v. Neale, 6 H. L. C. 581, 591. The counsel for the solicitor in that case, which raised the direct question of a solicitor's lien on land, cited Barnesley v. Powell, and said: "There is no question but that the solicitor would be entitled to a lien on a fund in court, or on the papers in his hands, and there is no principle on which to distinguish between a fund obtained by the prosecution of a suit, and an
estate obtained in the same manner," p. 589, to which the following interjectional responses were at once made by two of the learned lords: Lord Wensleydale. "I never heard such a proposition at law." Lord St. Leonards. "Nor I in equity." The American cases are in accord. Smalley v. Clark, 22 Vt. 598; Stewart v. Flowers, 44 Miss. 513; 20 Ark. 667.
The difficulty in extending the solicitor's lien in England grew out of the courts treating it as a legal right, and, consequently, dependent upon possession. A lien at law, it has been said, is not in strictness either a jus in re or a jus ad rem, but simply a right to possess and retain property until some charge attaching to it is paid or discharged. But there are liens recognized in equity whose existence is not known nor obligation enforced at law, and in regard to which it may be stated generally that they arise from constructive trusts. They are, therefore, wholly independent of the possession of the thing to which they are attached as a charge or encumbrance, and they can be en orced only in a court of equity. Sto. Eq. Jur., § 1217. The vendor's lien for unpaid purchase-money, where he has parted with the title, is a noted instance. Mackreth v. Symmons, 15 Ves. 329; Brown v. Vanlier, 7 Hum. 239. The lien of a purchaser of land who has paid a part of the purchase-money, and the vendor is unable to make a title, is another. Rose v. Watson, 10 H. L. C. 672; Burgess v. Wheate, 1 Eden, 211. So, the lien of a person who has made permanent improvements on land under a void contract of purchase; Mathews v. Davis, 6 Hum. 824; or under a parol gift; Ridley v. McNairy, 2 Hum. 174; or where there has been a rescission. Humphreys v. Holtsinger, 3 Sneed, 229. So, the lien of a joint purchaser for excess of payments or improvements. Sweat v. Henson, 5 Hum. 49; Pearl v. Pearl, 1 Tenn. Ch. 206. The lien of a trustee for advances. Worrall v. Harford, 8 Ves. 8. The lien of one partner on partnership property, no matter in whose name the title may be. Taylor v. Fields, 4 Ves. 396; Cammack v. Johnson, 1 Green Ch. 163; Haskins v. Everett, 4 Sneed, 531. The resulting trust arising from the payment of the purchase-money. Smitheal v. Gray, 1 Hum. 591.
The inclination of the courts of this country, and of none more so than those of this state, has been to enlarge the doctrine of equitable liens and charges, with a view to the attainment of the ends of justice, without much respect for the technical restrictions of the common law. It was a logical result of this tendency that our supreme court should follow the lead of Lord Hardwicke, made before the revolution, rather than the modern doctrine of the House of Lords. And it was both natural and wise that the lien of the lawyer on the fruits of his professional labor should be treated as equitable, rather than legal. The proper administration of justice is essential to the well-being of the Republic, and can not be secured without an enlightened and prosperous bar. The distinction, moreover, between land and personalty, in the comparative immunity of the former from liability and charge,
which existed in our mother country, has never prevailed in the United States. And there is, therefore, point with us in the remark of counsel in Shaw v. Neale, that there is no principle in which to distinguish between a fund and an estate obtained by the prosecution of a suit. Under these circumstances our supreme court, in Hunt v. McClanahan, 1 Heisk. 503, reached the conclusion that lawyers were entitled to a lien on the property recovered, or protected by their services, real as well as personal, which would be declared by the court upon the application of the attorney by petition, in the suit in which the services were rendered. "We hold," says the learned judge who delivered the opinion, “ that an attorney is entitled to an equitable lien on the property or thing in litigation for his just and reasonable fees, and that the client can not, while the suit is pending, so dispose of the subject-matter in suit as to deprive the attorney of his lien, nor afterwards to any purchaser with notice. The pendency of the suit is, of itself, notice to all persons, and the lien may be preserved, and the notice extended by stating its existence in the judgment or decree. And it was referred to the master to hear proof, and report what would be reasonable compensation to the petitioners; and, it is added, "their lien, to that extent, will be declared as having existed from the commencement of the suit, and be enforced by a proper decree."
In Perkins v. Perkins, 9 Heisk. 95, a case decided a year afterwards at Nashville, the general principle announced in Hunt v. McClanahan was recognized, but the practice of making a reference to ascertain the fee was limited to cases where the client is under disability, and the practice of enforcing the lien to such cases, and cases where the client sui juris might agree with the attorney as to the amount of his fee. In the case of disability, the proceeding is in invitum, and notice must be given the client, who is entitled to be properly represented. If the client be sui juris, and do not agree with the attorney as to the amount of the fee, it was said that the court should do no more than declare the lien, leaving the attorney "to enforce his claim by an appropriate proceeding against his client." Both these cases were chancery suits, and did not, therefore, raise the point as to the jurisdiction of any other court to enforce the lien. And in the first case, where the application was made in the supreme court, nothing was said in reference to the jurisdiction of that court to enforce a lien by proceedings in invitum commenced in that court.
Under these two decisions I sustained a reference, upon the application of the solicitors of a lunatic and a married woman, in Yourie v. Nelson, 1 Tenn. Ch. 614, and a similar reference, where the services were rendered for infants, in Bowling v. Scales, 1 Tenn. 618, and Carter v. Montgomery, 2 Tenn. Ch. 455. In the cases of the lunatic and the infants, I recognized the principles that the committee of the lunatic and the guardian of the infants were the persons entitled to the lien, and that the solicitor obtained relief by way of subrogation, following, in this respect, Stewart v. Hoare, 2 Bro.