indorsement was in proof with waiver of demand, protest, and notice on the part of Waterhouse, as indorser. [2] The suit was based on the note. That instrument was not copied into the declaration so as to set forth the waiver, but profert was made of it, that being a formula in pleading whereby the pleader professes to bring into court an instrument to be shown to the court and to his adversary. It is true that mere profert of a note does not make the instrument, the foundation of the action, a part of the declaration, when that pleading is tested for sufficiency by a demurrer. Insurance Co. v. Thornton, 97 Tenn. 1, 15, 40 S. W. 136. The court is confined to the face of the declaration in such test. [3] But a further rule of pleading is that, when oyer is craved by the defendant and granted by the court, the effect is to make the instrument a part of the record, and the defendant may demur or plead at his option, treating the note as incorporated in the declaration, as though set out verbatim therein. [4] If an element essential to the existence of a cause of action be omitted from the declaration containing profert, and oyer be craved and the instrument be spread upon the record, the defect will be cured if the instrument supplies or corrects the omission. 31 Cyc. 555; Edwards v. Weister, 2 A. K. Marsh. (Ky.) 382. The omission to aver demand, protest, and notice would be cured in such event when defendant's waiver thereof, in the note itself, was shown. The rule is thus summarized in 8 C. J. 906: "Where a waiver of demand or notice of dishonor is expressed in the instrument sued on, no allegation as to presentment or notice is necessary." And it has been held that, where the check sued on is set forth with an indorsement across its face showing that payment thereon was stopped, it sufficiently appears that payment of the check had been countermanded so as to preclude the necessity of alleging notice of dishonor. National Copper Bank v. Davis, 47 Utah, 236, 152 Pac. 1180; Citizens' Bank v. Millett, 103 Ky. 1, 44 S. W. 366, 44 L. R. A. 664, 82 Am. St. Rep. 546. en notice of protest, but absolute in that regard. An arrest of judgment in such a case is fairly forbidden by Acts 1911, c. 32 (Thomp. Shan. Code, § 4902a1), which provides that no judgment shall be set aside for any errors in procedure, unless in the opinion of the court, after an examination of the entire record, it shall affirmatively appear that the error affected the result of the trial. [6] Waterhouse, as appellant, did not see fit to preserve a bill of exceptions, incorporating the proof adduced. In that event, under a familiar rule, we must assume that there was sufficient testimony to support the judgment rendered against him by the circuit judge; in other words, that Waterhouse was found to be liable notwithstanding there was a failure to present or protest the note and to give notice; and such liability could be consequent upon the asserted waiver in the note when produced in evidence as the basis of the judgment. On the motion in arrest of judgment we should, under the acts of 1911, and do assume, that the note was produced in evidence containing the waiver. Affirmed. A joint boundary commission, appointed in 1779 to extend the boundary line of Virginia and North Carolina, running upon 36 degrees to be due west, into Carter's Valley, and the 30 minutes north latitude, ran a line, supposed Virginia Commission ran a line, known as Walker's line, from thence to the Tennessee river, leaving an unsurveyed gap from Deep or Clear fork to the first crossing of Cumberland river, which line deflected and reached the river on 36 degrees 40 minutes north latitude. A compromise agreement was made in 1820, and thereafter ratified, to the Tennessee river and the line of 36 degrees adopting the Walker line from Cumberland gap 30 minutes north latitude from thence to the Mississippi, whereby Kentucky yielded the land between Walker's line and 36 degrees 30 minutes agreed that all vacant land should be the propeast of the Tennessee river, to Tennessee, which erty of and subject to the disposition of Kentucky. Complainants in ejectment claimed under a grant from Tennessee in 1849, and defendants claimed under a grant from Kentucky in 1880, the land lying between the Walker line [5] If, then, the proof had shown the note and a line on 36 degrees 30 minutes north latito contain the waiver, the motion in arrest tude. Held, that under the compact the Kenof judgment could not be sustained for the tucky grant was valid, though the land was in reason that defendant Waterhouse's liability abandoned such right by mere implication or by Tennessee, and that Kentucky could not have would not be conditional upon his being giv-any conduct short of a clear and unmistakable Now the question arises: Is the case to be deflected adversely by reason of the fact that the note is brought into the record by proof rather than by way of oyer granted? What substance can there be to support a divergent ruling? It would seem that, if the note becomes a part of the record by way of sworn testimony, it should not weigh less in plaintiff's favor than when it is imported into a pleading of record by way of a quasi fiction. affirmative act indicating a purpose to repudiate | from Deep or Clear fork to the first crossing ownership. of Cumberland river, a distance of about 97 170(3)-ESTOPPEL-AFT- miles. Later surveys developed the fact that 3. PUBLIC LANDS Appeal from Chancery Court, Claiborne Bill of ejectment by W. T. Russell and others against the American Association and others. From a decree dismissing the bill on demurrer, complainants appeal. Affirmed. Frank Park, Jr., of Jefferson City, and Chas. T. Cates, Jr., of Knoxville, for W. T. Russell and others. Montgomery & Montgomery, of Tazewell, and Sampson & Sampson, of Middlesboro, for American Ass'n and others. WILLIAMS, J. Complainants filed a bill to eject defendants from two tracts of land, of 5,000 acres each, alleged to have been granted by the state of Tennessee in 1849; one tract to Jacob Peck, who for many years was an associate justice of this court, the other to his son, Adam C. Peck. The beginning corner of the first-named grant is at the corner of the states of Virginia and Kentucky on the north boundary line of this state, near Cumberland gap; and the second grant lies immediately west of the first. Both are located between what is known as the Walker line of 1779-80 and the latitude line of 36 degrees and 30 minutes north. A brief history of the boundary line, run from time to time, is necessary in order to understand all phases of the pending litiga tion. The unmarked parallel of latitude of 36 degrees and 30 minutes north was made by royul charter the boundary line between the colonies of Virginia and North Carolina, and that parallel was therefore the true line dividing the state of North Carolina from Virginia, and later Tennessee from Kentucky. In 1779 the Legislature of Virginia named Thomas Walker and Daniel Smith on the part of that state, and North Carolina named Col. Richard Henderson and William B. Smith, as members of a joint commission to run and mark an extension of the boundary line be tween those stated, of which the territory now within the states of Kentucky and Tennessee were parts, respectively. After fixing upon the point of beginning as being in latitude 36 degrees and 30 minutes, "to the satisfaction" of all, they ran a line, which was supposed to be due west, about 45 miles into Carter's valley. Here a disagreement between Walker and Henderson led to a separation. The Virginia commissioners continued independently, and ran what is known as Walker's line to the Tennessee river, leaving an unsurveyed and unmarked gap, however, Walker's line deflected throughout to the north, owing to improper allowance for the variation of the needle, and as a result the Tennessee river was reached near latitude of 36 degrees and 40 minutes, or more than 12 miles north of the true latitude line. The discovery of this deflection led the state of Kentucky in the opening years of the nineteenth century to insist upon a correction and to stand for a reclamation of the strip from the state of Tennessee. After several futile negotiations between the two commonwealths covering a period of nearly two decades, the Legislature of this state named had been Chief Justice of Kentucky, and who two of its ablest lawyers, Felix Grundy, who later represented this state in the United States Senate, and was Attorney General in the cabinet of President Van Buren, and Wiltice of this court, as commissioners to negoliam L. Brown, who subsequently was a justiate a treaty settling the dispute. Kentucky on her part named John J. Crittenden, one time a senator from that state and Attorney General in the cabinets of Presidents Harrison and Tyler, and Robert Trimble, who before that time was on the bench of the Kentucky Court of Appeals and who later was a Justice of the Supreme Court of the United States. Judge John Rowan, of the Court of Appeals of Kentucky, also acted for that state in the negotiations which led up to the signing of the compact. It may safely be asserted that never in the history of this country have two commonwealths met for treaty on any other occasion where they were represented by men of equal legal ability. A compromise was embodied in a treaty of date February 2, 1820, which was ratified by the Legislatures of the states represented. Broadly speaking, the Walker line was adopted from Cumberland gap to the Tennessee river, while between that stream and the Mississippi river the true latitude line was made the boundary line. These facts account for the offset in the north boundary line of this state at the Tennessee river, so plainly shown by maps of the two states. In consideration of Kentucky's yielding to Tennessee sovereignty over the strip lying between the latitude line and the Walker line, east of the Tennessee river, it was agreed by Tennessee that all vacant land should be "the property of, and subject to the disposition of, the state of Kentucky," and that any grants which Kentucky might make were to be rec ognized as valid by the courts of this state. Minor misunderstandings as to the true location of Walker's line continued to arise, due in part to the fact that the gap above referred to had never been marked on the ground. In 1821 a joint commission, compos For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed of Wm. Steele, on the part of Kentucky, and Absolom Looney, on the part of this state, surveyed, but inadequately marked this gap in, and as a part of, Walker's line; and their acts were confirmed by the respective Legislatures in November, 1821. Acts Tenn. 1821, c. 44; Acts Ky. 1821, c. 206. Growing out of such insufficient marking of the line by Steele and Looney, disputes still constantly arose as to the true location, and from a standpoint of showing jurisdiction in the respective commonwealths in the enforcement of their criminal laws, a more accurate survey and a detailed and permanent marking was found necessary. Therefore, in 1859, a joint commission composed of Benjamin Peeples and O. R. Watkins, representing this state, and Austin P. Cox and C. M. Briggs, representing Kentucky, undertook to run and mark the line as adopted in the compact of 1820. The phraseology of that compact in respect of the line to be re-run along the territory involved in this litigation was: "Walker's line, as the same is reputed, understood, and acted upon by the two states, their respective authorities and citizens." The boundary commission of 1859 made an earnest and painstaking effort to carry out the true intent of the compact, and their work, promptly approved by the two Legislatures, has sufficed to define the boundary between the two states till this day. The commission had the aid of skilled engineers, and at great expense marked the line by planting stone monuments. Their report, a duplicate original of which is in the record of this cause, upon examination evidences as thorough work as the topography of the sections traversed would reasonably admit of. [1] One of the contentions of appellants is that, since the national Congress has never formally consented to or sanctioned the compact of 1820 between the states of Kentucky and Tennessee, that compact is invalid because in conflict with article 1, § 10, cl. 3 of the federal Constitution which provides that: "No state shall, without the consent of Conenter into any agreement or compact with another state," etc. gress, * * This contention has been answered by the Supreme Court of the United States in Virginia v. Tennessee, 148 U. S. 503, 13 Sup. Ct. 728, 37 L. Ed. 537, where it was said: ** * "The Constitution does not state when the consent of Congress shall be given, whether it shall precede or may follow the compact made, or whether it shall be express or may be implied. Where the agreement relates to a matter which could not well be considered until its nature is fully developed, it is not perceived why the consent may not be subsequently given. Story says that the consent may be implied, and [it] is always to be implied when Congress adopts the particular act by sanctioning its objects and aiding in enforcing them. * * Knowledge by Congress of the boundaries of a state, and of its political subdivisions, may reasonably be presumed, as much of its legislation is affected by them, such as relate to the territorial jurisdiction of the courts of the Unit * "The approval by Congress of the compact entered into between the states upon their ratification of the action of their commissioners is fairly implied from its subsequent legislation and proceedings." See, also, North Carolina v. Tennessee, 235 U. S. 1, 35 Sup. Ct. 8, 59 L. Ed. 97. [2] The next insistence of appellants is that since the lands lie within the boundary lines of this state, only the state of Tennessee had power to grant the lands in dispute. The contrary was held in respect of lands lying between the line of latitude 36 degrees and 30 minutes and the Walker boundary line which were granted by Kentucky in the year 1851. Sharp v. Van Winkle, 12 Lea (80 Tenn.) 15. It was there said, in reference to the compact of 1820: "It is obvious that the state of Tennessee, by lands mentioned which were claimed under the this convention, parted with all its title to the other states named, and if not in terms, in plain legal effect, granted to the state of Kentucky with an exemption from taxation for five years, the vacant and unappropriated land specified, if not sooner appropriated by individuals under titles derived from that state. Tennessee could not afterwards rightfully grant any of these lands, and no reason occurs why a general statute of limitations should not apply to them. A grant of land may be made by a state by statute, convention, or treaty reservation, as well as by warrant, entry, or grant proper. Blair v. Pathkiller, 2 Yerg. 407; McConnell v. Mousepaine, 2 Yerg. 438; Gillespie v. Cunningham, 2 Humph. 19. The Henderson grant of 200,000 acres in East Tennessee, and the grant to Gen. Greene of 25,000 acres in Middle Tennessee, Meigs Dig. § 1815. Lands are granted by the were made by North Carolina by statute; state whenever the state makes a valid disposition or surrender of its interest therein." Counsel of appellants undertake to distinguish the pending case by a reference to the fact that the Kentucky patents to appellees were issued in 1880, and by an assertion that the joint commission of 1859, not being able to find any marks of the old Walker line, undertook to abandon that as a boundary line; and, further, that it adopted a new and independent line, which in ratification by the two states became the true line, in respect of lands south of which, Kentucky did not retain or stipulate for the title or the right to grant, on its part. The reply is manifold. (a) This court held in Sharp v. Van Winkle, supra, that Tennessee had made a legislative grant to Kentucky of such unappropriated lands, which lands were to continue, however, under the sovereignty of Tennessee. As such grantee it is difficult to understand how Kentucky could abandon her rights by mere implication, or by any conduct short of some clear and unmistakable affirmative act indicating a purpose to repudiate ownership. Phy v. Hatfield, 122 Tenn. 694, 126 S. W. 105, 135 Am. St. Rep. 888, 19 Ann. Cas. 374; Brannon v. Mercer, 138 Tenn. - 198 S. W. 253. It was not a mere power or privilege to make commonwealth by the compact of 1820, but a right to dispose as owner, vested with title to that end, subject, of course, to the right of Tennessee to tax and govern as parts of the domain over which her sovereign power extended. [3] (b) If there had been an abandonment by Kentucky and a reversion of title to this state, such, according to appellant's own argument, must be assumed to have occurred in 1859-60. It is insisted that as Tennessee granted the lands to the Peck's in 1849, her after-acquired title, thus assumed, would inure to the benefit of the Peck's. This would not be the result. The point was well ruled in Casey v. Inloes, 1 Gill (Md.) 430, 39 Am. Dec. 658. Since a state in granting lands conveys without covenant "the doctrine of estoppel does not apply to a grant from the state, so as to pass an afteracquired title, and such grant passed only the title the state then had." See, also, St. Louis Refrigerator, etc., Co. v. Langley, 66 Ark. 48, 51 S. W. 68. In this case the state of Tennessee was without title in 1849, and complainants therefore lack title in themselves to wage successfully a claim in ejectment. (c) It appears from the report of the commission of 1859 that they found evidences of the markings of Walker made in 1779-80. We quote one paragraph, which relates to that line as it was run past the property in litigation: "We have seen many of them (Walker line trees) west of the southeast corner of Kentucky, for several miles, and as far westward as he professed to run it, that is to the Clear fork of Cumberland river, and they were uniformly marked with three chops, fore and aft." By way of reenforcement, and to preserve it as an interesting bit of local history, we here quote what is reported in respect of one of the two or more trees found west of Cumberland river, and on the southern line of Logan county, Ky.: "On another beech tree, near the large one, we saw the names of James West. Isaac Bledsoe, 11th March, 1780.' We suppose these men were a portion of Walker's corps. All the chops had the appearance of being very ancient, and had doubtless been made by Walker's party. We did not block any of them, thinking it a shame that every vestige of Walker's ever having run the line should be obliterated: we were fully satisfied without doing it; and the beech stands there now, as it did when the sur veyors in 1779-80 left it. not seeming to have lost any of its vigor by the lapse of ages." The result, as well as the object of the labors of the commission of 1859, was not to run and mark a new line, but to re-mark the original Walker line. The state of Tennessee gained much as the result of the compact of 1820, due to the willingness of our sister commonwealth to yield her claim to sovereignty over a large area in order not to defeat the wishes of many settlers in the strip to remain citizens of Tennes see. What was granted to Kentucky in the bargain embodied in the compact, by way of compensation, should not at this day be denied by indirection or pared down. This court has once refused to give countenance to such an effort; and so far as we represent the sovereign power of this state, we think that that sovereignty may best be vindicated by holding to the spirit as well as the letter of the solemn compact of 1820. Complainants' case being devoid of merit, the chancellor's decree dismissing the bill on demurrer is affirmed. CAROLINA SPRUCE CO. v. BLACK MOUNTAIN R. CO. (Supreme Court of Tennessee. Feb. 11, 1918.) 1. CONTRACTS 300(1) CONSTRUCTION OF LOGGING ROAD-EXTENSION OF TIME—“ACT OF GOD"-"CAUSES BEYOND ITS CONTROL”— "UNAVOIDABLY PREVENTED." Under a railroad's contract to construct and put in operation a road from a timber tract to a main line junction, the provision, unless prevented by other "causes beyond its control," did not refer only to a cause which was an "act of God," that term meaning a happening due directly and exclusively to a natural cause or causes in no sense attributable to human agencies, which could not be resisted or prevented by the exercise of such foresight, prudence, and care as the situation might have called into exercise; but the provision was synonymous with trol" implying a pledge to exercise human agency "unavoidably prevented," the words "beyond conto the point of excluding negligence, so that unanticipated trouble and delay encountered in a cut by reason of a peculiar mud or clay called "gumbo," much harder to remove than rock, entitled the railroad to 30 days' additional time to finish construction. [Ed. Note.-For other definitions, see Words and Phrases. First and Second Series, Act of God; Unavoidably Prevented.] 2. CONTRACTS 280(1) LOGGING ROAD PLETED." CONSTRUCTION OF "COM "CONSTRUCTED" Where the road had until June 1st to finish construction 'of the line, the construction of a road in which the curves were fully tied, but the straight portions of which were half tied, but which enabled an engine and cars with additional ties to be sent forward, and put it in condition to bear any traffic tendered by the lumber company, and where heavy mill machinery was hauled over the line early in April, and the roadway was thereafter steadily improved, it was constructed and placed in operation for general tially the signification of the word "completed.' traffic; the word "constructed" having substan and Phrases, First and Second Series, Complete; [Ed. Note.-For other definitions, see Words Construct.] 3. CONTRACTS 280(1) CONSTRUCTION OF LOGGING RAILROAD OPERATION - EQUIPMENT "CONSTRUCTED"-"COMPLETED.' The road was constructed and placed in operation, even though the contractor, which had purchased engines, was dependent upon its connecting carriers for its freight car supply, as the word "completed" did not include the equipment of the road with the contractor's own rolling stock, especially where there was no express contract provision that the railroad would purchase rolling stock. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. CARRIERS 193-CONSTRUCTION OF LOG-| county, N. C., was desirous of securing railGING ROAD-CONTRACT-FREIGHT RATES. Under a railroad's contract to construct a logging railroad to connect with a main line, and to transport lumber, etc., to a junction on the main line at four cents per hundred pounds in excess of the rates currently in force from the junction, the railroad's charge and collection of four cents, plus the regular through rate charges from the junction, and its receipt of three cents from the connecting carrier for producing the traffic, was authorized, provided there was no discrimination between shippers. 5. CARRIERS 193 RATES ORIGINATING TRAFFIC. The established and well-known practice among railroad companies to allow to the carrier originating the business an advantage in the distribution or division of the rate has been recognized and by fair inference upheld by the Interstate Commerce Commission and the United States Supreme Court. 6. CARRIERS 199 RATES DISCRIMINA TION. Where a railroad contracted to construct a line from a main line junction to a timber tract, and to transport lumber, etc., at a certain rate, the shipper, if entitled to the part of the joint through rate paid by the connecting carriers to the railroad for originating traffic, would have an undue and forbidden preference over other shippers, and a contractual obligation, that it should receive such distribution would not justify such discrimination, and a state court would not enforce such a contract. RIGHT TO CORRECT CLAIM. way facilities for its development. The tract was located about 20 miles from the Carolina, Clinchfield & Ohio Railway, a trunk line, and its development required the construction by the Spruce Company, or another, of a tap-line railroad over which the forest products, such as lumber, logs, acid wood, etc., might be transported to some junction point on the Carolina, Clinchfield & Ohio Railway. The timber tract was located at or near the base of Black Mountain (Mt. Mitchell), one of the tallest peaks east of the Rocky Mountains, and a tap line to reach it Would have to traverse a very rough territory. In order to induce the construction of such a line to the boundary, the Spruce Company offered a bonus to aid the Black Mountain Railway Company in the large expenditure of money such construction would call for. Omitting to even outline previous contracts entered into in relation to the matter by the complainant and the defendant railway, and alleged breaches thereof by the Spruce Company, we believe it to be sufficient to say that on September 19, 1912, the two entered into an agreement, one of the clauses of which reads as follows: * "The railway company agrees that it will proceed forthwith to construct and place in operation a standard guage line of railway from a point of connection with the line of the Carolina, Clinchfield & Ohio Railway at Black Mountain Junction to Pensacola, along the route to be selected by the railway company, * so that material and machinery of the Spruce Company, necessary for the erection of a sawbe transported over the same not later than mill and plant of the Spruce Company, may March 1, 1913, and that the road will be in condition for general traffic not later than April 1, 1913 (later changed by the parties to May 1, 1913), unless prevented by weather conditions or other causes beyond its control." As a part of the bonus sum, a note of $10,000 was executed by the complainant company to the railway company, which note was secured by a pledge of first mortgage bonds of complainant. At the maturity of the note there was a claim of default in payment, and the collateral was advertised for On a bill by a lumber company to enjoin a railroad's sale of collateral upon default in the payment of a note given the railroad for constructing a logging road, where it appeared that complainant might have a just claim in some amount not shown by the record for an overcharge on cars equipped with standards placed on gondola and flat cars, the decree entered should reserve to it the right to litigate such claim in a court, or before the Interstate Com- sale. merce Commission, as it might be advised. Appeal from Chancery Court, Washington County; Hal H. Haynes, Chancellor. Bill for injunction by the Carolina Spruce Company against the Black Mountain Railroad Company, with cross-bill by defendant. Decree for complainant in part, from which this appeal is brought. Modified. Harr & Burrow, of Johnson City, for Carolina Spruce Co. J. J. McLaughlin, Cox & Taylor, and J. R. Simmonds, all of Johnson City, for Black Mountain R. Co. It The bill of complaint of the Spruce Company was filed to enjoin the sale of the collateral, and it challenged the right of the railway company to collect the note by an allegation that the contract had not been complied with by the railway company. was alleged that the latter company was obligated to build and equip its line by a date fixed, but had itself made default and failed to earn the bonus, and had seriously injured complainant. Other allegations in the bill and allegations and denials in an answer raised the issues discussed in the body of this opinion. WILLIAMS, J. The Carolina Spruce Com- A cross-bill was filed by the railway com. pany, a private corporation, having pur-pany praying for appropriate relief. chased a large boundary of timber in Yancey [1] In point of fact the railroad did not |