Railroad Co. v. Walker.

business in this State, with a knowledge of these provisions, cannot complain that they are made to apply to them.

It only remains to examine the provisions of our statutes upon the subject. Code, sec. 2831, is in these words: "Service of process on the president or other head of a corporation, or in his absence on the cashier, treasurer or secretary, or in his absence, on any director of such corporation, will be sufficient." This section, it will be readily seen, does not meet the present case. The next is: "If neither president, cashier, treasurer or secretary resides within the State, service upon the chief agent of the corporation residing at the time in the county where the action is brought, shall be deemed sufficient:" Sec. 2832.

The next section relates to actions brought in the county where the principal office of the corporation is located, and is, therefore, not applicable.

Section 2834 is as follows: "When a corporation, company or individual has an office or agency in any county other than that in which the principal resides, the service of process may be on any agent or clerk employed therein, in all actions growing out of, or connected with the business of the office or agency."

This is substantially the same as sec. 2811. Secs. 2831, 2832, 2833 and 2834, are amended by the act of 1859-60. Section 2834a, is in this langu ge: "That hereafter, when a corporate company or individual has an officer (evidently meaning an office) or agency or resident director, in any county other than that in

Railroad Co. v. Walker.

which the chief officer or principal resides, the service of process may be made on any agent or clerk employed therein, in all actions brought against said company, growing out of the business of, or connected with said company or principal business."

These various sections comprise all our legislation upon the subject. They appear to have been intended more directly to indicate the county in which actions shall be brought against domestic corporations, but are comprehensive enough to apply to foreign corporations. The sections which appear to be more directly applicable, are: First, section 2832, which, as we have seen, applies to cases where neither the president, cashier, treasurer or secretary resides in the State, in which case service may be had upon the chief agent residing at the time in the county where the action is brought. We have seen, however, that the proof all agrees that Ludlum was not at any time residing in Hamilton county. He only stopped there temporarily, as his business required. He was a traveling agent, and was no more a resident of Hamilton county than of the various other points where he did business. It can hardly be said that he was at the same time a resident of all these various points, or that his residence changed as often as he moved from one point to another; and this would logically follow from holding that he was, in the sense of this statute, an agent residing in Hamilton county. We predicate nothing upon the proof that before the service of process he

had changed his "head quarters

to Nashville, but for

Railroad Co. v. Walker.

the argument concede that he was as much a resident of Hamilton county after that as before.

Sections

The other sections to be considered, are sections 2811 and 2834, as amended by sec. 2834 a. 2811 and 2834, before the amendment, provided that where an office or agency was kept in any county other than the principal office, service of process might be had upon any agent or clerk employed therein, in all actions growing out of the business of the office or agency. We held in Toppins v. Railroad, 5 Lea, 600, that by the amending section, 2834 a, the service in such cases was good, without regard to whether it related to the business of that office or agency or not.

The question then remains, whether "the office or agency in a county," in the meaning of these sections, were intended to apply to such an agency or office as the proof shows that Ludlum conducted in Hamilton county. We think not. If this were a suit against a domestic corporation in a county other than the one of its principal office, we think it could not be held that the office or agency in Hamilton county, as shown by the proof, was such as to authorize the suit to be brought in that county and service to be had upon such agent. The office or agency in such cases would be held to mean, some office, agency or place of business located in the county. And if we apply the section to a foreign corporation, we cannot give it a broader construction.

It will be observed that the sections we are considering, apply not only to corporations, but to com

31-VOL. 9.

Railroad Co. v. Walker.

panies and individuals. It could not have been intended to authorize suits here against non-resident firms or individuals by service upon their traveling agents. It was only intended to allow such suits where such non-resident firms or individuals have an office or agency for the transaction of business located in some county in this State.

As we have seen, the defendant had no office or agency in Hamilton county, any more than upon same proof might be held to apply to any other point in the southern States, where Ludlum might happen to "drum for passengers." We think this is not the meaning of these provisions. The charge of the circuit judge is not very definite in its meaning, but it authorized the jury to construe the law differently, which they did.

The judgment is reversed.

DEADERICK, C. J. and TURNEY, J. dissenting.

Spears v. Smith.

A. L. SPEARS, Guardian v. GEO. F. SMITH et al.

PLEADINGS AND PRACTICE. Liability of justices of county court. Negligence. Loss. To sustain an action against justices of the county court for accepting a guardian's bond with only one surety instead of requiring two or more sureties as prescribed by statute, there must be proof of actual loss by reason of the act or omission, otherwise the recovery would only be for nominal damages.

FROM MARION.

Appeal from the Chancery Court at Jasper. W. W. BRADFORD, Ch.

SPEARS & SPEARS for complainant.

F. V. BROWN for defendant.

COOPER, J., delivered the opinion of the court.

Bill filed October 8, 1875, by complainant Spears, as guardian of Emma L. Havner, an infant, against G. F. Smith, the former guardian, and Wm. O. Patton, the only surety on the guardian bond, for an account of the guardianship, and against E. D. Tate, B. Lasater and H. L. Bible as members of the county court who approved Smith's bond as guardian, to hold them liable for the failure to require two or more sureties as required by statute. The chancellor, on final hearing, rendered a decree against Smith and and Patton for the amount found due from the guardian to his