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been induced to give credit to the foreign corporation." Runk v. St. John, 29 Barb. (N. Y.) 585.

In a note to Choctaw Coal, etc., Co. v. Williams, Echols, etc., Co., 75 Ark. 365, 87 S. W. 632, as reported in 5 Ann. Cas. 569, it is

said:

"While the courts have with unanimity denied the capacity of a receiver to bring suit in a foreign jurisdiction as a matter of right, the privilege or permission to sue is ordinarily accorded as a matter of comity, and in the absence of statutory regulations the appointment and title of the receiver will be recognized, and he will be allowed to sue, unless injustice or detriment will result therefrom to the citizens of the state permitting it, or the policy of its laws will thereby be contravened."

Authorities are collected from 27 states in support of the annotator's proposition.

See later note to the same effect under

Converse v. Hamilton, 224 U. S. 243, 32 Sup.
Ct. 415, 56 L. Ed. 749, as reported in Ann.
Cas. 1913D, 1292. See, also, note to Gilman
V. Hudson River Boot & Shoe Mfg. Co., 84
Wis. 60, 54 N. W. 395, as reported in 23 L.
R. A. 52, 36 Am. St. Rep. 899, and note to
Fowler v. Osgood, 141 Fed. 20, 72 C. C. A.
270, as reported in 4 L. R. A. (N. S.) 824.

The privilege of suing in jurisdictions other than that of their appointment is almost universally conceded to receivers now, as a matter of comity or courtesy, unless such a suit is inimical to the interest of local creditors, or to the interest of those who have acquired rights under a local statute, or unless such a suit is in contravention of the policy of the forum. No such objection can be urged to the maintenance of the present suit, and we are of opinion it should be allowed to be prosecuted.

In Cagill v. Wooldridge, 8 Baxt. 580, 35 Am. Rep. 716, we permitted a receiver appointed by an Arkansas court to prosecute in this state an action of replevin to recover property taken from his possession.

In Newsum v. Hoffman, 124 Tenn. 369, 137 S. W. 490, speaking of chattel mortgages executed and registered in other states, this court held that they would be recognized as valid and effective here, if the mortgaged property was brought into the state without the consent of the mortgagee. The court said:

"It seems a churlish and ungracious course, if not an example of improvident judgment, to hold out against the generous comity of the many states which recognize the rule of interstate courtesy upon this subject."

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NEIL, C. J. This action was brought in the circuit court of Shelby county to recover damages for an injury alleged to have been inflicted upon the plaintiff by the defendant railway company.

The declaration alleged that "on or about the 12th day of September, 1912," plaintiff, while walking on defendant's track at a place which, for many years prior thereto, the public had been in the habit of using as a walkway, near the intersection of the said track and Iowa avenue, was negligently run upon by one of defendant's engines, after her danger became apparent to the defendant's servants, or by the exercise of ordinary care would have been apparent to them. It appears inferentially from an amendment made that a motion was entered by defendant to require the plaintiff to make her declaration more specific, but the order itself is not in the record. Thereupon the plaintiff filed the following amendment:

This observation applies with even more force to the case of a foreign receiver who seeks to bring an action in our courts under circumstances such as are here existing. We have in Tennessee several border cities, Memphis, Chattanooga, Bristol, Clarksville, and others, the trade and business of which are largely, if not chiefly, in border states. These cities are in the main creditor cities, and it would therefore, as the court said in Newsum v. Hoffman, supra, be an exceeding

"Comes now the plaintiff in compliance with the order of the court heretofore granted herein, and amends her original declaration by inserting in the second paragraph, page 1 thereof, immediately after the words and figures that heretofore, to wit, on or about the 12th day

of September, 1912,' the following words and, plaintiff to prove that the accident occurred figures, to wit: 'at about 5 p. m.'"

on the 12th day of September, and on no other day, then there was no evidence to sustain the verdict, because, as already recited, the plaintiff was unable to state the date any more definitely than that it was either on the 12th or near that day.

The general rule is that it is not essential to prove with exactness the time as laid in the declaration. 7 Bac. Abridg. 477, 579; 1 Elliott on Ev. § 197; 31 Cyc. 706, 707. The point is ruled in the same way in one of our earliest cases, Martin v. McNight, 1 Tenn. (1 Overt.) 380, a qui tam action. In Thompson v. French, 18 Tenn. (10 Yerg.) 453, 458, the same proposition was laid down in a case involving a verbal or implied contract. See, also, the following cases cited in a note to Hewitt v. Pere Marquette R. R. Co., 41 L. R. A. (N. S.) 635, viz.: Rollins v. Atlantic City R. Co., 73 N. J. Law, 64, 62 Atl. 929; Gulf, T. & W. R. v. Lowrie (Tex. Civ. App.) 144 S. W. 367; Florida East Coast R. Co. v. Welch, 53 Fla. 145, 44 South. 250, 12 Ann. Cas. 210, 213, 214; Southern Railroad Co. v. Puckett, 121 Ga. 322, 48 S. E. 968. But where the date is an essential element of description in stating the cause of action it must be proved as laid. 1 Elliott on Ev. § 197; 31 Cyc. 706, 707.

The defendant interposed the general issue. The plaintiff's testimony fully made out the case as to the fact that an injury had been inflicted on her by one of the defendant's engines while she was walking on the track as stated; that she was looking and listening all the time; that the track was straight, and she could have been seen by any one upon the lookout; and that she was run upon without warning. As to the time of the injury, she said that it occurred in the month of September, 1912, and, according to the best of her recollection, it was on the 12th of the month; but she could not be certain as to the day. She was sure it was near that time.

The defendant introduced a claim agent, in its employment at the time of the accident. He testified there was no report made of any accident by the employés of the company; that there were 19 tracks in the yard at the point where the accident is said to have occurred, and there were 19 switch engines working at the place on September 12, 1912; that he saw each of the trainmen, making 125 in all, and they knew nothing of the occurrence; that he then suggested to the company's attorney to put down a motion to make the declaration more specific, and when this was done he made a further investigation, but could not find the crew that manned the engine that is said to have struck the plaintiff; that the train crews and the en-specific as he is able to make it. gines were changed each day, and if the wrong day should be alleged in the declaration it would be impossible to find the right train crew.

The rest of the evidence was upon the extent of the injury.

The trial judge charged, among other things not excepted to, the following:

"The plaintiff alleges that the accident occurred on the 12th day of September, 1912. In order for the plaintiff to be entitled to recover in this case, it is necessary for her to show by a preponderance of the evidence that the accident occurred on that day. Unless you find that the accident occurred on the 12th day of September, 1912, and not at a much later date, you must return a verdict for the defendant."

In several cases it has been held that on application of the defendant, showing good cause, the complainant may be required to make the date more specific, or at least as

The jury returned a verdict for the defendant, and thereupon an appeal was prosecuted to the Court of Civil Appeals. From that court the case has reached us by the writ of certiorari, and has been argued at the bar of the court.

In Bogard v. Ill. Cent. R. R. Co., 116 Ky. 429, 76 S. W. 170, 3 Ann. Cas. 160, the facts were that the declaration or petition stated the cause of action, a personal injury to the petitioner, as having occurred "within the last 12 months." The defendant moved the court in writing to require the plaintiff to state the date of the injury complained of, the point where it occurred, the number of the train producing it, and the parties in charge thereof. Over the objection of the plaintiff the motion was sustained, and, on plaintiff's declining to plead further, the ac tion was dismissed and the case was appealed to the Court of Appeals. The court said:

There is no uncertainty or indefiniteness with respect to the nature of the charge made against the defendant. The difficulty under which the defendant claims to labor is that the plaintiff has not sufficiently specified the facts of negligence occurred to enable it to intellias to the time and place where the alleged acts gently defend the action. The defendant operates a trunk line through McCracken coun

In the Court of Civil Appeals the above-ty, and it has perhaps 50 miles of track within the county. In course of 12 months thoumentioned charge of the trial judge was held sands of trains pass over its road, operated by erroneous, and it was likewise adjudged in hundreds of different employés, at all hours of that court that there was no evidence to sus- the day and night. The plaintiff necessarily tain the verdict, and the cause was remanded the accident, whether it was day or night. has information as to the time and place of for a new trial. These rulings of the Court whether the injury was inflicted by a freight or of Civil Appeals are assigned as error in this passenger train; and a state of case might exist when it would be impossible for the defendcourt. ant to secure this information so necessary for the proper conduct of its defense. When such

The case turns upon whether the charge

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er to require such information to be furnished. | out specifically the injuries complained of, or
This question was very fully considered in the the details of the alleged acts of negligence of
case of Com. v. Snelling, 15 Pick. (Mass.) 321. the defendant in inflicting the injuries. In our
The opinion in that case was delivered by Chief opinion, the trial court erred in sustaining the
Justice Shaw. It was held that, where a per- motion to require the plaintiff to give the num-
son is indicted for a libel containing general ber of the train producing the injury or the
charges of official misconduct against a magis- names of the parties in charge thereof. It is
trate, the court was authorized to require him not at all probable that such information is in
previously to the trial, in case he intended to his possession, and, if the identity of the train
give the truth of the publication in evidence, to inflicting the injury is established, the means
file a bill of particulars specifying the instanc- of ascertaining these facts are more accessi-
es of misconduct which he proposes to prove. ble to defendant than to the plaintiff. Nor
After a thorough review of all the authorities, should the motion have been sustained at all,
he says: The general rule to be extracted from without some showing by the defendant, by affi-
these analogous cases is that where, in the davit or otherwise, that it did not have the re-
course of a suit, from any cause, a party is quired information or reasonable means of ob-
placed in such a situation that justice cannot taining it."
be done in the trial without the aid of the infor-
mation to be obtained by means of a specifica-
tion or bill of particulars, the court, in virtue
of the general authority to regulate the conduct
of trials, has power to direct such information
to be seasonably furnished, and in authentic
form." "

Again, quoting from Tilton v. Reecher, 59

N. Y. 176, 17 Am. Rep. 337:

trespass,
ejectment,

"In actions upon money demands consisting of various items, a bill of particulars of the dates and description of the transactions out of which the indebtedness is claimed to have arisen is granted almost as a matter of course; and this proceeding is so common and familiar that, when a bill of particulars is spoken of, it is ordinarily understood as referring to par- It is not our purpose to go further into the ticulars of that character. But it is an error subject at this time than to say, we approve to suppose that bills of particulars are confined to actions * for the recovery of money the principles stated in Bogard v. Ill. Cent. demands arising upon contract. A bill of par- R. R. Co., supra, and to add a few general ticulars is appropriate in all descriptions of propositions which we find in the cases. actions, where the circumstances are such that These additional propositions are that, while justice demands that a party should be apprised of the matters for which he is to be put the propriety of making the order is in the for trial with greater particularity than is re-discretion of the trial judge, yet this disquired by the rules of pleading. They have cretion is subject to review; that the party been ordered in actions of libel, escape, is not to be required to state the evidence on which he rests his demand or defense; that the making the order must depend upon the special circumstances and situation of each case, the action of the court being guided. solely by the purpose of effectuating justicebetween the parties, at the same time not imposing an undue burden upon either one; that where the party upon whom the order is made shows to the court that he is unable to furnish the particulars required the order should be vacated; that whenever the order

*

cases

trover,
and in
and even in criminal
on an indictment for being a
common barrator,
on an indictment
for nuisance.
* * A reference to a few
of the authorities upon which these decisions
were founded will show that in almost every
* case in which the defendant can sat-
isfy the court that it is necessary to a fair
trial that he should be apprised beforehand
of the particulars of the charge which he is
expected to meet, the court has authority to
compel the adverse party to specify those par-
ticulars so far as in his power."

*

3 Enc. of Plead. & Prac. 517, was quoted as follows:

"There is no inflexible rule as to the class of cases in which a bill of particulars will be granted, but it rests within the sound judicial discretion of the court, to be exercised only in furtherance of justice. But," continuing the quotation, "the rule is quite well established that a party will not be obliged to furnish facts already known to his adversary, nor when the means of ascertaining the facts are equally accessible to both parties."

There is an extensive note to this case discussing bills of particulars in negligence actions.

Other general authorities are: Richmond & Danville R. Co. v. Payne, 86 Va. 481, 10S. E. 749, 6 L. R. A. 849, 851, 852; State v. Lewis, 69 W. Va. 472, 72 S. E. 475, Ann. Cas. 1913A, 1203, and note; Warfield v. State, 116. Md. 599, 82 Atl. 1053, Ann. Cas. 1913C, 824, and note; Washington & Va. R. Co. v. Bouknight, 113 Va. 696, 75 S. E. 1032, Ann. Cas. 1913E, 546, 548; 31 Cyc. 699, 704; 59 L. R. A., note on pp. 218-221.

"We are of the opinion that, upon a proper showing that defendant did not have the information or the means of readily ascertaining the time when and place where the accident occurred, and whether it occurred during the day or night, or was inflicted by freight or passenger train, the plaintiff should be required to furnish such information, if in his power. But it is not necessary or proper in an action for

is made, it is enforced by confining the evidence to the particulars stated, construed with liberality to effect the ends of justice. Our statutes do not in direct terms provide for, or authorize, the requirement of a bill of particulars; but we deem this immaterial, since the power is inherent in courts of justice to enable them to properly conduct trials before them, as held in Com. v. Snelling, supra. To the same effect is Watkins v.

On these authorities the Court of Appeals Cope, 84 N. J. Law, 143, 86 Atl. 545. of Kentucky said:

We have three cases in this state bearing more or less directly on the subject. We have Smith, Exec., v. Wilkinson et al., 45 Tenn. (5 Cold.) 157, wherein an order was asked requiring the plaintiff to make the dates of alleged collections by a constable. more certain, the suit being one against a constable and his sureties on his bond; but

referred to were necessarily more particular- of the parties, or to the cause of action, ly within the knowledge of the defendant. We have another case, Mynatt v. Mynatt, 53 Tenn. (6 Heisk.) 311, wherein it appears a motion was made to strike out a plea on the ground that it was too indefinite in its statements as to the defense of the statute of limitations therein relied on. Instead of specifying the time within which the action had been barred, the plea averred that:

might develop a latent ambiguity requiring to be cleared up by a further and more particular statement. But, however this may be, we think, as already stated, that it is within the inherent power of the court to require, in a proper case, what is commonly known as a bill of particulars.

"The offense was not committed within such period of time before the beginning of the suit as may be inquired of by the court."

The court said:

"If the motion was made because the plea failed to carry a reasonable certainty of meaning, it was the duty of the court, upon motion to dismiss, to direct a more specific statement, but not to strike it out. If the motion was made because the plea did not show a substantial cause of defense, a demurrer, and not a motion, was the mode prescribed for reaching the defect, and, upon sustaining the demurrer, the party should have the privilege of pleading Upon whatever ground, therefore, the motion was made and sustained, it was error to strike out the plea."

over.

There is also Crowley v. Railroad, 108 Tenn. 74, 65 S. W. 411, wherein it was held that plaintiff, having fixed the day and place in the declaration, could not be required to state the special hour of the day.

All of these Tennessee cases were based on Shannon's Code, §§ 4605 and 4606, which

read as follows:

"Any pleading possessing the following requisites is sufficient: (1) When it conveys a reasonable certainty of meaning; (2) when, by a fair and natural construction, it shows a substantial cause of action or defense.

"If defective in the first of the above particulars, the court, on motion, shall direct a more specific statement; if in the latter, it is ground of demurrer."

Perhaps it would be more accurate to say that they were based on that part of section 4606 which provides that, in case any pleading fails to contain a reasonable certainty of meaning, the court shall on motion direct a more specific statement.

For the reason already stated, we deem it unnecessary to express any opinion as to whether the bill of particulars could be treated or considered as falling within the sense and meaning of the sections quoted. Certain it is, however, that they go far in that direction. It may be conceded that in their ordinary application they refer to a case wherein the ambiguity is patent on the face of the pleading. However, it is not inconceivable that in many instances affidavits showing the surroundings of the subject-matter of the pleading with reference to one or the other

We are of the opinion that the parties may be required to furnish, in the form of such a bill or statement, a more particular reference to the day on which an injury or other material thing is alleged to have occurred. It is true that a plaintiff may allege in his declaration that the cause of action arose on or about a specified day, as was done in the present case, and may satisfy this averment by proving any date reasonably near the given day; but he may be required by order of the court, if he can do so, to fix the particular day, and the order may confine the evidence to the day so fixed. However, this must be understood with the qualification, already stated, that he cannot be so compelled if he show that he is unable to state the date more definitely than he has already

done.

This aspect of the case finds illustration in the case now before us. The declaration averred that the accident occurred “on of about the 12th day of September, 1912" The sworn statement of the plaintiff showed that she could not fix the date of the injury with any more definiteness, and accordingly the court could not require it of her. He did require her to fix the hour of the day; but this was held error in the case of Crowley v. Railroad, supra.

Coming, now, to the specific errors assigned, we are of the opinion that the trial judge committed error in instructing the jury that it was incumbent on the plaintiff to prove that the injury was inflicted on the 12th day of September. This was erroneous, because the declaration was not so limited in its terms; nor had it been so limited by any order of the court, confining the evidence to that date; nor could such order have been made, in view of plaintiff's showing that it was impossible for her to fix the date with any more definiteness than she had already done.

We are of the opinion, therefore, that the portion of the charge complained of was erroneous, and the Court of Civil Appeals acted correctly in reversing the judgment of the trial court, and remanding the cause for a new trial, and the action of the Court of Civil Appeals in respect of this matter is affirmed.

FIRST NAT. BANK OF FT. SMITH v. NOR- said enforced collection of said
RIS, Sheriff. (No. 320.)

(Supreme Court of Arkansas. May 18, 1914.)
1. TAXATION (§ 493*)-ASSESSMENTS-INCREASE
IN ASSESSMENT.

Under Acts 1911, p. 230, providing that appeals from assessments by the county boards of equalization shall be heard and passed upon by the county court before the fourth Wednesday in October, the county court, having reduced an assessment at a hearing before the fourth Wednesday in October, cannot in the succeeding January raise it; the statute being mandatory.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 876-883; Dec. Dig. § 493.*]

2. TAXATION (§ 543*)-RECOVERY OF EXCESS. A taxpayer who paid taxes upon an unlaw

action

cannot maintain an ful assessment against the collector for the excess unless the collector has retained it in his hands, but Kirby's Dig. § 7180, authorizing the county court to make an order refunding taxes erroneously assessed, affords a complete remedy in such

sessment on January 4th was void, and that sum of $841.45 was illegal. Judgment was asked against the collector for recovery of said exCessive amount.

We are not favored with brief by appellee, and consider the case only upon the brief of appellant and such further investigation as the judges have pursued for themselves.

case.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1006-1016; Dec. Dig. § 543.*]

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Action by the First National Bank of Ft. Smith against T. A. Norris, as Sheriff and Collector. From judgment for defendant, plaintiff appeals. Affirmed.

H. C. Mechem, of Ft. Smith, for appellant.

Whether, in the absence of a statute limiting the time within which the county court may change its judgments revising assessments, that court has the power to change the valuation without notice to the owner, and after having once fixed the valuation, we need not determine, for this case; we think, is controlled by the plain letter of the statute. The General Assembly of 1911 enacted a statute, approved May 4, 1911, changing the time for meeting of the county boards of equalization and extending the time thereof, and also fixing the time within which county courts may hear appeals. Act 249, p. 230, Acts of 1911. It provides in substance that the county boards of equalization shall meet on the first Monday in September and continue to exercise their functions until the fourth Wednesday of October, but that the assessment of property shall not be raised by a board after the second Wednesday in October until the taxpayer affected has been duly notified and given an opportunity to be heard. The act further provides for appeals from the board of equalization to the county court, and that "all appeals taken from the order of the board of equalization shall be taken to the October term of the county court, and such appeals, even if taken after the regular October term of the county court has convened, shall be heard and passed upon by said court before the fourth Wednesday in October."

McCULLOCH, C. J. Appellant instituted this action in the circuit court of Sebastian county, Ft. Smith district, against appellee, as tax collector, to recover the amount of taxes alleged to have been illegally extended against its property in the county and paid under protest to said collector.

[1] It is alleged in the complaint that appellant made a return of its property in due form to the assessor of the county, showing taxable property amounting in valuation to the sum of $237,000; that the board of equalization, during its regular session, raised the valuation of appellant's property to $300,000, whereupon appellant appealed from the action of the board to the county court, and that court, at its session held on the second Wednesday of October, reduced the valuation to $267,000, but on January 4, 1913, it being an adjourned day of the October term thereof, without notice to appellant, said court set aside its former order and restored the valuation of appellant's property to $300,000, the amount fixed by the board of equalization; that the county clerk extended the amount of appellant's taxes upon the tax books upon said valuation of $300,000, and delivered same to the collector, who demanded of appellant, and the latter paid under protest, the taxes so extended, which were, by the sum of $841.45, in excess of the true amount of a valid assessment. It is alleged It is unnecessary in this case to enter upon that the act of the county court in attempt- any consideration of the power of the county ing to make a new order changing the as-court to continue a hearing begun within the

The primary question which arises is, therefore, whether the last-named provision of the statute, fixing the time for county courts to hear appeals, is mandatory or merely directory.

We held in the case of Waters-Pierce Oil Co. v. Roberts, 96 Ark. 92, 131 S. W. 205, that the provision fixing the time for action by the board of equalization in revising assessments was intended to be mandatory, and that any attempt on the part of the board to raise assessments after the time fixed was void. The reasoning of the opinion of that case leads to the conclusion that the provision of the act of 1911 now under consideration was intended to be mandatory, for the time was fixed for the protection of the taxpayer so that he might have an opportunity to present his grievance, and that a time might come when he could know that further revision of his assessment would not be attempted.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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