This question is not in the present case; and we have adverted to it, and the matter next preceding, only to make it appear that it is not here decided that where, for good cause, tender is not made before suit, the tender averred in the bill by payment into court should embrace, in all cases, lawful charges and the value of permanent improvements.

The present bill is fatally defective under the foregoing principles, wholly regardless of whether it sets forth a good excuse for a failure of tender before suit or not. It in itself makes no tender by alleging that money is paid into court, and no money was paid into court. For this, in any view, there can be no excuse. This suffices to sustain the decree of dismissal entered below, and we will not extend this opinion by a discussion of the facts put forward to excuse failure of tender before suit, further than to say that they are, to our minds, manifestly insufficient,-a conclusion which must ensue from the absolute requirement that the purchase money, interest, and lawful charges must be paid or tendered, admitting, as it does, of no inquiry having in view the reduction of the amount to be so paid or tendered, to the extent of cross demands of the mortgagor against, not the purchaser, with whom alone he is now dealing, but the mortgagee. Affirmed.

1. In an action against a common carrier for injury to goods shipped, plaintiff is entitled to judgment, though the improper loading of the goods contributed to the injury, if there is no evidence to remove the presumption of negligence on the part of the carrier.

2. In an action by a consignee against a common carrier for damages to goods which were improperly loaded by the consignor, the negligence of the consignor is imputed to the consignee, but the carrier is liable.

3. A carrier is liable for injury to goods shipped, though they were improperly loaded by the consignor, if the improper loading was apparent to the ordinary observation of the carrier's servants.

4. Where goods are improperly loaded in a close car, which comes from the initial carrier to a connecting carrier with its doors closed, the improper loading is not "apparent" to the connecting carrier, nor need it open the car to see whether the loading was properly done.

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by McCarthy & Baldwin against the Louisville & Nashville Railroad Company.for failure to deliver a consignment of terracotta tiling in good condition. From a judgment for defendant, plaintiffs appeal. Reversed.

Upon the introduction of all the evidence the plaintiffs requested the court to give

the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court instructs the jury that if they believe the evidence they shall find for the plaintiffs, and assess such damages as the plaintiffs have suffered from the failure to deliver the goods." (2) "The court instructs the jury that if they believe the evidence they must find for the plaintiffs in this case, unless they find from the evidence that the terra cotta was improperly loaded upon the cars, and that the terra cotta was broken solely on account of the improper loading, and that the defendant was not guilty of negligence in handling and hauling the terra cotta.” (3) "The court instructs the jury that if they believe from the evidence that the four car loads of terra cotta were delivered to the defendant as a common carrier for transportation to Birmingham, Alabama, and that the said goods were delivered to plaintiffs by the defendant, or by any one for him, in a damaged or broken condition, then the burden of proof is on the defendant to show affirmatively that it was not guilty of negligence in breaking and injuring said terra cotta." The court, at the request of the defendant, gave the following written charges, and to the giving of each of said charges the plaintiffs separately excepted: (1) "If the jury believe from the evidence that loading the terra cotta without straw or sawdust was a negligent and improper loading, and that it contributed proximately to the breakage of the terra cotta, then they must find for the defendant, if the jury believe further from the evidence that the terra cotta was loaded without straw or sawdust." (2) "If the jury believe from the evidence that there was an open space on one or more of the cars, up to which on each side the terra cotta was piled, and the sides of such open space were not boarded up or braced, and that it was improper loading not to board up or brace the terra cotta, and that the want of boards or braces contributed proximately to the injury, then the jury must find for the defendant." (3) "The inquiry as to whether or not the plaintiff had notice of the arrival of the cars is not material under the evidence in this case." (4) "There is no evidence that the defendant has concealed or suppressed any testimony material to this case." (5) "The failure to notify plaintiffs of the arrival of the cars of terra cotta, if the jury believe there was such failure under the evidence in this case, was not the proximate cause of the damage."

James A. Mitchell, for appellants. Hewitt, Walker & Porter, for appellee.

MCCLELLAN, J. Appellants are plaintiffs and appellee is the defendant in this action. The complaint contains four counts. It is conceded by counsel on either hand that the third count presents the case relied on by

plaintiffs, and that upon that count alone the trial was had. The case made thereby is the following: In October, 1890, the Pioneer Fireproof Construction Company delivered to the Chicago, Burlington & Quincy Railroad Company at Ottawa, Ill., four car loads of terra cotta for carriage, and consigned to plaintiffs at Birmingham, Ala. The defendant was also a common carrier operating a connecting line of railway on the route from Ottawa to Birmingham, and as such received the consignment from the initial carrier, "and undertook to deliver the same to plaintiffs at Birmingham for a reward." This undertaking was not performed, the complaint avers, but, to the contrary, the defendant "did not deliver all of said goods to them, [the plaintiffs,] and did not deliver said goods to the plaintiffs in good or proper condition, or in the condition they were in when shipped and consigned to plaintiffs, but that said goods when delivered were badly broken and injured, and a large part thereof rendered wholly unfit for use." The damage to the goods is laid at $400, which the complaint seeks to recover.

It is manifest that the case made by the averment of these facts tendered no issue of negligence vel non on the part of the defendant. The contract averred is an unconditional common-law contract of carriage without reservations or exceptions. By its terms the defendant insured the safe delivery of the goods to the consignee, and assumed liability for any loss or injury resulting from any cause except such as afforded the carrier a defense at common law. The strictest proof of all possible care on the part of the carrier in the transportation and delivery of the goods would have been no defense, and, of course, proof of the carrier's negligence was in no wise essential to a recovery. The defenses which a carrier under such a contract may interpose to an action for failure to deliver in good condition are commonly mentioned as two only, namely, that the loss or injury was due either to the act of God, or to the act of a public enemy. But there is in reality a third, resting on the fault of the owner of the goods or his agent. This latter defense, while the fault involved in it may consist merely of negligence imputable to the plaintiffs, is in no sense, and bears little analogy to, the defense of contributory negligence available in actions against common carriers of passengers, sometimes in actions against carriers of live stock, and even, it may be, in actions against carriers of goods-inanimate things-under contracts of affreightment which limit liability to loss or injury occasioned by the carrier's negligence. Nowhere in the books can any reference be found to the defense of contributory negligence against the common-law liability of common carriers of goods; and, in the nature of things, there can be no such defense, to speak with any approach to legal accuracy.

There must always be negligence on the part of a defendant, or else it cannot be said that a plaintiff has been guilty of contributory negligence; or, in other words, "there can be no contributory negligence on the part of a plaintiff except in cases where there has been negligence on the part of the defendant. Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury." 4 Amer. & Eng. Enc. Law, p. 18. This is illustrated in numerous cases decided by this court where damages were claimed for the results of wantonness and the like, and pleas of contributory negligence were held bad; and it is illustrated in the case at bar, where the gravamen of the action is a failure to deliver goods, without reference to the inquiry whether the failure was due to defendant's negligence. To allow a plea of contributory negligence to such action would be to allow the defendant to change the case made by the complaint by confessing a fact which is not averred in it, and which is not necessary to the plaintiffs' recovery, and then to escape on proof of a fact which is a defense only against the case he has thus made for the plaintiffs. There is no room in this case for the plea of contributory negligence. The special pleas 6, 7, and 8, filed by the defendant, were pleas of this character. They charge that plaintiffs themselves were guilty of negligence, in that they or their agents improperly and negligently loaded the terra cotta on the cars in which it was to be and was carried from Ottawa to Birmingham, and that such improper loading proximately contributed to the alleged injury complained of. This was to say that the defendant was guilty of negligence, but that it ought not to be held liable for the consequences thereof, because its negligence was aided to the damnifying result -was contributed to by the concurring negligence of the plaintiffs. These averments, in short, were admissions of negligence on the part of the pleader, coupled with charges of negligence on the part of the plaintiffs. The further averments of these pleas that the cars were closed when they were received by the defendant from the first carrier, so that the condition of their contents was not visible, and that defendant and its agents did not then know that said cars were improperly loaded, if intended to negative all negligence on the part of the defendant, are repugnant to and inconsistent with the admissions of defendant's negligence, implied in the allegation that plaintiffs' negligence contributed to the injury. On the other hand, if these further averments are not to be taken as negativing all negligence imputable to defendant,-and that is probably the true construction of them,-the pleas are yet bad, for, as a carrier is liable for loss or injury resulting from the act of God aided by his own negligence, or from the act of a public enemy to which his own fault

TRESPASS-JUSTIFICATION-PARTIES.

1. When a house belonging to a mother has been left by her to her children as tenants in common, and the father has continued to occupy it with his second wife, the fact that after his death his second wife has continued by sufferance as the head of the family does not give her, on leaving, a right to enter the bedroom of one of the cotenants, against the latter's protest, to take thence articles belonging to her and her husband's minor child.

2. The injury being done to plaintiff's occupancy, and not to the room itself, she may sue without joining her cotenants.

3. In an action for a joint and several trespass, a charge that whatever judgment is rendered, "if against defendant, must be joint against both defendants," is properly refused.

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Trespass by Maud Milner against Leonora J. Milner and one Rogers. Judgment for plaintiff. Defendants appeal. Affirmed.

Among other portions of the court's general charge, to which the defendants excepted, was the following instruction: "The probate proceedings could not confer any right upon the defendant Leonora J. Milner to take said property." The court, at the request of the plaintiff, gave, among others, the following written charges: (1) "If the property is in possession of another, and there is no evidence of title, the presumption is that it is the property of the person in possession, and it devolves upon the party taking it to show that he had a superior title." (2) "The court further charged the jury that the probate proceedings could not confer any right upon the defendant Leonora J. Milner to take the said property." The defendants separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give, among other charges requested by them, the following: (10) "If the jury believe from the evidence that, at the time the goods were taken and the room entered by defendant Rogers, the defendant Leonora J. Milner, the widow of E. L. Milner, deceased, was in general control and possession of the house, including the room occupied by plaintiff, and if the jury further believe from the evidence that, at the time said room was entered and the goods taken, the title to the premises was in the plaintiff and two other persons, then the plaintiff cannot recover for the entering of said room." (12) "The court charges the jury that this is a joint suit against two defendants, and whatever judgment they render, if against the defendant, must be a joint judgment against both defendants, and the

jury cannot find judgment for one amount against one of the defendants, and another amount against the other defendant, even if the plaintiff is entitled to recover; and the jury cannot find or assess punitive damages unless they believe that both defendants were guilty of rude or improper conduct."

Lane & White, for appellants. White & Howze, for appellee.

MCCLELLAN, J. This is an action of trespass prosecuted by Maud Milner against Leonora J. Milner and one Rogers. The complaint claims damages "for trespass by the defendants" on a certain described bedroom, which was at the time in the possession and occupation of the plaintiff, and for "wrongfully, violently, and rudely taking and carrying away" therefrom certain items of personal property. The case was tried on the general issue. The house of which the room in question was a part belonged to the plaintiff and her brother and sister in common, having descended to them from their mother. After the mother's death, their father continued in possession and occupancy of the premises, plaintiff living with him, until his death, not long before this litigation arose. Meantime he had taken a second wife, in the person of the defendant Leonora J. Milner, who continued to reside in the house down to the time of the alleged trespass, plaintiff all the time occupying this room. Said defendant had the personal effects in the room set apart to her and a minor son of her late husband by his first marriage, by a decree of the probate court, as in part their exemptions of personalty from administration; but plaintiff insisted on the trial of this case, and introduced evidence going to show, that her father had given her most of this property in his lifetime, and that, as to the rest, it had belonged to her mother, and became hers at her mother's death. This gift by the father was denied by defendants, and one aspect of the evidence tended to show the contrary. There was also evidence that, after her hus band's death, Leonora continued in some sort the head of the family. She was about to leave the premises, however, when the alleged trespass was committed. Indeed, the trespass, if such it was, was a part of the act of removal by her, the personalty being taken from plaintiff's room, and carried away, in furtherance of that purpose. To this end the defendant Rogers, acting for the said Leonora, entered this apart ment of hers, against her warning and objection, having with him several negroes. and, taking his seat in the room, ordered them to remove its contents, which they pro ceeded to do. Plaintiff testified, further, that Rogers was rude in his conduct towards her, and to this testimony there was no objection.

It is manifest that the gist of this action lies in the disturbance of plaintiff's possession and occupancy of the room, and not in any injury done to the room itself; and hence, if her possession was rightful, and was wrongfully disturbed, the right of action is in her alone, and not in her conjointly with her cotenants in common. Having, with others, the title, it cannot be doubted and is not contended but that her possession was rightful. The insistence is, however, that the disturbance thereof was not wrongful, the theory being that the defendant Leonora Milner, having remained in the house after the death of her husband, and continued to be, in a sense, the head of the household, had a right to enter any room on the premises, including this one, notwithstanding objections on the part of those in the rightful occupation and use of them. We are unable to concur in this view. Mrs. Milner, the defendant, was wholly without right to even continue on the premises after the death of her husband. She did remain there at the mere will and sufferance of the plaintiff, who was the only common tenant in possession. Her assumption or continued exercise of control as head of the family was similarly without other warrant than plaintiff's forbearance, until such time as she chose to put an end to it. Having thus the right to the exclusive possession of the premises, as against Mrs. Milner, whenever and to whatever extent she saw proper to assert it, it was, of course, competent for her at any time, and in the mode shown by the evidence to have been adopted by her, to assert that right in respect of the room personally and immediately occupied by her, and after such assertion-after her protest and objection to Mrs. Milner's entering that room, in the person of her agent and his assistants-the defendants had no more right to cross its threshold than had they been the most casual strangers. Moreover, it is shown that Mrs. Milner was in the act of removing from the premises, and this would seem of itself to amount to a relinquishment of any right, if otherwise she would have had such right, based on the facts of her having continued to live in the house up to that time, and acted as head of the family, if she had so acted. The entry into the plaintiff's room was therefore a trespass, and it was none the less so on the concession that the personal property therein belonged to Mrs. Milner. There is no authority in the law for taking and carrying away even one's own property through the commission of a trespass upon the property -possessory or by title of another. On this principle, the court properly instructed the jury that the probate proceedings under which Mrs. Milner claimed the property did not confer any right upon her to take it in the manner shown by the evidence. And this charge might also perhaps be rested on the consideration that if, as one aspect of

the evidence went to show, this property belonged to plaintiff, and not to the estate of her father, the probate proceedings were abortive to confer any right or title in or to it upon the widow and minor child, it not appearing that plaintiff was a party to those proceedings, even if that would make a difference, which we do not decide.

What we have said disposes of the objection to that part of the general charge whereby the jury were instructed that, “if the plaintiff was occupying the room, she had a right to it, as against a wrongdoer," it being, as we have seen, undisputed that her occupation was rightful, and, as we have held, that such occupation became exclusive of Mrs. Milner and her agents upon plaintiff's objection to their entry. The jury could not have been misled to the conclusion that defendants were wrongdoers. Under the uncontroverted evidence, they were wrongdoers.

Charges 1 and 2 given at the request of the plaintiff, and the refusal of the court to give charge 10 requested by defendants, are similarly covered, and exceptions to these rulings of the court determined adversely to the appellants, by the conclusions announced above. This action is joint and several. It was with the jury to say that both defendants were guilty, or that neither was, or that either one was. It is a sufficient disposition of the exception to the court's refusal to give defendants' twelfth charge to say that the jury would thereby have been instructed that whatever verdict they might return, "if against the defendant, must be a joint judgment against both defendants." This would have been misleading and invasive of the province of the jury. We have considered all the assignments of error insisted on in argument, and, finding them without merit, the judgment is affirmed.

1. A policy conditioned as by "ordinary form for open warehouses," on cotton in bales in assured's warehouse, only to cover such proportion of the whole loss as the insurance bears to the cash value of the whole property insured at the time of the fire,-concurrent insurance being allowed without notice,-is limited to such proportion, though there be no concurrent policies.

2. In an open policy on cotton in bale in assured's warehouse, it is not an unreasonable condition that the insurer shall only be liable for such proportion of the whole loss as the insurance bears to the cash value of the whole property insured at the time of the loss.

3. In a suit on a policy, where defendant, as part of its plea, exhibits the policy, and confesses liability for a less amount than is claimed, plaintiff cannot reply that the policy set forth does not express the contract;