as above, and there is evidence that the automobile was being operated in excess of the statutory speed limit, and there is evidence that the machine was being negligently operated, applying common-law rules. [1] As heretofore stated, this suit was originally brought by James Redmond. On the day after the suit was brought Redmond died. Mrs. Mary S. Redmond then appeared in court, produced letters of administration, and had the suit revived in her name as such administratrix, to stand revived "in the same plight and condition as before the death of plaintiff." Later Mrs. Redmond, as administratrix, filed her declaration, in which she claimed damages, not only such as were suffered by the deceased-pain, suffering, loss of time, doctor's bills, etc.-but claimed compensation under the statute for herself and children for the wrongful death of the deceased. It is insisted that inasmuch as the suit was originally brought merely to recover the damages sustained by James Redmond, and that inasmuch as it was revived to stand in the same plight and condition, Mrs. Redmond, as administratrix, cannot recover in this particular suit the damages sustained by the statutory beneficiaries consequent to the wrongful killing of the deceased. This question cannot be made upon this record. Such an argument suggests a variance between the writ and the declaration. The declaration clearly averred and sought recovery for damages for the wrongful killing of James Redmond, as well as damages sustained by him, and to this declaration the defendant below interposed pleas in bar, to wit, the general issue and a plea of contributory negligence. Granting the argument of plaintiff in error that the order of revivor had the effect of limiting recovery to the damages sought in the original writ, then the suit stood as if brought by Mrs. Redmond, as administratrix, to recover for the injuries inflicted upon the deceased. The declaration, however, went beyond this, as we have seen, without objection from the defendant below. A variance between pleading and process is technical in character, and defendant must avail himself promptly of any objection he intends to interpose. Under all the authorities it is too late to take advantage of such a variance after pleading to the merits. 22 Enc. Pl. Pr. 523; McKenna v. Fisk, 1 How. 241, 11 L. Ed. 117. attention of the trial court by any motion or pleading, until the motion for a new trial was made. Our own cases have settled the law that such an objection comes too late when made for the first time after judgment. Payton v. Trigg, 4 Hayw. 250; Johnson v. Planters' Bank, 1 Humph. 77. [3-5] By chapter 36 of the Acts of 1917, the drivers of automobiles, crossing a railroad track at grade on public roads, were required to come to a full stop at a distance of not less than 10 nor more than 50 feet from the nearest rail of said track before crossing. The trial judge instructed the jury that, if they found that the defendant below failed to observe this statute, and that as a proximate result of such failure the plaintiff below was injured, liability would follow. A request was tendered by the defendant below, asking that the jury be instructed that this statute had no bearing on the case before them, which request was refused by the court. We think that the circuit judge erred in giving this instruction, and erred in refusing to give in charge the request just mentioned. An examination of chapter 36 of the Acts of 1917 satisfies us that it was intended to prevent collisions of railroad trains and automobiles at grade crossings, and to protect those riding on railroad trains and in automobiles. It was not enacted for the protection of those using the public highway, either at the point where the highway happened to cross a railroad track at grade or elsewhere. Persons traveling on the highway are protected by the common law and also by chapter 173 of the Acts of 1905. The act of 1917 does not have such persons within its purview. of the Acts of 1917, it follows that the plainSuch being our construction of chapter 36 tiff below was not entitled to base her action upon any violation thereof. We have considered this question fully in a recent case, and there said: * "In order to found an action on the violation of a statute, or ordinance, the person suing must be such a person as is within the protection of the law and intended to be benefited thereby. * We think that one not a beneficiary of a statute may neither base an action nor a defense on a violation thereof. Unless an individual be within the province of a statute, its violation is no breach of duty to him." Chattanooga Ry. & Lt. Co. v. Bettis, 139 Tenn. 332, 202 S. W. 70. [2] In the case before us this objection was The plaintiff in error has properly chalnot made by any pleading until after verdict | lenged the action of the trial court with refand judgment. It is true that certain re- erence to this statute in this court. He did quests were offered by the defendant below, not pretend to have stopped his car on apby which he sought to have the trial judge proaching the crossing at which Redmond limit the damages to those sustained by was hurt. Therefore such an instruction James Redmond. A request for instructions from the trial judge practically necessitated is not a pleading, however, and the alleged a verdict against him. With this statute out variance was therefore not brought to the of the way his liability depended on contro (218 S.W.) verted issues of fact. The error he complained of was therefore material, and affected the result. Having taken the view that chapter 36 of the Acts of 1917 has no application to this case, it becomes unnecessary to pass on its validity in this suit. For the reason stated, the judgment below will be reversed, and this case remanded for a new trial. void as against the creditors of the seller, unless the seller and purchaser shall at least five days before the sale make a full detailed inventory, showing the quantity, and so far as possible, with the exercise of a reasonable diligence, the cost price to the seller of each article to be included in the sale; and unless such purchaser shall at least five days before the sale. in good faith, make full, explicit inquiry of the seller as to the names and places of residence or place of business of each and all of the creditors of the seller, and unless the purchaser shall at least five days before the sale, in good faith, notify or cause to be notified personally or by registered mail, each of the creditors of the STRAUS CIGAR CO. et al. V. BON seller of whom the purchaser has knowledge, or MARCHE et al. can, with the exercise of reasonable diligence, acquire knowledge, of the purposed sale and of (Supreme Court of Tennessee. Nov. 15, 1919.) the cost price of the merchandise to be sold, FRAUDULENT CONVEYANCES USED IN CONNECTION WITH TOBACCO AND Acts 1901, c. 133, § 1, providing that a sale of any portion of a stock of merchandise other than in the ordinary course of trade, or a sale of the entire stock of merchandise in bulk, shall be presumed fraudulent as against creditors of the seller, unless the seller and purchaser shall five days before the sale make a detailed inventory, etc., and the purchaser after inquiry shall notify the seller's creditors, etc., does not apply to a sale of the fixtures used in connection with a business where confectionery, tobacco, and soft drinks were sold. Appeal from Chancery Court, Washington County; E. K. Bachman, Special Chancellor. Action between the Straus Cigar Company and others and Bon Marche and others. On appeal from decree of chancellor. Geo. C. Sells, of Johnson City, for Straus Cigar Co. and others. Cox & Taylor, of Johnson City, for J. Frank Graham. S. W. Price and J. R. Gardner, of Johnson City, for E. D. Hanks. Divine & Guinn, Miller & Depew, O. M. Fair, Harr & Burrow, A. R. Johnson, G. S. Chase, and Geo. N. Barnes, all of Johnson City, for various petitioning creditors. MCKINNEY, J. Does chapter 133 of the Acts of 1901 of the General Assembly of the state of Tennessee apply to or include fix tures used in connection with a business, where confectionery, tobacco, and soft drinks are sold? Section 1 of said act is as follows: "Be it enacted by the General Assembly of the state of Tennessee, that a sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or a sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and and the price proposed to be paid therefor by the purchaser; and the seller shall at least five days before such sale, fully and truthfully answer in writing each and all of said inquiries: Provided, however, no suit shall be brought or maintained by any creditor against such seller or purchaser within five days after he receive notice from any source of the intended sale and purchase, and any suit so brought shall be dismissed at the cost of the plaintiff in the case." The great weight of authority and the better reasoning lead us to the conclusion that the purpose of the Legislature was to regulate the sale of such articles only as the merchant keeps for sale in the ordinary course of his business, and that the statute therefore has no application to fixtures employed in connection with the business. Heilmann v. Powelson, 101 Misc. Rep. 230, 167 N. Y. Supp. 662; Ferrat v. Adamson et al., 53 Mont. 172, 163 P. 112; Kolander v. Dunn, 95 Minn. 422, 104 N. W. 371, 483; Lee v. Gil len & Boney, 90 Neb. 730, 134 N. W. 278; Johnson v. Kelly, 32 N. D. 116, 155 N. W. 683; Muskogee, etc., Grocery Co. v. Durant, 49 Okl. 395, 153 Pac. 142; Boise Ass'n of Credit Men v. Ellis, 26 Idaho, 438, 144 Pac. 6, L. R. A. 1915E, 917; Nolte v. Winstanley, 16 Ariz. 327, 145 Pac. 246; Gallus v. Elmer, 193 Mass. 106, 78 N. E. 772, 8 Ann. Cas. 1067; Delbon v. Krautwald (Sup.) 169 N. Y. Supp. 610; Albrecht v. Cudihee, 37 Wash. 206, 79 Pac. 628; Everett Produce Co. v. Smith, 40 Wash. 566, 82 Pac. 905, 2 L. R. A. (N. S.) 331, 111 Am. St. Rep. 979, 5 Ann. Cas. 798; Laundry Co. v. Lewis, 86 Conn. 386, 85 Atl. 534, 45 L. R. A. (N. S.) 495; Balter v. Crum, 199 Mo. App, 380, 204 S. W. 506; Bowen v. Quigley, 165 Mich. 337, 130 N. W. 690, 34 L. R. A. (N. S.) 218; Savings Bank v. Van Allsburg, 165 Mich. 524, 131 N. W. 101. Contra: Parham & Co. v. Potts-Thompson Liquor Co., 127 Ga. 303, 56 S. E. 460; Plass v. Morgan, 36 Wash. 160, 78 Pac. 784. Other questions have been disposed of in a memorandum filed in the cause. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes GIBSON v. BUIS et al. (Supreme Court of Tennessee. Nov. 15, 1919.) 1. WITNESSES 159(7), 177-CONVERSATIONS daughters, Mrs. Ollie Parkey and the defendant Mrs. Minnie Buis. The testator left an estate worth, accord ing to the testimony, $70,000 or $75,000. He bequeathed $10,000 to each of his daughters, WITH DECEDENT INCOMPETENT ΤΟ PROVE and, after giving certain of his other propGIFT, BUT ADMISSIBLE IN REBUTTAL. erty to his wife for life, gave the remainder In an action by an executor to have a pay-interest therein, as well as the residue of the ment made by testator charged against a legacy estate, to his son, the complainant, M. W. as an advancement, it was competent for the Gibson. legatee to testify as to a conversation had with the testator to rebut testimony of the executor as to admissions made by the legatee, but not to prove that the money given her by the testator was given as a gift and not as an advancement. 2. WILLS 766-GIFTS TO LEGATEE BY TESTATOR DURING LIFE PRESUMED ADEMPTION OF LEGACY. Where testator after executing a will made gifts to a legatee, the presumption is that such gifts were intended as an ademption of the legacy bequeathed in the will, especially where the will stated, "I may be able to pay a part or all of said amount during my lifetime, and whatever amount I do pay will be credited upon said amount herein directed to be paid by my executor." 3. WILLS 770-CLEAR AND CONVINCING TESTIMONY NECESSARY TO REBUT PRESUMPTION THAT GIFT WAS ADEMPTION. Where will stated concerning a legacy, "I may be able to pay a part or all of said amount during my lifetime, and whatever amount I do pay will be credited upon said amount herein directed to be paid by my executor," the burden was upon the legatee, in an action by the executor to charge the legacy with money given to the legatee by the testator after the execution of the will, to show by clear, cogent, and convincing evidence that the money paid to her was not intended as an advancement. 4. WILLS 770-EVIDENCE INSUFFICIENT TO OVERCOME PRESUMPTION THAT MONEY PAID LEGATEE WORKED ADEMPTION OF LEGACY. In an action by an executor to have money paid by testator during his lifetime charged to a legatee as an advancement, evidence on the part of the legatee held insufficiently clear, cogent, and convincing to show that the money was not intended as an advancement. Appeal from Claiborne Chancery Court; John Jennings, Jr., Chancellor. Bill by M. W. Gibson, executor, against J. W. Buis and others. Decree for plaintiff, and defendants appeal. Affirmed. Montgomery, Donaldson & Montgomery, of Tazewell, for M. W. Gibson. Wm. I. Davis, of Tazewell, and J. R. Ketron, of Arthur, for J. W. Buis and others. MCKINNEY, J. E. J. Gibson died testate at his home in Claiborne county on February 11, 1917, leaving surviving him his widow, Mary C. Gibson, who died March 3, 1917, one son, the complainant, M. W. Gibson, whom he named executor of his will, and two The will of the testator was executed on January 27, 1915. The provision thereof by which he made the bequest to his daughter Mrs. Minnie Buis is as follows: "I give to my daughter Minnie Maude Buis, the wife of J. W. Buis the sum of ten thousand dollars ($10,000.00) in addition to the advancements heretofore made to her. This amount will be paid to her by my executor within one year from the date of my death with interest from the date of my death unless I shall pay any or all of said amount before my death. I may be able to pay a part or all of said amount during my lifetime, and whatever amount I do pay will be credited upon said amount herein directed to be paid by my executor." On October 21, 1916, the testator executed a check for $1,000, payable to J. W. Buis & Son (husband and son, respectively, of the defendant Mrs. Minnie Buis), which was indorsed by them, paid by the bank, and charged to the account of Mr. Gibson. The executor, upon finding this canceled check at the bank, after his father's death, called to see Mrs. Buis and insisted that this check be charged to her either as a loan or as an advancement. She declined to so Thereupon, on October 6, 1917, the bill was filed in this cause alleging that the $1,000 was intended as a payment on the bequest made in the will, and praying that Mrs. Buis be charged therewith in her settlement with the executor. Mr. Buis and his son were also made defendants, the bill praying in the alternative for judgment against them for the $1,000 as for money had and received. The complainant testified as to a conversation had with his sister Mrs. Buis as follows: "Q. State whether or not you ever had a conversation with your sister, the defendant Mrs. Buis, about the $1,000 check that your father issued to J. W. Buis & Son, and which check you have filed as 'Exhibit B' to your deposition? If you did, please take your time and state what Mrs. Buis said to you about that check? "A. Well, I stopped over there one day to make her a payment-the first payment I ever offered to make her-and I named this $1,000, and I wanted her to take it in in the payment, and she said my father gave it to her, and refused to take it in as he had given it to her. Then I did not make any payment on that ground. I expected to make it, but did not after she did not take in the $1,000 check." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) The defendant J. W. Buis, husband of Mrs. Minnie Buis, testified that his wife borrowed the $1,000 from Mr. Gibson to buy cattle with, and that as he was going to buy the cattle as a matter of convenience he (Buis), who wrote the check, made it payable to Buis & Son. This evidence is not controverted. Mrs. Buis insists, however, that subsequently her father gave her the $1,000 claim which he had against her on account of said check. Mrs. Buis does not deny that originally she borrowed this money from her father, but insists that subsequently her father gave her this indebtedness. This insistence is based on her unsupported testimony, which was objected to by the complainant. Quite a controversy has arisen as to the competency of this evidence, the defendant conceding that ordinarily it would not be competent, but insists that, since complainant undertook to bind Mrs. Buis by alleged admissions made by her, it is competent for her to narrate in detail the conversation in its entirety. [1] In the first place, the complainant does not testify as to any damaging admissions made by his sister. He testified that she told him that her father gave her his indebtedness. In any event, we think her testimony was only competent to the extent of showing that in this conversation she claimed the thousand dollar indebtedness was given to her, and that it was not competent to prove the gift. It was competent to rebut the testimony of her brother as to admissions made by her, but was not competent as substantive testimony of the gift. 20 Cyc. 1223; Martin v. Martin, 174 Ill. 371, 51 N. E. 691, 66 Am. St. Rep. 290; Harris v. Cable, 113 Mich. 192, 71 N. W. 531; Campbell v. Sech, 155 Mich. 634, 119 N. W. 922. The syllabus to Harris v. Cable is as follows: "On an issue whether a note was given by testator to defendant, his housekeeper, evidence that when defendant produced the note, at a legatee's request, she said that it was hers by gift, is admissible to rebut an inference against her ownership of the note from the circumstances of the production of it, though incompetent as evidence of the gift." "Defendant Nettie testified in her own behalf, and was shown by her counsel the bank book of the defendant bank, showing the item of $838.60, and asked: "That is yours, is it? A. Yes, sir.' She further testified that she told Mrs. Sahms, her sister, that her father had given her the $800. She also introduced evidence of statements made by her to other persons that he had given her $800. Nettie was entitled to deny the conversations as to her admissions, and to state what the conversations She also was entitled to show that she were. claimed the money as hers. These statements, evidence of the gift, but to repel the inference however, were not admissible as substantive of an admission against her ownership." [2] Excluding Mrs. Buis' testimony, which is incompetent, there is no evidence in the record to sustain her contention. Furthermore, conceding it to be a gift, the presumption is that it was intended as an ademption of the legacy bequeathed in the will. In Evans v. Beaumont, 4 Lea, 603, this court said: "In the case of a gift by will to a child, or one in the place of a child, and subsequent gift of substantially like kind and degree of benefit, without other evidence, under the rule, the law raises a presumption of satisfaction or ademption of the legacy by the subsequent gift, either in whole or in part, as its value may be." And on page 605 of 4 Lea, the court further said: "Conceding that parol testimony may be admitted to show the intention of a testator by a subsequent gift, either where the subsequent gift is ejusdem generis or otherwise, and that this is a question of intention, as seems to be the principle given by the leading authorities, yet, we think, in any view of it, such intention must be shown by clear and most satisfactory testimony in a case like the present." This intention is largely augmented by the language of the will where the testator says: "I may be able to pay a part or all of said amount during my lifetime, and whatever amount I do pay will be credited upon said amount herein directed to be paid by my ex ecutor." In addition, Mrs. Rachel Gibson, wife of the complainant, testified that the testator And on page 195 of 113 Mich., on page 532 had been sick for some time, but that on the of 71 N. W., the court said: "Miss Cable was allowed to testify that, when she produced the note at the plaintiff's request, she accompanied it with the statement that it was hers by gift from the testator. This was not admissible as substantive evidence of the gift, but it was admissible in its tendency to rebut the inference of an admission against her ownership sought to be drawn from the production of the note under the circumstances shown." And in Campbell v. Sech, supra, on page 637 of 155 Mich., on page 923 of 119 N. W., the court said: day before he died he was so much better that the doctor told him that it would not be necessary for him to come to see him any more, and that after the doctor left the testator said "that as soon as he was able to he must go down and straighten out that business with Minnie and get a note for it." [3, 4] While, as stated in Evans v. Beaumont, supra, this evidence is entitled to very little weight, yet when taken in connection with the clear provision of the will, the presumption that it was intended as an ademption, the admission that this was originally a loan, the rule requiring such evidence to be clear, cogent, and convincing, we are of the opinion that the unsupported testimony of Mrs. Buis, even if competent, would not be sufficient to prove that this $1,000 was not to be treated as an advancement. Chancellor was correct in holding that Mrs. Buis should account for this $1,000 in her settlement with the executor, and his decree is in all things affirmed, with costs. CHANDLER v. DAVIDSON COUNTY et al. (Supreme Court of Tennessee. Feb. 11, 1920.) 1. COUNTIES 141 LIABILITY FOR NUI SANCE STATED. A county, although not. liable for misfeasance of its agents, is not authorized to commit a nuisance either public or private. 2. HIGHWAYS 192-DITCH IN ROAD CON Mr. W. C. Parkey testified, in substance, that the testator told him that he had expended $1,600 for his son in his race for county trustee, and that he intended to make his two daughters equal with him. The inference which counsel for the defendants draw from this is that Mr. Gibson, in order to carry out this expressed purpose, gave this $1,000 to Mrs. Buis. It appears that the complainant was a candidate for trustee in 1914. The will was executed in 1915. Mr. Parkey does not testify as to when he had this conversation with the testator, so that it could have been prior to the execution of the will, and may have been taken into consideration by the testator in disposing of his property. Even though this conversation was subsequent to the execution of the will, Where a county, acting through its road it would make very little difference. People county workhouse board, in repairing a road, commissioners and the superintendent of the often express intentions relative to the dis- has constructed a ditch in the roadway in front position of their property which they neglect of the entrance to a residence, 9 feet long, 4 to carry out, or which, for satisfactory rea- feet wide, and 32 feet deep, without any sons, they abandon. This testimony is no guards, the construction of such ditch held to more than the law would presume, viz., constitute a nuisance, and the county was liaequality by the testator in the distribution ble to one falling therein, regardless of its liaof his property among his children. If Mr.bility for misfeasance of agents. Parkey's evidence can be treated as a cor- 3. HIGHWAYS 187(1) DISTINCTION BEroborating circumstance, it is, to say the least of it, a very weak one. In Abbott's Trial Evidence (3d Ed.) vol 1, p. 182, the author says: STITUTED NUISANCE SO THAT COUNTY WAS TWEEN FAILURE TO REPAIR ROADS AND COM- In constructing a new road, a county acts for the sovereign, because the state has dele"Since the common-law incompetency result-gated its sovereignty therein to the county for ing from interest has been removed, the question that purpose; but the state does not authorize of the value of an interested witness' testimony it to commit a nuisance, such act not being against a decedent's estate has been much dis- an attribute of sovereignty, and the county will cussed. The English courts, without any ex-be liable for injuries caused by such nuisance. press statute, hold that the testimony of a party to personal transactions with the de 4. HIGHWAYS 198, 207-COUNTY OFFICERS ceased, which exonerate himself, is not suincient, at least in equity, to sustain a decree, unless corroborated. "Nobody would be safe in respect to his pecuniary transactions, if legal documents found in his possession at the time of his death, and endeavored to be enforced by his executors, could be set aside, or varied, or altered, by parol evidence of the person who had bound himself. It would be very easy, of course, for anybody who owed a testator a debt to say, 'I met the testator and gave him the money. The interests of justice and the interests of mankind require such evidence should be wholly disregarded." Such claim as that made in this cause as a matter of public policy should be sustained by clear, cogent, and convincing testimony. In this cause under the law, excluding the evidence of a party to the transaction, there is no evidence to sustain the claim of the defendant. OR AGENTS LIABLE FOR NUISANCE COMMITTED Where a county, acting through its road commissioners and superintendent of workhouse, in constructing and repairing a road, has cre ated a nuisance consisting of a deep ditch in the road at the entrance to a private residence, and a pedestrian is injured by falling therein in the dark, both the county, its road commissioners, and the superintendent of the workhouse, were liable, and it was error to dismiss a suit for personal injuries so sustained as to the commissioners or superintendent. Certiorari to Court of Civil Appeals. Action by Ada Chandler against Davidson County and others to recover for personal injuries. Judgment for plaintiff against the defendant named alone was reversed in the Court of Civil Appeals on appeal by both parties, and plaintiff brings certiorari. We are therefore of the opinion that the versed and rendered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Re |