Volume 58 — Mississippi Reports

<p>Error to the Circuit Court of Warren County.</p> <p>Hon. U. M. Young, Judge.</p> <p>The case is stated in the opinion of the court.</p> <p>It is submitted that the court erred in rendering judgment against the fund in the hands of the treasurer of the State. Art. 8 of chap. 55 of the Code of 1871 provides “ how foreign insurance companies may do business hi this State.” Sect. 2442 of said article renders it “ unlawful for any agent of any insurance company incorporated by anyJ¡¡other State than the State of Mississippi directly or indirectly to take risks or transact any business of insurance in this State, without first having procured a certificate from the auditor of public accounts,” etc.</p> <p>This is an absolute prohibition on the agents of foreign insurance companies from doing business in this State without said certificate; and in construing a statute like this, the Supreme Court of Indiana, in the case of Rising Sun Insurance Company v. Slaughter, 20 Ind. 520, held that a policy issued by a company incorporated under the laws of Pennsylvania, without complying with the laws of the State of Indiana, was absolutely void. The same doctrine was held by that court in the case of the Union Central Life Insurance Company v. Thomas, 46 Ind. 44. While we do not contend for such a construction of our statute, we do submit that the scheme and plan of art. 8 of chap. 55, Code of 1871, contemplates that the fund required by sect. 2446 of said Code shall be a fund for the payment of policies issued by and through authorized agents of the company, and that no policy not so issued can participate in the benefits of the fund. In the case of the Firemen's Insrance Company v. W.' L. Hemingway et al., in the Circuit Court of the United States for the Southern District of Mississippi, as reported in the Weelcly Clarion of March 19, 1879, Judge Hill gives this construction'to our statute, and after reviewing and citing this art. 8, chap. 55, of the Code of 1871, and amendments to the same, comes to the following conclusion : —</p> <p>“ Such being the case, the deposit is intended only for those who may obtain their policies through agents appointed and doing business in the State, and under the provisions of our statutes.”</p> <p>We submit that, in the light of these authorities, no judgment can be legally rendered against the fund, and the judgment of the Circuit Court should be reversed.</p> <p>This statute in regard to foreign insurance companies, and , to the mode and manner of their transacting business in this State, admits, in our opinion, of no such narrow construction as that contended for by the plaintiff in error.</p> <p>This statute evidently intended to provide a plan for the protection of citizens of this. State from bogus and insolvent companies, and to place a fund here in the State and under the jurisdiction of its courts, so that its citizens should not be compelled to go to other States and there litigate with the companies.</p> <p>The cases cited by counsel from the Indiana Reports are not sustained by the decisions of any other State, and are directly in conflict with the following ■ decisions : Union Mutual Life Ins. Go. v. McMillan, 24 Ohio St. 67 ; Olark v.' Middleton,. 19 Mo. 53; Clay Ins. Co. v. Huron Lumber Co., 31 Mich.. 346.</p> <p>Sect. 2446 of the Code of 1871, which fixes the amount to be deposited by the companies, provides that “ it shall not be withdrawn until all losses incurred on any policy [not on any policy issued by a duly authorized agent] of life, fire, or marine risk shall have been adjusted and paid, or adjudicated, by a court of competent jurisdiction,” etc.</p> <p>Sect. 2450 refers to •“ a judgment or decree against any foreign insurance company recovered on any policy of insurance,” etc.; not on any policy issued by a duly authorized' agent, but on any policy.</p> <p>The intention of the statute, we say, is twofold: —</p> <p>1. That citizens may have some means of judging of the-solvency of a company.</p> <p>2. That they may have some person upon whom the parties insured in such company may serve process, and'that there shall always be property of the company in this State to render available the judgments that our courts may be called on to render in such suits as may be instituted by such service.</p> <p>The words of the statute are not explicit in their terms as-to what claims or policies shall be entitled to participate in the fund, but, on the contrary, are general enough to cover any claims against the company; and we submit that it is ■“consonant with reason and discretion” to' hold that the .Legislature intended that this fund should be for the protection of all its citizens; and that they could insure in whatever way they chose to do, and with any agent that was most convenient to them, and with perfect assurance that any funds of the company in the hands of the treasurer should be applied to the payment of the policy in case the company did not pay it.</p>

Hon. F. A. Critz, Chancellor. H. W. Foote employed F. T. Sanford to build three storehouses, for the aggregate sum of about $8,000, to be paid on; the completion of the buildings. Bush, Redwood & Co. agreed to lend Sanford money to carry on the work of building the houses which he had. undertaken to build for Foote, upon Sanford’s agreement that they should be repaid out of the money which he expected to get from Foote on his building contract.

Hon. L. Brame, Chancellor. The case is stated in the opinion of the court. 1. There is no question about the wife’s incompetency to testify against her husband in any civil suit. This was so at common law, and the rule has not been changed by our statute. “ Husband and wife may be introduced by each other as witnesses in all civil cases.” Code 1871,- sect. 760. But they cannot be introduced against each other.

Hon. E. Gr. Peyton, Chancellor. On the 21st of June, 1879, a fieri fiadas was issued from the Chancery Court of Madison County on a decree in favor of the… Held: that the amendment was properly allowed. See also the following authorities: Spoor v. Holland, 8 Wend. 447 ; Broughton v. Garter, 6 Humph. 96 ; Hill v. jHinton, 2 Head, 124; Langdon v. Simmons, 10 Ohio St. 77 ; Vaughan v. Warned, 28 Texas, 119 ; Goopwood v. Morgan, 34 Miss. 371; Trotter v. Parker, 38 Miss. 473.

Hon. A. G. Mayers, Judge. In 1869,' J.--W. McAdory purchased a certain tract of land from Milton D. Turner-and wife, and paid therefor a part of the purchase-money in cash, and gave-his promissory note for the balance. Turner and wife conveyed the land to McAdory by a warranty deed. Some time thereafter, J. C. Wilson brought an action of ejectment against McAdory to recover this land. Turner- and wife were notified of tbe action, and were admitted as defendants thereto.

Hon. W. G-. Phelps, Chancellor. H. A. Abercrombie executed to John H. Evans a mortgage on the crop to be grown by him during the year 1878, to secure a debt due by the former to the latter for $1,100. The mortgage was duly recorded on the 21st of February, 1878, in Washington County, Mississippi, where the crop was to be produced.

Hon. S. S. Calhoon, Judge. This action of replevin wms brought by the defendant im error, as trustee in a deed of trust, to recover certain personal property described therein, as follows: “ One gray mare-mule named Jane, and one dark-bay horse-mule named Helm,, sold to us to-day; one black mare mule named Dinah, one-dark-bay mare-mule named Liz, one bay horse-pony, Billy,, one four-horse iron-axle wagon.” There were six grantors-in the deed of trust.

Hon. E. G. Peyton, Chancellor. In the year 1874, Wesley Crisler died seized and possessed of a certain tract of land, upon which he with his family was-at that time residing. Catherine Crisler, his widow, and three-children survived him.

<p>Appeal from the Chancery Court of Hinds County.</p> <p>Hon. E. G. Peyton, Chancellor.</p> <p>The case is sufficiently stated in the opinion of the court.</p> <p>1. It is settled, under the statutes of this State, that the granting or refusing of a motion to set aside a decree pro con_fesso is a matter within the sound discretion of the court. This is a sound judicial discretion; the court cannot act arbitrarily. Pittman v. McClellan, 55 Miss. 299 ; Kelly v. Brooks, 57 Miss. 227 ; Rankin County Savings Inst. v. Gunn, MS. opinion, book J, p. 74. Sect. 1021 of the Code of 1871 is imperative that “ no pro confesso decree so taken, shall be set aside without good cause shown, by affidavit,” etc.</p> <p>It is apparent from the affidavit filed in support of the motion that the appellee either intentionally or forgetfully neglected to attend to this case, without even a plausible excuse therefor. Forgetfulness or neglect has been held to be no ex-ouse ; and certainly it is not such “ good cause ” as is required by the statute. Rankin County Savings Inst. v. Gunn, supra. The appellants acquired a legal advantage fairly, and the court had no right to deprive them of it on the flimsy excuse made by the appellee.</p> <p>But if the affidavit was a sufficient showing why the. answer was not filed, the answer contained no meritorious defence, but consisted entirely of wholesale denials by reckless sweaiing, without the defendant having any knowledge or information as to the material allegations denied. Such denials are not the meritorious defence that is required.</p> <p>Upon the whole, we submit that the action of the court in •setting aside the decree pro confesso was an abuse of its discretion, as “ good cause ” for such actibn .was not shown.</p> <p>2. We insist that, on the facts of the case, the pretended •deed to the appellee must be held to be invalid, because (1) Mrs. Yost testifies positively ' and unequivocally that ■•she never did execute that deed; (2) Miss Matilda Yost testifies with equal clearness that on the several occasions on which her mother was asked to execute it, she positively refused ; (3) they both testify that they never knew or heard •of appellee claiming under a deed purporting to have been .signed by Mrs. Yost, until January, 1878, and this toas after Boyd’s death, when she, with astonishment, denied that, she had ever done any such thing, and proceeded very promptly to consult counsel and institute this suit to enforce her rights (in this she is fully corroborated by Chiles, the per^ •son "who first informed her of the pretended .deed) ; (4) the fact that the appellee, knowing the precariousness of his pretended title, has attempted to fortify, it by bringing up .a tax-title; (5) the rascally attempt of the appellee to induce her, after the commencement of this suit, to sign some ■contract or agreement prejudicial to her rights in this cause, ,aud which he refuses to let either her daughter or her attorney in this cause read ; and (6) that in the whole record there is not a particle of evidence, save the certificate of acknowledgment, contradicting the positive statements of both Mrs. Yost and her daughter.</p> <p>1. We insist that an application to set aside a decree pro ■confesso is a matter submitted to the enlightened discretion of the court, to be exercised in view of the special circumstances of the case, regard being had to the x-easons assigned ixx the affidavit in suppox’t of the motioxx why the px’oper pleading was not filed, axxd also to the character of the defence set up in the answer presented with the motion.</p> <p>In Pattison v. Josselyn, 43 Miss. 373, it was held that the Chancery Court has the discretion, at the same term at which, a final decree is pronounced, for good cause, to alter, modify, or set it aside, and that this discretion continues on interlocutory orders, so long as the cause is in progress, no matter at what term, they may -have been rendered, and does not cease till the case terminates in a final decree. See also Kelly v. Brooks, 57 Miss. 225. But such discretion is not arbitrary or capricious, but regulated by the practice of the court. It was also held in Pattison v. Josselyn that, ordinarily, whatever was in the discretion of- the Chancery Court — as are many things in the progress of a cause. — cannot be assigned for error. In Pittman v. McClellan, 55 Miss. 304, this court said the practice which prevailed in the English Chancery Court, and very generally in this country, is to take off the default and open the pro confesso on terms. It is a matter of sound discretion to reverse or not, according to circumstances. These terms-are that the defendant shall paj^ costs occasioned by his default, and incident to the relief, and present his answer, so that the court may judge of it.</p> <p>The Chancery Court considered that “good cause” was shown why the answer was not filed on the return-day of the summons. And we submit that the defence set out in the answer is a most equitable and conclusive one. For these reasons the decree pro confesso was properly set aside.</p> <p>2. The deed in question was executed 'in strict accordance with the statute relating to the conveyance of homesteads Code 1871, sect. 2143; Acts 1873, p. 78. The certificate of acknowledgment, being in the form required in such cases, estops Mrs. Yost, as a matter of law, from denying the validity of the deed, except by affirmative proof that such certificate was false or procured by fraud, and that appellee had notice of this before he accepted the deed and paid the purchase-money. Johnston v. Wallace, 53 Miss. 331. We invite special attention to the entire opinion in that case, as the court reviews its previous decisions, particularly in Stone v. Montgomery, 35 Miss. 83, and Allen v. Lenoir, 53 Miss. 321.</p> <p>If the appellee was induced by any act or statement on the part of Mrs. Yost to accept the deed and pay the purchase-money, she will be estopped from denying or controverting such act or statement. Staton v. Bryant, 55 Miss. 261; Davis v/Bowmar, 55 Miss. 671.</p> <p>If mistaken in the position that the appellants are estopped as a matter of law, we insist that they are barred of the relief prayed by the statement in the certificate of acknowledgment, treating the certificate only as the evidence of a disinterested witness of the facts therein recited. Lockhart v. Cornfield, 48 Miss. 489 ; Johnston v. Wallace, 53 Miss. 331; 1 Greenl. on Ev., sect. 15. That certificate, made by a sworn officer in the discharge of official duties, and in due form of law, stands as his deposition — as though he had been examined and cross-examined as to the facts therein stated. Kennedy v. Prior, 57 Miss. 774 ; Harmon v. Magee, 57 Miss. 415.</p>

Hon. R. W. Williamson, Chancellor. Jason Niles filed a bill in chancery against W. C. Chesteen, and obtained an injunction thereon prohibiting Chesteen, as the overseer of a certain projected public road in Attala County, from cutting out and opening the road over the land of the complainant.

Appear from the decision of Hon. F. A. Critz, Chancellor ■of the Sixth Judicial District, on habeas corpus.

Hon. U. M. Young, Judge. . The case is stated in the opinion of the court.

Hon. A. G. Mayers, Judge. Willis Thompson was indicted for grand larceny, and was convicted. He sued out a writ of error. Several grounds of .error were assigned, but only one was considered by this ■court, and that is stated in the opinion. We think that the plaintiff in error was entitled to a full panel from which to make his challenges of jurors, inasmuch us he had no special venire, and no means of knowing who would be called to take the place of an excused juror.

Hon. B. E.-Trimble, Judge. In order to fully comprehend the points decided in this case it is only necessary to know, in addition to what is stated in the opinion of the court, that after Robert B. Shields, a witness for the State, had testified in the trial in the Circuit Court that when Peterson, the victim of the crime charged, told him “ that Jack Merrill had shot him,.and that he would not get over it,” the district attorney then asked the witness the question: “ Did…

Hon. Lafayette Hatjghton, Chancellor. The case is sufficiently stated in the opinion of the court. 1. The mortgage is void. Code 1871, sects. 2287, 2315 ; Ezelle v. Parker, 41 Miss. 520 ; Rhea v. Rhenner, 1 Pet. 105.

Hon. A. G-. Mayers, Judge. The case is sufficiently stated in the opinion of the court.

Hon. F. A. Critz, Chancellor. In a cause pending between Robert L. Sparkman and Emily J. McCoy et al., the clerk, R. C. Patty, made a motion for the allowance of his bill of costs, to be paid out of a fund in his hands arising from the sale of land by him, as commissioner, under a decree in said cause. The complainant, Spark-man, filed exceptions to certain items of the cost-bill, and moved the court to disallow them and have them stricken out of the bill.

Hon. F. A. Critz, Chancellor. The case is stated in the opinion of the court. 1. At least two or three acres of valuable tillable land, of appellants is overflowed and rendered worthless by the mill-dam under consideration.

Hon. George Wood, Chancellor. The case is stated in the opinion of the court. The bill of Rosenbaum was demurred to, and the demurrer was overruled. This we assign for error. We do not notice specially the several grounds of demurrer, as we think, taken together, we may more readily dispose of them.

Hon. S. S. Calhoon, Judge. Catchings & Co. brought suit against J. S. Hamilton & Co., as the acceptors of a bill of exchange drawn by Lehman & Hartigan in favor of the plaintiffs.

Hon. E. G. Peyton, Chancellor. This appeal was taken from an order overruling a demurrer to a petition setting forth the facts hereafter stated in the opinion of the court. The Chancery Court has no jurisdiction of this case. Sect. 976 of the Code of 1871 does not confer this jurisdiction. It must be construed in connection with sect. 1142 and other provisions of chap. 9 of the Code.

Hon. E. G. Peyton, Chancellor. This case has once before been in this court, and as then presented is reported in 55 Miss. 656. Held: but allowed improvements. But the case of King v. Wilcox, 11 Paige, 589, 595, which is that of a subsequent creditor, allows the rents as an offset against the grantee’s claim, but not the increased rent caused by the grantee’s improvements. Such is the rule adopted by this court in analogous cases. Tatum v. Mc-Lellan, 56 Miss. 352.

Hon. B. F. Trimble, Judge. The case is sufficiently stated in the opinion of the court. 1. Evans never consented to the cutting of his trees, in the sense of granting a license therefor ; but, on the contrary, the evidence shows that he did not intend that his trees should be taken. And it cannot be said that his mistake as totheboundary line of his land gave a license to Miller to cut the trees, and transferred to him Evans’ property therein.

Hon. S. S. Calhoon, Judge. The case is sufficiently stated in the opinion of the court. 1. As soon as the condition in the deed of trust was broken, by the failure to pay the indebtedness at maturity, December 1, 1877, the legal title to the property conveyed was vested in the trustee. Code 1871, sect. 2295. Even without the aid of our statute, this proposition is true.

<p>Error to the Circuit Court of Hinds County.</p> <p>Hon. S. S. Calhoon, Judge.</p> <p>R. R. Holmes rented a piece of land to James Hudson and A. B. Phillips, as partners, for the year 1879, for five thousand pounds of lint cotton, to be ginned, baled, and delivered at a certain warehouse in Jackson, Mississippi. Holmes also furnished mules to Hudson and Phillips to make their crop that year, for which they were to pay a certain hire. On the 22d of February, 1879, after the contract for rent of land and hire of mules, Hudson and Phillips executed a deed of trust upon their crop to be produced that year on the land rented from Holmes, to E. M. Strauss, as trustee, to secure W. O. Strauss for supplies to be furnished to the grantors during that year. Holmes had notice of the execution of this deed of trust at the time it was executed, and after such notice he advanced the aggregate amount of $213.40 to Hudson and Phillips, to enable them to make and prepare their crop for market. Strauss furnished to Hudson and Phillips, on their deed of trust, supplies to the amount of $350. Fourteen bales of cotton made by Hudson and Phillips on the land rented from Holmes were delivered to him at the warehouse of H. F. Balej^, in Jackson, Mississippi, to be applied to their indebtedness to him. Isadore Strauss, who had been substituted as trustee in place of E. M. Strauss in the deed of trust given by Hudson and Phillips for the benefit of W. O. Strauss, sued out a writ of replevin against H. F. Baley, to obtain possession of three bales of the cotton delivered at his warehouse for Holmes. The aggregate weight of the fourteen bales was six thousand six hundred and sixty-four pounds. The aggregate weight of the three bales seized under Strauss’ writ of replevin was about one thousand four hundred pounds, leaving five thousand two hundred pounds of the cotton in Baley’s possession.</p> <p>Some other facts of the case not here stated will be found in the opinion of the court.</p> <p>Baley defended the action of replevin, and the trial resulted in a verdict and judgment in his favor. Strauss thereupon sued out a writ of error, and here assigns for error the action of the court below in relation to evidence and instructions.</p> <p>The following is the provision of the act of 1876, entitled “An act to provide for agricultural liens, and for other purposes,” which defines the respective rights of landlord and mortgagee in relation to the tenant’s crop : —</p> <p>“ Sect. 1. Be it enacted by the Legislature of the State of Mississippi, That there shall be a lien in favor of all landlords on all the agricultural products raised on the land of such landlord for the rent agreed to be paid by the tenant, and also a lien upon such products for all necessary family and farming supplies and farming implements and stock furnished or advanced to such tenant during the year that such products are raised: Provided, such lien for supplies, stock, and implements shall not operate as against other persons to whom such tenant shall have given a deed of trust or mortgage for supplies for said year, and of which said landlord had actual notice before such advancing by such landlord ; and provided further, that such lien for rent shall exist, only on the products raised during the year for which such rent is claimed.”</p> <p>1. The deed of trust conveyed the legal title of the cotton to the trustee, and, upon condition broken, the lav;, as well as the contract, vested in him the right of possession. And his right to recover in this action cannot be defeated by the landlord’s statutory lien. “A lien is a right to resort to the tiling on which it operates.” 51 Miss. 828. It is not a right to the thing, nor a right in the thing, but “ a right to resort to the thing.” The landlord had no right of property in the cotton. He had “a claim,” which entitled him to seize it in the mode pointed out by the statute, but he could not maintain trover or assttmpsit.</p> <p>A lien is a mere security to the party for his money. It is not an estate. The landlord’s lien is of statutory creation, with a statutory remedy. Statutory remedies should be strictly construed. 1 How. 293; 14 Smed. & M. 47; 3 Cushm. 428. Where a statute creates a right.and prescribes a remedy, that remedy is exclusive. 5 Geo. 227. The right of the trustee in this case to maintain replevin is clear, and it Avas incompetent to assert the statutory lien in defence, both by reason of its character, and because the court could not try an action of replevin for the plaintiff, and the special action under the act of 1876, for the defendant, together. The trustee was entitled to possession of the cotton in order to make distribution. Recovery of possession does not affect the landlord’s lien. He should have surrendered possession, and if the distribution should be unfair he could bring a special action and have all rights adjusted in the proper way.</p> <p>The trustee cannot be driven into equity. He could not bring a bill for possession. His right of action at law for possession is complete.</p> <p>2. The plaintiff asked the court to instruct the jury that if Holmes had actual notice of the deed of trust before he made advances, then the legal title to all of the cotton vested in the plaintiff, but as the plaintiff concedes the defendant to be entitled to five thousand pounds of cotton, baled, for land-rent, he can only recover the bales over that amount, and that if there were any bales over the rent they should find for the plaintiff as to such bales. This instruction as asked was refused. It contained the proposition that if Holmes had actual notice before making the advances to Hudson and Phillips, then the plaintiff’s deed of trust was superior to his lien. The act' of 1876 provides that the lien of the landlord for supplies, stock, aud implements “shall not operate” as against a deed of trust of which the landlord had actual notice before making his advances. Act 1876, sect. 1. The landlord’s lien, in the circumstances stated in the instruction, could be no defence to this action of replevin. The plaintiff concedes to Holmes enough cotton to pay the demand for rent, but contends for the rest. ,</p> <p>The fact of payment of the claim for supplies by the tenant avails nothing, because he had no right to pay, or sell the prop'erty conveyed by the deed of trust.</p> <p>1. The plaintiff in error concedes that the defendant in-' error is entitled to retain eleven of the fourteen bales of cotton made by Hudson and Phillips, for his rent. And there can be no dispute about the fact that, under the agricultural-lien law, Holmes has a lien superior to that of the plaintiff in error, for the hire of mules furnished to the tenants before notice of the deed of trust. Laws 1876, pp. 109, 110. And there can be no doubt that the tenants could take a sufficiency of the cotton on which the lien existed, and use it in payment of the mule-hire, putting a reasonable value upon it. They could not sell the cotton to any one else before paying off the landlord’s lien ; and it cannot be that the landlord is compelled to resort to the courts to get his money out of the cotton, instead of buying from the tenants at an agreed price, in settlement of the lien claim.</p> <p>2. If Holmes had a lien for picking and hauling the cotton, etc., superior to Strauss’ deed of trust, the tenants had the right to pay it off by delivering a portion of the crop on which the lien rested, in payment thereof. And if a tenant hires hands to pick and haul his crop, a lien is created in their favor for payment of their labor which is superior to every other lien except the landlord’s lien for rent. If the landlord hires himself to his tenant to pick cotton, he occupies the position of any other laborer, and acquires a lien upon the crop for his hire. But if, instead of doing the work personally, he employs other parties to do it, and pays them therefor, he will be subrogated to the rights and lien of the parties who actually did the work, so as to entitle him to resort to the property for reimbursement. A laborer’s lien is assignable, and the assignee may enforce it. Kerr v. Moore, 54 Miss. 286.</p> <p>It must be remembered, too, that the advances in this case for picking, hauling, and baling the cotton were made by the landlord for his protection, to enable him to get his rent'; because otherwise a portion of the crop might have been lost in the field, so that there would not be a sufficiency of the crop to pay the rent due him.</p> <p>It is not claimed for the defendant in error that, where the agricultural lien exists, it carries with it the right of possession. Of course it does not; but where such lien is paid off with a part of the crop subject thereto, the right of possession in him to whom it is paid exists so as to authorize him to hold that which has been delivered to him as against the mortgagee of the producer.</p> <p>The court properly instructed the jury, and their verdict was in accordance with the law and the facts.</p>

Hon. J. M. Arnold, Judge. There was an assessment of lands in this State in 1875, to stand for four years thereafter, including that year. An act of the Legislature, approved February 26, 1876, authorized the Boards of Supervisors to correct the errors and informalities in the assessments in the several counties of the State, or to order new assessments, which, when perfected, should be binding for the years 1876, 1877, and 1878.

Hon. U. M. Young, Chancellor. The case is stated in the opinion of the court.

Appical from the Chancery Court of Marshall County. Hon. A. B. Fly, Chancellor. The case is stated in the opinion of the court. 1. A guardian’s commissions, under the Constitution and laws of the State, could only be allowed and fixed in amount formerly by the Probate Court, and, since the adoption of the present Constitution, by the Chancery Coui’t; and this item of $2,300 was never allowed by either tribunal. Bev.

Hon. W. G. Phelps, Chancellor. Under a decree in chanceiy enforcing a vendor?s lien in favor of the administrator of Mary E. Pope’s estate against the administrator of Leíand J. Bradley’s estate, certain lands were sold by a commissioner to Monroe Cheatham, who gave bond for the purcliase-mouey, as required by t;he decree, with George B. Long as surety thereon. The bond was due on the 20th of December, 1871.

• Hon. B. E. Trtmble, Judge. The case is stated in the opinion of the court. Are defendants in error liable for negligence and recklessness in the discharge of their duties under the act of November 27, 1865, entitled “An act to incorporate the Board of Levee Commissioners for Bolivar, Washington, and Issaquena counties ” ?

Hon. J. M. Arnold, Judge. The ease is sufficiently stated in the opinion of the court. Under the rule established by the Supreme Court in Gox v. Ross, 56 Miss. 485, it is intimated that the act of God or the king’s enemy would excuse the sheriff for neglecting to return an execution; but the facts and circumstances of this case do not present that contingency.

Hon. E. Gr. Peyton, Chancellor. On the 2d of September, 1873, P. F. Whitehead took out a policy of insurance on his life in the Universal Life Insurance Company for the sum of $3,000, the premiums to be paid quarter-annually, on the 2d of September, December, March,* and June of each year. The premiums were all paid up to and including that of June 2, 1877, making four full annual premiums.

Hon. J. A. Green, Judge. The case is sufficiently stated in the opinion of the court. Does thq (remittitur defeat the jurisdiction of the court? A thorough consideration of Scott v. Ward, 57 Miss. 826, has failed to convince me of its proper construction of sect. 1334 of the Code of 1871.

Hon. Samuel Poavell, Judge. The case is sufficiently stated in the opinion of the court. 1. Evelina took under the avüI Avhat would be under the English statute “ de donis conditionalibus ” — an estate in fee tail. 2 Bla. Comm. Ill, 112. If the donee of such estate die Avithout heirs surviving, the estate determines and the property reverts to the donor. 1 Washb. on Real Prop. 72.

Hon. Lafayette Haughton, Chancellor. The appellees filed the-bill in this cause, seeking partition of a quarter-section of land, of which, it is alleged, the complainants and defendants are tenants in common, and demanding an account for the rents, which, it is alleged, have been received by two of the defendants, who have been in possession of the land since 1877. The defendants demurred to the bill, and, the demurrer having been overruled, they appealed.

Hon. Lafayette Haughton, Chancellor. The case is sufficiently stated in the opinion of the court. I regard the Statute of Limitations as furnishing a complete remedy for the complainant. Our statute declares that in matters of mortgage, trust, or vendor’s lien, where the note — the evidence of debt — is barred, the lien is .barred. Before the Code of 1857 the bar of the debt was nota bar of the lien, and our courts so held.

Hon. J. W. C. Watson, Judge. The case is sufficiently stated in the opinion of the court. 1. The court below ignored the principle of law which allows a man to strike in defence of himself or his family, or even of a stranger. We see no good reason Avh}r this principle may not be applied to offences by minors, provided the force used in defence is no greater than is necessary to overcome the assault first made.

Hon. J. W. C. Watson, Judge. The case is stated in the opinion of the court. The first and third charges for plaintiff below are open to serious objections. In the first place, they apparently, if not actually, say to the jury that the question of a partnership is an immaterial one, and. not worthy of notice; and in the second place, they assume a fact which, according to all the testimony,'did not exist.

Hon. J. W. C. Watson, Judge. The case is sufficiently stated in the opinion of the court. 1. The court below instructed the jury, for the defendant, that the payment by Stith of his note to Falconer was, as to McGowan and all subsequent holders, a nullity. We think this was error. The most that McGowan could claim would be, that as to him the said payment was voidable.

Hon. Lafayette Haughton, Chancellor. In March, 1877, Nancy Hubbard filed a bill in chancery against the heirs of her deceased son, Green Hubbard, and against his mortgagee, H. A. Flynt, for the purpose of establishing in her favor a trust in a tract of land of which her son died seized, and which, in his lifetime he had mortgaged to Flynt.

Hon. J. A. Green, Judge. The case is sufficiently stated in the opinion of the court.

Hon. A. B. Fly, Chancellor. The case is stated in the opinion of the court. The appellants hang their hopes of success in this case on the merest obiter dictum, thrown out by this court at the close of its opinion in the action at law brought by the appellants against the appellees on this identical injunction-bond. See Menken et al. v. Frank et al., 57 Miss. 732.

Hon. George Wood, Chancellor, by interchange with Hon. F. A. Critz. The case is stated in the opinion of the court. 1. We think there is no doubt that the administrator was entitled to a jury trial. Held: in a case similar to this one, that if it was not absolutely certain that there was no gift, the issue should be referred to a jury. Mc-Ginney v. Wallace, 3 Hill (S. C.), 254. 2. The court below erred in deciding that the administrator must account for the $671.

Hon. Samuel Powell, Judge. J. A. Harris brought this action, in March, 1880, to recover the amount of certain open accounts declared fo have been… Held: is within the scope of the submission, without regard to its origin. We think the submission, as set out by averments in the plea, was broad enough to cover any “ difference that either one claimed in regard to final settlement of accounts between them.” Did these parties owe money to each other at the time of submission?

Hon. William Coti-iran, Judge. The case is stated in the opinion of the court. Sect. 1631 of the Code of 1871 refers alone to the means for obtaining possession of the attached property ; it does not impair any other remedy. ‘ • Sect. 1438 authorizes the sheriff to demand bonds of indemnity, to save him harmless, whenever any writ of attachment is placed in his hands. No distinction is made between the various writs ; it says any writ of attachment.

Hou. J. A. Green, Judge. The case is stated in the opinion of the court sufficiently to elucidate the points announced in the decision. 1. We submit that, by the plaintiff below dismissing his petition against the committee, consisting of A. Babbitt aud others, as garnishees, and filing the declaration charging them as a corporation, the court lost jurisdiction of those parties. A corporation is a distinct entity, as distinguished from the individuals who compose it.

Hon. F. A. Cbitz, Chancellor. The case is stated in the opinion of the court. 1. The appellees were estopped by the judgment at law from proceeding in this suit. The proof shows that when the bill of complaint in this cause was filed, there was pending in the Circuit Court of Lowndes County a suit upon appellant’s bond given under the contract here sought to be rescinded, which suit was based upon the identical breaches of contract named in the bill of complaint.

Motion in Supreme Court. Mattie J. Lumpkin and her husband, O. H. Lumpkin, filed a bill in ehaucery against Orlando Davis, to assert her rights to certain property claimed as her separate estate. The Chancery Court rendered a decree against Davis, and he appealed to this court. That decree was reversed and the cause remanded, and the costs of the appeal were taxed against both Lumpkin and his wife.

Hon. J. A. Green, Judge. The case is sufficiently stated in the opinion of the court. 1. Is the judgment void because taken at the return-term? Sect. 632 of the Code of 1871, which prohibits the taking of a judgment by default at the return-term on constructive service of process, is found in the chapter on pleading and practice of the Circuit Court, and hence the prohibition does not extend to judgments rendered in the justice’s court.

Hon. J. A. Green, Judge. E. G. Betts made a motion in a justice’s court against S. C. Baxter, constable, and the sureties on his official bond, for his failure to return an execution on the return-day thereof.

Hon. A. B. Fly, Chancellor. In 1861, J. A. Green borrowed from the treasurer of Tippah County $405.23 of the school fund, for which he gave his promissory note, due January 1, 1862, secured by a mortgage on block 103 in the town of Ripley.

Motion in Supreme Court on scire facias. , A statement of the case will be found in the opinion of the court. This court has acquired no jurisdiction of this case, the appeal not having been prosecuted according to law. The statute provides for a petition in writing for an appeal or writ of error. This is the first step in the procedure. Code, sect. 2841.

Hon. J. W. C. Watson, Judge. The case is sufficiently stated in the opinion of the.court. 1. -The court erred in admitting in evidence the testimony of L. R. Wilson as to the confession. 2. The court erred in refusing to suspend the trial, upon the motion of the defendant below, in order to get Watson as a witness. It is well settled that a confession obtained by hope or threats is not competent evidence. Simon v. The State, 8 Geo. 288.

Hon. J. A. Green, Judge. On the trial of this case in the court below, Thomas Cozart testified, for the State, that the burglary charged was committed by the appellants, Morgan Hughes and Alexander Gilliam, and himself, in connection with Edward Johnson, who was not on trial.

F. A. Critz, Chancellor of the Sixth Judicial District, on habeas corpus. The case is stated in the opinion of the court. The point that we insist upon is, that the appellant has been denied his constitutional rights, and for that reason is entitled to his discharge. A continuance cannot be granted in a criminal case unless a legal reason therefor be shown.

Hon. Samuel Powell, Judge. The case is sufficiently stated in the opinion of the court. 1. The court below erred in refusing to grant the continuance. The gist of the application was that the defendant’s witnesses were in terror, and dared not testify. This applied to his kinsmen present as well as absent; and hence, though he stated he could prove the same facts by two of his kinsmen then in the county, we find they were not called.

<p>Error to the Circuit Court of Lee County.</p> <p>Hon. J. A. Green, Judge.</p> <p>James M. Dillard was indicted for the murder of John Helms. The accused applied' for a change of venue, on the ground that, “by reason of undue prejudice in the public mind” in the county where he was held for trial, he could not have a fair and impartial trial. The application was refused on the showing stated in the opinion of this court. The casé then proceeded to trial.</p> <p>The defendant made objections to the time and manner of his arraignment, and to the action of the court in ordering a plea entered for him, and took exceptions to the action of the court in overruling his objections. The nature of the objections and the circumstances attending them are fully set forth in the opinion of the court.</p> <p>Statements of Helms, made to several persons, were admitted in evidence as his dying declarations concerning the circumstances of the difficulty in which he received his mortal wounds. Exception was taken to the admission of this evidence, on the ground that it had not been shown that' Helms had no hope of recovery at the time the declarations were made. The substance of those declarations touching the point of objection is stated in the opinion of the court. There were several other exceptions taken by the defendant to the admission or rejection of evidence, but the character of such evidence and the nature of the objections thereto are fully stated in the opinion of the court.</p> <p>The evidence in the case establishes these facts: On the evening of the 5th of November, 1879, about dark, Dillard and Helms were going together towards their respective homes, the former walking and the latter riding on horseback. They were quarrelling when last seen-or heard by any witness. In a short time thereafter Dillard called up some of the neighbors and informed them that he had cut a man with his knife, and he went with them and showed them the place of combat, and there they found Helms lying upon the ground, with several wounds upon him. Dillard had some scratches and slight bruises on his face. No person witnessed the combat. The parties had previously been friendly. The weapon used by Dillai'd was a pocket-knife. Helms was a stout man, physically ; Dillard was rather weakly, and somewhat disabled by an old wound in the leg. The efforts of the defence seem to have been directed to the establishment of one or both of two facts: first, that Helms made the attack by striking Dillard with a piece of a railing; and, second,' that when the cutting was done by Dillard he was down, with Helms on top of him. As to the circumstances . bearing upon this theory, both sides produced evidence.</p> <p>The jury rendered a verdict for manslaughter. The defendant made a motion for a new trial. One of the grounds of the motion was, as stated, that the jury had not been properly guarded, and had been exposed to improper influences. Affidavits were presented on this question by both sides. The motion was overruled, and the defendant sued out a writ of error.</p> <p>1. In tbe matter of the change of venue, I am not unmindful of the difficulties which environ a revision of the action of the court on that question. It is very much a matter of discretion ; but will not the court avert the wrongful effect of an abuse of discretionary power, if it is shown to be such? or are we at the mercy of the court below on that question? Here we have the testimony.of six credible witnesses swearing to the positive fact of the existence of undue prejudice, and this is opposed in substance by only the testimony of witnesses who swear that they knew of no prejudice which would deprive the defendant of an impartial trial. Here is a negative against a positive, involving no conflict.</p> <p>2. In this case the prisoner was arraigned after the venire was drawn, the jury selected and sworn, and the witnesses sworn and put under the rule. The statute (Rev. Code 1871, sect. 2759) provides that after arraignment the venire shall be drawn. But without this statute we think it would be erroneous to order a venire before arraignment. If a venire should not be ordered, a jury could not, we think, be legally empanelled nor the witnesses legally sworn until after issue joined. Arraignment is the next step after arrest. Chitty’s Cr. Law, 337, 338. This is the time, as well established by all the common-law authorities on the subject. The time, form, and incidents of arraignment are clearly defined by the common-law authorities. That it cannot be dispensed with will not be denied. See 8 Smed. & M. 595 ; 2 Hale’s P. C. 217, 219 ; Roscoe’s Cr. Ev. 181; 2 Cushm. 611. On this subject generally, see Chitty’s Cr. Law, 337, 338, 345, 451. If one feature of this part of criminal pleading can be dispensed with, so .might another, which would lead to a judicial repeal. The arraignment was not only defective in point of time, but in other respects. The defendant was not required to plead to the indictment, but was required to plead guilty or not guilty. When, on arraignment, the defendant stands mute, the court may order the plea of not guilty to be entered for him. What is “ standing mute ” ? It is not in refusing to plead guilty or not guilty to the indictment, but in refusing to plead any sort of plea allowed by law to the indictment; and when the accused refuses any sort of plea on arraignment, he stands mute, and then the only plea the court can enter for him is, not guilty. But here the prisoner objected to arraignment because not made at the proper time. The objection was overruled, and the defendant was required not simply to plead to the indictment, but to plead guilty or not guilty; and because he refused to plead guilty or not guilty, the court ordered the plea of not guilty entered. This was not a case of standing mute, wherefore the court erred in ordering the plea of not guilty to be entered.</p> <p>The observance of every statutory and common-law rule for the protection of the accused is as essential now as formerly. Ex parte Phillips, 57 Miss. 365. See also Hughes v. The State, 1 Ala. 655; 4 Black, 322.</p> <p>3. The court erred in not permitting the physicians to testify to their opinions of the probable relative positions of the deceased and the accused at the time of the commission of the homicide, as might be indicated by the number, quantity, and character of the blood-stains and blood on the shirt worn by the accused.</p> <p>Inasmuch as the defendant, a weakly and partially disabled man, proposed to establish in this way that at the fatal moment he was down on his back, and the deceased, a stalwart man, was on him, assaulting him, and pressing him down so that his head and shoulders, by the violence of the assault, were pressed in the earth, and became lower than the other parts of his body, it is of the highest and gravest importauce that the ruling of the court denying to the defendant an opportunity to do so in the manner proposed should be most patiently considered.</p> <p>It is with diffidence that we venture to lay down the general principle, though we have not the slightest doubt of its correctness, that in all judicial inquiry into doubtful or controverted matters, all means is testimony which may elucidate the truth of the question aud which cannot promote error, and that the only objection available against such means as evidence is its relevancy. This rule covers the means rejected in this case; and it was admitted that it could not promote-error, and was objectionable alone as incompetent, no matter what it would prove. It was not questioned that the stains on the shirt were blood-stains. We proposed to prove that some of the spots were round, and how they were made; that this indicated that the one body was directly over the other, and indicated that the parties were not standing up, and that one was not on horseback and the other on the ground; also, that some of the marks of blood were oblong; that the negative character of this was as forcible as the other, and indicated the relative positions of the bodies as clearly as the other; that the length, shape, and run of some of the marks of blood indicated clearly that some portions of the body were lower than others ; that none of the blood-spots and marks could be reconciled with the positions of the parties standing on the ground, or one on horseback and the other on the ground, and that all were consistent with the position of one on the gi’ound on his back and the other one on top of him ; that the blood did not fall from above, that it was not received by simple contact, and that no theory of the prosecution and no material fact for the State was consistent with the true way that this blood got on the shirt. Is it not obvious that, from these facts, opinions of medical men (perhaps other educated persons to some extent, too) could be formed possessing moral certainty, and that such opinions could not promote error, and -might elucidate the truth of the inquiry, whereas the exclusion of such opinions might lead to error by a jury of men not presumed in law to be educated, or to be able to read or write, or to understand any of the laws of science, but simply qualified to be jurors by age, citizenship, as householders, and never convicted of any infamous crime, and in a normal mental state? - The testimony we offered could not be erroneous. It could not be, and was not objected to on that ground; was not objected to as too remote, or as irrelevant, but simply as incompetent. It was simply said that the opinions we offered could as well be deduced by the jury from the facts as by experts. The soundness and justice of this conclusion and confidence will at once be recognized by every lawyer of experience. How much or how little juries do really know, as a general rule, is so well understood that no verdict creates very violent surprise ; and no case, however groundless, is beyond hope, and none, however clear, entirely safe. It is, in truth, the terror of a good cause and the hope of a bad one.</p> <p>The general subjects on which a medical witness is called on to testify are numerous, — such as homicide, suicide, accidental death, and death by means of violence, drowning, by hanging, and by poisoning; also, rape, pregnancy, delivery, legitimacy, infanticide, insanity, and so on, — and the questions that may be asked in each are as varied as the cases themselves, in connection with all the circumstances surrounding them. In rape, what were the marks of violence on the clothes, on the person, on the organs, on both, and what do they indicate? Dean’s Med. Jur. 26, 29, 30. What was the weapon, in case of violence, with which the injury was inflicted, and what does the character of the wound indicate ? Ibid. Most people of ordinary intelligence may tell very well a contused, an incised, a punctured or lacerated, or sword, or gunshot wound. The effect very plainly indicates the cause ; but universally these are proved by experts. -The reasoning process is as easy in those cases as in the one at bar, and more so; but the point is, that some are plain and some are not, and hence all belong to the sphere of science. While a jury may found a verdict on a deduction, yet whenever a deduction is to go to the jury as evidence it must be given by experts, and it may always be so given when the deduction arises or m ay be shown to arise.’ Circumstances vary the effect of causes, and the guarded views of men of science are needed to detect and prevent error. Id. 238. Whether, in case of pistol-shot, it was fired near or at a distance, from what direction it came, position of party shot and party shooting. Id. 241, 242, 244. See the case of Dr. Gordon Smith (Id. 244) as indicating the direction, the person firing, and in fact the whole case. Are the wounds self-inflicted, accidental, or the act of another? Id. 246. See the case of Selles, servant of the Duke of Cumberland. Id. 249. I would respectfully ask the attention of the court to the case of Charles Dautun, showing the latitude wisely allowed medical experts, and its vindication in that case. The physician tells what a man will do when struck, where he is likely to be wounded, and how he arrives at the conclusion that two are assaulting, and so on. Id. 251. See the cases of the Earl of Essex and Jane Norkott. Id. 257. In the latter case a knife was found sticking in the floor, point towards the bed. Id. 257. Under the ideas that prevailed in this case, the idea of the knife indicating anything would have been regarded as altogether Utopian. As to the right to prove the relative position of the bodies by this means, see Id. 260, 431. On the same general principle, see Prince de Condé’s case (Id. 431, 438) as to marks of violence. We refer generally to the Mississippi authorities on the subject of experts, viz. : Pitt’s Case, 43 Miss. 472; Knight v'. The State, 43 Me. 11; Jones v. Finch, 8 Geo. 461; The State v. Clark, 12 Ired. L. 151; 6 Ala. 212 ; 69 Pa. 41; New Orleans, Jackson & Great Northern R. Co. v. Britton, 9 Geo. 242 ; Caleb’s Case, 10 Geo. 72. The spots on the front of the shirt indicate the position of the parties mainly. The large blood-mark in the rear indicates that the shoulders were lower than other parts of the body, the running being in the direction of the larger part of the mark.</p> <p>4. The motion for a new trial involves the legality and correctness of all the preceding steps in the case. We respectfully submit that the affidavit of Duncan shows that it is probable that the juror McCarty had formed an opinion in the case before he was selected as one of the jury. If so, this vitiates the verdict. Certainly the guard over the jury was loose, and their conduct irregular — too much so to be relied on or allowed in matters of life and death. 3 How. 27 ; Sam’s Case, 2 Geo. 480. If the purity of the verdict might have been affected, this is enough. 4 How. 27 ; MeCam,s Gase, 9 Smed. & M: 15 ; Caleb’s Gase, 10 Geo. 722 ; Bole’s Gase, 13 Smed. & M. 398 ; Organ’s Gase, 4 Cushm. 78 ; Hood’s Gase, 43 Miss. 364.</p> <p>1. We contend that, on the showing made, the venue should have been changed.</p> <p>The twenty-four witnesses state that they do not know whether there is any prejudice or not. Their opinions were not testimony. It was the province of the judge to decide whether a fair and impartial trial could be had. Nine witnesses stated, — six testifying in the affidavit presented for a change, and three orally, —that there was undue prejudice in the public mind, and that it was caused by some official conduct of the defendant as sheriff of Lee County. There is the affirmative proof of the existence of the prejudice in the public mind. Will it be maintained that this was overcome or even weakened by other witnesses, who stated that they had no knowledge of the question — never heard it discussed ? Is the negative, the inferential, to overcome the affirmative, the positive? The prejudice in the public mind may have existed without being known to the persons who testified. The existence óf the prejudice being established, it was the duty of the court to order a change of venue.</p> <p>We do not interpret the statute in reference to change of venue in criminal cases as remitting the question of a change to the discretion of the circuit judge. Code 1871, sect. 2762. The terms, “ in his discretion,” used in the section, are intended to apply to the county to which the change is made. But if confided to the discretion of the judge, it has been abused in this case.</p> <p>2. There must be an ■ arraignment of the defendant on an indictment in order that the proceedings of trial may be legal, and, before our recent statute curing the defect, the failure of the record to show the arraignment was error. Wilson’s Oase, 42 Miss. 639 ; McQuillan’s Oase, 8 Smed. & M. 587. At common law, the arraignment must be made before the jury are sworn. Under our statute, when the charge is a capital crime, the arraignment must precede the drawing of the special venire. Code 1871, sect. 2759; The Slate v. Hughes, 1 Ala. 655 ; Newsom v .The State, 2 G-a. 60. The arraignment in the case at bar was had after the order for the venire, and after a jury had been selected and sworn.</p> <p>When the defendant was arraigned he was not required to plead to the indictment, but was required to plead guilty or not guilty. He had the legal right to plead to the j urisdiction in abatement, or specially in bar. This was denied, and he was subjected to the alternative of a plea of guilty or not guilty. It may be argued that if the defendant had desired to plead specially, he should have presented his plea and asked the court to pass upon it. When the defendant was arraigned, he protested that the time had passed for this proceeding. “ Discharge your jury, order a new venire, and, at the time of making this order, then demand of me a plea.” The court overruled the demand, and required a plea of guilty or not guilty. To this the defendant excepted, and it would have been a contempt of the court to have offered a special plea in disobedience of its order.</p> <p>3. There was no foundation laid by the testimony for the admission in evidence of the statements made by Helms, the deceased. “It is essential to the admissibility of these declarations, and is a preliminary fact tobe proved, * * * that they were made under a sense of impending death. It is the impression of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the tes-. timony admissible. If there was any expectation or hope of recovery, however slight it may have been,” they are inadmissible. 1 .Greenl. on Ev., sect. 158.</p> <p>the objection to the admission of these declarations may be briefly stated. At the time they were made there was no evidence of the condition of Helms, or his consciousness of that condition. The witness Lawson does not testify to his condition when the statements were made. He does state his condition previously; but that is not evidence that he was in the same state when the declarations were made. And the condition of mind of the deceased, as declared by Lawson, was not sufficient to warrant the admission in evidence of his dying declarations, because it does not appear that there was no hope of recovery.</p> <p>4. As to the testimony of Cherry and Woods that they saw blood on the horse which was ridden by the deceased at the time of the difficulty. Where a substance resembling blood is testified to under the circumstances detailed by Cherry, “ it cannot be presumed to be blood, but must be proved to be such by actual examination,” by chemical tests. “The danger of relying upon mere appearances, unsupported by accompanying circumstances, is obvious.” Burrill on Cir. Ev. 136, 137. If the blood or spots had been found on the horse immediately after the occurrence, and traceable to the subject of the crime itself, then the inference that they were blood might have been permitted to have gone to the jury without any chemical test as to the true character of the spots. But the spots testified to by Cherry were discovered ten hours after the crime, after full opportunity for the spots to have been put there by design.or accident, and after the horse had been ridden nearly twenty miles. We submit that they were not necessarily traceable to the subject of the crime.</p> <p>5. The record shows that the jury had the horse that the deceased was riding on the night he was killed brought up, and they measured him ; and one of them got on him, while another stood on the ground with a knife and experimented. The jury had this done — it was their action. Defendant was not permitted to make his experiments. We submit that the whole proceeding was erroneous.</p> <p>6. The exclusion of the testimony of the experts as to the probable position of appellant and deceased at the time the blood flowed upon the shirt exhibited to the jury was error. The position of the person wearing the shirt at the time the blood-stains were put upon it, and of the object from which the blood came, was not one of common skill and experience. It related peculiarly to the science of surgery and medicine.</p> <p>7. The court erred in permitting the State to reopen the case after the testimony for the defendant had closed, and to reintroduce testimony in rebuttal which had been introduced, and by the same witnesses, before defendant’s evidence was introduced. The defence set up was that the deceased had assaulted the accused with a piece of railing, and that it was found near the scene of the difficulty, and was known by many citizens to have been lying in the road for several months previous. Before this defence had been disclosed, the State proved by several witnesses that they examined and saw no rail or l-ailing. The defence proved there was a rail or railing, and by several witnesses. The State, over the objection of the defendant, was permitted to prove by the identical witnesses that had testified in the opening of the case that there was no rail. This was contrary to law and precedent.</p> <p>8. The jury were not properly guarded and shielded from outside influences.</p> <p>1. The application for change of venue was properly refused. It abundantly appears from the statements of the persons called by the State, who resided in various portions of the county, that there was no such prejudice as claimed. Their statement that they knew of no such prejudice, and had not heard it discussed, is tantamount to a declaration that none such existed.</p> <p>2. The swearing of the jury and the witnesses was done, as appears by the bill of exceptions, before arraignment and plea. This was certainly irregular, and in one case (Hughes v. The /State, 1 Ala. 655) it was held to be a fatal delect. But is this true to the extent stated in that case? If objection had been made at the time, and the court had overruled the objection and forced the accused to proceed, it would have been a ground for reversal. But no objection was made by him to the jury as organized, and none to the witnesses. The only objection made was to the arraignment, which was properly disallowed, as the district attorney had the right to arraign him, for in that way only could an issue be made up for the jury. The defendant should have moved to quash the panel if he desired to object do the jury as organized, or that they be resworn if he wished to object on that score. It must be presumed, therefore, that he waived all objection to the jury because the venire had been drawn, and the jury organized and sworn, before arraignment and plea, and that he also waived objection to the swearing of the witnesses at the time they were sworn.</p> <p>3. There is nothing in the idea that the court compelled the accused to plead guilty or not guilty, thus excluding any other objection or defence he might desire to interpose. His refusal to make any other answer to the indictment than objecting to his arraignment at that time, which was frivolous, amounted to standing mute, and justified the court in entering the plea of not guilty for him. If he had any other defence or answer to make he should have offered it when called on. There is nothing in the bill of exceptions to support the argument that he was prevented from anything but pleading guilty or not guilty.</p> <p>4. As to the point made upon the dying declarations of the deceased, I refer the court to the testimony. The law on this subject is so well understood that no argument can elucidate it. The testimony will, I think, be found to establish fully that they were made by deceased under a sense that he was bound to die.</p> <p>5. The objection to the admission of the statements of witnesses that they found what they supposed to be blood on the horse of the deceased, because it was not shown by chemical examination to be blood, is not supported by the authority cited. The general rule is laid down as contended, but the case before the court comes within the exceptions to if. It was the facts surrounding the circumstance of the spot on the horse which made it competent for the witnesses to express the opinion that it was a blood-spot. Burrill on Cir. Ev. 137.</p> <p>6. As it is not shown that the defendant objected to the jury examining the horse of the deceased and making experiments, he cannot object here. Indeed, it may be presumed that they made the examination, experiments, etc., by the consent and with the cooperation of all concerned. There is nothing to the contrary in the record.</p> <p>7. The testimony of the supposed experts was properly excluded. The proposed testimony was but the opinion of the physicians, and that upon a point not requiring special study to reach. In such case, opinion is not admissible as testimony. The jury were equally competent with the experts to draw conclusions from the facts in testimony as to the position of accused and deceased when the blood was put upon his shirt. 2 Whart. & Stille’s Med. Jur., pt. 2, sect. 1245. The question asked was not one pertinent to medical science, or any other science. A farmer, or merchant, or lawyer, is as capable of answering such a question as the most distinguished physician or surgeon, and when answered, the jury would be none the wiser, inasmuch as they themselves are quite as capable of answering it as the farmer, merchant, lawyer, physician, or surgeon. In short, as the question is not within the domain of any science, and as, in the language of Wharton & Stille, cited above, it would not require special study of a particular abstruse science to reach the conclusions given by, the witnesses (if they had been allowed to testify), the case does not come within the exception to the rule that opinion is not admissible testimony. More learned jargon and technical nonsense seem to have been devoted by the courts and law-writers to the discussion of this question of expert testimony than almost any other, but from the chaos of words, ideas, and illustrations Wharton seems to have formulated the doctrine correctly in the passage cited. Ibid.; Caleb v. The State, 10 Geo. 731. An inspection of the opinion of the court in The State v. Knight, 43 Me. 133, cited by counsel, will show that it is not in point, and no case has been found by me or cited by opposite counsel which would warrant the introduction as testimony of the opinion of a witness, whether a medical expert or not, upon the point here presented.</p> <p>8. None of the other points made are deemed of importance, and I shall not therefore discuss them.</p>

Hon. George Wood, Chancellor, by interchange with Hon. F. A. Critz. B. F. Robertson brought an action of assumpsit, upon an open account, against C. A. Duncan, a married woman, and her husband.

Hon. J. B. Morgan, Chancellor. The case is sufficiently stated in the opinion of the court. The court had no right to decide the cause upon the facts, and decree that complainant had not established the case presented by his bill, when the complainant had previously dismissed his bill before the clerk. The decree should be so modified as not to conclude the complainant or prejudice his rights in any other proceeding.

Hon. J. B. Morgan, Chancellor. W. B. Smith, having a judgment against J. M. Salmon, upon which execution had been issued and returned nulla bona, filed the bill in this cause against J. M. Salmon and his wife, D. Anna W. Salmon, to subject to his judgment certain real property, the legal title to which was in the name of D. Anna W. Salmon.

<p>Error to the Circuit Court of Chickasaw County.</p> <p>Hou. J'. A. Green, Judge.</p> <p>The case is stated in the opinion of the court.</p> <p>1. In the construction of the ag'reement sued upon, I invoke the familiar rule that “ the contract shall be so interpreted as to give effect to the intention of the parties, as far as it is legal and mutually understood.” 2 Story on Con. (5th ed.), sects. 634, 774 ; Nash v. Towne, 5 Wall. 689 ; Quackenboss v. Lansing, 6 Johns. 49. “ The interpretation and construction of a contract shall befavorkble and liberal.” 2 Story on Con., sect. 640. “ Especially is this the case in commercial contracts.” Id., sect. 640b.</p> <p>The assignee of Shaw obtained a judgment against Daniel’s executors for $1,828.46. Only a part of this has been paid, viz., “ less than the sum of $1,200.” It is upon this payment of less than $1,200, and the fact of the recovery of a judgment for $1,828.46 against them, that the defendants in error base their right to recover in this action. Now, it must be remembered that Daniel owed Shaw, at the time of the execution of the writing sued on, $l,901.66f, less the sum of $334.69 .paid to Murdock. Shaw might have called on Daniel the next day for the balance due him. This fact must have been recognized by Murdock and by Thornton, Daniel’s agent, when the writing in suit was executed. What, then, were the intentions of the parties ? Could it have been the intention of Murdock to bind himself to refund the sum of $334.69, if that amount should the next day be demanded by Shaw, and paid by Daniel on his debt of $1,901.66§? Could it have been the intention of Thornton to demand more than that his principal, Daniel, should be secured from future loss by the payment made by him to Murdock?</p> <p>It would have been the merest farce for Murdock to have sued Shaw and garnished Daniel, if upon payment of a like sum he was to refund the money he had collected. It would have been unjust and wicked on the part of Thornton to wish to recover the money back, unless his principal was compelled to pay the whole of his debt to Shaw, and suffered loss by the payment to Murdock. If a payment of a thousand or twelve hundred dollars would justify the claim here sought to be enforced, the payment of the precise amount which Murdock received would be equally as good a reason. Such could not have been the intention of the contracting parties ; and if it was not their intention, the writing sued on will not bear the construction placed upon it by counsel for defendants in error.</p> <p>Again: the rules of construction require a liberal construction of the contract, and yet counsel for defendants in error assert that it is not necessary to show that anything has been paid by Daniel, if a judgment has been obtained against him or his representatives. Suppose that the execution be returned nulla bona; suppose that Daniel or his representatives refuse to pay anything on the judgment and cannot be compelled to do so, would the mere fact of the existence of a judgment against them, which they had refused to pay, authorize them to sue for and recover a sum of money which had been lawfully paid, and which had occasioned no loss to them?</p> <p>The only construction which can be placed upon this contract which will carry out the obvious intention of the parties is, that Murdock intended to hold Daniel harmless and guaranty him against loss by payment of the $334.69, and if the whole amount of his debt of $1,901.66-| should have to be paid by Daniel, without receiving credit for the amount paid him, then he, Murdock, was to “ make that amount good,” but not otherwise. Unless Daniel or his estate suffered some loss or injury by the payment to Murdock, the plaintiffs below are not entitled to recover in this action. The proof shows that neither Daniel nor his executors have had to pay enough of the debt to include the amount of the payment made to Murdock, and therefore there has been no loss or injury by such payment.</p> <p>2. It is alleged that, Shaw being a non-resident and notified by publication, a bond was necessary, under art. 23, p. 379, of the Code of 1857. If the bond was not given, that would not make the judgment invalid. If such bond had been given, it would have been conditioned for the restoration to Shaw of the moneys received, if within a year and a day he should disprove or avoid the debt. It is not alleged that within that time Shaw did appear and disprove or avoid Murdock’s debt. The object of art. 23, p. 379, of the Code of 1857 was to prevent sales without giving the non-resident debtor an opportunity to disprove the claim. Years have elapsed, and Shaw has not appeared to dispute Murdock’s claim. The bond was to be given after judgment and sale, and a sale without such bond would have been utterly void. It is evident that the failure to give the bond cannot affect the judgment. A voluntary payment was made by Daniel’s agent, and an agreement entered into which we have the right to suppose was in lieu of the statutory bond.</p> <p>Murdock could not have had an execution issued upon the judgment in attachment without first having made a bond to refund the money in a certain event, as required by the Kevised Code of 1857, p. 379, art. 23. Murdock, desiring to avoid giving the legal bond, but choosing to make his own contract, gave his receipt for the money, which sum he agreed “to make good to Daniel, in payment of his [Daniel’s] indebtedness, for that amount, to Shaw.”</p> <p>This contract has no such condition in it as, that before Murdock should make good the amount of money he got under it to Daniel, in payment of Daniel’s indebtedness, for that amount, to Shaw, Daniel should have to allege and prove that the money had been forced from him by duress, or had been collected by an execution. If it had been collected by execution, Murdock would have received it from the sheriff, not from Daniel’s agent. Besides, if the money had been collected under execution, Murdock would have had no occasion to make such agreement. The contract was made in consideration that Murdock should not be compelled to give the bond in order to obtain an execution, and thereby collect the money on his judgment. Murdock avoided the form of contract which the law prescribes in such cases, and formulated one which suited himself; and since he declined to pursue the mode pointed out by law for the protection of both plaintiff and defendant, but carved out his own security, he cannot now demand the fruits which a legal course would have brought him.</p> <p>It is objected that the declaration failed to allege that within a year and a day after the rendition of the judgment for $384.69 in favor of Murdock against Shaw, debtor, and Daniel, garnishee, the defendant Shaw came into court and disproved or avoided said judgment. There were no such conditions in the contract which Murdock executed to Daniel at the time Daniel paid over the money. That contract was “that Murdock should make good to T. R. Daniel, in payment of his indebtedness, for that amount, to W, A. Shaw.” What did that mean ? Did it mean that that making good should be within a year and a day, or that the making good to Daniel should depend on Shaw going into court Within a year and a day and setting aside the judgment, or otherwise annulling it?</p> <p>Is it not plain that no such limitation or condition was contemplated, but, on the contrary," that the parties intended, whenever Daniel was called upon to pay this $l,901.66f note, that Murdock was to step forward and make it good to Daniel, by paying the amount which Daniel had paid him under that contract, as so much on Daniel’s indebtedness on the $1,901.66§ note? There was no condition in the contract that Murdock should pay back to Daniel the money which he received from Daniel, upon, condition that Daniel shall first have paid up to Shaw or his assignee the full amount of $l,901.66f. No such language is used, nor any which could legitimately be so construed. That contract contemplated, not that Daniel was to pay the whole amount, or any amount, of the Shaw indebtedness as a condition precedent to Murdock’s liability, but that whenever Daniel’s liability should be fixed on that Shaw indebtedness, then Murdock was to make the amount received by him good to Daniel, bj7 stepping forward and paying that amount on the Shaw debt. It did not contemplate the payment to Daniel, nor did payment by Murdock on the Shaw debt depend upon Daniel ever paying one cent thereon. It depended alone on the contingency of liability being fixed against Daniel on the Shaw indebtedness.</p> <p>It was not'necessary that the declaration should state that Daniel had paid anything on the indebtedness to Shaw. The contract was that Murdock should make the amount he got good to Daniel in a payment of that amount on that indebtedness, and whenever that indebtedness was an established and fixed one by a judgment that rendered Murdock liable, to make the amount he received from Daniel good to Daniel, by payment of that amount on it.</p> <p>In order to create a liability on R. A. Murdock to make good to Daniel the amount of money received by Murdock from him under the contract sued on, it was not necessary that Daniel should have paid off the judgment on the $1,901.661-note. It was sufficient that a judgment was recovered against Daniel’s executors by Shaw or his assignees, rendering the estate of Daniel liable.</p>

Hon. J. W. C. Watson, Judge. This is an action of assumpsit brought by Sina D. Pinson against the “ Holly Springs Savings and Insurance Company,” whose name was changed, pending the litigation, to the “Bank of Holly Springs.” The object of the suit was to recover damages for the refusal of the bank to transfer on its books certain certificates of stock which had been assigned to the plaintiff by B. S. and William Crump.

Hon. J. B. Morgan, Chancellor. The opinion of the court contains a statement of the case-sufficiently full to show the attitude of the question of law presented, in relatipu to the record. The question presented in this case will turn upon what is-the contract implied by law which joint sureties undertake, the one to the other.

Hon. W. G. Phelps, Chancellor. The case is sufficiently stated in the opinion of the court. ' 1.

<p>1. Ejectment. Title by execution sale. Defective return. Proof of proceedings of sale.</p> <p>D., in an action of ejectment against C., adduced in evidence to support his title a sheriff’s deed, reciting that it was made in pursuance of a sale of the land under three executions from different judgments, respectively, against A. He then offered in evidence transcripts in the cases from which the executions issued. The three executions were marked by the sheriff as received on the same day; but on only one of them did the return show the levy upon and sale of the land, the other two being returned as satisfied in full. The defendant objected to the admission in evidence of the transcripts in the two last-mentioned cases, and then the plaintiff proposed to prove that the levy and sale were under all three of the executions, and that the return of “ satisfied in full” on two of them was based upon the sale of the land in controversy. The court sustained the objection. Held, that the plaintiff should have been permitted to prove that the levy and sale were under all three of the executions, as his rights as a purchaser depended upon what was done, and not on. the failure of the sheriff to return a correct statement of it; and the evidence-proposed was not inconsistent with the return made.</p> <p>2. Same. Sheriff’s deed. Prima facie evidence of regularity.</p> <p>In an action of ejectment by the purchaser at a sheriff’s sale under execution,, the sheriff’s deed of the land sued for to the plaintiff is prima facie evidence that everything required by law to be done in the proper exercise of the-power of sale conferred on the sheriff by the judgment and execution was. done.</p> <p>3. Judicial Sale. Not within legal hours. Objection waived.</p> <p>A sale under execution cannot be avoided by one claiming as the grantee of the-execution debtor, by a deed made prior to such sale, on the ground that the sale was made before eleven o’clock A. M. of the day, the time fixed by law as-the earliest hour for the commencement of such sales, where the debtor and his grantee, being present at the sale, forbid it being male on other grounds, but made no objection as to the hour of the day.</p> <p>4. Lien. As between judgment and unrecorded deed. Notice to judgment creditor. Effect as to assignee.</p> <p>An unrecorded deed to lands takes precedence of a judgment as against the judgment creditor, if, before the recovery of his judgment, he has actual notice of the conveyance by the debtor; but the assignee of such judgment, who buys without notice that his assignor had notice before the rendition of the judgment of the unrecorded conveyance, is not affected by the notice to his assignor.</p> <p>5. Assignment. Chose in action. Rights of assignee. Equities.</p> <p>The assignee of a chose in action takes it subject to all of the equities to which dt was subject in the hands of the assignor; but the equities meant are such as-obtain in favor of the debtor, and not those claimed by a third person against the assignor.</p> <p>6. Purchaser. At execution sale. Right to notice by registration.</p> <p>The purchaser at an execution sale is entitled, to the same extent as any other purchaser, to the benefit of the statute requiring instruments affecting the title to land to be registered.</p> <p>7. Judicial Sale. Under three executions. One invalid. Creditor purchasing. Effect.</p> <p>Where the owner of three judgments against one party, one of which is not a lien on the debtor’s property as against a grantee thereof, causes executions to be issued from all of them, and, at a sale of the debtor’s property thereunder, purchases the same, such sale is valid only so far as necessary to satisfy the judgments which bind the property; andas to the property sold to satisfy the other judgment, it vests no title in the purchaser.</p>

U. M. Young, Judge of the Eleventh Judicial District, on habeas corpus. The case is stated in the opinion of the court. 1. Has a State, or a municipal corporation under its direction and authority, the right to impose and collect a tax, for purposes of revenue, upon the business or calling of a drummer or commercial agent, prosecuted within the limits of the one or the other?

Hon. A. B. Fly, Chancellor. On the first day of January, 1867, the treasurer of Tippah County, as trustee in a deed of trust given by L. S. Holcombe to secure a promissory note for money borrowed from the school fund of that county, sold a certain tract of land at public vendue, and the same was bought by Moso McCarley, who gave his promissory note for the purchase-money, and executed to the treasurer a deed of trust on the land bought at such sale, to secure the note.

Hon. J. W. C. Watson, Judge. The cuse is stated in the opinion of the court. 1. The verdict of the jury was against the evidence. The character of the appellant’s entry upon and possession of the land can only be determined by the subsequent acts and declarations of himself and his father.

Hon. Samuel Powell, Judge. On the 9th of December, 1880, Ira D. Oglesby, district attorney for the Third Judicial District, filed a petition in the Circuit Court of Tunica County for a mandamus to compel the commissioners of election in that county to reassemble and recanvass the returns made to them by the inspectors of election of the votes cast at the election on the 2d of November, 1880, for a member of Congress for the Sixth Congressional District, and to make a…

Motion in Supreme Court. The character and ground of the motion are stated in the opinion of the court. “ The first day of each term, or the day designated by law or by order of the court for taking up the docket of a district, shall be the return-day.” Code 1880, sect. 1402.

Hon. J. W. C. Watson, Judge. This is an action of ejectment, brought on the 11th of November, 1879, by Melissa McLemore and others against the Chicago, St. Louis, aud New Orleans Railroad Company, to recover “lot No. 2, in block J, in tbe city of Water Valley.” The judgment was for the defendant, and the plaintiffs sued out a writ of error.

Hon. R. W. Williamson, Chancellor, presiding, in place of Hon. J. B. Morgan. Held: that although the life of the tenant for life had determined, as in this ease, yet the transaction was fixed from the day of sale, and that the share of each was to be determined by the life-tables, notwithstanding the life-tenant was already dead.

<p>1. Limitation of Action's. Death of debtor. No administration.</p> <p>A debt due, but not barred by the Statute of Limitations, at the time of the death of the debtor, cannot, after his death, be barred by such statute before letters of administration or of executorship have been granted upon his estate.</p> <p>2. Res Adjtoicata. Suit by trustee and by eestai que trust. Case in judgment.</p> <p>S. purchased a tract of land with money belonging to her children, but took the title in her own name. She then sold the land to K., giving a bond for title, and receiving a part of the purchase-money, the balance to be paid in twelve months. K. failed to make the deferred payment, and S. conveyed the land in trust to B. for her children, in consideration of her indebtedness to them. Thereupon B. filed a bill in chancery to subject the land to the payment of the unpaid purchase-money. A demurrer to the bill was sustained and the suit dismissed, and no appeal was taken in that case. Subsequently a bill was filed by the children of S., seeking substantially the same relief as was sought in the other case. A demurrer to this bill was sustained, and the complainants appealed. It is contended by the appellees that the matters of this suit are res adju lioata. The complainants in the latter bill were no.t parties to the former suit. And the conveyance by S. to B. made no mention of the debt for the purchase-money still due on this land. Held, that B. has no interest, beneficial or technical, in such debt, and no right to collect it; and his unauthorized and unsuccessful attempt to collect the same by a proceeding to which the appellants were not parties did not bind them, nor in any manner affect their right to bring this suit.</p>

Hon. Samuel Powell, Judge. This action was brought by A. L. Blackbourn against Mrs. M. J. Cocke, on a sealed note, or bill single, given by her to him, as therein recited “ in payment of his stock of merchandise.” The defendant filed a plea to the effect that at the time of the execution of the bill single it was verbally agreed between the parties, as a part of the contract thereof, that the plaintiff would buy goods from the store of the defendant to the amount of said…

Hon.,A. Gf. Mayers, Judge. The case is stated in the opinion of the court. The case of Klein v. Supervisors, 51 Miss. 878, expressly decides that “ the statute giving the right to sue a county does not embrace claims that have been allowed and warrants issued.” See also Green v. The State, 53 Miss. 148. This so-called warrant was and is open to all defences that the county might have against the plaintiff.

Hon. E. Gr. Peyton, Chancellor. The case is stated in the opinion of the court. It is to be observed that the complainant does not base her claim to relief on the ground that the $5,400 note or its proceeds was applied to existing indebtedness'of her son|instead of to future advances for him, but on the ground that she was to get the $1,441 note, and it was never transferred to her.

Hon. J. B. Chrisman, Judge. .In 1855, Lewis H. Bryant, being seized and possessed of certain lands, died, leaving a widow and several minor children.

Hon. J. B. Chrisman, Judge. The case is sufficiently stated in the opinion of the court. Sect. 316 of the Code of 1871 was designed to give relief to sureties on official bonds, and should be so construed as to carry out the purpose for which it was enacted. How can this be done?

Hon. H. S. Van Eaton, Chancellor. The case is stated in the opinion of the court.

Hon. S. S. Calhoon, Judge. This action was brought by Mrs. Frances C. Vaughn against Thomas L. Fairchild, Bud Higdon, and A. B. Beesly, upon a bond given by Fairchild as a claimant in an attachment suit wherein Mrs. Vaughn was the plaintiff and Columbus Rials the defendant. Higdon and Beesly were the sureties on the bond.

Motion in Supreme Court. The object and the ground of the motion are stated in the opinion of the court. 1 submit that this motion cannot be entertained. The offence against the State has been pardoned, and this entirely effaced the penalty and the guilt. Jones v. Board of Registration, 56 Miss. 768. The offender is as innocent in the eye of the law as if he had never committed any offence. Jones v. Board of Registration, 56 Miss. 769.

Hon. B. F. Trimble, Judge. H. Krosmopolsld sued out a writ of replevin against A. J. Paxton for four bales of cotton. The return on the writ showed that the officer had seized one bale of the cotton, but had failed to find the other three bales. Thereupon the plaintiff filed a declaration, containing two counts, the first being in the usual form in replevin for the one bale seized, and the second being for the value of the three bales not found.

Hon. T. B. Graham, Chancellor. In 1857, a certain tract of land was conveyed to George T. Allen and his wife, Eliza C. Allen, jointly, in consideration of a certain sum of money paid to the grantor by George T. Allen. In 1872, Allen and wife sold and conveyed the land to Napoleon Tate, who executed to them jointly his three promissory notes for the purchase-money. Some time thereafter Tate died, without having paid his notes. In 1874, George T. Allen also died.

Motion in Supreme Court. ■ The appellee made u motion to dismiss the appeal in this ease on the ground that no appeal-bond had been executed by the appellants. The sureties on the bond of an executor or administrator are not liable for the costs of a final settlement of the estate, when such costs are adjudged against him personally. Code 1871, - sects. 1118, 1176; Code 1880, sects. 2377-2379; Williamson v. Childress, 26 Miss. 328 ; Prosser v. Yerby, JSxrx., 1 How. 87. It.

Motion in Supreme Court. 'L'he appellee moved to dismiss the appeal in this case on the ground that the paper in the record purporting to be an appeal-bond is not signed by the number of sureties required by the statute. I submit that R. S. Hudson, being an appellant, cannot become a surety for the other appellants. The requirements of the statute must be mot in all appeals to this court. It is by virtue of the statute that the right of appeal exists.

Hon. S. S. Calhoon, Judge. On the 5th of May, 1879, C. C. Parkman, a country merchant, executed a deed of trust to E. E. Baldwin, as trustee, for Bickham & Moore, merchants in New Orleans, to secure the payment of four promissory notes given by Parkman to Bickham & Moore on the 15th of April, 1879, and payable at different dates between the 15th of October, 1879, and the 15th of January, 1880, for the aggregate sum of about $16,000.

Hon. George Wood, Chancellor. The case is stated in the opinion of the court. We insist that both parties, by the bill and the answer, seek to abide by the deed audits covenants. The parties submit themselves to be bound by the deed. Neither can claim by it and against it. By the deed, Mrs. Waters binds herself to pay to Amare his debt, and grants a rent-charge for life to Mrs. Bossel — an annual payment of $300, in monthly payments.

Hon. E. Gf. Peyton, Chancellor. The case is sufficiently stated in the opinion of the court. ' 1. We insist that this injunction should be retained until the final hearing of the cause, so that the amount due on the deed of trust may be ascertained and fixed by the court, and an opportunity given the complainants to pay it off.

<p>Attormy-at-Law. Services under■ appointment of court in criminal case. Compensation.</p> <p>An attorney-at-law is not entitled to charge and recover from a county compensation for services rendered by him therein in defending, under the appointment of the Circuit Court, a person indicted for a capital crime and unable to employ counsel.</p>

Hon. T. B. Graham, Chancellor. The case is sufficiently stated in the opinion of the court. 1. The power of M. M. Stokes, as executor, over the estate devised must be determined ,by the intent of the testatrix.

Hon. R. W. Williamson, Chancellor. By an act of the Legislature of this State, approved April 6, 1874, a new county was created, and called Sumner.

Court of Washington County. Hon. B. F. Trimble, Judge. This action was brought against L. P. M. Watkins and his sureties on his official bond as clerk of the Circuit Court of Washington County, to recover for the use of W. S. Chew, damages resulting from the failure of Watkins, as such clerk, to record, as required by sect. 833 of the Code of 1871, the abstract of a judgment obtained in Issaquena County by Chew against James H. Buckner.

<p>Appeal from the Chancery Court of Issaquena County.</p> <p>Hon. W. G. Phelps, Chancellor.</p> <p>The case is stated in the opinion of the court.</p> <p>It is conceded that complainant’s tax-title was invalid. To say nothing of the other objections, the fact that the taxes •were levied at an improper time rendered the sale illegal. It was, therefore, proper not to confirm the title. But complainant was entitled to a decree for the amount paid by him. Assuming that the land was sold to the levee board at the time stated, the defendants are not in a position to rely upon the fact of that sale. But there was no sale to the levee board under which any title was acquired. The act of 1867 required the sale to be made on the second Monday in May. Acts 1867, p. 239, sect. 3. The second Monday in May, 1869, was the tenth day of the month. The sale was made to the levee board May 18, 1869. The sale was void for this error. McGhee v. Martin, 53 Miss. 519 ; Harkreader v. Glayton, 56 Miss. 383.</p> <p>The land was assessed to H. W. Peebles, the ancestor of defendants, and through whom they derive title. Thej' were in possession of the land at and before sale, enjoying the rents and profits, and have been all the time. This estops them from setting up the fact that the land was sold to the levee board.</p> <p>The chancellor erred in holding that the land could not be sold because held by the board. He should have entered a decree for the full amount of legal taxes paid out by complainant, with damages, according to sect. 1718 of the Code of 1871. Cogburn v. Hunt, 57 Miss. 681.</p> <p>I. do not deny the proposition that a sale made on the wrong-day would be void, but do deny that the 18th of May was the wrong day for the sale of the land in controversy to the Board of Levee Commissioners. The law provided for the sales to begin on the second Monday in May, and it was made the duty of the sheriff to continue the sales from day to day until the lands were all sold. It is a fair presumption that the officer did his duty in the premises.</p> <p>.1 insist that the chancellor did not err in his construction of the acts of 1858 and 1867. Sect. 13 of the latter (p. 246) provides in the plainest terms that all lauds acquired by the levee board shall be exempt from taxation until sold or disposed of by the board. See Gibbs <& Hemingway v. Green, 54 Miss. 592.</p> <p>If it be true, as I contend, that the lands, while held by the commissioners, were exempt from taxation, then the sale to Mayer was absolutely void for all purposes, and the decision in Oogburn v. Hunt, 57 Miss. 682, can have no possible application.</p> <p>I contend that the complainant had no lien upon the lands for the pretended taxes alleged to have been paid by him. Reference to the record shows that the lands in controversy were, .on the eighteenth day of May, 1869, sold by the sheriff and tax-collector of Issaquena County to the Board of Levee Commissioners, commonly known as the “five-cent liquidating levee board ; ” and, so far as appears from the testimony in this cause, all of said lands are still held by said five-cent liquidating levee board, except lots 5 and 6 of section 32, township 9, range 8 west, which were, on the eighteenth day of December, 1872, purchased by the defendants from the levee board.</p> <p>There can be no question that lauds, while held bj^ the Board of Liquidating Levee Commissioners, are entirely exempt and freed from State, county, and all other taxes, except the liquidating levee-tax of five cents per acre, after the period for redemption expires. Vide sect. 13 of the act of February 13, 1867 ; Acts 1866-7, p. 246. The purchaser of lands thus held, at a sale for State and county taxes, could acquire no title and no lien for his money paid out.</p>

Samuel Powell, Judge of the Third Judicial District, appointing a receiver. This case comes up on an appeal from the order of the circuit judge appointing, in vacatiou, a receiver in a case pending in the Chancery Court of one of the counties of his district. The application was made to the circuit judge on the ground that the chancellor was disqualified to consider the same, he having been of counsel for the complainant before his elevation to the bench.

Hon. B. F. Trtmble, Judge. Alex. Hightower, indicted for burglary, was put upon his trial, and E. Frankel, a witness for the State, and the owner of the house which had been broken open, testified that in the examination of the charge before the committing magistrate the accused confessed his participation in the crime, and the witness stated his recollection of the language used in the confession .

Hon. U. M. Young, Judge. The case is stated in the opinion of the court. The question at the root of the controversy is, did the court below properly interpret the return on the subpoena in the foreclosure suit? The sheriff, by the writ, was required to summon the defendants to be and appear, and he returns that he has £ £ executed ” the process.

<p>Appeal from the Circuit Court of Attala County.</p> <p>Hon. S. S. Calhoon, Judge, presiding in place of Hon. C. H. Campbell.</p> <p>The appellants brought this action of ejectment to recover a ■certain tract of land formerly the property of their great-grandfather, Richard Ross, who died in 1847. Their right to recover depends upon the construction of the last will and testament of their ancestor, Richard Ross. The provisions of his will are sufficiently stated in- the opinion of the court. The judge presiding on the trial below construed the will so as to defeat the claim of the plaintiffs, and from the judgment against them they appealed to this court.</p> <p>I contend that at the time the will went into effect, —to wit, August, 1847, the time of the death of the testator, — the character of the demise was not repugnant to the statutes of the State. Hutch. Code, p. 609, sect. 24; p. 610, sects. 26, 27. It was clearly the intention of the testator that the grandchildren named in the will should only take a life-estate in the property demised, the fee to go to the heirs of their bodies ; and where that intention is clearly expressed in the will, and is not repugnant to the laws of the State, the court will see that intention carried out. In the construction of wills, the main object is to ascertain the intention of the testator. Sorsby v. Vance, 7 Ga. 564. On the same subject, see also 10 Smed. & M. 150 ; 6 Ga. 473; 10 Ga. 196 ; 7 Ga. 358; 40 Miss. 729.</p> <p>It is manifest that the testator meant to give his four grandchildren an estate for life in their respective portions of the lands, and negroes alloted to each, with remainder to the heirs of their bodies. The context shows that the estates sought to be created by the will do not essentially differ fro,m this : an estate for life to each of the four grandchildren, remainder to the heirs of their bodies. The law declares what sort of estate is thus created. The words, “ in trust only,” cannot materially change the limitation. If trustees at all, the grandchildren were yet not required to account for rents, issues, and profits. As trustees, they had nothing to do. They had their several parts allotted to them, which they held during their lives by the terms of the will, the remainder to the heirs of their bodies. See I)ott v. Gunnington, 1 Bay, 453 ; Polk v. Faris, 9 Yerg. 209 ; Horne v. Lyeth, 4 Har. & J. 431. Under the rule in Shelley’s case, the first takers took the whole estate. 4 Kent’s Comm. 215, 228, 229.</p>

• Appeal from the Circuit Court of Lauderdale County. • Hon. J. S. Hamm, Judge. W. H. Jackson sued the Alabama Great Southern Railroad Company in the Circuit Court of Lauderdale County for several thousand dollars. The defendant pleaded to the action, but before the trial of the case presented a petition for its removal to the United States Circuit Court for the Southern District of Mississippi.

Hon. J. B. Morgan, Chancellor. Julia Gr. Coffee, as guardian of certain minors, filed a bill in chancery against Isaac L. McKee, alleging substantially these facts: McKee, as sheriff and tax-collector, sold certain described lands belonging to the complainant’s wards for the-taxes due thereon for the year 1877, and he himself became the purchaser thereof.

Hon. J. B. Morgan, Chancellor. In pursuance of au order of the Probate Court, made in July, 1863, under an act of the Legislature approved August 2, 1861, George G. Harvey, as guardian of Martha J.… Held: in 56 Miss. 578, that the order of the Probate Court directing the investment in Confederate bonds was a nullity, and that the administrator of the deceased guardian was chargeable with the money thus invested and lost.

<p>Appeal from the Circuit Court of Lauderdale County.</p> <p>Hon. J. S. Hamm, Judge.</p> <p>E. Lockard brought this action of ejectment on the 30th of July, 1880, against H. P. Rushing, to recover a certain tract of land claimed by the plaintiff by virtue of a sale of the land on the 5th of August, 1878, under executions upon two judgments, and the conveyance of the title in pursuance thereof to the purchaser, J. W. Fewell, who conveyed the same to the plaintiff. One of the judgments was in favor of J. D. Bryant and the other in favor of B. D. Moffat, but both being against C. E. Rushing. They were rendered in February, 1877. Lockard and H. P. Rushing, the parties to the action of ejectment, both claimed title from C. E. Rushing. H. P. Rushing claimed under a deed from C. E. Rushing, dated the 31st of July, 1875; but on the 15th of June, 1878, Moffat obtained a decree in chancery against C. E. and H. P. Rushing, declaring that deed to be fraudulent and void as to Moffat, and that the land was subject to sale under execution for the satisfaction of his judgment. On the fifth day of August, 1878, an appeal, with supersedeas, was taken from that decree to this court; which appeal was dismissed on the 10th of May, 1879, for want of prosecution.</p> <p>The judgment-roll of the county in which Moffat’s judgment was recovered showed the enrolment of a judgment in favor of B. D. Moffat & Co. against C. E. Rushing, rendered on the 26th of February, 1877, instead of a judgment in favor of B. D. Moffat against C. E. Rushing, rendered on the 27th of Februai’y, 1877, as appeared by the authenticated copy of the original judgment relied upon by the plaintiff. The execution upon the Moffat judgment and the sheriff’s deed also referred to the rendition of the judgment as on the 26th of February, 1877.</p> <p>All of the facts above set forth, as well as many others, a statement of which will be found in the opinion of the court, were proven in evidence on the trial of this case. The defendant demurred to the evidence; the demui’rer was overruled,. and he appealed to this court.</p> <p>There was a variance between the judgment of Moffat, introduced by the plaintiff, and the execution under which his vendor purchased. The judgment offered in evidence was in favor of B. D. Moffat, rendered on the twenty-seventh day of February, 1877. The execution, on its face, shows it was issued under a judgmeut rendered on the twenty-sixth day of ■February, 1877. Moreover, the sheriff’s deed to Fewell recites that it was made under a judgment in favor of Moffat rendered on February 26, 1877. Clearly, the plaintiff, to prove his title, was required to produce not only the execution and sheriff’s deed, but a certified copy of the judgment. Kane v. Machín, 9 Smed. & M. 387; Bledsoe v. Little, 4 How. 13. And the judgment offered in evidence in support of the execution and sale must be the judgment under which the execution was issued, and connect itself with and correspond to the execution.</p> <p>There was a still wider variance between the judgment introduced in evidence and the enrolled judgment. The plaintiffs’ names were different: in one, B. D. Moffat; in the other, B. D. Moffat & Co.</p> <p>The title seems to me to be perfect. The discrepancy of dates and names in the judgment-roll is immaterial. As the case now appears, there was no necessity for introducing the judgment of A. D. Bryant, but it cannot be considered as anything more than surplusage. One valid ■execution authorized the sale. The judgment of Moffat was, quoad these lands, binding on Horace P. Rushing, for he was a party to the chancery proceeding in which his claim thereto was held void as to Moffat.</p> <p>1. The conveyance from C. E. to H. P. Rushing being void as to creditors, it was competent to levy upon the land under the judgments and sell it. H. P. Rushing was a party to the decree declaring that conveyance void.</p> <p>2. The variance by which the judgment of B. D. Moffat was enrolled in the name of B. D. Moffat & Co. was immaterial. But it was competent to show by parol the clerical error in ■enrolling the judgment, as to the name of the plaintiff, and also the clerical error in the execution, in referring to the date ■of the judgment. There was, however, no necessity to introduce the judgment-roll in evidence. Marsh v. Mandeville, 28 Miss. 122.</p>

Hon. Lafayette Haughton, Chancellor. On the fifteenth day of June, 1877, John Holliday and M. P. Edde each recovered a judgment in the Circuit Court against S. M. Johnson. Holliday’s judgment was entered on the minutes of the court first, and enrolled on the judgment-roll first. On the 21st of December, 1877, Mrs. E. J. Johnson, wife of S. M. Johnson, bought Holliday’s judgment and took a transfer thereof to herself. In April, 1878, S. M..

Hon. J. B. Morgan, Chancellor. The case is sufficiently stated in the opinion of the court. The complainants in their bill allege that they were wholly ignorant of the existence of any deed from A. S. Brown to-his wife, conveying the lands mortgaged to them ; otherwise, they would not have cancelled the first trust-deed, nor would they have surrendered “the said note and account which it secured.” This allegation is not denied in the answer, except arguendo.

Hon. Samuel Powell, Judge. The case is sufficiently stated in the opinion of the court. 1. The fifth charge for the State is objectionable because it-fixes a period of time at which the finding of stolen property in defendant’s possession is conclusive evidence of his guilt. We understand the principle of law to be, that no time has-been or can be fixed within which the finding of stolen property in the possession of another can be said to be conclusive evidence of his guilt.

Hon. W. Gr. Phelps, Chancellor. On the 17th of January, 1868, in consideration of natural love and affection, A. D. Leach conveyed by deed a certain tract of land to his daughter, Mary A. Leach; and on the-same day, and upon asimilar consideration, he conveyed another tract of land to his son, J. D. Leach. On the 28th of February, 1872, he conveyed a certain other tract of land to Laura M. Rice, for the nominal consideration of $1,600.

Hon. E. G. Peyton, Chancellor. The case is stated in the opinion of the court. Held: as to creditors or purchasers for value, that the wife had given the income to the husband, because of the lapse of time. Even this may be-questioned. Allen v. Miles, 7 Geo. 640.

Hon. J. B. Morgan, Chancellor. The case is stated in the opinion of the court. If the complainant is seeking relief by virtue of his rights as assignee of Mrs. Newberger’s claim against the defendant, his case cannot be maintained. In the first place, there was no assignment to Countiss of any such claim, and no intention to make such assignment; and there was no claim to be assigned.

Hon. U. M. Young, Judge. Charles E. Furlong, having been appointed by the governor to the office of sheriff of Warren County, gave his official bond, dated the 31st of January, 1871, with J. A. Klein, George M. Klein, Harper P. Hunt, and Alexander Kuhn, as his sureties.

<p>Appeal from the Circuit Court of Grenada County.</p> <p>Hon. Samuel Powell, Judge.</p> <p>The case is sufficiently stated in the opinion of the court.</p> <p>The first charge for the State is clearly erroneous in several particulars: (1) The statement that “the question of how much it would require to produce intoxication should not be considered by the jury ” is certainly error. 6 Cent. L. J. 376. Again : (2) this instruction states it to the jury as a fact, that “ mixing tonics — as, barks —into (?) it” (the compound) is “ an evasion or subterfuge.” The language is : “ The evasion or subterfuge, such as mixing,” etc.; clearly stating that such mixing is an evasion — a question for the jury, not for the court. The second charge for the State distinctly informs the jury that although the proof may satisfy them that “ Home Bitters” is a “ medicine,” yet they must convict; that is to say, a party may be indicted or convicted of retailing vinous or spirituous liquors, etc., where the proof is that the thing sold was medicine, and not vinous or spirituous liquors at all. This is ridiculous.</p> <p>It is manifest that the refusal of instructions asked by the defendants controlled the jury. They had no discretion left; they did just what' the instructions given required them to do — convicted.</p> <p>There is a case ( Carman v. The State, 18 Ind. 450) in which the doctrine is announced, with all apparent gravity,' that the “ court judicially know whiskey to be an intoxicating liquor.” In this case “the court” went a step further, and judicially announced “ Home Stomach Bitters ” to be intoxicating liquor. We are not content with this announcement, and insist (1) that the instructions are clearly wrong; and (2) that the proof was not' sufficient to authorize the verdict.</p> <p>This case is an important one. The stuff sold is a vile imposition if it be considered as a medicine, and a miserable subterfuge and evasion of the liquor-laws if it be regarded as an alcoholic- beverage. If it be the latter, the traffic in it should be broken up.</p> <p>The sole question in this case is, whether or not the defendants unlawfully sold vinous and spirituous liquors. That they were ignorant of the nature of the substance sold, or may have believed it to be medicine, is not of the slightest consequence. The Commonwealth v. Warren, 9 Allen, 490. It is a very common thing for devices to be resorted to to evade liquor-laws. We frequently see liquors advertised with the most harmless names, as “bitters,” “tonics,” “alteratives,” “ cordials,” etc. 2 Whart. Cr. Law, 2443. But if the view which I take of our statutes on the subject be correct, it is impossible to evade them by any device whatsoever.</p> <p>It is claimed that while the appellants could not have sold the whiskey contained in the bitters separately, by mixing other substances with it they could sell it with impunity. Whether mixed or not with other substances, they were selling vinous and spirituous liquors contrary to the statute.</p> <p>• I sincerely hope that this case may be affirmed, since it would remove one of the crying evils now afflicting the State.</p>

Hon. Samuel Powell, Judge. John Wood was indicted for, and convicted of, the crime of buggery. He appealed to this court, and assigned for error, (1) that the court below refused to permit his witnesses — his father, mother, and others intimately acquainted with him — to give in evidence their opinions to the effect that he was imbecile and idiotic ; and (2) that the court declined to grant the motion for a new trial'. 1.

Motion in Supreme Court. The character and purpose of the motion are stated in the opinion of the court. 1. No objection having been made in the court below in reference to the indictment, none such can be made here ; and therefore it is of no consequence that the transcript contains no copy of the indictment. Code 1871, sect. 2884; Acts 1878, p. 200. 2.

Hon. J. A. Green, Judge. A. L. Reese executed to W. B. McPherson what was intended to be a deed of conveyance of certain land, with a general warranty of title. The latter conveyed the land to W. W. McPherson, who conveyed the same, with a general warranty, to E. S. Stewart.

Hon. E. G. Peyton, Chancellor. Upon a bill filed on the 19th of November, 1878, by E. F. McDuff against Hamilton Moody and Mary A. Mitchell, adults, and Samuel and Littleberry Moody, minors, a final decree was rendered on the 16th of January, 1879, against the defendants, all of whom appealed to this court. The other facts of the case are stated in the opinion of the court. 1.

Hon. F. A. Critz, Chancellor. At a sale for taxes in Chickasaw County in 1873, McDuffie Greene bought a tract of land lying in Clay County, having been by mistake assessed in the former county, and at the time and in the manner provided by the statute received a deed thereto from the tax-collector. On the first Monday of March, 1878, the same land was sold in Clay County for the taxes of 1877 due thereon, and was bought by R. H. Shotwell.

Hon. J. M. Arnold, Judge. About the 1st of January, 1879, P. W. Tucker verbally rented to John Evans a certain .tract of land for that year, for four bales of cotton. On the ,18th of February, 1879, Tucker died. On the 24th of February, 1879, T. M. Tucker, a brother of the deceased, induced Evans to enter into a written contract to pay the rent of the land to him.

Hon. Samuel Powell, Judge. The case is stated in the opinion of the court. The debts of a minor, not for necessaries, are not legal debts at all. Smith v. Mayo, 9 Mass. 62 ; Allen v. Poole, 54 Miss. 331. Was the deed made, by Edmunds to his daughter, the appellant, for the express purpose of disaffirming his minority debts (debts not for necessaries), a sufficient disaffirmance?

<p>1.Murder. Under seat. %628, Code of 1871. At common law.</p> <p>The first clause of sect. 2628 of the Code of 1871, which provides that “the killing of a human being without the authority of law shall be murder, when with a deliberate design to effect the death of the person killed, or of any human being,” does not alter the common law so as to limit murder to killing with “express malice,” but murder is still, under that clause, the unlawful killing of a human being with malice, express or implied; and malice is implied from any intentional killing which the law does not make justifiable or excusable.</p> <p>2. Same. “Malice aforethought.” “Deliberate design.” Meanings thereof.</p> <p>The words “malice aforethought,” a3 used at common law, mean the same as the words “premeditated design,” used in defining murder in the act of February 15, 1839 (Hutch. Code, 954), and as the words” deliberate design,” employed in the Codes of 1857 and 1871 in defining murder. The act of 1839 defining murder having been three times reenacted since it was interpreted in McDaniel v. The State, 8 Smed. & M. 401, that interpretation must be held to have been approved and adopted with the act.</p> <p>3. Same. “ Deliberate design.” Bow formed. When presumed.</p> <p>A “ deliberate design ” to effect death, as meant in our statute defining murder, may be formed suddenly; and the use of a deadly weapon to kill is presumptive evidence of such design.</p> <p>4. Same. Presumptions. Innocence. Use of deadly weapon. Evidence. Effect.</p> <p>Where one is accused of murder, the law presumes him to be innocent until the contrary is made to appear; but if it be shown that he killed the deceased with a deadly weapon, the general presumption of innocence yields to the specific proof, and the law infers that the killing, if unexplained, was malicious, and therefore murder; but if the attendant circumstances be shown in evidence, by the State or the accused, the character of the killing is to be determined by considering them; and if, upon a consideration of all of the evidence, the jury trying the case are not satisfied, to the exclusion of every reasonable doubt, they should not convict. McDaniel v. The State, 8 Smed. & M. 401, approved: Head v.The State, and Evans v. The State, 44 Miss. 731, 762, partially overruled.</p> <p>6. Same. En'or in instruction. When ground of reversal.</p> <p>Where, in the trial of a criminal case, the court, in instructions given for the State, commits an error prejudicial to the accused, and he is convicted, the judgment must be reversed, on appeal, unless it clearly appears that such error was corrected and cured by instruction for the accused.</p> <p>6. Same. Presumption. Evidence. Instruction.</p> <p>An instruction, in a trial for murder, which states, in effect, that if the proof shows the killing .in certain named circumstances, the law presumes it to have been murder, and that it devolves upon the accused to show the circumstances which will excuse his act, is erroneous, when not coupled with the charge that such circumstances may be made to appear as well by the evidence for the State as by that of the accused.</p> <p>7. Same. Presumption of malice. Evidence to rebut. Instruction.</p> <p>An instruction, in the trial of one indicted for murder, which suggests or requires, that after proof of the killing with a deadly weapon, the accused, in order to rebut the presumption arising therefrom, must show to the satisfaction of the jury that the killing was not malicious, is erroneous.</p>

. Hon. J. W. C. Watson, Judge. A commission appointed by the Board of Supervisors of Lafayette County, upon a petition of citizens of that county, to select a site for the erection of a free public bridge over the Tallahatchie River, selected a place where a public ferry was kept, known as Tobatubby’s Ferry, at which the river intersected a public highway.

Hon. H. S. Van Eaton, Chancellor. • The case is stated in the opinion of the court. It is perfectly clear that the complainant has a mortgage lien for the security and payment of the note mentioned in the bill of complainant, and the court erred in sustaining the demurrer and dismissing the bill. See Hutch. Code, 675, sect. 3, art. 8; Bey. Code 1857, p. 463, art. 152; p. 446, art. 90; Bev.

Hon. H. S. Van Eaton, Chancellor. The bill in this case was filed in January, 1881, by Belle E. Majors and her two minor children, against Thomas J. Majors, alleging substantially the following facts: Belle E. Majors was married to John N. Majors in 1871, and they resided upon his place, known as the “ Mayberry place,” “until the year 1873,” when they moved “temporarily” to her plantation, “ with the intention of returning to his Mayberry place in the year 1875.” On the 4th…

Hon. J. S. Hamm, Judge. From a judgment in ejectment in favor of the plaintiff therein, the Board of Supervisors of Hancock County, the defendant, William J. Poitevent, took an appeal. The other facts of the case presented by the record are stated in the opinion of the court.

Motion in Supreme Court. On the thirtieth day of June, 1880, O. A. Bowen presented to the Hon. J. A. Green, circuit judge of the First Judicial District, an information in the nature of a quo warranto against H. S. Gilleylen, to test the right of the latter to exercise the functions of clerk of the Chancery Court of Monroe County.

Hon. J. B. Chrisman, Judge. In 1835, Samuel Burrus became the owner of a certain tract of land. In 1840 it was sold under an execution against him, and bought by T. H. McDowell, who in 1849 conveyed the same to Richard Bates, with a general warranty. Richard Bates conveyed the land to his son, A. J. Bates, in 1867.

Hon. J. M. Arnold, Judge. The case is stated in the opinion of the court. Are the appellants entitled to recover upon their contract with the Board of Supervisors? Such board, after making a contract, has the power to change or modify it. Benton County v. Patrick, 54 Miss. 240. And after the contract has been made, a change or modification may be ratified by the board, if beneficial to the county. Carroll v. Tishomingo County, 28 Miss. 38, 49.

Hon. A. G. Mayebs, Judge. J. E. Boone and F. E. Boone brought an action against J. B. Boone upon a promissory note made by him.

Scibe Facias in Supreme Court. The character of the proceeding and the judgment therein are stated in the opinion of the court. The defendants cannot, under their plea, make the point that it does not appear that Bell was discharged on his bond. If that is a fact, they should have pleaded it. By not doing so, they admit that he was discharged; they admit that there is no defence to the scire facias except the one presented.

Hon. J. B. Chrisman, Judge. The appeal in this case was taken from a judgment of the court below in favor of the plaintiff in an action of ejectment. The other facts of the case are stated in the opinion of the court. ■ The assessment upon which the land was sold was illegal. It was a special assessment under sect. 4 of an act of 1876. Laws 1876, p. 258. This act did not repeal or change the requirements of the act of 1875. Laws 1875, p. 50.

Motion in Supreme Court. On the 6th of May, 1879, a judgment was rendered in the Circuit Court of Tallahatchie County against the defendants in this case, who took an appeal therefrom. On the same day a motion for a new trial was overruled, and leave was given the appellants to prepare a bill of exceptions within sixty days thereafter.

<p>Criminal Law. Trial in absence of defendant. Bill of exceptions, how prepared.</p> <p>F. was at large upon a recognizance, charged with the commission of a misdemeanor. He failed'to appear when his case was called for trial, but the trial took place, and he was convicted. He appeared on the next day and moved for a new trial, basing his motion, in part, upon the allegation that the verdict was contrary to the evidence. Upon the hearing of the motion, he insisted that the State’s witnesses should be compelled to reappear and repeat the testimony which they had given before the jury. This request was denied, upon the ground that the judge had a sufficient recollection of the testimony to act upon the motion, and that if the defendant did not know what the evidence was against him, it was his own fault. It is urged that this action of the court deprived the accused of an opportunity to know what testimony had been adduced against him, and of all possibility of making out a bill of exceptions for this court embodying that testimony. Held, that the actioii of the court below was correct. The defendant could have tendered to the district attorney and the judge such recital of the testimony as he might learn from others had been delivered against him, and have obtained a bill of exceptions, with such modifications and corrections as those officers thought proper to make. The inconvenience and disadvantage incident to that course were the result of his own wrong in absenting himself from the trial, and cannot be complained of by him.</p>

■ Appeal from the Circuit Court of Lincoln County. Hon. J. B. Chrisman, Judge. ' A. A. Miller and others, infants, by their next friend, brought an action of debt against J. M. Wesson, upon three-counts : First, to recover the penalty given by chap. 57 of the' Code of 1871 for trees cut and carried away without the consent of plaintiffs ; second, for the reasonable value of such trees ; and, third, for the money received by the defendant from the sale of the trees.

Hon. W. G. Phelps, Chancellor. This suit was brought in August, 1880, for the use of Coahoma County, against the sureties on two several bonds given by John Brown as sheriff and tax-collector .of that county. The bill alleged substantially these facts: Brown was elected sheriff for the term of two . years, commencing on the 1st of January, 1874. On the 29th of December, 1873, he gave a bond as sheriff and tax-collector, signed by four sureties.

Hon. H. S; Van Eaton, Chancellor. The case is sufficiently stated in the opinion of the court. It will be observed that the Statute of Frauds is not pleaded by the defendant. From the text of Brown on the Statute of Frauds (p. 484, sect. 508) we quote the following : ‘ ‘ It is settled that he [the defendant] must by some regular pleading take advantage of it [the Statute of Frauds], and that if this is not done the court will not interpose it.

Hon. J. B. Chrisman, Judge. On the 23d of March, 1881, S. Kaiser &Bro., merchants, executed to E. Joseph, as trustee, a deed of trust upon their entire stock of goods, and all additions to be made,thereto during the year 1881, and upon all of the notes and accounts due them, or that should be taken by them or made with them in their business during the year 1881.

Hon. S. S. Calhoon, Judge. The Mississippi Valley Company brought this action of ejectment against the Chicago, St. Louis, and New Orleans Railroad Company. A judgment was rendered for the defendant, and the plaintiff appealed. The facts of the case are sufficiently stated in the opinion of the court. The record does not show notice to the new corporation of the unregistered mortgage before the consolidation.

Hon. Samuel Powell, Judge. Needham G. Spivey was convicted- of the murder of W. W. Bailey. The circumstances of the homicide, as shown by the record, are sufficiently set forth in the opinion of the court.

Hon. J. A. Green, Judge. Henry S. Smith was convicted of murder, and appealed to this court.

<p>1. Judicial Sale. Under decree in chancery. By agent or commissioner.' Confirmation.</p> <p>A commissioner, directed hy the decree of a chancery court to sell certain land, advertised the same in due form, but, being called out of the State before the day appointed for the sale, engaged an auctioneer .to make the sale for him. The sale was made by the auctioneer at the proper time and place, was fairly conducted, and the property brought its full value. The commissioner, upon his return, received the money'bid, executed a deed to the purchaser, and reported the sale to the court in bis own name and asked that it be confirmed. It was confirmed by the court. Held, that the action of the court below in confirming the sale was correct.</p> <p>2. Res Ad judicata. Supreme Court. Decree of sale. Confirmation.</p> <p>Where, upon an appeal to this court, the rights of the parties in the case have been adjudicated, and directions given for the sale of the land in controversy and the application of the proceeds, that decision must be regarded as the law fixing the rights of the parties, on a subsequent appeal to this court from a decree confirming the sale of the land.</p>

Hon. J. B. Ciirisman, Judge. William D. McCready and others brought this action of ejectment against William Lansdale and Alfred Perkins to recover a certain tract of land, which is sufficiently described in the opinion of the court.

Hon. F. A. Critz, Chancellor. ■ The case is stated in the opinion of the court. If the appellee is entitled to any share in the estate of John F. Gray, then the lands should be sold for partition and to equalize the distribution between the devisees and legatees. The inequality of the distribution is greatly against the appellee.

Hon. J. F. Sessions, Special Judge, by agreement of the parties, Hon. J. B. Chrisman being disqualified. A statement of the case will be found in the opinion of the court. Assuming that the -railroad company had the power to mortgage after-acquired land, we submit that the language of the granting-c-lause of the mortgage, taken with all its words and ■all its scope, does not carry.this after-acquired land.

<p>Error to the Circuit Court of Copiah County.</p> <p>Hon. Uriah Millsaps, Judge.</p> <p>The case is sufficiently stated in the opinion of the court.</p> <p>It is stated in the case relied upon by counsel for the defendants in error that the American cases settle the point that a common carrier may, by a special agreement, restrict his liability ; that, though he may not screen himself from responsibility for ■ his own negligence, he may fairly protect himself against accidents, and especially against accidental fire. Mobile & Ohio M. Go. v. Weiner, 49 Miss. 734. If the carrier has protected himself by a fairly understood agreement against accidental fire, he throws the burden of proof on the plaintiff to show that the loss was occasioned by the actual negligence of the carrier. There is no presumption of law which relieves the plaintiff from such proof. The servants of the railroad company are presumed to be competent and diligent, until the contrary has been shown.</p> <p>The agreement in this case is fully proven. It cannot be presumed that a business man did not understand the receipt which he accepted and relied on. There is nothing to show hurry or confusion. The indorsement was especially conspicuous.</p> <p>The judge below found negligence in the use of uncovered! flat-cars, without any additional fact save the circumstance that' Faler called the attention of the company’s agent to that fact. The evidence fails to show how the fire originated, bnt it does show that, by the construction of the smoke-stack, and having buckets of water on the train, the usual precautions had been taken. The cotton on the flat-cars was protected also by several box-cars in front; and the proof shows that it was impossible for sparks from the locomotive to have ignited the cotton on the flat-cars. If we suppose the fire to have originated from some other cause, there is no evidence of negligence. The judgment of the court below, rests upon conje*ture altogether.</p>

Hon. J. C. Gray, Chancellor. The case is stated in the opinion of the court. Sect. 2307 of the Code of 1871 provides for the registration of every kind of “ written contráctil! relation to land.” 8 Geo. 482. The last clause in the deed of trust contains a contract to the effect that 'the taking security'for three of the notes should not-destroy or impair the vendor’s lien as to the other two notes.