ministrators, to whom he pleases, and the fact that the legatee has no insurable interest will not defeat his right to receive under the will. But the parties complainant do not sue or seek to recover in this case as legatees or under the will of the insured. On the contrary, they expressly state, when asked the question, in making proof of death, under what title they claim, that they claim under the transfer and assignment. The provision in the will appears clearly to be an afterthought, an act to strengthen, consummate, and support the transfer, and was in furtherance of the original fraudulent contrivance and agreement to vest an interest in complainants. While we think the party procuring a policy is entitled to rely upon a provision against contest, and may transfer this right to anyone, whether having an insurable interest or not, provided he takes in good faith, we can see no reason for extending the benefit to one who, by fraud commenced before and consummated after the policy issues (by means of an unauthorized and illegal transfer), seeks to reap the same benefit. This would be to allow an easy evasion of the rule against the validity of wagering contracts: Heinlein 38 v. Imperial Life Ins. Co., 101 Mich. 250, 45 Am. St. Rep. 409, 25 L. R. A. 628, note. It is argued, however, that the clause agreeing not to contest must have the effect to preclude any inquiry into the transfer and also the right of the transferee to take under the policy. We are of opinion, however, that the clause does not go to this extent and cannot have this effect. It is intended to cut off inquiry into the truth of the statements made by the assured in the application, and other matters going to the original validity of the policy, but not to any subsequent disposition of the policy, and the company expressly disclaims any responsibility for the validity of any assignment. There is nothing in this holding inconsistent with the ruling in the case of Wright v. Mutual Ben. Assn. of America, 118 N. Y. 237, 16 Am. St. Rep. 749.

In that case, Houghton, the original beneficiary, was a creditor of Wright, and had, therefore, an insurable interest in his life, and the policy was not, therefore, a wagering policy. After the death he assigned and transferred his interest in the policy to the widow of the insured, and the suit was brought in her name. The court held that she might recover the entire amount of the policy and adjust the rights of Houghton out of the proceeds, and make such other payments as equity demanded out of the proceeds. But there was no evidence of any fraud, either in the original issuance of the policy or in 39 its subsequent transfer, and the whole matter appears to have been done in the utmost

good faith and with no purpose of carrying out a wagering policy.

While the court is disposed to give to the assured, and parties taking under him in good faith, the full benefit and advantage of the noncontestable clause, by shutting off inquiries into the truth or falsity of the statements made in the application, and this because of the contract between the parties, it can see no reason why the like advantage and benefit should be extended to one who has no insurable interest in the assured, who does not take or claim in good faith, and whose entire connection with the matter is shown to have been for a speculative and fraudulent purpose, and no sound public policy can be subserved by so holding, but, on the contrary, such holding would sanction wagering insurance contracts, to the great detriment of the public morals and public good. We are, therefore, of opinion the decree of the chancellor is correct in its results, and it is affirmed, and the bill dismissed at complainant's cost.

INSURANCE-LIFE-INCONTESTABILITY.-A stipulation in a certificate of life insurance "that no question as to the validity of the application or certificate of membership shall be raised, unless such question be raised within the first two years after the date of such certificate or membership and during the life of the member therein named," is valid, and excludes both the defense of fraud and the defense that the beneficiary had no insurable interest in the life of the insured: Wright v. Mutual etc. Assn., 118 N. Y. 237, 16 Am. St. Rep. 749. That the insurance company is liable under a clause of incontestability when the insured commits suicide, even though the application stipulates that the insurer shall not assume liability for the death of the insured by his own hand, see Goodwin v. Provident etc. Assn., 97 Iowa, 226, 59 Am. St. Rep. 411; Mareck Y. Mutual etc. Assn., 62 Minn. 39, 54 Am. St. Rep. 613.

INSURANCE LIFE -WAGERING POLICY-ASSIGNMENT.A policy of insurance on the life of another, taken by one who had an insurable interest in it, for the purpose of assigning it to a third person who had no such insurable interest, is void as a wagering policy in the hands of the assignee: Keystone etc. Ben. Assn. v. Norris, 115 Pa. St. 446, 2 Am. St. Rep. 572. See generally, on the validity of assignment of life insurance to one who has no insurable interest, the extended notes to Equitable Life Ins. Co. v. Hazlewood, 16 Am. St. Rep. 906; Currier v. Continental Life Ins. Co., 52 Am. Rep. 143; Bursinger v. Bank, 58 Am. Rep. 852.

TURCOTT V. RAILROAD.

[101 TENNESSEE, 102.]

LIMITATIONS OF ACTIONS-ABSENCE FROM STATECORPORATIONS.-A statute providing for the suspension of the running of the statute of limitations during the absence of a 'person" from the state applies to a corporation, and requires such absence as will prevent service of process.

CORPORATIONS.-THE RESIDENCE OF A CORPORATION is in the state of its creation.

LIMITATIONS OF ACTIONS — ABSENCE FROM THE STATE-FOREIGN CORPORATIONS.-A foreign corporation, doing business within a state, and having there agents upon whom process may be served, is not absent from the state within the meaning of a statute suspending the running of the statute of limitations in favor of a person out of the state, though it has failed to file and register its charter as required of foreign corporations doing business within the state before giving them the rights of domestic corporations.

CORPORATIONS-FOREIGN - FILING OF CHARTERCONSTRUCTION OF STATUTE.-The purpose of a statute requir ing foreign corporations doing business within the state to file and register their charters, is to enable them to do business, own or acquire property, and be enable to sue, but not to exempt them from suit if they disregard the statute or to estop them from making defense if so sued.

Carroll, Chalmers & McKellar, for the appellant.

Fentress & Cooper, for the appellee.

103 WILKES, J. This is an action for damages for personal injuries inflicted in the shops of the defendant company at Vicksburg, Mississippi. The action was brought at Memphis, Tennessee, May 25, 1895, about one and one-half years after the injury was suffered. Demurrers were filed, and the declaration was amended. To the declaration, as amended, pleas of not guilty, contributory negligence, and the Tennessee statute of limitation of one year for injuries to persons were filed. The latter plea states in detail that the defendant company had been operating its road through the state of Mississippi into and in the state of Tennessee for fourteen years; that it had an office and agents in the city of Memphis, and on these agents service at any time could have 104 been had, and that at no time had there been any impediment or hindrance to the bringing of this, or any other suit against it, or to the service of legal process upon it.

To this plea there was a replication, in substance that the defendant is a foreign corporation, organized and existing under the laws of Mississippi, and that, at the time of the accrual of

this cause of action, it had no corporate or legal existence in Tennessee, because it had not complied with the requirements of the acts of 1891, chapter 122, as to the filing and registration of its charter, and, not having so complied until after the bringing of this suit, it cannot plead the statute of limitations of one year in bar of the suit. There was a demurrer to this replication, and the demurrer was sustained.

The exact questions presented are whether foreign corporations can plead and rely upon this Tennessee statute of limitation when they have offices and agents in the state subject to continuous service of process, and whether the failure to file and register its charter will deprive it of that right, if otherwise it would be held to have it.

Under the statutes of Tennessee (Shannon's Comp. Stats., 4469), it is provided, among other things, that actions for injuries to the person must be commenced within one year after the cause of action accrues, or be barred.

Section 4455 of Shannon's Compiled Statutes provides: "If, at any time, any cause of action shall accrue against any person who shall be out of this state, the action 105 may be commenced within the time limited therefor, after such person shall have come into the state; and after any cause of action shall have accrued, if the person against whom it has accrued shall be absent from, or reside out of the state, the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action.”

The word "person" includes a "corporation": Shannon's Comp. Stats., sec. 62. The exception made in this statute does not apply to a natural person unless his absence from the state is such as to prevent service of process: Taylor v. McGill, 6 Lea, 294, 301.

The statutes relating to service of process upon corporations are as follows:

"Service of process on the president, or other head of a corporation, or, in his absence, on the cashier, treasurer or secretary, or, in the absence of such officers, on any director of such corporation shall be sufficient": Shannon's Comp. Stats., sec. 4539.

"If neither the president, cashier, or secretary resides within the state, service on the chief agent of the corporation residing at the time in the county where the action is brought, shall be deemed sufficient": Shannon's Comp. Stats., sec. 4540.

No question is made but that there was ample opportunity to obtain service of process at any time on the defendant through

its officers and agents, nor that foreign corporations are liable to service under these sections: Telephone Co. v. Turner, 88 Tenn. 266.

106 But the contention is, that a foreign corporation is out of the state, and resides out of the state, and so falls within the exception before stated, and that, while process may be made upon it, still it is optional with a party aggrieved whether and when he will commence his suit, and the bar of the statute connot be set up if the suit is not brought within one year, and that it does not come within the state in legal contemplation, till it files and registers its charter. It appears that there is some conflict of decision upon the first question. The reason of the rule of law is, that no person who is not and has not been subject to service of process within the year, shall avail himself of its exemption: Taylor v. McGill, 6 Lea, 294. Unquestionably, the residence of a corporation is the state of its creation: Young v. South Tredegar Iron Co., 85 Tenn. 189, 4 Am. St. Rep. 752. And if we should give the statute a strict, literal construction, it might be held that a foreign corporation was not entitled to the benefit of the limitation. Still the courts will not permit the literalism of the statute to thwart its obvious purpose, intent, and meaning. A thing may be within the letter of the statute, yet not within its operation if not so intended: Taylor v. McGill, 6 Lea, 294.

We think the true rule is laid down in Murfree on Foreign Corporations, and that the rule as thus laid down is based on sound reason and principle. In speaking of such foreign corporation pleading the 107 statute of limitations, it is said (Murfree on Foreign Corporations, sec. 248): "As to the question whether a foreign corporation, when sued, can plead the bar of the statute in defense, it may be said that the great weight of authority is in favor of the conclusion suggested above; that the true test of the running of the statute is the liability of the party invoking its bar to the service of process during the whole of the period prescribed; that if the operations of the company within the jurisdiction were such as to render it liable to suit, then it may plead the statute. The principles upon which this doctrine. rests have nowhere been more effectively expressed than in the decision of the Illinois appellate court, in Pennsylvania Co. v. Sloan, 1 Ill. App. 364. Said Pleasants, J., who delivered the opinion of the court, after referring to a number of cases holding that a corporation must be considered an inhabitant of the state. by which it is created: 'We should have no hesitation in approv