From the cases above cited, I am led to the conclusion that the sig. riatureofJames D. Downing, trustee, to the bonds and coupons must be held valid; but while doing so I cannot forbear to condemn this practipe as reprehensible. No cautious business man would either issue or receive bonds executed in this manner. It doubtless is susceptible of proof that this is not the writing of J. D. Downing. Several of the parties to the transaction llre already dead. It is shameful that the holders of municipal bonds should risk investments on the life or memory of.a living witness, with no other evidence of the transaction. Besides, it opens the door to fraud and perjury, and casts a cloud of suspiCion on the transaction. Judgment must go for the plaintiffs for the amount claimed.
(br.rcuit Court. N. D. Iowa. E. D. September 22.1890.)
·Plaintiff and defendant entered into a contl."act which, after reciting plaintiff owned Ii large q,jiailtity cif pine land tributary to certain rivers, and then ,had a large , quantity of, logs and tImber in said streams,and expected to cut annually thereafter,au4.deHver a large, quantity of logs andtim1?erto be driven to marke,t down said streams. and that defendant was engaged in lQgs down Baid streams, and that differences had arisBll betvveen the parties in respect to the , driving of.lQgs. providlld that. "therefore., for the purpose of settling lloll said dif· , ferences, slid providing fOr the future. it is mutually agreed II that defendant shall. for allerta:in consideration to be paid at the end of each season's business. take POBscsslo,n llond control of logs and timber,not exceeding a certain amount per year, whicl]:,plairitifE,shall deliver in said streams,and shall drive and deliver them at a pertain poiat, Ever since the organization of defendant corporation it bad driven and ,cared for plain1liff's logs. 'l'he differences referred to in the contract and over whfch litigation was pendfng were chiefly in regard to compensation. Said streams were the only meansl;y which could be got to market, and defendSlJt jlitherdi"l'ect).y or by, its qontrol over.qthercomp!,nies manllogedlloll the facilitiel! on said str.eams for getting logs to market. HeW. that the contract was not revocable at! pleasure, sinee, as' applied to its Bubjebt-mattel'. it showed that it was to remain in force until all the on the lands then owned by plaintiff bad been cut, and'delivered in said' '
2; , S:&'MB:':"'CON8IDBRATION.
At LliW. " On demurrer to petition. ' by J'ohh'Rdbson against the Mississippi River Logging Company to recover daqlages for breach of written contract regardiJ.1g drivilJg anddelItery'oflogs. ' " J. M."Guman, 'J. A. 'PUU"MY, and Henderson, Hurd, 'Daniela &: Ki,e8el, for pllliJ:!tiff. , " E;S: 1311:iley and Young &: Youi}g, fotAMendant. '
ROBSON fl. MISSISSIPPI RIVER
SHmAS, J. In the petition filed in this cause it is Rverred that tiff has for many years past been ·engaged in the lumber and logging business on the Chippewa and Flambeau rivers, in the state of Wisconsin; that he still is the owner of large quantities of pine timber upon said rivers, and expects to continue in such logging business, not only until the pine lumber upon the lands now owned by him is marketed, but so long as there is to be found, tributary to said streams, timber that can be purchased and put into the market; that the defendant is a corporation created under the laws of the state of Iowa, but since its organization, in 1871, it has been engaged in the business of driving and running for hire saw-logs and timber down the Chippewa and Flambeau rivers. into the boom at Beef slough, near the mouth of the Chippewa river, and there brailing the same ready for transportation down the Mississippi river. and ddivering them for that purpose to the owners thereof, when turned out of said boom at Beef slough, which said boom was owned al1d operated by a corporation known as "the Beef Slough Manufactur. ing, Booming, Log-Driving & Transportation Company," but which last. named company was largely composed of the members of the defendant company, and its business was practically under the control and ment of the defendant; that from the date of the organization of the fendant company, in 1871, up to the year 1882, the plaintiff has yearlY. cut large quantities of logs and timber upon said Chippewa anel Flambeau rivers, all of which were delivered to the defendant company to be driven and cared for by ft, while the same were being taken to the Beef Slough boom, to be there prepared for transportation down the sippi river; that in the year 1882, certain differences and disputes touching said buainess had arisen between the plaintiff anddefel1dantj and litigation over the same was pending in the courts, whel) the PlVties, for the purpose of ending such litigation, and settling such past differences, and providing in respect to the driving, brailing, booming, seal.. ing, and delivering plaintiff's logs in the future, entered intoan agreement in writing, as f o l l o w s : ' > "Articles of, agreement made and entered into this day of August, 1882, by and between the Mississippi River Logging Company, a corporation organized under the laws of Iowa, party of the first part, and John Robson, pal ty of the second part. witnesseth: Whereas, the party of the second part owns a large quantity of pine lan(js tributary to the Cilippewaand· and their branches.in and n()w Wts a large of logs and timber in said streams. and expects to cut deliver in said streams, a large quantity of s8w-logsand timber to blJ'driven to market down said streams to the Mississippi river; and Whereas',' t'hesaid party of ,the liI'st part is engaged in the business of driving logs dowh' said sttE'ams to Beef slough for other parties; ,and. whereas, difl'erence$' haVing arisen between said parties hereto, and betwe,en the party of the 'second part (Which and the Chippl:'wa Lumber & Boom party of th,e first part,) in respect to the running ,and driVing of logs: Now, therefore·.1'01' the purpose of settling all said and ,proviqing for the ..' FtTst; Said party of the liI'st part. future, it IS mutually agreed as inconsideration of the premises and of the promiR1is of the said party of the second part hereinafter, mentioned, agrees. to take P9ssessionand con1avlof
timber;,wbich tbe,pallty.ottba second part:shall deliver in said billow tbe east!'nd ,west forks tbereof"and all that sballpa delivered .in said Flambeau. ri.ver, at ()r below the north and south forks o( said'stteaID, and to drive the its own cost, charges, and expense down said streams to and into Beef'St6ugh boom,' not eJrCeeding an average of twenty-five millions of feet annually, said logs to be driven each season with all reasonable dispatch" and with as much care and facility as it shall drive own logs, ' The logs, of:tbe party of the second part now in said streams are to be driven by sa;id first party under this agreement. Any be paid the Chippewa Lpmber & .Boom COnlllany, or any other person, or persons. on Rcco,tlnt of said c;>r any of the same, between the aforesaitl'fOrks of said streams and said Beef Slollgh boom are to be paid' by the said party of the first part.:' Second. And the said party of the first part, incimBideration of ,the prem ises. fUrther undertakes and agrees that the pfthe saii;1, Beef Slough BOom' Company shall, not exceed sixty cents and in pockets, and pe1;thousand feet watchibg the sai410gsof the of the secondpartat all the mills on the Cliippewarjver. 'Third. And the party of the flrst patt, in consideration of the premill6$\ further undertakes and agrees to brail and deliver to the said second! party, 'in a proper and'usual manlier. his said, logs, ready;to be taken in tow by boat ll,fter:the .sameare turned out into pockets by said Beef Slough Boom eJofllPI\'\Y" to .do the SH1ll,e reasllnable Fourth. And the said party oltbe, part, in consideration of the premises, promiaes; and agrees tQ pay to the said first party' annually, at the close of eac'h season's thecal'e, control; and delivering said logs into Beef Slough boom as agreed. as aforE-said, the sum of two hundred and tlfty dollars, and ,fqr braili n81 and delivering said logs ready fortbe tow-boat 'twentyfive centlf per thousanrlfeet. And said party of the second part also further, agrees t9 the said party 6f the first part the brailing lines used in brailingsHfd,logs, the same)lhaU have been three times Fift.,h. In case the said party of the associates any person or persons with him as partner or partnerB in such lumbering b'osiness this agreement is to stand, lipply, and operitte in r6spectto such partnership. But no logs are to be luindled by said party of the first' part under tbisagreement, except such as. party of thesecolld part,or'by'him and otllt-ra 88' pal'lnersrl; ,:rbe cost of scaling the sai4logs as tile same Into said: Beef Slough boom is to be pa id equally by the partiell ,bereto. .. Witness our bands and seals this 23d day of 1882. ;,. MISSISSIPPI RIVER LoGGING Co.
..J uRN ROBSON."
It is !fUrther averred in said petition that from the date of said contract dowD'tothe $ring of 1889,allofthe logs belonging to plaintiff deJiveredit1'tq!said Cl:dppewa rivers.were'driven and career under the of said contrq;Ct., fu}d ,said work and for. by service", were paid, by plaintiff in strict accordance.with the terms of liuch contractj that however, in the spring of 1889, the defendant, without, cause or reason therefor, notified plaintiff that it would no longer dl'ive, CIl'l'6 fo?,' and braH his logs under the terms of'said agreement, and season
WOll.,.I. d. n,:O;',J;o,.
14 1840 j J.3Gieetof,ltlgs ·andtimberj which defendant refused to drive
ab",ht. QY a.n.d p.e.rforrri,'t.he.sa, .· . lPtt,t ,ChIppewa.i,nt,e.r. th,e w." cui and W pednven down the same to Bald Beef. slough I some
ROBSON :t/.MISSISSIPPI JUVJU\. LOGGING 00.-
said agreement, and plaintiff ,was Jorced and· pelled to employ other agencies in order to drive said logs; that the only other, compan,y engaged in such, business is a corporation known as the ·"Chippew.a togging Company,." which is owned, controlled, and oper· atedb,y parties that form the defendant company , and plain· compelled to employ the Chippewa company to do the work at an price; that in addition to the logs alreadNcut plaintiff owns ·at least60,QOQ.,OOO feet of saw-logs, and timber, tributary to saidChippewa and,F:1ambeau rivers, which he desires and intends to cut, and which ,pap. ,only find a m.arket by being driven down said streams into the Beet,S}.oughboom; that on streams thera, iii! quantity of · }aAd tpr 'sale, and. a large quantity of logs laod timberar:e sold has peretofore, and ill the,Qrdinary course of busllless ;bereafter, purchase logs and timber on said streams,jn additiOn .tq. thpSe cut upon hjsown land, which must be driven down said pee(slol,lgb j .and which it is and will be the duty'oide's,ream$ to drive and care for as therein provided; of defendant to cal'ryout .said ,agreem the future, as he was lllJ889,to caring fqr a sum thaD.- that named m sald wntten contract, to the damage of plallltlff m the sum of .$7o,QQP., petition a demurrer is interposed on thegl'ound.s:: .(1) said :petition that the contract set out therein is 'isilenLas:tp.,tha time during wh:ich it should remain iil' force,al1d thade'feJilaanthad: therefol'ethe1ight'to tetnil111tte it at its pleasure, or upon giv.contrll,ct is void for wautof mutual,'itY.,' ,therein agr(le to deliver any logs: or ·timbel',t.<) ,to ,be contract. ; , ,; .... ,. : ;, XP., .of; tl;1ejirl1t: of demurrer, thE! contention' is that, duration, ittnay be terminated nUhe 'plellSure; of jeitJ1er: party, upon, giving reasonable. notice of, the intent to in their: briE:f alll,rge listoflcases as sUlmC?rting thispr.oposition. .it appears ·that th.e are insta.nces of Persons ,engaging in the employ creating the ,ordinary relation of master and'servaut,or of another" to contracts of this the rule is!tpat....... .;\'Unless,there. is a defin,.te ttmefixed,no action can be maintairioo:for the ,brea,cI;1 of 8<;ontl'l¥:Ho hires person at stipulated', daily wages. SU<ih&'Contmct is the of either party,and no cause ;therefor be alleged or.pt:oved.IUsonly when a term is fixed that tlJe parties are'Hal»)efor a breac1i of tbll' except where there is an actulU Wood, Mast.'& Serv.265. , " '. .'.
,In Mechem on Agenoy, § 210, it is said: ..·.·· " Whete' no ,e"piess or implied that the agent sball . retahiedfor adetinite'tinie, the power and the right of revocation Sllcb employments are deemed to; be at will merely, and may thereforil beterparty,Wit!loutviolating. contract or incurrlng liability. ,'l'h\i law emplo.yments ,iu-8 '-.;.!, -.<,., , ,.
.,'1;. _". ) ,
cJ .· "," . ' , " ·· " ; ,
FEDE'RALBJCPORTlllR, vol. 48.
at wllI merely, and the bttrdeh of proving an employment tor a definite period rests,upon him who alleges it."
Of: the cases cited by counsel for defendant, Wilder v. U. 8., 5 Ct. Cl. 462; Irish v. Dean) 39 Wis. 562; and, Coffin v. Landis, 46 Pa. St. 430, are specially relied upon as furnishing the rule to be applied to the construction of the contract declared on. WiMer v. U. S. is a case wherein a contractor, in 1861, agreed to furnish transportation for all public >stores sent fromS'bPaulto Fort Abercrombie, at a certain rate named in the contract,whioh,however, specified' no period of duration. In July, 1863, thecontractorreftised to longer carry the stores, and thereupon a 'parol contract was entered into between the contractor and the: quartermaster by whic:h,itwas agreed that the contractor should carry the stores at a highElrrate of compensation. The contractor did so, andtbecourt of claimshald that he recover upon the parol contract. In Irish v. Dean', the facts were. that a writterl contract was into whereby'H. T.Jewett & Co. agreetl to sell to Mark H. Irish milk and cream in sufficient q'uantity for his use in the hotel kept by said Irish, 'and known as the "Park Hotel," atC'ertain prices specified in the contract, 'nothingbeing'contllined in the agreement which fixed the time' it was to continue inforce. The supreme court of Wisconsin h ld: . :" The true rule, we think, is this: In a contract for personal services or for the sale of p.ersonal properLy to be delivered from time to time, lithe con·tract Is sile,nt 8!!,.to its dUfntwb.eitherparty may terminate it at pleasure by givIng reasonable other party of lIis intention to terminate it." In Ooffin v. Landis, 8Up'ta, is found another caseaf personal hiring, wherein· the onepll.rty'ilgreed' to devote his entire time and energy to making sales of land for party, his remuneration to in .one.;halfofthe net profits realized from sales made by him, and the con·tract being silent as to itS d\l'ration; the court held that" the plaintiff undertook nota continuous employment, but an agency to sell land. ·Suchcentra.cts are' generally revocable at pleasure, unless the power to re'voke is restrained by express stipulation, or unless given for a valuable ·consideratiol1."Construing the language of these opinions with reference ;to,thecontracts'lnvolved in each case, the rulededticible therefrom is .that; when a contract is silent a8't() the matter onts duration, then it is ll.t .pleasuroe, .of either party, reasonable notice being giy.epto.theotheJ' party. Wpen.there is nothing in a contract, when jappIiedto its which. either directly or by fair implica'tion can be construed to .fix a limit to its durs.tion; then the law infers that the parties intended that stich 'a contract is terminable at the option of either party, reasonable notice of the exercise such option being required, when such notice is for the protection of,the other party _ c.?nir,apt, this rule for a.cqntrlloyt.pall, be apphe,df appear that the contract IS SIlent the . subject,: Qr, if the contract fairly construed ,gLv:esamy,other means of determining. its duration, then the contract is not 'siJeriton,mesubject, and the rukof revocation 'at pleasure is not
BOBSON f1. MISsisSIPPI RivER LOGGING CO.
cable. The real intent and agreement of the parties on the matter ration, as the same is made to appear by the contract, is to be enforced just the same as the other provisions thereof, so that on this point, as upon all others, we look to the contract in all its parts and entirety, as the evidence of the intent oBhe parties. It is a fundamental and wellrecognized rule that in construing contracts, courts may look not only to the specific language employed, but also to the subject-matter contracted about, the relation of the parties thereto, the circumstances surrounding the transaction,or, in other:words, may place themselves in the same position that the parties occupied when the contract was entered into, and view the terms of the agreement in the same light in whichthe parties did when the same were formulated and accepted. U. S. v. Peck, 102 U. S'.64; Merriamv. U. S., 107 U. S. 437, 2 Sup. Ct. Rep. 536; eanalOo. v. Hill, 15 Wall. 94. . Especially is this true when the written contract itself, by way of inducement, refers to the situation of the parties touching the subject-mattet· of'the contract, as the same existed at and prior to. the date of the contract. .From the averments of faet in the petition contained, and the recitals of the written contract declared on, it appears that the plaintiff nad fot many years been engaged in the lumber business, on the Chippewa and Flambeau rivers,in the state of Wisconsin, and that at the date of the· contract he owned a large quantity of timber land tributary to the named rivers, aild that he proposed to continue in said lumber business·tipon said rivers, and to cut and take to market the timbernpon the la.nds; owned by him, as well as such other timber and logs as he might ;from tinle to time purchase in that vicinity. .. It also appears that tomatket such timber plaintiff would be of necessity compelled to rely upon Fla.mbeau and Chippewa rivers, and the facilities connectea therewith, as the means for reaching a market. It also appears that the defel1dantborporation was engaged in the business of driving logs down said streams for the owners thereof, and preparing them for further transportation down the Mississippi rh"er,receiving compensation therefor; that the Chippewa Lumber &: Boom Company was likewise engaged in the same business, being a corporation under the same control and managernent as the defendant company, and that the Beef Slough Company, likewise; under the management and control of the defendant, controlled the bo()m at Beef slough; that, in effect, the defendant directly and by means of its power of control over the Chippewa and Beef Slough Boom Conipanies; managed all the facilities found upon said Chippewa and Flamooaurivers, for the' driving, booming, taking care of, and brailing logs andll1mber $ent down said streams; that from the date of the organization of tile defendant company, it had received, driven, and cared for all iogsand lumber fOTwarded to market by plaintiff; that in 1882 differences had arisen between the parties in carrying on the business named, which had resulted in litigation in the courts, a.nd that·, for the purpose of settling this litigation over the past affairs, andprovidiog for the future carrying oil of the business in question, the writbm contract of August 23 1 1882,wa8 entered into. This contract binds the v.43F.no.5-24
take pOllsessioll andc(¥ilU;(jll of \1!1tich de!iveral1nuallyon.:each,of the river$ na.meQ;belo}V todrivll and pay aU the coets and by the Cllippewa Q9:,:llnd to brajIthe sl!me.in at ;ready for the Mi$sissippLCan . .J.t ,infen;ed that, the of the facts i surrounding ,theI¥,: that this ,con.trllct should; only continue, in force at the . mere of main, bone Of contl'lption was the tobe p/,\id, Qy:the pl"'irititf:f9r toe services fn,;Q:riviJ;lg, caring for,aijd<ieliveririg theJoglli" ,The,recitals, the contract show that tOat·plaintiff expeoted ,in the future to qllt and owned,p.y;him on t4e etJ:eams named in the:contract, cOTop,eratioQ:of the defendllnt, and tlie other companies controlled by ,.be apyquestion to of, t4at; ; the .certa.41
asJn the ",itA,tpe.Jhnitlltion.fouI;ld. .in the An, average of One of, :maiIlj LQf i COl;lwct wae to qQPe \Adriving ,hit PQSsiQlelt1mt the rtt}rrn,in.at:eli,by,wther ,HWlll,jl.Sit;l1 tgl3 cOn· go ·. far ,iutl,l!re.," ifil. deClared "'1*4· tq(} setUemeI;lt tmll'ti dthe; p:U:li(\ regl!or:<l tllfl,!umu-!Ll, pay· it
,no ruJe bel;he1<t, ,terminahIe appe1trs tlw, tl,1/ltlt: \VouJllbe in fQrce fQr l"ea.l'sQ.,QeB. not/pregpverriiAg ("Wlw fact, the PfQ-,,clearly Judicata., :tlw Q911tr,a,,,\,\Ylop,l:d pei,J;l ,ha:ve,weigh Ii, upon thequea. ,tioTjl. cannot i,Jjlr tbe, and .itssu1;>Ject-mltt[tera thecontrac,tout of the IcIassthatis;getd,to. '. ,The durati,pI;l (If a POll tract :IJH1Y be of a of tbne,or ''Upon :the c9Alpietion of or thehappeningM some . jevent, aIt ,Qf. Which in tlfrq,rIllay .or unqertltin:.as tptheclate ;.,when, · .. ::pe . ·,or the J,nay·h$.ppen. not :at . ., traoijl fQl1 migMJ)e 'anq.pla<)ed .in a. elate,. gr, ,OQOilPQO,feet oflqgsas ,soon a.aH the;logs .tha,t,could qe, froJl),.a"givj:lp';,qpanp,ty. ,of .point . at wm" peota . vent
BOBSONr·· MISSISSIPPI Jl;;WER LOGQING
,out the' event which fixed, the duration of the contract. In the contract on the exact lltlmber· of acres of land owned by plaintiff is not narned, but it was a matter easily ascertainable. In legal effect it doeB refer to quantityoflftnd, to-wit, that owned ·by plaintiff at the date of the contract, and the undertaking of the detimdant was that it would take possession of, drive, care for, and deliver the logs cut from the premises owned by plaintiff. The recitals and terms of the contract clearly show that it was the main purpose of the contract to fix the rates or compensation to be paid Ryplaintiff,for the driving, caring for, and delivery of the logs cut by him upon the land owned by him, and it is equally clear that the rates agreed upon 'were intended to apply to all logs cut by plaintiffupon the lands owned by him, and delivered in the Chippewa and Flambel1u rivers named in the contract. Thusthecoritract, as.applied to its subject-matter, furnishes the means for determining its duration; and it not beir:J,g silent therefore upon this point, 'the rule ·of revocation· at will is not applicable. On behalf of plaintiff, it has been forcibly urged that, in view of the peculiar control exercised by defendant over the facUities found· upon the Chippewa and Flambeau'rivers· for the driving, taking care of, and booming logs upon those streams, and the resulting interdependence, of the branches of business carried on by the respective parties, the contract should he construed to be in force so long as plaintiff should continue in 'the lumber business upon the named rivers. In passing upon the demurrer, it is not necessary to consider this view of the contract, as the real question presented by the demurrer is whether the contract is terminabl.(jatwill, and if in any view it is nut so terminable the demurrer oom1'6t be sustained. The second ground of demurter, to the effect that the contract is void for want of mutuality, is clearly not well taken. Even'if it be true, as claimed by defendant, thiltthe contradt does not bind the plaintiffW deliver any 10gs'to the defendant to be driven, that does not render it void for want of consideration.Tbe defendant is not bound to drive any logs,unleesthey are delivered·; but if, being delh'ered to defendant, the Ilame are driven, then the contract' bindstbe plain:tiff to pay theagr'eed price therefor, aod the fact of performance oil the part of defendant renders binding the obligation to pay on part of plaintiff. The execution of the contract between the parties settled the litiga:tion then pending between them, thttsshowing a valuable executed Consideration received by defendant as well as'the plaintiff, for entering into the contract, which cannot be held to be void fOf want of . . The point made, that the defendant is bound· to drive and care for the logs, but that plaintiff is not- bounu to deliver the same to defendant· to be and therefore there is a want of mutuality, is not well founded i'n point':of,fact·. It is clear thatdefEmdantis not bound to driveot care the same·ajedelivered' to it by pl!\iiitiff; and the latfor any terisju'st 'aifmuch bolihd to'-deliver as the furmede·to drive and ,care . The 6bliglition of defertdant does nottakeeffebt until plaintiffrdeIiversthe them<>bent the defendant the
the logs, tlten the plaintiff becomes bound to pay the- stipulated price, and thus itis clear that both parties are mutually bound mauch sense that the contract cannot be held void for want of consideration. The demurreds overrciled, with leave to defendant to answer in 80 days.
Court, N.D. MisBl.8B1.ppf., W. Do August 6, 1890.l
IJrr9XIOA'I'IN'G LrQUOBII-ILLBGAL BALB-ORIGINAL PAOKAGB-GoNBTlTUTIONAL LAW.
Where bottles of whisky,' each sealed up in a. paper wrappEir and closely packed .together I.nuncoveredwooden boxes furnished by an expresli company, and marked, "To be returned, are Shipped ,froIl'l, One stllte. to the boxes, and not the bOttles, CODstltute the "original within theuieaning of decisions of the supreme court upon the interstate commeroo'ProV'ision of the national constitution.
'La.W.:1 for corpt",. W. MUler,and Sullivan & Whiifield, for relator. Echols & SmilA, for .the State.
HILL, J.The,questions to Qe in the following facts: r The town of Sa,rdis is. situated in Panola. county, Miss. In pursuance. of an act of the of the state of Mississippi, a vote. was taken for,Ule purpose,aud a majority of the voters in the QOuIity voted to prohibit the' sale of spiritut):UJlliquors in the county. The county, so that it became what is called a relator, acting .aa the agent of one;Jordan,s. citizen of Memphis, Tenn., received fromJQrdan, shipped by the Mississjppi & Tennessee Railroad, or rather the, express company ,on said road, a, number of boxe!l eontainingbottle$ or a pint eaGp., and others a. quart. These bottles or flasks had eaGh ,a paper wrapper or box placed around itt and mucila,geor, a,ealing-wax.. These bottles,80wrapPed or inclosed, WElre by Jordan placed in ordinary pine but without a cove,r, clollelypacked tpgether, which boxes, the felator and J()rdan testify, were fur;llished by the e;press. company, with received a ,promise to retnm, them when' emptied.. boxElsandflasks taken. out when sold by the relator in Sardis, and and.. delivered to the purchasers,but were kept iJ1.i"thebox until all were sold and deliver.ed. The boxes had marked on, tlleQl, "To be re.turned." Relator continued to receive and .sell these bottles filled, with whisky until the 25th day of July, 1890, when he was arraigned be(oreJ. D.· Hightower t mayor and «l: ojficio justiGG of the peace for St;trdis and the, county; oi.Panola. acting as a justice ofthe peace for :panola county, Chll;l'gedupon a warrant,ill8ued,1,>ysaid mayor and jnsticEl()f the peace, foundecJ.npon the a.ffidavit of O. W.:J.t'ulmer, town, with' violated the law80f the state in said town i!Ialeaof w4jsbto·three 'J'qthis