Volume 218 — Mississippi Reports

<bold>1. Negligence — contributory negligence under Alabama Law —</bold> <bold>instructions — verdict.</bold> Under Alabama law contributory negligence is a complete bar to a recovery by plaintiff in a tort action growing out of negligence, but where the court had fully instructed the jury on the stated<page_number>Page 56</page_number> principle as applied to the facts of the case involving a motor vehicle collision in Alabama and the jury returned a verdict for the plaintiff this was equivalent to a finding that the plaintiff had not been negligent, but had acted as a reasonably prudent driver. <bold>2. Pleading — amendments — liberally allowed.</bold> It is the policy of our law to be liberal in the allowance of amendments to pleadings. Sec. 1511, Code 1942. <bold>3. Pleading — variance — power of trial court to avoid</bold> <bold>injustice.</bold> The statute dealing with variances gives to the trial court full power to avoid injustice. Sec. 1512, Code 1942. <bold>4. Pleading — amendment — to and toward.</bold> "To" and "toward" are often used interchangeably, hence an amendment to a declaration so as to change the word "to" to "toward" was properly allowed in the interest of a supposed clarity, even though not material. <bold>5. Continuances.</bold> Absence of witness whose testimony would have been merely cumulative is not a good ground for a continuance. Headnotes as approved by Lee, J.

<bold>1. Constitution — statutes regularly enacted not violative of —</bold> <bold>separate assessments — tax sales.</bold> Where statute providing that each separate assessment as it appeared and was described on assessment roll should constitute one tract for the purpose of sale for taxes, appeared to have been regularly enacted, and had been approved by the Governor, statute would be accepted by courts as a valid legislative enactment and not violative of constitutional provisions notwithstanding certificate of Secretary of State showed his inability to locate in House and Senate Journals of Extraordinary Session at which statute was passed, any message from Governor relating to subject matter of the statute. Sec. 121, Const. 1890; Sec. 9923, Code 1942. <bold>2. Taxation — tax sales — Legislature to provide manner and mode</bold> <bold>of.</bold> The Legislature has the power to provide the mode and manner of tax sales. Sec. 121, Const. 1890; Sec. 9923, Code 1942. <bold>3. Taxation — statutes — separate assessments — sale as unit of</bold> <bold>two separate noncontiguous tracts.</bold> Statute providing that each separate assessment as it appeared on roll should constitute one tract for purpose of sale for taxes, notwithstanding fact that person who was owner thereof, or to whom it was assessed, was owner of or was assessed with other lands, authorized the sale, as a unit, of two separate parcels which were not contiguous, when they were assessed to the same owner. Sec. 121, Const. 1890; Sec. 9923, Code 1942.<page_number>Page 193</page_number> <bold>4. Taxation — tax sales — determined by law in force at time of</bold> <bold>sale.</bold> The validity of a tax sale must be determined by the law in force at time sale was made. Sec. 121, Const. 1890; Sec. 9923, Code 1942. Headnotes as approved by Lee, J.

<bold>1. Public contracts — performance bonds — materials furnished</bold> <bold>and used in project — liability of surety.</bold> Where State Building Commission terminated contractor's contract for performance of mechanical work on public building and notified surety on contractor's bond executed under statute relating to bonds of contractors constructing or repairing public buildings, and surety assumed completion of contract and entered into contract with second contractor, and thereafter certain materials previously ordered by first contractor from plaintiff were delivered to project site and were received by second contractor and installed in project, surety was liable on bond to plaintiff for materials furnished and used in project. Sec. 9014, Code 1942. <bold>2. Public contracts — performance bonds — labor and materials</bold> <bold>furnished — used in public buildings — liability of surety.</bold> Bond of contractor under applicable statute relating to bonds of contractors constructing or repairing public buildings requires that all laborers and materialmen must be paid for labor and materials that go into the construction of public buildings, regardless of whether they are remote materialmen, or whether they have furnished the materials directly to the principal contractor. Sec. 9014, Code 1942. Headnotes as approved by Arrington, J.