trol her own suit, nor make all defendants in suits brought in courts of record liable for the fees of plaintiff's attorneys. Since the passage of this act, as before, the plaintiff may prosecute or compromise or dismiss her suit at will, and the defendant is liable only for such sum as may be adjudged or stipulated by compromise in plaintiff's favor." We may observe that if the act of 1899 had, in terms, undertaken to deprive the plaintiff of the right to control his own suit, it would be open to grave constitutional objections; but, as held in the Wells Case, the act does not expressly or by necessary implication import such a meaning, but leaves the plaintiff to prosecute, compromise, or dismiss his suit at will. So we think that public policy and private right would be best subserved by adhering to the rule so long adopted in this state, both by statute and legal practice, of permitting a litigant to dismiss her suit without the intervention of her attorney. If, for instance, a complainant in a bill for divorce should conclude to withdraw her complaint and become reconciled to her husband, should the dismissal of her suit be prevented by her attorney, and he be permitted to become coplaintiff with her in the prosecution of her suit, because by attachment he has impounded property of the husband to secure her alimony? This very case was recently before this court, wherein it was seriously contended by counsel that he had a lien on complainant's cause of action, and the bill could not be dismissed without the settlement of his fees. It is needless to say that the question was resolved adversely to the contention of counsel. Again, it would seem that a litigant has a right to say when he will no longer incur the liability of a bill of costs for the prosecution of a suit. If he has no right to control this matter, his counsel can carry him through all the courts, and, at the end of a long litigation, leave him mulcted in a heavy bill of costs.

We are unable to agree with counsel in their construction of the statute, and the result is that the judgment of the circuit court must be affirmed.

1. A certain time, reasonable in length, for filing bill of exceptions, having been allowed, the bill, not affirmatively appearing to have been filed in that time, cannot be considered.

2. Application to amend the record, though not made till after the court filed its opinion holding that the bill of exceptions was filed too late, will be allowed, the court having raised the point itself, and appellant not having known of the mistake made by the clerk as to a date till after the filing of the opinion.

1. See Appeal and Error, vol. 3, Cent. Dig. §§ 2320, 2321.

3. The admission, in the answer to a petition to correct the record, that the mistake alleged existed, is sufficient to correct the record.

4. In a case where there has been a request for findings under Shannon's Code, § 4684, providing that on the trial of a question of fact by the court the decision, if requested, shall state the facts found, the bill of exceptions can be looked to not for supplying facts, but only to see whether there has been a finding of the necessary facts, or there is evidence to support the findings, or there is error in admission or rejection of evidence; and, there being error in any of these matters, the case will be reversed, and remanded for a new trial.

Appeal from circuit court, Davidson county; John W. Childress, Judge.

Action by Walter Hinton against the Sun Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

A. F. Whitman, for appellant. Tip Gamble, for appellee.

NEIL, J. This suit was begun on the 22d day of May, 1902, before a justice of the peace of Davidson county, on a policy of insurance for $156. In that tribunal the cause was decided in favor of the defendant, and from this judgment the plaintiff presented an appeal to the circuit court of the county. In that court the cause was again tried, and judgment rendered in favor of the plaintiff on May 26, 1902, for $157.67, being the original sum sued for, with interest, and for all of the costs of the cause. On July 19, 1902, a motion for a new trial was made and overruled, whereupon the defendant insurance company prayed and was granted an appeal to this court, and was allowed 10 days to file a bill of exceptions; but that bill of exceptions was not filed until August 5, 1902, which was 17 days after July 19th, and 7 days beyond the time allowed. The rule is that, when time is allowed to file a bill of exceptions, and it is not filed until after the time has elapsed, it cannot be looked to on the trial of the cause in this court (Muse v. State, 106 Tenn. 181, 61 S. W. 80; Jones v. Moore, 106 Tenn. 188, 61 S. W. 81), and in such a case no other result can follow in this court, so far as depends upon the matters which should be contained in the bill of exceptions, except an affirmance of the judgment of the court below. Wright v. Redd Bros., 106 Tenn. 719, 63 S. W. 1120. It is true that the cases just cited were addressed to chapter 275, Acts 1899, which was enacted for the purpose of allowing time after the adjournment of court for the preparation of bills of exception, while in the case before us it does not appear whether the 10 days allowed would have carried or did carry the case beyond the adjournment of the term. But the principle is clear that, when time is allowed for the filing of a bill of exceptions, it must affirmatively appear that it was filed within that time; otherwise this court cannot look to it. Again, if we should concede that the bill of exceptions could be lawfully

filed after the expiration of the 10 days, and within the term, it does not affirmatively appear that August 5th was within the term; and this fact we should be enabled to determine from the record, but this record we have before us is silent upon the subject. All that we have is that 10 days were allowed for the filing, and the filing did not take place until 17 days had elapsed. So, prima facie, in any event, the bill of exceptions was filed too late, and there is nothing in the record to rebut this presumption against it. While a bill of exceptions may be properly made up at any time during the term, if there be no rule or order to the contrary in the court in which the case was tried (Patterson v. Patterson, 89 Tenn. 151, 14 S. W. 485), yet a party is not entitled as a matter of right to the whole of the term in which to present it. Mallon v. Tucker Mfg. Co., 7 Lea, 62, 66; Sikes v. Ransom, 6 Johns. 279. In Mallon v. Tucker Mfg. Co. it was held that a general rule was not unreasonable which fixed 15 days as the limit within which bills of exceptions were required to be presented after the verdict of the jury, or after the decision of the cause by the judge in nonjury cases. We see no reason why an order limiting the time for such preparation and filing may not be made in individual cases, and why, in the absence of a compliance with such order, the right to file may not be denied altogether. Without doubt the right to make such order would be of the greatest service to the parties in many cases where the terms of courts are long, and the facts in the cases supposed are numerous and complicated, and the questions arising are many; such cases, in short, as would in all probability soon slip from the memory of the circuit judge, and make the preparation of the bill of exceptions a work of an exceedingly uncertain and unsatisfactory nature. Indeed, the conceded right to make such an order, giving reasonable time, applicable to all cases, necessarily involves and includes the right to make it in each individual case, on the principle that that which is just as to the whole is just as to each of the parts composing that whole. Moreover, even in the absence of such general order, no question of unfair discrimination could arise between different cases in the same court, because, while a limiting order may not be made in one case, yet may be made in another, there is always to be determined by this court the question of the reasonableness of the length of time given, which must to a great extent be measured by the nature of the case itself. Applying the principle to the present case, the court can see that the facts are so few, and the record so small, the time allowed for the preparation of the bill of exceptions was not only reasonable, but most ample.

The bill of exceptions not having been filed in time, this court cannot look to it, and

hence, as the record now stands, there is nothing to show error in the judgment of the court below.

On Rehearing.

(Jan. 17, 1903.)

This case, under the style of "W. A. Hinton vs. Sun Life Insurance Company," was heard on a former day of the term, and an opinion was then rendered directing an affirmance of the judgment of the court below, on the ground that the bill of exceptions was filed after the expiration of the time granted by the circuit judge, and that there was, therefore, nothing upon which the plaintiff in error could assign error. The plaintiff in error has now presented a petition showing that there was a mistake in the transcript by reason of the failure of the clerk of the circuit court to make a true copy, and that with this error corrected it would appear that the bill of exceptions was to be filed within 10 days from July 26th, instead of from July 19th, as the record shows. The prayer of the petition is that the plaintiff in error be allowed to suggest a diminution of the record, and that, upon the correction as to dates being made, the cause be reheard. The attorney for the defendant in error has filed an answer to the petition admitting its allegations, but insisting that it was the duty of the opposing counsel to examine the record before the original hearing in this court, and to have the correction then made, and that it is now too late. To this counsel for plaintiff in error replies that it was a mistake only as to dates; that such a mistake easily escapes the attention; that no point was made upon the bill of exceptions by counsel for defendant in error on the previous trial, but that this court itself raised the question, and plaintiff in error was not aware of its existence until the opinion came in, and that the determination of the case upon this point has operated in the nature of a surprise upon plaintiff in error. Although the application comes late, we think that under the facts stated it should be allowed. It is not necessary, however, that the suggestion of diminution should be actually made, or a certiorari awarded. The admissions contained in the answer to the petition, when taken in connection with the petition, supply the place of both, and correct the record so as to show that the bill of exceptions was filed in time.

Before turning to the bill of exceptions it is necessary to call attention to section 4684 of Shannon's Code. This section, referring to the practice of the circuit court, says: "Upon the trial of a question of fact by the court, the decision, if requested by either party shall be given in writing, stating the facts found and the conclusions thereon which shall constitute a part of the record." It should also be noted that the case was

begun before a justice of the peace, and hence there was no pleading setting forth the cause of action except the warrant. This pleading was in the customary brief form, and was as follows: "State of Tennessee, Davidson County. To any Lawful Officer of said County: You are hereby commanded to summon Sun Life Insurance Company of America to personally appear before me, or some other acting justice of the peace for said county, to answer the complaint of W. A. Hinton in a plea of debt by insurance policy $156.00 under $500. Given under my hand and seal this 22nd day of May, 1902. H. H. Clark, J. P."

His honor, the circuit judge, was properly requested, under the section of the Code just quoted, to make written findings of fact and law, and did so in the following language:

"(1) The defendant issued one of its ordinary policies upon the life of Ella M. Burnett, December 2, 1895. It is conceded that the policy was regularly issued, and the premium paid up till March 24, 1902. The next payment due was March 31st, which Burnett failed to pay, and three other pay days were passed likewise without payment.

"(2) The court finds as a matter of fact that the insured was four weeks in arrears in the payment of the weekly dues provided for in the contract.

"(3) On the 24th of April the assistant superintendent at Nashville, Rogers, mailed to the home office at Louisville a statement of those in arrears the four weeks, and among the names presented was that of the insured. The company, through the home office at Louisville, returned to the local office at Nashville a list of the policies lapsed by the company, and the insured's name was amongst that list, to take effect April 28th, and the defendant in this case insists that the insured was more than four weeks in errears, and her policy had never been revived, in conformity with the rules of the company; that they had a right to lapse and had lapsed her policy to take effect April 28th, as stated.

"(4) The insured died, as is conceded, on the 11th of May thereafter. The proof shows that on the 26th of April the insured paid to the local office in Nashville $1.00, and it is insisted that by virtue of that payment her back dues were fully covered, and her dues more than paid to the date of her death, and that by the acceptance of said $1.00 on the 26th of April the company waived any rights they may have had to have lapsed the policy.

"(5) The receipt given for the $1.00 says as follows: 'Received from Ella Burnett $1.00, being the arrears on policy No.

which the applicant desires the company to revive. Under no circumstances will the company be liable under said policy, in case of death, until the policy has been revived on the books of the company, and the money credited in the premium receipt book be

"(6) A stipulation in the face of the policy provides that when a party is in arrears for four weeks, and desires to be reinstated, upon the payment of all arrears the company will reinstate the party if the physical examination shall be satisfactory.

"(7) Across the face of said receipt is the following: 'If the company accept the revival application, the amount paid will be credited on the premium receipt book belonging with the policy; otherwise the money will be returned.'

"(8) The defendant insists that, while it received this money, it had no opportunity to make the personal examination of the insured, to see if she was in proper condition for them to have been willing to revive the policy; that her address was unknown to them, and she could not be found for the purpose.

"The company had a stipulation with the insured that her address should always be furnished to it.

"(9) Between the time the dollar was paid and her death was 17 days; and

"(10) The court is of opinion, and so holds, that it was their duty, under their contract and agreement with the insured, to have found her and made such examination as they desired. But, failing in this, the insured had a right to presume, as they did not return her money to her, that they had accepted her money and revived her policy, and that, therefore, they cannot now insist upon the nonpayment of the sum stipulated in the policy.

"(11) Therefore the court holds, and so finds, that, while the insured had been in arrears upon her policy more than the four weeks stipulated in the policy, yet, having tendered and paid to the company, or its duly authorized agent, a sum that more than paid all dues to the company, and they hav ing held the same seventeen days without making an examination of her, or offering to do so, and failing to return her the money, they thereby waived any right they may have had in the premises; and it being conceded that the insured died, judgment will be rendered against the defendant company for $ and interest thereon from the time same should have been paid to this date."

On the foregoing findings, judgment was rendered against the company for $156, the amount of the policy, and $1.67 interest,in all $157.67,-and all of the costs of the cause, and an appeal was prayed and obtained by the company.

On comparing these findings with the bill of exceptions, it appears that certain important facts are omitted. Among those omissions is the policy itself. This being the contract sued on, it constitutes not only an important fact but a vital one. His honor

says that the company issued one of its ordinary policies, but does not state what the terms of such ordinary policies are. In reaching the conclusion stated in the several findings, his honor evidently had before him the policy, and in determining whether, under the facts stated in the first policy, the defendant in error was in arrears, construed the policy; but this court, not being able to look at the policy for the purpose of determining the merits, because not contained in his honor's findings, cannot review his construction, and thereby decide as to its correctness or the contrary.

The third finding cannot be properly understood without reference to certain facts appearing in the testimony, but not included in his honor's findings, in respect of the practice of the company in carrying out certain provisions of the policy covering forfeitures for the nonpayment of premiums; nor can it be understood without those provisions of the policy. Without these facts it is not possible to understand the significance of the act of the superintendent in mailing the list referred to to the home office, or the returning, by the home office, of its list to the superintendent at Nashville, and the significance of the statement that that list was to take effect on April 28th.

The bearing of the facts contained in the fourth finding cannot be fully ascertained without a reference to and a construction of certain clauses of the policy.

The provisions of the receipt referred to in the fifth finding cannot be understood without a reference to the method pursued by the company and its policy holders, under the practice of the company, in cases where policies are sought to be revived after lapse, which is fully shown in the testimony.

The seventh finding cannot be fully understood without this additional fact, and a further explanation of what is meant by the premium receipt book, and its office in the business of the company, in the matter of the reviving of policies; all of which is fully shown in the testimony.

The first paragraph of the eighth finding does not state facts, but only one of the defendant's contentions. The facts appear in the evidence showing whether this conteution was a meritorious one or not, but they are not set out in his honor's findings. It is stated in the second paragraph of this eighth finding that the insured had agreed to furnish her address to the company, but his honor's findings do not show whether the address was in fact furnished. There was sufficient testimony upon the point to support a finding one way or the other.

The bearing of the tenth finding cannot be fully understood without having before us the terms of the contract, that is, of the policy, and likewise a statement of the practice of the company in the matter of reviving policies. Only in the light of these additional facts could the court properly de

termine whether the assured had the right to rest upon the presumption contained in the said tenth finding.

The same is true of the eleventh finding. It is impossible to correctly determine whether the waiver there adjudged was correctly adjudged, without having before us the additional facts just referred to.

In the preceding review of his honor's findings we purposely passed over the sixth one. We now return to it. It is insisted in the defendant's brief that no such stipulation appears in the policy. The contention is correct. Nothing of this kind appears in the face of the policy, or anywhere in or on the policy. There is some evidence contained in the testimony of the witnesses as to the practice of the company in the matter of the reviving of policies bearing upon the point, but nothing in the policy itself.

Taking all of his honor's findings together, it is perceived from what we have already said that they are not sufficiently full to enable us to base any judgment upon them, owing to the omission of the important facts which we have referred to.

The question now to be determined is whether this court should disregard the findings of the court below, and ascertain the facts for itself, or whether the cause should be reversed, and remanded for a new trial. When the case is tried before the circuit judge without the intervention of a jury, and he merely renders judgment without making any special findings of fact, the practice is for this court, under the limitations below stated, to examine the record, and render such judgment on the facts at large as the circuit judge should have rendered. Fogg v. Gibbs, 8 Baxt. 469; Wheeler v. State, 9 Heisk. 393; Dawson v. Holt, 11 Lea, 589, 47 Am. Rep. 312; Smith v. Hubbard, 85 Tenn. 306, 2 S. W. 569; Eller v. Richardson, 89 Tenn. 576, 15 S. W. 650; Glasgow v. Turner, 91 Tenn. 165, 167, 18 S. W. 261; Simmons v. Leonard, 91 Tenn. 183, 194, 18 S. W. 280, 30 Am. St. Rep. 875; Woodall v. Foster, 91 Tenn. 195, 198, 199, 18 S. W. 241; Montague v. Thomason, 91 Tenn. 168, 176, 18 S. W. 264; Cowan v. Singer Mfg. Co., 92 Tenn. 376, 384, 21 S. W. 663. But while this is the general rule, the court will depart from it, and remand for a new trial, when justice seems to require it in the special case. Settle v. Marlow, 12 Lea, 474. The same rules govern, even when a special finding of facts and law is filed by the circuit judge, no request under the statute for such special finding having been made of him. Stephens v. Mason, 99 Tenn. 512, 42 S. W. 143. Of course, it is to be understood that in this class of cases those tried by the judge without the intervention of a jury, and without a legal request for written findings, his judgment, and his voluntary findings if he file any, are to be treated like the verdict of a jury when attacked on the ground that there is no evidence to support such judgment or

the findings, as the case may be. In such a case the court will refer to the bill of exceptions to ascertain whether there is any evidence to sustain the judgment. Upon discovering such evidence, no other objection being made, or, if made, not being found tenable, the court will affirm. If upon such reference to the bill of exceptions no evidence is found to support the findings or judgment, or if they were based upon incompetent evidence duly objected to, or rendered after excluding competent evidence, or if they are found fatally erroneous upon other grounds, this court will then, upon a consideration of the testimony at large, render such judgment as the circuit judge should have rendered without a remand, except in the class of cases referred to in Settle v. Marlow, supra. But in the class of cases we now have before us the court can look to the bill of exceptions only for the purpose of ascertaining whether there is any evidence to support the findings, or any part of them, when attacked on the ground that there is no evidence to support them; or for the purpose of passing upon questions of evidence; or for the purpose of ascertaining whether such findings contain a substantial response to the contentions of the parties as they appear in the evidence considered in relation to the pleadings; or whether such findings, when considered in the relation just indicated, are intelligible, and constitute a substantial response to the request for findings in accordance with the statute. If such examination shall result favorably to the technical frame and substance of the findings, then the court, confining itself wholly to the facts contained in the findings, will determine the question of law arising upon those facts, and either affirm, modify, or reverse the judgment of the court below. But if, on objection made, it is discovered that there is no evidence to support the findings, or that some substantial part of them is open to this objection, or if a substantial error is made as to the admission or rejection of testimony, or if it be ascertained that the findings do not contain a substantial response to the request, or that they are unintelligible, or so framed that no judgment can be safely pronounced thereon one way or the other, the court will reverse and remand for a new trial. This is the practice in the special class of cases we have before us. McHale v. Wellman, 101 Tenn. 150, 153, 46 S. W. 448. And see Stanley v. Donoho, 16 Lea, 495.

In this case, counsel for each side have discussed the matters arising without much reference to the findings of the circuit judge, and have based their respective arguments upon facts found in the bill of exceptions, but not contained in his honor's findings. This is not the proper practice. This court cannot look to the bill of exceptions in this kind of case except for the purpose already indicated; nor can the counsel. It is the duty of counsel in the court below to call the

court's attention to any material facts omitted, and ask to have them incorporated. If this be not done, or if, for any reason, the case be allowed to come to this court with findings so framed as that judgment cannot be safely pronounced thereon in favor of either party, all we can do is to reverse, and remand for a new trial. Such must be the judgment in the present case. Therefore, the petition for rehearing having been granted, the judgment heretofore rendered in this court affirming the judgment of the court below will be set aside, and the judgment of that court will be reversed, and the cause remanded for a new trial.

DARLINGTON et al. v. MISSOURI PAC. RY. CO.*

(Court of Appeals at St. Louis, Mo. Dec. 9, 1902.) RAILROADS-CARRIAGE OF FREIGHT-DEMURRAGE CHARGES-RIGHT TO MAKE-LIEN-DELIVERY OF FREIGHT-WHAT CONSTITUTESCONVERSION-SWITCH TRACKS ON PRIVATE LAND TITLE OF COMPANY-LICENSE.

1. Where a switch connecting with the side track of a railroad company was put in on private land for the convenience of the tenants of the owner, but also for the profit of the railroad company, and partly at its expense, the railroad company had a license, coupled with an interest in the switch, and as such licensee had the right to move its engines thereon to set in or take out cars consigned to the tenants. 2. Such license could not be arbitrarily or suddenly revoked.

3. A tenant, who leased part of the land with the switch on it, and with knowledge of the uses made of it by the railroad company, had no power to revoke the license, or to interfere with the company's use of the switch, so long as the license was not abused.

4. Action of a railroad company in switching cars containing lumber onto a switch on private land, of which the consignee was tenant, for the purpose of allowing them to be unloaded, did not operate to deprive it of dominion over the cars or over the lumber remaining therein, and did not preclude it from repossessing itself of the cars and lumber for the purpose of enforcing a lien on the lumber.

5. A railroad company has the right to make a rule requiring its consignees to unload their freight from its cars within a reasonable time. or pay a reasonable sum per day as a demurrage charge for detention of the cars beyond such time.

6. A railroad company may have a lien for demurrage charges, even without express stipu lation therefor in the contract of shipment.

7. Where a bill of lading required the consignee to unload the shipment from the company's cars within 48 hours, or pay a demurrage charge, but the right of the company to remove the cars and warehouse the shipment was not complete until 72 hours had expired, and the company removed a car not fully unloaded after the 48 hours had expired, but within the 72-hour period, it was guilty of con

version.

8. A consignee of freight was not excused from noncompliance with his duty to unload it from the cars within the time stipulated in the bill of lading by reason of the extreme condition of the weather.

*Rehearing denied March 3, 1903.

6. See Carriers, vol. 9, Cent. Dig. §§ 431, 895.