was proposed by defendant that its own medical officer should not be one of its number, and that the expenses of such examination would be paid by defendant. In support of this application, the affidavit of a surgeon and physician in the employment of defendant was filed, stating that he had professionally attended plaintiff immediately after he was injured, and had made personal observation of plaintiff's condition and heard his testimony at the former trial, and that it was his belief, based upon these means of knowledge, his injuries were not of the character and extent claimed by him, and that the truth of the matter could be ascertained by a proper personal examination of plaintiff.

This application was resisted by plaintiff by exceptions, and an affidavit of himself, which shows, among other matters, that it was not made until after the jury were sworn; that plaintiff had no witness present, except himself, who could testify to his physical condition, for the reason that the printed testimony of the physicians at the first trial, used in the Supreme Court by consent of both parties, was to be read upon this trial by plaintift; that a number of physicians were in attendance at the court, through the procurement of defendant, who, plaintiff charged, were interested against him; that plaintiff is not acquainted with physicians in the county where the case was on trial, the venue having been changed from Scott County, and that he is without means to procure the attendance of physicians for the purpose of an examination. It is also alleged in the exceptions, "that the affection from which plaintiff now suffers is a nervous derangement, injuring the bowels, and partial paralysis," and, as shown upon the former trial, an examination would fail to reveal the extent and character of his ailments. The plaintiff further insisted that the court had no authority to order the examination to be made, and no power to enforce such an order if made. The application was overruled, on the ground that defendant was not entitled, as a matter of right, to the order sought.

The plaintiff testified, in the course of the trial, that his back and internal organs of the lower part of the body were affected by the injury, and that one of his legs was disabled to an extent that deprived him of its full use, and that he thought it appeared to be smaller and somewhat shrunken. Upon the cross-examination, after having stated the condition of his leg, he was asked if he was willing to permit his limbs to be examined by physicians. His counsel objected to the question, and the court did not permit it to be propounded to him. These rulings are the subject of separate objections on the part of defendants. As they present substantially the same questions, they may be considered together.

The plaintiff must be regarded as objecting to an examination of the diseased parts of his body by competent physicians and surgeons, although no objection thereto was formally expressed by him. His resistance to the application made by defendant, and his objection to the interrogatory, must be regarded as a refusal on his part to con

sent to an examination. The first ruling of the court is based upon the ground that it possessed no authority to order the examination as a matter of right possessed by defendant. We are to understand that the like reason controlled the decision upon the competency of the question objected to by defendant. It seems quite clear that if defendant had no right to require plaintiff to submit to the examination of his person, the court rightfully decided in overruling defendant's application. The same is true as to the rulingupon the interrogatory. If the plaintiff had answered the question negatively, or refused to answer, the court could not, in this view of the law, have required an answer, or required plaintiff to submit to the examination; therefore, if the rule recognized by the court is correct, it would have been vain to have ruled differently.

The converse of this proposition must be true, namely: if the defendant was entitled, as a matter of right, to have the person of plaintiff examined, the court possessed the authority and power toorder it and enforce its order. This can not be doubted. As to the manner of enforcing the order, we may have something to say hereafter. As the decisions of the court under consideration were based upon the view that defendant could not demand the examination of plaintiff as a matter of right, the soundness of this doctrine must be first considered.

Whoever is a party to an action in a court, whether a natural person or a corporation, has a right to demand therein the administration of exact justice. This right can only be secured and fully respected by obtaining the exact and full truth touching all matters in issue in the action. If truth be hidden, injustice will be done. The right of the suitor, then, to demand the whole truth, is unquestioned; it is the correlation of the right to exact justice. It is true, indeed, that on account of the imperfections incident to human nature, perfect truth may not always be attained; and it is well understood that exact justice can not, because of the inability of courts to obtain truth in entire fullness, be always administered. We are often compelled to accept approximate justice as the best that courts can do in the administration of the law. But, while the law is satisfied with approximate justice, where exact justice can not be attained, the courts should recognize no rules which stop at the first when the second is in reach. Those rules, too, which lead nearer the first, should be adopted in preference to others which end at points more remote. This doctrine lies at the foundation of the rules of evidnce, though, it must be confessed, that the superstructure does not always fully conform thereto. Great progress, however, in a comparatively recent period, has been made by legislation and judicial decisions in the work of conforming the system of evidence to this germinal principle. The most notable of the steps in this progress is the abrogation of the rule which precluded parties to actions. from giving testimony therein. This rule, however, was mistakenly supposed to be in harmony with the principle just stated. It was believed

1

that the interest of parties to actions would cause them, as witnesses, to prevent the truth or conceal it. But when it was discovered that, as a rule, this was an erroneous conclusion, legislation was invoked enabling parties to testify. The wisdom of the change has been fully vindicated by experience.

In the case before us, plaintiff claims to recover for injuries sustained on the 6th day of November, 1872; in December, 1874, the first trial was had. He claims in his pleadings, and so testified on the former trial, that the injuries produced permanent disability-the like testimony repeated at the first trial. It quite satisfactorily appeared, by the application of defendant for an order requiring his examination, and the affidavits supporting it, that the full effect of the injuries, and the extent of his disability, could be determined by physicians and surgeons, upon an examination of the body of plaintiff. This, we think, was clearly established by professional testimony given at the trial. It appears that no thorough and careful examination was made by physicians since the first trial; and, indeed, it may be well claimed that no such examination was made at any time after the physicians ceased to attend upon him for his injuries. His testimony at the first trial, as well as at the second, was to the effect that he suffered continually from the injuries, and his disability was of a character that would probably be permanent. Their decision, under the very great preponderance of the evidence, apart from his own testimony, was to the effect that the injuries had wrought no such effect as claimed by plaintiff. The medical witnesses unite in testifying that an examination of his person would reveal almost certainly his true condition. Indeed, the showing made by defendant upon the application for examination, as to the nature of his disease, authorized such conclusion. To our minds, the proposition is plain that a proper examination by learned and skillful physicians and surgeons would have opened a road by which the cause could have been conducted nearer to exact justice than in any other way. The plaintiff, as it were, had under his own control testimony which would have revealed the truth more clearly than any other testimony that could have been introduced. The cause of truththe right administration of the law-demand that he should have produced it. We will consider the objections urged to this view of the case. It hardly appears that the objections urged in the exceptions of plaintiff to defendant's application ought to be here considered, as the court below held none of them good, but decided the point upon the ground that defendant asked for a matter to which it had no right. It is, however, proper to remark that the inability of plaintiff to pay physicians who should make the examination, was no impediment to the order, as defendant proposed to furnish the means required. The facts that the application was made after the jury was sworn, and plaintiff knew no physicians in the county of the trial, do not appear to be wellfounded objections to allowing the order, for it does not appear that ample time could not have

been allowed by the court for the examination in a manner that would have been satisfactory to plaintiff. The fact that defendant had present in court so many physicians, charged by plaintiff with having an undue interest against him, was no sound objection, for the court could have refused to appoint any such to make the examination,

But it is urged the court was clothed with no power to enforce obedience of plaintiff, had such an order been made. Its power, in our judgment, was amply sufficient to cause obedience. The plaintiff would have been ordered by the court, by submitting his person to examination, to permit the introduction of testimony in the case. His refusal would have been an impediment to the administration of justice, and a contempt of the court's authority. He would have been subject to punishment as a recusant witness, who refused to answer proper questions propounded to him. Should such recusancy too long delay the court or prove an effective obstruction to the progress of the case, the court could have stricken from the pleadings all the allegations as to permenent injury, and withdrawn from the jury that part of the case. The plaintiff, by voluntarily withdrawing his claim for such injury, would have been relieved from the necessity of submitting to the examination, and pleadings, as for contempt, would have been suspended.

When it is remembered that plaintiff was a wit ness before the court, that the examination of his person would have had an effect to elicit testimony from him as upon a cross-examination, the power of the court over him will be readily understood.

It is said that the examination would have subjected him to danger of his life, pain of body and indignity to his person. The reply to this is that it should not, and the court would have been careful to so order and direct. Under the explicit directions of the court, the physicians should have been restrained from imperiling, in any degree, the life or health of the plaintiff. The use of anæsthetics, opiates, or drugs of any kind, should have been forbidden, if, indeed, it had been proposed, and it should have prescribed that he should have been subjected to no tests painful in their character. As to indignity to which an examination would have subjected him, as urged by counsel, it is probably more imaginary than real. An examination of the person is not so regarded when made for the purpose of administering remedies. Those who effect insurance upon their lives, provisions for disability incurred in the military service of the country, soldiers and sailors enlisting in the army and and navy—all are subjected to rigid examination of their bodies, and it is never esteemed a dishonor or indignity. The standing and character of the physicians who should have been appointed to make the examination would no doubt have secured plaintiff from insult and indignity, but would have been a guaranty that nothing would have been attempted which would have endangered his life or health.

We have been able to find no case in which the question before us has been considered, and we

have been referred to no authority by counsel, that seems to have much application thereto. The courts have held in divorce cases, where the impotency of a party is in question, an examination may be ordered of the person alleged to be impotent. See 2 Bishop on Marriage and Divorce, sec. 590, et seq. and notes. The foundation of this rule is the difficulty of reaching the truth in any other way than by an examination of the person. The authorities referred to may be regarded as giving some support to our conclusion.

It is the practice of the courts of this state, sanctioned by more than one decision of this court, to permit plaintiffs, who sue for personal injuries, to exhibit to the jury their wounds or injured limbs, in order to show the extent of their disability or sufferings. If, for the purpose, the plaintiff may exhibit his injuries, we see no reason why he may not, in a proper case, and under proper circumstances, be required to do the same thing for a like purpose, upon the request of the other party. If he may be required to exhibit his body to the jury, he ought to be required to submit it to examination of competent professional

men.

The court instructed the jury that they were authorized to regard plaintiff's refusal to submit to an examination as an admission that the examination, if made, would have been against his interest in the suit. It is argued that this familiar rule of law would alone relieve defendant from the effect of prejudice, on account of the refusal of plaintiff to be examined. This position is not correct. The defendant is left to depend upon the influence of the jury, which might or might not have been exercised, instead of having the truth disclosed by direct and positive evidence. The law will not require it to depend upon such inferences, when it can afford the means of producing competent evidence upon the question in issue.

Certain instructions given by the court on its own motion, and modifications of those given upon request of defendant, are complained of as being erroneous. The rule announced by the court in these instructions is substantially to this effect: That if the plaintiff was employed for the purpose of taking down and removing the bridge, and in doing this work a train was used on defendant's road, upon which plaintiff, in the course of his employment, and in obedience to the requirements of his superior, was riding at the time he sustained the injury, he was engaged in operating the road and the defendant, if the negligence and the care of plaintiff were found, was liable under the statute. The rule contemplates the cars of the train being operated for the purpose of removing the bridge. The purpose for which it is operated can not relieve defendant of liability, if the injury was sustained in its operation. If it was a part of plaintiff's employment to go upon the train, and he did so in the discharge of his duty, he is to be regarded as having been engaged in its operation, or his employment was connected with its operation. The rule of the instruction is correct, and is fully supported

by Dippe v. C., R. I. & P. R. Co., 36 Iowa, 52. We discover no errors in the other instructions given to the jury.

Other objections urged by defendant's counsel relate to the findings of the jury, upon issues raised by the pleadings, which, it is claimed, are in conflict with the testimony. We are not required to pass upon these objections, as the judgment, for the error of the court in refusing to require plaintiff to submit to an examination, must be reversed.

REVERSED.

EQUITY JURISDICTION-RIGHT OF WAY

PAROL AGREEMENT.

BLOOMSTEIN ET AL. v. CLEES BROTHERS. Chancery Court at Nashville, Tenn., October Term, 1877.

Before HON. W. F. COOPER, Chancellor.

EQUITY will interfere, upon the ground of fraud and equitable estoppel, to prevent parties, by the assertion of a legal right, from interfering with the enjoyment of a right of way over their lands, and of a ferry at the end thereof, connecting with a way on the other side of the river purchased by the complainants and defendants, in pursuance of a parol agreement relating to the entire way and as part of the common enterprise,and, by contract in writing between them, made a permanent way "from and beyond the river," appurtenant to their several tracts of land and every part thereof, into whosoever hands the same might come, large sums of money having been spent by the complainants in the common enterprise, and the whole way, including the ferry, having been used six years before the interference of the defendants.

Gant, Demant & Gant, for complainants; John Ruhm, for defendants.

THE CHANCELLOR:

The demurrer to the bill is intended to raise the question, whether the right of way claimed by the complainants over the land of the defendants can be maintained if the agreement under which it is claimed was in parol.

The bill was filed on the 27th of August, 1877, by Bloomstein and the administrator and heirs of M. Anderson, deceased, against six brothers of the name of Clees. Bloomstein, Anderson, and the Clees brothers were the owners of large tracts of land in Bell's bend of the Cumberland river, on its north bank. The Clees brothers owned 1600 acres bounded by the river on the south and east. Bloomstein owned 600 acres bounded by the river on the south and west, and by the lands of the Clees brothers on the east, and Anderson owned 800 acres adjoining Bloomstein's land on the north, bounded by the river on the west and the Clees brothers on the east. These three parties owned all the land in the bottom of the bend, the dividing line between the lands of the Clees brothers on the east, and of Bloomstein and Anderson on the west, striking the bend near the centre, and no person north of them could cross the river in the bend without passing over the lands of one or more of them. By crossing the river and striking the Charlotte turnpike

at a distance of about three quarters of a mile, persons living on the bend could reach Nashville by that turnpike, the distance in all being some six miles, whereas the distance to Nashville by going out of the bend to the north was nearly sixteen miles, and over bad roads. Under these circumstances, "it was agreed " between Bloomstein, Anderson and the Clees brothers, in the spring of 1870, to open a road thirty feet wide to the river, on the line between the lands of Bloomstein and the Clees brothers, and part of the lands of Anderson, each adjoining proprietor giving one-half, establish a ferry, and buy the right of way south of the river to the Charlotte turnpike. Each of the contracting parties was to contribute to the expenses of making the road and ferry landing, the purchase of a ferry boat, and of the right of way south of the river, in the proportion of the number of acres in their respective farms, that is to say, the Clees brothers 16-30, Anderson 8-30, and Bloomstein 6-30. In pursuance of this ageeement, the parties caused a survey and location of the road to be made north of the river, but, afterwards, at the solicitation of the defendants, and upon their undertaking to give the right of way over their lands, the road was changed so as to diverge eastwardly through the lands of the defendants by a route proposed by them. This change of route necessitated the building of a bridge on the defendant's land over a small stream. On the 7th of Nov., 1870, the parties purchased and took, a conveyance of the right of way on the south side of the river to the Charlotte turnpike. This conveyance also embodies an agreement between the parties touching the right of way, and is signed by them. The road was completed on both sides of the river, the ferry established, an order being obtained from the county court for this purpose, and the bridge built, the entire cost being about $3000, of which Bloomstein and Anderson paid their full quota. The defendants agreed to employ one of their tenants to run the ferry, and keep regular accounts, the parties to share the profits or losses in the proportion of their investments. The road was completed and the ferry established in 1871, and they were used by the parties and their tenants, and by "the neighbors and citizens and their tenants," and by the pubiic generally, until July, 1877, when the defendants, without the knowledge of the complainants, procured an order from the county court discontinuing the public ferry, and have since refused to permit the complainants to use the road or ferry, while they use it for their own benefit.

The conveyance of the right of way on the south side of the river shows, upon its face, that the way was intended to be for the use of the parties from a ferry on the river to the Charlotte turnpike, although the fee to the land conveyed was vested in them. It also contains an agreement between Bloomstein, Anderson and the Clees brothers, in the following language: "But, as between and among the individuals composing the second party hereto, it is understood and agreed that said strip of land is to be held as an easement appurtenant to the tracts of land now owned

by them respectively on the west side of the Cumberland river in said county, not to be separated from said lands by sale, devise, or bankruptcy; and that, upon either of the individuals of the second part ceasing to be owners of any interest in either of said tracts, from whatever cause his interest may cease, his right, title or interest in the above strip of land shall also cease, and be transferred to the party acquiring his interest in the tract to which the easement is appurtenant; nor shall the right or title of any of the parties of the second part, in the above strip of land, be liable to sale for his debts, either under execution or bankruptcy; but the said strip, if the full width of thirty feet, shall be held by said parties of the second part, as between themselves, for a general open way for a passage on foot, with horses, carts, wagons, and other carriages, and for all purposes to be the common property of them, their heirs and assigns, to be forever kept open as a common way, in, through, over, along, and across said strip of land, and to be used at any hour of the day or night, with the right to use the rock and other things, within the bounds of said strip in building and repairing said road; to be for the benefit and use of all the parties of the second part as long as they remain owners of said strip of land, and to follow said tracts and every part thereof into whosoever hands they may come, to furnish a way from and beyond the Cumberland river to and beyond the Charlotte turnpike, and the reverse, for all persons going from or coming to said tracts of land, or any part thereof."

This instrument, to which the defendants are parties, signing it by the name of Clees Brothers, expressly provides that the strip of land then bought is to be held, as between them and Bloomstein and Anderson, "for a general open way," appurtenant to their several tracts of land," and every part thereof," into whosoever hands they may come," and to furnish a way from and beyond the Cumberland river, for all persons going from or coming to said tracts of land, or any part thereof." By itself, this language might not necessarily imply more than a continuous right of way from the river to the turnpike, but, when taken in connection with the general agreement to establish the ferry and the road on the north side of the river, it probably imposes upon the defendants the duty of good faith touching the whole of the agreement. They can not, after joining the other parties in a common enterprise, be allowed to deprive those parties of any of those rights expressly stipulated for, or reap individual benefit at their expense. Community of interest produces community of duty, and it would be inequitable to permit one of the contracting parties to do anything to the prejudice of the others, in relation to the common property. Harrison v. Winston, 2 Tenn. Ch. 547, and cases cited. I am not, therefore, prepared to say that a written agreement of this character, touching a part of a connected right of way, would not be sufficient, under our statute of frauds, as an equitable estoppel to prevent the defendants from interfering with the right of way which the proof

may show to be necessary to the enjoyment of the right expressly conceded by the writing. Brown v. Berry, 6 Coldw. 102. Conceding the law to be strictly as claimed by the demurrer, it is precisely one of these cases of legal right which ought not to be determined except upon a final hearing on the facts. Brownsword v. Edwards, 2 Ves. 247.

But the legal right has been argued ably by the learned counsel on both sides, and I am prepared to state the conclusions to which that argument and an examination of the authorities has led me. A right of way is an incorporeal hereditament, and is, doubtless, embraced in our statute of frauds, which prohibits an action "upon any contract for the sale of lands, tenements, and hereditaments," unless in writing. Harris v. Miller, Meigs, 158, and Mr. Meigs' note at the end of the case. In this view, a right of way may, of course, be acquired by seven years' adverse possession by user, under our statute of limitation, which include, in like manner, "lands. tenements and hereditaments." Code, §§ 2763, 2765; Jarnagin v. Mairs, 1 Hum. 479. But the period of user in this case was only about six years, and, therefore, insufficient to complete the bar. The complainants are, consequently, to stand upon the agreement as a parol license, coupled with an interest, working an equitable estoppel.

A mere license is, in its very nature, revocable, and confined to the parties between whom it is made. But a license loses its revocable character whenever it is coupled with the grant of an interest, or when an interest exists which depends upon, or can not be enjoyed without the aid of the license. Thomas v. Sorrel, Vaugh. 350; Wood v. Leadbitter, 13 M. & W. 844. So, if the license be executed. Pierrepont v. Barnard, 6 N. Y. 279. It is obvious, however, that to give an oral license, in regard to land, an effect which is denied to an oral contract would be virtually to abrogate the statute of frauds. At law, therefore, a license relating to land remains revocable, unless the interest with which it is coupled is legally granted; that is, where the statute of frauds applies by a written instrument. But it has long been settled, that equity may control the words of the statute, in order to prevent it from being used as a cover for the commission of the frauds which it was meant to suppress. It is the fraud which calls into play the jurisdiction of the court. Upon this ground rests the decisions which enforce the specific execution of parol contracts, touching land when there has been part performance. 1 Sto. Eq. Jur., § 330. In this state our judiciary, at an early day, concluded to adhere rigidly to the statute, and refused to follow the decisions mentioned. Patten v. McClure, Mant. & Yer. 333. In that very case, however, the court said that, if a man knowingly suffer another to purchase and expend money on land, under an erroneous opinion of title, without making his claim known, he would be estopped to set up his title against such person. This ruling has been repeated in subsequent cases. Morris v. Moore, 11 Humph. 434; Chester v. Greer, 5 Humph. 26. Another qualification of the earlier doctrine was

made in Sneed v. Bradley, 4 Sneed, 301. It was there held, that a verbal contract for the sale of land was voidable, rather than void, and that the purchaser could maintain no action to recover back the consideration paid while the vendor was able, ready and willing to perform the agreement by making a conveyance. Of course, the converse would be true where suit was brought to recover the land. This opinion of one of our ablest judges was followed by another equally eminent judge, in Hilton v. Duncan, 1 Coldw. 313. It was either approved or followed in Roberts v. Francis, 2 Heisk. 128; Hamilton v. Gilbert, 2 Heisk. 680; Masson v. Swan, 6 Heisk. 451; McClure v. Harris, 7 Heisk. 379. It has, however, been recently repudiated, and the cases in which it was first announced directly overruled. Biggs v. Johnson, at Jackson, October term, 1876. The only exceptions which, under this latest decision, equity can make to the statute, are those resting on fraud, and there is a long line of English and American cases of equitable estoppel based on this ground.

The earliest case on this subject is that of Short v. Taylor, decided by Lord Somers, and cited in 2 Eq. Ca. Abr. 522. There, a person built a house, laying part of his foundation on the land of another, who, seeing this, did not forbid him, and, on the contrary, very much encouraged it; but when the house was built brought an action. Lord Somers granted an injunction, and said it was just and reasonable; for, being a nuisance, every continuance is a fresh nuisance, and so he would be perpetually liable to actions, which would be hard when encouraged by the party himself. A case still more in point is cited by Lord Loughborough, in Jackson v. Cator, 6 Ves. 690. "There was a case," says his Lordship, "against Mr. George Clavering, in which some person was carrying on a project of a colliery, and had sunk a shaft at a considerable expense. Mr. Clavering saw the thing going on, and in the execution of that plan it was very clear the colliery was not worth a farthing without a road over his ground, and (afterwards) when the work (of the colliery) was begun, he said he would not give the road. The end of it was, that he was made sensible, I do not know whether by decree or not, that he was to give the road at a fair value." The case, then, before the court was where a lease had been granted, reserving all trees and timber-like trees and pollards, and all plants and shrubs that are, or may be planted." The lessee having, with the knowledge and approval of the lessor, laid off part of the premises into a lawn, planting shrubberies, etc., the court enjoined the lessor from exercising his reserved rights by cutting down the timber in the lawn. The principle relied on was, that when a person has stood by, seeing the act done, or has consented to it, he shall not exercise his legal right in opposition to that permission; citing Stiles v. Cowper, 3 Atk. 692; East India Company v. Vincent, 2 Atk. 83; Hardcastle v. Shafts, 1 Anst. 184. Lord Eldon had the question before him in Dann v. Spurrier, 7 Ves. 235, and considered it with his usual cautious accuracy. "I fully subscribe," he says, "to the