said: "Looking at the words of the supplement, we find that the vacancies to be filled. may occur by expiration of the term of office or otherwise. According to the original act, the vacancies would occur by death, resignation or otherwise.' The word 'otherwise' in the supplement is broad enough to cover vacancies by death and resignation. It also covers vacancies by removal of the incumbent from the district and by failure of a director elect to assume the duties of his office. But how can there be a vacancy caused by the expiration of the term? We know of only one way and that is, the failure of the electors of any particular district to elect a poor director at a proper time."

In Monck v. Hilton, 2 Ex. D. (Eng.) 268, 46 L. J. M. C. 163, the court had under consideration a statute providing that "every person pretending or professing to tell fortunes, or using any subtle craft, means, or device by palmistry or otherwise to deceive and impose on any of His Majesty's subjects" should be punished as a rogue and vagabond. The plaintiff pretending to have supernatural faculties in obtaining from the dead manifes tations of power, noises, raps, etc. was convicted under the statute. Sustaining the conviction the court said that the means used by the plaintiff came within the words "by palmistry or otherwise." In Pittsburgh, etc. St. L. R. Co. v. Mahoney, 148 Ind. 196, 46 N. E. 917, 47 N. E. 464, 62 Am. St. Rep. 503, 40 L.R.A. 101, it appeared that an employee of an express company had released the company from all liability on account of his injury or death from negligence "or otherwise.” It was held the release precluded an action against a railroad for his death caused by being caught between two cars as he was passing between them in the course of his Employment. The court said: "The word 'otherwise,' as it is twice employed in Romick's contract, must be deemed to include some liability not expressly mentioned or such as might arise out of the relations of the parties and within the general scope of his service and connection with them. Giving the word such force, it would reach liabilities beyond those expressly mentioned, and beyond those claims for damages, injuries, or death arising from the ordinary hazards of the service, for such claims present no liability. It would include 'all the risks involved,' ordinary, as well as extraordinary; and it would include the assumption by the express company in favor of the appellant."

In State v. Kelly, 32 Ohio St. 421, a statute providing that a county treasurer should be liable in an action on his bond "if he receives any further money out of the treasury for fees, clerk hire, or otherwise," the court said: "We conceive that these words 'or

otherwise' mean something. They comprehend every case of getting money out of the treasury other than that which the preceding section had provided should be the legitimate one."

It has been held that a provision in a private improvement act that nothing therein contained should affect any right which the corporation might have" under the Municipal Corporation Acts, or otherwise independently of this act," extended to all acts. Taylor v. Oldham, 4 Ch. D. (Eng.) 395.

In Swift v. Swift, 1 De G. F. & J. (Eng.) 160, 29 L. J. Ch. 121, it was held that a gift of real estate to hold "forever or otherwise, according to the several and respective natures and tenures thereof" included leaseholds for years.

In Shelford v. Louth, etc. R. Co. 4 Ex. D. (Eng.) 319, it was held that satisfying the court of any matter "by affidavit or otherwise" meant "by affidavit or by any other sufficient means.'

In Wilson v. Chicago Sanitary Dist. 133 Ill. 443, 27 N. E. 203, it appeared that an article of the constitution provided as follows: "The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or other. wise." The court said: "It is most probable that the words 'or otherwise' were used to exclude the possibility of misapprehension that because only cities, towns and villages could be authorized to make local improvements by special assessment,' 'or by special taxation of contiguous property,' they could not be authorized to make them by general taxation." In Morant v. Taylor, 1 Ex. D. (Eng.) 188, the court said that the words of a statute, "order for the payment of money or otherwise" included orders of every kind which a justice of the peace had authority to make.

In a case wherein the issue was as to who should under the provisions of a will bear the cost of some drainage work on a leasehold house the word "otherwise" was given a comprehensive interpretation. In re Crawley, 28 Ch. D. (Eng.) 431. Pearson, J., said: "It seems to me, that when the

testator has said that all that his wife is to receive is the rent that remains after paying 'all ordinary outgoings for ground rent, repairs, taxes, expenses of insurance, or otherwise' at all events, the word 'otherwise' is sufficient to cover this if the word 'taxes' is not sufficient, but looking to the form of the original lease of this house, I must come to the conclusion that the deduction will include whatever has been paid under that lease, and, under all these circumstances, though with some difficulty, I come to the

1

conclusion that the tenant for life ought to bear these expenses."

Under a statute providing that a debt due to a member of a company, in such capacity, "by way of dividends, profits, or otherwise" should be postponed to debts of the creditors of the company it has been held that a director's unpaid fees came within this provision. In re Leicester Club, etc. Co. 30 Ch. D. (Eng.) 629.

In Downing v. Marshall, 23 N. Y. 366, 80 Am. Dec. 290, it was held that authority to take "by direct purchase or otherwise" was authority to take by devise.

In Fellowes v. Clay, 4 Q. B. 313, 45 E. C. L. 313, the court said: "With respect to exemption or discharge, it speaks not of them generally, but, 'by composition real or otherwise,' that is, by some other means then known to the law, as by the lands having been abbey lands and held discharged. The word 'otherwise' cannot surely be construed to introduce an entirely new ground of exemption wholly unknown to the law; but the only legitimate meaning of the words must be that exemption from or discharge of tithes on any legal ground shall be sustained and deemed good and valid and indefeasible upon evidence of nonpayment for a certain length of time, instead of the length of time formerly required. Still the claim must be such as the law recognizes when shown to have been acted on for the specified length of time; that is, it must be shown to have reference to composition real or some known legal ground of exemption or discharge."

In Paulin v. Windsor, 36 Nova Scotia 446, it appeared that a testator directed his executors to pay to a town twenty thousand dollars to assist in building and maintaining a hospital as soon as a corresponding sum. "should be procured by the corporation, by a tax on the citizens, or from private donations, or otherwise, to be added to the said bequest." It was held that the words "or otherwise" in the will covered the obtaining of the sum from the Province. The court said: "The obvious design of the testator was to benefit his native town by assisting to found an hospital, and I can find nothing in the clause to indicate that he made it conditional on the balance being raised or procured out of the pockets of the citizens of Windsor only. There would only be two ways of accomplishing that, viz., by private donations, or by taxation. These are both specified in the clause, and then the words 'or otherwise' added. It is plain that the testator, so far from limiting the sources from which the money might be procured, by the language used, extended the right or privilege of getting the additional money in other ways than those partially specified."

. .

Construing a statute providing that if any person or persons, except taverners, "by agent or otherwise," should keep any house, etc., they should be guilty of an offense, it has been said that the word "otherwise” was not incautiously introduced in the statute and was necessary to carry out the intent of the legislature. Rawson v. State, 19 Conn. 299. It was urged in that case that the word had no meaning but the court said: "No man can read this statute without learning from its entire perusal, that the controlling purpose of the legislature was, to suppress tipling-houses, under whatever pretence or name established; and thus to prevent the facilities to intemperate and ruinous dramdrinking. To reject the word otherwise, from the law, and thus to legalize the evil which it was the object of the statute to prevent, if perpetrated in person, and not by agent, would be, not only absurd, but it would involve a judicial repeal of an important part of the law itself."

In Fuller v. Aylesworth, 75 Fed. 701, 43 U. S. App. 657, 21 C. C. A. 505, it appeared that by a rule of the supreme court a supersedeas bond, conditioned that the plaintiff in error or appellant should prosecute his writ or appeal to effect, was required. Where the judgment or decree was for the recovery of money "not otherwise secured," it was stipulated that the indemnity must be for the whole amount of the judgment or decree, including just damages for delays, costs and interest. It was held that "otherwise secured" meant "otherwise than by mere force of the judgment." The court said: "The meaning of 'otherwise secured' is sufficiently explained by that language in the rule which points out the instances in which a bond for the payment of a judgment is not required. They are all cases in which the court has, by reason of a lien on property secured to plaintiff otherwise than by the judgment or by reason of actual custody of property liable to satisfy the claim asserted, the means of making the claim of the plaintiff by subjecting specific property."

In Thayer v. Wendell, 1 Gall. 37, 23 Fed. Cas. No. 13,873, Story, J., said that an executor's covenant, contained in a deed of conveyance of land of his testator, given in his capacity as executor "but not otherwise" was not binding on him personally even though it might not be binding on the estate of the testator.

Construing a statute providing that "the action and proceedings as to the mode of proving claims, and otherwise, shall be conducted as actions and proceedings for the settlement of the estates of deceased persons are now required to be conducted, so far as the same are applicable," the court said in Marbury v. Kentucky Union Land Co. 62

In New York State Loan, etc. Co. v. Helmer, 77 N. Y. 64, wherein it appeared that the charter of a trust company authorized it to grant, bargain, sell, etc. all kinds of property, or to hold the same in trust, "or otherwise" and to advance moneys, etc., on property, the court held that the charter did not confer banking powers or authorize it to discount commercial paper.

In Collector v. Hubbard, 12 Wall. 1, 20 U. S. (L. ed.) 272, it was held that an Internal Revenue Act, requiring a stockholder in a company to return as income all profits aceruing to him therefrom whether the same were "divided or otherwise" embraced not only dividends but profits not divided.

It has been held that the words "by assignment or otherwise" were intended "to embrace and cover every and all means and manner of success or devolution, in addition to that by assignment." Carpenter v. Romer, etc. Steamboat Co. 48 App. Div. 363, 63 N. Y. S. 274.

In West Chicago St. R. Co. v. Morrison, etc. Co. 160 Ill. 288, 43 N. E. 393, it was said of a provision of a lease allowing the landlord a certain time for the repairing of machinery injured "through accident or otherwise:" "The expression 'through accident or otherwise,' is broad enough to include wear and tear, breakage from inherent defects, or even simple negligence or the torts of others. But these provisions did not contemplate a wilful trespass by the landlord and destruction of property and business."

In State v. Shade, 115 N. C. 759, 20 S. E. 537, it was held that a statute relating to assaults committed in a secret manner "by waylaying or otherwise" included every assault committed in a secret manner. The court said: "If it may be said to be the general rule that the word 'otherwise' following an enumeration should be interpreted by supplying after it the words 'ejusdem generis,' this statute, like the famous section 9 of 27 Henry VIII. constitutes a very clear exception, because it is not indefinite, but must be construed as meaning 'otherwise in a secret manner.'" See to the same effect State v. Jennings, 104 N. C. 774, 10 S. E. 249.

In Skinner v. Shew [1893] 1 Ch. (Eng.) 413, the issue was as to the interpretation of a section of an act which read as follows: "Where any person claiming to be the patentee of any invention, by circulars, advertisements or otherwise threatens any other person with any legal proceedings." The court said that the words "or otherwise" were to

be read as prohibiting any threats whatever of legal proceedings unless the person making them commenced and prosecuted an action for infringement of his patent. See also Driffield, etc. Pure Linseed Cake Co. v. Waterloo Mills Cake, etc. Co. 31 Ch. D. (Eng.) 638.

In Carpenter v. Mitchell, 54 Ill. 126, the court said: "This provision contemplates the acquisition of property in different modes by married women, and a fair interpretation of the language employed embraces a purchase by her. It names the acquisition by descent and devise, and instead of limiting it to that mode, enlarges the power by recognizing other unenumerated modes, by the expression, or otherwise,' which is broad enough to embrace a purchase." See to the same effect Haight v. McVeagh, 69 Ill. 624.

In Territory v. Gutierrez, 12 N. M. 254, 78 Pac. 139, it was held that the words "or otherwise" used in an act providing for the filling of a vacancy in any county office should be given a comprehensive interpretation. The court said: "The language of this act discloses that the legislature intended the word 'otherwise' to refer to vacancies occasioned otherwise than by death and resignation. Any other view would seem to make it absolutely meaningless, and this we cannot believe the legislature intended." See to the same effect State v. Moores, 58 Neb. 285, 78 N. W. 529; Atty.-Gen. v. Taggart, 66 N. H. 362, 29 Atl. 1027, 25 L.R.A. 613; Territory v. Albright, 12 N. M. 293, 78 Pac. 204,

It has been said: "The language of the constitution is that the title or substance of the act to be amended must appear in the amending act, either in its caption or otherwise. The term 'otherwise' can only mean the preamble or body of the act, as contradistinguished from the title or caption.* See to the same effect Ransome v. State, 91 Tenn. 716, 20 S. W. 310; State v. Runnels, 92 Tenn. 320, 21 S. W. 665; State v. Yardley, 95 Tenn. 546, 32 S. W. 481, 34 L.R.A. 656; Shelton v. State, 96 Tenn. 521, 32 S. W. 967. In Thompson v. Highland Park, 187 Ill. 265, 58 N. E. 328, wherein it appeared that

an

ordinance provided "for the grading, draining, paving and otherwise improving" of an avenue, it was held that the provision authorized the making of parkways in the center thereof. The court said: "The phrase 'otherwise improving' is a broad and comprehensive phrase, sufficient to include almost any improvement of the street.

And is not rendered uncertain by reason of the caption failing to state that its purpose was, in part, to provide for a parkway." See also Scott v. Marshall, 110 Mo. App. 178, 85 S. W. 98.

W. T. SMITH LUMBER COMPANY!

JERNIGAN ET AL.

Alabama Supreme Court-January 22, 1914.

185 Ala. 125; 64 So. 300.

Timber- Definition.

The word "timber" has a well-defined meaning and includes such trees as are suitable for building and allied purposes but does not include fruit trees.

Usage

Local Significance of Word. Complainant conveyed certain land to defendant's predecessors in title by deed, reserving all timber suitable for sawlogs, 12 inches and over in diameter three feet above ground. Held that, while the word "timber suitable for sawlogs," standing alone, included any and every sort of sawlog, without reference to the character of the wood, yet, the contract having been made 20 years before, defendants were entitled to show that, according to the custom of the locality when the deed was made, "sawlogs" had a welldefined local meaning which was limited to pine logs.

[See note at end of this case.] Same.

When the usage of a locality in which an instrument is executed has given certain words therein a peculiar signification, the parties to the instrument will be presumed to have used the words in their peculiar local sense. [See note at end of this case.] Equity Jurisdiction Title to Property.

Where defendants are in adverse possession of certain standing timber claimed by complainant, complainant's right to the timber should be determined in an action at law.

Appeal from Chancery Court, Butler county: GARDNER, Judge.

Action for injunction. W. T. Smith Lumber Company, plaintiff, and J. T. Jernigan et al., defendants. Judgment for defendants. Plaintiff appeals. The facts are stated in the opinion. AFFIRMED.

Lane & Lane for appellant. Powell & Hamilton for appellees.

[126] DE GRAFFENRIED, J.-On the 11th of June, 1896, the appellant executed and delivered, to those through whom the appellees claim the land upon which the timber hereinafter referred to is situated, a deed conveying said land. In the deed there is the following clause: "The W. T. Smith Lumber Company reserves all the timber suitable for sawlogs that is and will be 12 inches and over in diameter three feet above the ground,

or at the top of the stump, at the time said timber is cut, together with the rights of way for carts, drays, trams, [127] tramways, and railroads on and through the abovedescribed lands, also the right to use dead pine to generate steam for its locomotive engines; said timber to be removed at the option of the W. T. Smith Lumber Company, its successors or assigns."

It seems that the W. T. Smith Lumber Company has cut and removed all pine timber suitable for sawlogs, 12 inches and up, etc., from the premises, and the bill of complaint in this case was filed for the purpose of testing, in a court of equity, the right of the said Lumber Company, against the wishes of the appellees, who own the land, to go upon the land and remove therefrom the poplar, white oak, gum, etc., trees, which are 12 inches and up, from the said land.

In the first place the appellees claim that they are in the adverse possession of said trees, denying that the appellant has any claim upon them, and that therefore appellant must pursue its remedy of ejectment for said trees; and in the second place appellees maintain that by the above reservation the appellant only reserved title to the pine trees on the said lands. Appellees maintain that, at the time of the execution and delivery of the said deed, the word "sawlogs" had, in Butler county, where the lands are situated, a well-defined meaning; that the word "sawlogs" meant, at that time, "pine logs," and only "pine logs;" that no other kind of trees had, in that section of the state, up to that time, been used or known as "sawlogs;" and that, since the execution and delivery of the conveyance, the parties in interest had so construed the said words because since that time the appellant had paid the owners of the land for all trees taken from the land except the pine trees. Appellees say that the appellant, at the time it executed the said conveyance, was the owner of a large sawmill plant situated at Chapman, Ala., and that said [128] mill was engaged exclusively in the manufacture of pine trees into lumber, and that, up to that time, there had never been in that section of Alabama a mill which manufactured any other sort of trees into lumber, and that, at the present time, said mill is manufacturing only pine trees into lumber.

1. The word "timber" has a well-defined meaning and includes such trees as are suitable for building and allied purposes.-Gulf Yellow Pine Lumber Co. v. Monk, 159 Ala. 318, 49 So. 248. The word, however, does not include fruit trees.-Bullen v. Denning, 5 B. & C. 842, 847, 12 E. C. L. 383, 386; 8 Words and Phrases, p. 6973.

2. Standing alone and unexplained, we would unhesitatingly say that the words

"timber suitable for sawlogs" meant any sort of sawlogs, whether of oak, chestnut, hickory, poplar, or ash. This deed was made, however, nearly 20 years ago, and it may be that in the section in which this timber was situated the word "sawlogs" had at that time a well-understood local meaning, and that this local meaning was well understood by the parties when the deed was made and delivered. The written reservation in the deed is but the memorial of the contract, the thing upon which the minds of the parties met, and, of course, the thing which they agreed to was the contract between them. If "sawlogs," then had a restricted meaning and the parties used that word in that restricted meaning, the fact that, since that time, the meaning of that word has been broadened does not broaden the rights of appellant. As an illustration: Many years ago it was the universal custom for cotton to be picked from the fields and placed in baskets. These baskets were used by the laborers to carry the cotton from the field to the cotton house. These baskets were made from a particular character of white oak. The words "basket timber" then had, in [129] the cotton sections of the state, a particular local meaning. They meant white oak suitable for making cotton baskets. If a man then sold to a maker of cotton baskets all his "basket timber," his plain meaning would have been to sell that part of his white oak timber which was suitable for making cotton baskets, and only that timber.

In this case the contention is that, when the reservation in the deed was made, the word "sawlogs" had, in the section of Alabama in which the lands in question were situated, a local, well-defined meaning, and that these words meant pine trees or logs suitable to be manufactured into lumber. If this is true, we see no reason why appellees have not the right, by evidence, to show it. In making this proof, the construction which the parties themselves have placed upon the contract may be shown.-Kaul v. Weed, 203 Pa. St. 586, 53 Atl. 489.

"When the usage of the locality in which the instrument is executed has given certain words therein a peculiar signification," the parties to the instrument will be presumed to have used such words in their peculiar local sense.-17 Am. & Eng. Enc. of Law (2d ed.) 12, subd. 3, and authorities there cited.

3. In this case the appellees are in possession of the land upon which the trees which appellant claims title to are situated. The appellees deny that the trees belong to appellant, and assert that they themselves own the trees. In other words, appellees are in the adverse possession of the trees claimed by appellant. The appellant can test its right and title to the trees in an action at

law. Inglis v. Freeman, 137 Ala. 298, 34 So. 394.

It is therefore evident that the chancellor was correct in holding that the title to the trees should be tested in [130] an action at law, where the disputed questions of fact can be settled by a jury. The decree of the court below is therefore affirmed.

Affirmed.

Anderson, C. J., and McClellan and Somerville, JJ., concur.

NOTE.

Admissibility of Evidence of Peculiar Signification of Word in Locality Where Instrument Was Executed.

General Rule, 655.

Application of Rule, 657. Limitation of Rule, 660.

General Rule.

Although the words used by the parties to a contract or other instrument are usually to be construed in their ordinary sense, nevertheless, where they appear to be ambiguous or uncertain in that a technical, special or local sense has been established in that locality by custom or trade, evidence of the peculiar meaning thus acquired is admissible, not for the purpose of adding to, altering or contradicting the language of the instrument, but for the purpose of expounding the language so used, so that the court may interpret it according to the intent of the parties.

England.-Smith v. Wilson, 3 B. & Ad. 728, 23 E. C. L. 169, 110 Eng. Rep. (Reprint) 266, 1 L. J. K. B. 194; Mallan v. May, 13 M. & W. 511, 153 Eng. Rep. (Reprint) 213; Studdy v. Sanders, 5 B. & C. 628, 12 E. C. L. 336, 108 Eng. Rep. (Reprint) 234.

Alabama. See the reported case (saw logs).

Arkansas.-Taylor v. Union Sawmill Co. 105 Ark. 518, 152 S. W. 150 (white oak timber); Davis v. Martin Stave Co. 113 Ark. 325, 168 S. W. 553 (all the oak timber suitable to make staves or stave bolts).

California.-Callahan v. Stanley, 57 Cal. 476 (stubble); Corey v. Struve, 16 Cal. App. 310, 116 Pac. 975 (crop of beets).

District of Columbia.-Bragg v. C. 105 ("a thousand" of shingles).

Bletz, 7 D.

Florida. Hinote v. Brigman, 44 Fla. 589, 33 So. 303 ("saw logs" to be converted into "squared timbers”).

Illinois.-Myers v. Walker, 24 Ill. 133 (season); Chicago Portland Cement Co. v. Hofman, 168 Ill. App. 71 (standard quality).