mode of procedure it is applied, as of course, the plaintiff on the trial to be at liberty to to litigation existing at the time of its pass-show any matter in bar of the running of the age.

In June, 1881. judgment was entered against defendant by virtue of a warrant of attorney contained in an unsealed note for $4,000, payable one day after the date thereof, November 10, 1873. On defendant's application, the court, in January, 1893, made a decree opening the judgment for the purpose of enabling him to interpose the statute of limitations, and awarded an issue in which it is provided that "the judgment note shall stand for a declaration, and defendant shall plead the statute of limitations, and no other plea, within ten days; erty without due process of law in violation of the | v. Blodgett (Ill.) 31 L. R. A. 70. It is also in subFederal Constitution. That a perfected defense under the statute of limitations is property within the meaning of that constitutional provision is expressly decided in Normal School Dist. Bd. of Edu.

continue to run in favor of persons who had abandoned their residence in this state was purely a legislative and not a judicial question. The defendant had no right, in or under the statute, that could interfere with the power of the legislature to declare that he and all others similarly situated should not have the benefit thereof "during the period of" their "residence without the state." As was said in Campbell v. Holt, 115 U. S. 628, 29 L. ed. 486: "No man promises to pay money with any view to being released from that obligation by lapse of time. It violates no right of his, therefore, when the legislature says, time shall be no bar, though such was the case when the contract was made." We are of opinion that the act of 1895 is neither unconstitutional nor inapplicable to the facts of this case, and that the learned court erred in holding otherwise, add excluding plaintiff's evidence.

January 27, 1896, more than eight months af- | our statute of limitations should or should not ter the act was passed. All that was adjudicated prior thereto was the authority of the court to open the judgment and award the is sue on the terms therein specified. The issue was pending and undetermined when the act went into operation. The learned counsel for defendant in their argument candidly “admit that the weight of authority is in favor of the power of the legislature to repeal and pass laws changing the methods of procedure, and relating solely to the remedy pending litiga. tion;" but they claim "that the peculiar situation of this case" renders those authorities, as well as the act itself, inapplicable. For reasons above suggested, we are unable to see wherein either the act or the authorities referred to are not strictly applicable to the case in hand. The language of the act is clear, specific, and imperative. It applies to "all civil suits and actions in which the cause of action shall have arisen within this state." It affects all defendants "who shall have become nonresidents" after said cause of action shall have arisen." This language is clearly retrospective, at least as applied to the cause of action and residence of the defendant. Whether

Judgment reversed, and record remitted for further proceedings in accordance with this opinion.

Rehearing denied.

1. Damages for the death of a married woman cannot include the loss to her minor child where the action is brought by her husband under Mill. & V. Code, § 3130, which provides that a right of action for injuries causing the death

Trafford v. Adams Exp. Co. 8 Lea, 100; Hamrico v. Laird, 10 Yerg. 227; Tune v. Cooper, 4 Sneed, 296.

The personal representative has no right of action upon the facts of this case, and the bringing it in that capacity is a material defect not curable by verdict.

Caruthers, Hist. of a Lawsuit, Martin's ed.

of any person shall not abate by reason of the P. 330, ¶ 274; Anderson v. Read, 2 Overt. 207,

death, but shall pass to his widow, or if none, to his children, or to his personal representative for the benefit of the widow or next of kin, but fails to make any express provis.on as to the beneficiary in case of the death of a married woman, and leaves the recovery to go to the husband jure mariti, as it would have gone at common law but for its rule of abatement.

5 Am. Dec. 661.

The administrator cannot maintain a suit for his own use.

Hagerty v. Hughes, 4 Baxt. 222.

He cannot, maintain the suit for the minor child as he has no interest in it.

Tafford v. Adams Erp. Co. supra.

The court erred in not granting motion in arrest of judgment and new trial on the ground that the administrator could not maintain this

2. A surviving husband as such cannot
maintain a suit for the wrongful killing of
his wife under Mill. & V. Code, 88 3130, 3133, pre-suit for the benefit of the husband.
venting the abatement of the suit, although
the recovery inures to his benefit, but he must

bring the action as administrator.

Hagerty v. Hughes, supra; Elliott v. Coller, 3 Atk. 527; Hamrico v. Laird, and Tune v. Cooper, supra.

Mr. T. C. Latimore also for appellant. Messrs. Daniels & Garvin and Marchbanks & Murray, for appellee:

The first statute was the act of 1851 which

provided that the right of action which the sued should not abate, but should pass to the personal representative for the benefit of the

deceased would have had had death not en

widow and next of kin; and if he declined to bring the action the widow and children might do so in his name.

The construction put by the court upon this statute was that the action could be brought only in the name of the personal representative.

1896.

CHATTANOOGA ELECTRIC R. Co. v. JOHNSON.

Hall v. Railroad, Thompson, Unreported | and judgment for the defendant in error, from Cases, 204; Flately v. Memphis & C. R. Co. 9 Heisk. 230; Bledsoe v. Stokes, 1 Baxt. 312. Thereupon the legislature passed the act of 1871 which amended the act of 1851 so as to allow the action to be prosecuted by the widow, or, if no widow, by the children, and this was in addition to the remedy provided by the act

of 1851.

Under this act it has been held that when there are both a personal representative and a widow the action may be maintained in the name of either, the widow having the right to bring the suit in her own name in the first in

stance.

Webb v. East Tennessee, V. & G. R. Co. 88 Tenn. 119; Greenlee v. East Tennessee, V. & G. R. Co. 5 Lea, 418; Knoxville, C. G. & L. R. Co. v. Acuff, 92 Tenn. 26; Holder v. Nashville, C. & St. L. R. Co. Id. 142.

Under these statutes the decisions of the court were for a time inconsistent upon the It was held question of damages recoverable. that the damages resulting to those for whose benefit the right of action survived was an element of damage for which recovery could be had, in

Nashville &C. R. Co. v. Frince, 2 Heisk. 580; Nashville & C. R. Co. v. Stevens, 9 Heisk. 12; Collins v. East Tennessee, V. & G. R. Co. Id. 841.

This was doubted in Fowlkes v. Nashville & D. R. Co. 9 Heisk. 829.

And expressly denied in later cases. Trafford v. Adams Exp. Co. 8 Lea, 96; Nashville &C. R. Co. v. Smith, 9 Lea, 470; Yoakley v. King, 10 Lea, 67; Chicago, St. L. & N. O. R. Co. v. Pounds, 11 Lea, 129; East Tennessee, V. & G. R. Co. v. Gurley, 12 Lea, 54; Louisville & N. R. Co. v. Conley, 10 Lea, 534.

To obviate this construction the act of 1883 was passed, which provided that the damages resulting to the parties for whose benefit the right of action survives shall be recoverable in the action.

This act in no way changes the mode of suing. The suit must still be prosecuted by the widow or children or by the personal representative.

Loogue v. Memphis & C. R. Co. 91 Tenn. 460.
The inclusion of the child will be treated as
a mere surplusage, and will not be allowed to
defeat the action.

Collins v. East Tennessee, V. & G. R. Co.
Heisk. 841.

9

The suit can be maintained in the name of
the husband as administrator of his wife for
his benefit as husband.

East Tennessee, V. & G. R. Co. v. Lilly, 90
Tenn. 568; Webb v. East Tennessee, V. & G.
R. Co. 88 Tenn. 129; Nashville & C. R. Co. v.
Smith, 9 Lea, 470; Bream v. Brown, 5 Coldw.

168.

Beard, J., delivered the opinion of the

court:

This suit was instituted by the administrator
of Mrs. Johnson to recover damages for the al-
leged wrongful killing of his intestate by the
Her surviving husband
plaintiff in error.
qualified as administrator, and this action was
brought for his own benefit and that of a minor
child of the deceased. There were a verdict

While a number of questions have been made which an appeal has been prayed to this court. in argument, the only one which will be disposed of in this written opinion is that made upon that part of the charge of the trial judge which imposed a duty upon the jury of ascerchild in the loss of the deceased, in the event taining the damages sustained by the minor they found that her death was the result of a We think plaintiff in error wrongful injury received at the hands of the railway company. In Bream v. Brown, 5 is right in insisting that the charge, in this reColdw. 168, it was determined that a married spect, was erroneous. woman was within the act of 1850, carried into Mill. & V. Code, § 3130, 3131; and, while there the suit was brought by the surviving for the benefit of himself and the minor child husband, as administrator of his deceased wife, of the deceased, yet the only point there argued and decided was that an action could be maintained for the wrongful killing of a deceased wife. In Trafford v. Adams Exp. Co. 8 Lea, 96, this court, for the first time, was distinctly the recovery in such an action, where the decalled upon to determine who was entitled to ceased wife left surviving a husband and next of kin. The question there presented was one The novelty as well as the of our statutes. of difficulty, owing to the peculiar phraseology consideration which it received at the hands of difficulty of the question invited the careful the court, the result of which was an elaborate opinion announcing as a conclusion "that the surviving husband was jure mariti, and, to the exclusion of the next of kin, was entitled to the damages" recoverable in such a of the opinion, all of the members of the court While differing somewhat as to the reasoning concurred in the holding "that the recovery for a personal injury to the wife which results in death will inure to the benefit of the husand that there can be but one recovery in such band, under the statutory provisions discussed, case;" and that he is entitled to this recovery under the common-law rule of jure mariti. It cause there were no children seeking the beneis true, as is argued at the bar, that in that fit of a recovery under these Code sections; yet there were next of kin of the deceased wife, der that children, if any, would have had; so who were entitled to the same rights thereunexcluded the one, necessarily excluded the that the rule of survivorship jure mariti, which other, class. Trafford v. Adams Exp. Co. was this point, that case also settled that the recovdecided in 1881. In addition to determining ery authorized under the statutes then in existence extended only to such injury as the deceased might have had if he or she had surthus coming after great fluctuation of judicial vived the injury in question. This decision, opinion as to what were the true elements of damage in such a case, led, no doubt, to the passage of act 1883, chap. 186 (Mill. & V. Code, § 3134), which provided that, when the death is caused by the fault of another, the party suing, if entitled to damages, "shall have the right to recover for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages result

case.

as modified by chapter 78 of the Acts of 1871, is § 3130 of Mill. & V. Code. This legislation, as has been observed, did not affect to create a right of action, but recognized one as already existing, and provided that this right of action should not die with the party who was the owner of it. Its purpose was to prevent the abatement which death of the injured party worked at common law. Notwithstanding the peculiar phraseology of 2291 of the old Code, which restricted the benefit of the recov

ing to the parties for whose use and benefit the | from the claims of creditors." This section, right of action survives," etc. It is evident that the purpose of this act was not to create a mere class of beneficiaries, but to extend the scope of recovery by allowing not only damages which the deceased might have recovered for his or her own benefit, but also such as resulted from the death to the parties "for whose use and benefit the right of action survived." Loague v. Memphis & C. R. Co. 91 Tenn. 458. With this single modification, it left the law of this state, so far as the rights of the surviving husband in such case are concerned, as was an-ery in such a case to the "widow and his next nounced in Trafford v. Adams Exp. Co. supra. Nor has the conclusion reached by the court in that case been seriously called in question since, so far as we are aware, until it was challenged in the present case. On the contrary, our impression is that it has been accepted generally by the profession as a definite settlement of a question that, if not much mooted, at least was open to serious doubt in this state until that time. The rule of stare decisis, after this long and general acquiescence in that decision, would, even if doubtful ourselves of its wisdom, induce us to hesitate seriously before reversing it. But we think an examination of the statute in the light of the common law as it stood at the time of its passage abundantly vindicates the holding of the court in that case.

At common law there were two actions which might be maintained for damages resulting from a tortious injury to the wife. One of these could have been prosecuted by the husband, in his own name, and for his exclusive benefit, and that was for the loss of her society, or of her services, or both, as well as for the necessary expenses incurred by him in consequence of the injury inflicted upon her. The other one of these actions was for the injury which the wife sustained, and this was brought in the name of the husband and wife. While the recovery would be in their joint names, yet the husband might, as in the case of any other chose in action, make it his own exclusively, by collecting and appropriating the recovery. Now, it is this latter right of action which is recognized, but is not created, by the statutes of this state. This action of common law would have died with the wife, and it has been the purpose of our legislature to prevent its abatement. The first statutory provision looking to this end is found in an act passed Feb-| ruary 1, 1850, which is in these words: "In all and every case where any person shall come to his death by injuries received from another, whether the same were inflicted feloniously or not, for which injuries, in case death had not resulted, an action of damages would lie at law, the personal representative of the person thus killed shall have the right to institute a suit for the damages," etc. This act was carried into the Code of 1858, at §§ 2291 and 2292. Section 2291 of that Code provided as follows: "The right of action which a person who dies of injuries received from another, or whose death is caused from the negligent acts or omissions of another, would have lain against the wrongdoer in case death had not ensued, shall not abate nor be extinguished by his death, but shall pass to his personal representatives, for the benefit of his widow and next of kin, free

of kin," suggesting the ingenious argument that this necessarily excluded from the operations of the statute the case of a married woman dying from a tortious injury, yet this court held in Bream v. Brown, supra, that such a case was within the intent of the statute. This holding was based largely, and properly so, upon the use of the comprehensive word "person" ("the right of action which a person who dies," etc.) in the Code, and it was held that this word was sufficient to overcome the apparently restrictive terms already adverted to. Now, following the lead of that case, and altogether in harmony with its reasoning, we think it may be said, it being admitted that a wife is one of the "persons" provided for by that act, it may be safely assumed, in the absence of an express statutory provision disposing of the proceeds of the recovery for the injury resulting in her death, that they will go exactly as they would have gone at common law but for its rule of abatement, and that is to the husband jure mariti. It is true, the right. to bring this action after death depends entirely upon the statute, and it must be prosecuted exactly as that directs. Loague v. Memphis & C. R. Co. supra.

It is also true that the proceeds

of the recovery in such an action must go according as the statute provides, where it does make such provision. But we have a case where the action is authorized by the Code, and yet where it fails to point out the beneficiary of the recovery. It is a statutory casus omissus, and in such a case we know of no other place to turn, with the view of ascertaining this beneficiary, save to the common law; and we think that a sound basis for the conclusion announced in the Trafford Case.

It follows from what has been said that the trial judge was in error in instructing the jury to take into consideration the child's relationship to the deceased, and, by necessary implication, telling them to consider its interest in its mother's life; and, as it is impossible for us to say how much of this verdict was intended by the jury for compensation to the child, the case must be reversed and remanded.

To meet another objection of plaintiff in er ror to the form of this action, it may be said that the surviving husband, as such, could not have maintained this suit but that it was essential that he administer. Nor is there anything anomalous in this, as at common law, where a wife died, leaving a husband surviving, before he had reduced to possession a chose in action which belonged to her, “it does not strictly survive to him, but he is entitled to recover the same to his own use, by acting as her administrator." 2 Kent, Com. *135.

Wilkes, J., dissenting:

used in the act. If it could, and the widower would have the same rights as the widow under the statute, then he must take it subject to the same limitations. If the widow takes, she takes for herself and his children. If the widower takes, he should take for himself and her children. But I think the legislature has simply failed to make provision when the wife is killed for any recovery for the husband, and that the recovery in such case goes to the wife's children and not to the husband; and certainly this would be so as to the damages recoverable from the death of the wife, as contradistinguished from those accruing to the husband and wife jointly if she had not died. While I think the husband may sue as administrator, he cannot take the recovery jure mariti, nor as next of kin, nor as widow, nor as widower, and it should go to the children. I cannot see that, under the statute, the husband's right of action is saved; but, if it is, it is not the right of action for the death of his wife, for that never existed at common law, and could not therefore survive; and in any event the recovery should go to her children, when she has children. Louisville & N. R. Co. v. Pitt, 91 Tenn. 93; East Tennessee, V. & G. R. Co. v. Lilly, 90 Tenn. 563.

I cannot concur in the majority opinion. I think the suit is properly brought in the name of the administrator of the deceased wife, but I cannot agree that the husband is entitled to the proceeds, either jure mariti or under the statute; not jure mariti because without the aid of the statute the husband has no right of recovery in case of the wife's death, whatever may be his rights for an injury to her not resulting in death; and not under the statute because the statute does not so provide. I do not controvert the holding in Bream v. Brown, 5 Coldw. 169, in which it was beld that the wife is a person," within the meaning of the statutes providing that actions shall not abate by the death of the "person" who dies from injuries received; and I am of opinion a right of action in case of her death does exist. In that case the suit was brought in the name of her husband as administrator, for the benefit of himself and the minor children of his deceased wife; and it was held that the action was properly brought by the administrator, but the court did not pass upon the question as to whom the proceeds should go to. It did not, how ever, hold that it was improper to include the children as beneficiaries of the recovery. In Trafford v. Adams Exp. Co. 8 Lea, 96, it is said the question of who is entitled to the proceeds of such recovery was settled. In regard to this case it is but true to say that it does not seem to me to rest on any satisfactory basis. DIVINE The reasoning is all infone direction, while the decision is in another and different direction.

In that case there were no children. The suit was brought in the name of the husband, as administrator. The contest over the proceeds was between the husband and the nephews and nieces of the wife as her next of kin. The decision was also prior to the act of 1883, which gives damages, not only for mental and physical suffering, loss of time, and necessary expenses resulting to the deceased, but also damages resulting to the parties for whose use and benefit the right of action survived from the death consequent upon the injury received.

Coming to the consideration of the statute. it is clear that the right to bring the action at all depends on the statute, and beyond the statute no such right exists. Loague v. Memphis & C. R. Co. 91 Tenn. 458. It is also clear that, the right being given by the statute, and the remedy provided in the same act, the right can be pursued in no other way. Flatley v. Memphis, & C. R. Co. 9 Heisk. 230; Loague v. Memphis &C. R. Co. 91 Tenn. 461; East Tennessee, V. & G. R. Co. v. Lilly, 90 Tenn. 565. The act (Mill. & V. Code, § 3130) prescribes that the right of action shall pass to the widow, and, in case there is no widow, to the children or to the personal representatives, for the benefit of the widow or next of kin; and § 3133 provides that the damages shall go to the widow or next of kin, free from the claims of creditors, to be distributed as personal property. In order to escape what appears to be, and no doubt was, an omission on the part of the legislature to provide for the case when the wife dies, this court has been disposed to hold that the word "widow" means also "widower," and that both are intended to be provided for. It is probable that this ought to be the law, but I think it cannot be based upon the words

THIRD NATIONAL BANK et al.,

V.

GROCERY COMPANY et al.
Appts.

(........ Tenn.......................)

1. A provision exempting debts already contracted from the prohibition against transfers of property to preferred creditors is not embraced within the title of Acts 1895, chap. 128, which indicates merely the prohibition of such preferences without anything to show that it permits any preferences.

2. A prohibition of judgments by de

fault is not within the scope of Acts 1895, chap. 128, indicating a prohibition of preferences by "confession of judgment."

3. The right to transfer property in payment of a debt when solvent is within the constitutional protection of property rights, and is violated by Acts 1895, chap. 128, declaring that every transfer of property to preferred creditors, or which "would have that effect," shall be void, without limiting it to cases of insolyency.

(November 12, 1896.)

ΑΙ
PPEAL by defendant from a decree of the
Court of Chancery Appeals affirming a
decree of the Chancery Court for Hamilton
County setting aside certain conveyances

NOTE. On the constitutional protection of the right of contract, see (as to contracts with employees respecting medium of payment) AventBeattyville Coal Co. v. Com. (Ky.) 28 L. R. A. 273, and note; (as to contracts respecting time of payment of wages) Re House Bill No. 1230 (Mass.) 28 L. R. A. 344; (as to hours of labor) note to People v. Phyfe (N. Y.) 19 L. R. A. 141: also case of People v. Harding (Ill.) 32 L. R. A. 445; (as to contracts with employees generally) Com. v. Perry (Mass.) 14 L. R. A. 325, and note; (as to contracts generally) State v. Loomis (Mo.) 21 L. R. A. 789, and note; (as to right to

do banking business) State v. Scougal (S. D.) 15 L R. A. 477, and note; also Blaker v. Hood (Kan.) 24 L. R. A. 854; (as to insurance) Com. v. Vrooman (Pa.) 25 L. R. À. 250.