Volume 59 — Mississippi Reports

Hon. Upton M. Young, Judge. The appellant made an affidavit before a justice of the peace on April 18, 1880, charging that the appellee, during that month, ‘‘did cut and float away a lot of timber from Davis Bayou belonging to the levee board.” A warrant was issued, under which a special deputy sheriff arrested the appellee and seized the timber. Another person negotiated a compromise.

Hon. S. S. Calhoon, Judge. The transcript, which contains no bill of exceptions, discloses only as follows: An affidavit made by the appellee, on March 31, 1879, in a Justice’s Court, and marked D. Stadeker v. John Robinson and Mary Robinson, alleging “ that the annexed account against Mrs. Mary Robinson for the sum of eighty-two dollars is just, true, and correct,” and the account of the same date, for the value of cotton converted “ to her use ; ” “ a summons for Mrs. Mary…

<p>1. Tax Title. Sales list. Comparison. Certificate. Entries.</p> <p>Under § 40 of the revenue .statute (Acts 1878, p. 23), lists of land sold to the State, although without the entries and certificate by the chancery clerk, directed in § 47, of comparison with the assessment roll and advertised list, are admissible in evidence subject to the defence, permitted by § 42, that legal taxes were paid or tendered before sale.</p> <p>2. Same. Collector's hand. Curative statute. Constitutional lato.</p> <p>The statute (Acts 1873, p. 153) which makes deeds conclusive evidence of title five years after sales of land for levee taxes, is valid to the extent of curing the failure of a collector to give a bond required by statute alone and not by the Constitution.</p>

A. B. Fly, Chancellor of the Second District of Mississippi. When imprisoned for violating an ordinance of the town of Coffeeville, which imposed a tax of fifty per centum on the State privilege tax, John A. Ferguson was discharged upon habeas corpus, and the town appealed.

Hon. B. F. Trimble, Judge. A magistrate of Washington County, before whom 'the appellant made affidavit, issued a writ of replevin returnable before another justice of the peace of the same county, but a different district, in which the appellee resided and held the property in his possession. From a general judgment by the latter justice for the defendant, who had bonded the property, the plaintiff appealed to the Circuit Court, where, on motion, the suit was dismissed.

Hon. James M. Arnold, Judge. A surety on the defendant’s bond in replevin, conditioned according to the statute (Code 1871, c. 16, § 1530), after judgment for the property, or its value and costs, paid the assessed value of the property, and sued out this writ of error to operate as a supersedeas of the judgment as to costs.

<p>Appeal from the Circuit Court of Warren County.</p> <p>Hon. Upton M. Young, Judge.</p> <p>The appellant, who, on April 12, 1881, was indicted for murder, pleaded not guilty. Each of three persons drawn as jurors stated on his voir dire that he had “ conscientious scruples against capital punishment,” for which he was excluded from the jury, and the prisoner excepted. When a verdict was returned finding the accused guilty and recommending him to mercy, the court ordered the jury to be conducted back to their room, apprising them that they would find a form for their verdict in the second charge for the State. This instruction is that, if the jury simply find the accused guilty as charged in the indictment, it will be the duty of the court to pronounce the death penalty; but, if the evidence in the case warrants them in so doing, they may find him guilty as charged, “ and declare that the punishment to be inflicted shall be imprisonment in the penitentiary for life,” or they may find the defendant not guilty. Afterwards the jury rendered a verdict of guilty as charged, and the appellant was sentenced to be hanged.</p> <p>made an oral argument and filed a brief.</p> <p>1. Several decisions of this court apparently hold that a person who has conscientious scruples against capital punishment is an incompetent juror in a case of murder. But as this point was not fully presented, and the opinions are brief and seemingly without great consideration, the argument is now pressed that, as the law does not- require a murderer to be hanged, ■opposition to that punishment does not disqualify jurors. The leading case of Russell -v. State, 53 Miss. 367, decided •upon the ground that the Statute of 1872 which qualified such persons, was repealed by the Act of March 4, 1875, followed Lewis v. State, 9 S. & M. 115 ; Williams v. State, 32 Miss. 389, .and other cases which proceeded upon the law that exacted the death penalty. Two public sentiments, one for, the other against, hanging, are expressed in this statute, and each is entitled to representation upon juries. A prisoner has a right to citizens of either sentiment as drawn from the box, and is not, bound to be tried by persons who favor the infliction of death. The opinion in the case of Jones v. State, 57 Miss. 684, which seems repugnant to these views, is so short and its reasoning so laconic that it is difficult to discover its basis.</p> <p>2. The second instruction given for the State is manifestly wrong. It informs the jury that they cannot make the punishment imprisonment for life unless “ the evidence in the case warrants them in so doing.” Under Code 1880, § 8083, however, power to fix the penalty is not dependent on the evidence. It is immaterial how atrocious the murder may be. The jury have a right in every case to adjudge confinement instead of death. If this privilege had been understood by the jury who recommended the prisoner to mercy, it would doubtless have been exercised.</p> <p>In their opposition to capital punishment the rejected jurors are in accord with many moral and good men, who regard the death penalty as a relic of barbarism. Such is the sentiment of the law-makers in this State, evidenced by the statute which permits the jury to say whether a person convicted of murder shall be hanged. Harmoniously with' this just inclination of the law, a defendant in a capital case has now the right to retain jurors who are tendered him, although they are opposed to the infliction of death. In the spirit of the law empowering the jury to affix the penalty of imprisonment for life, is the right of the accused to have jurors who are disposed to that leniency.</p> <p>argued orally and in writing.</p> <p>1. No sentimentality is indulged by the law in the trial of persons charged with crime. The penalty for murder is death, and jurors who are opposed to such punishment are incompetent to consider such a case. Lewis v. State, 9 S. & M. 115 ; Williams v. State, 32 Miss. 389; White v. State, 52 Miss. 216 ; Russell v. State, 53 Miss. 367; Fortenberry v. State, 55 Miss. 403 ; Smith v. State, 58 Miss. 867. Even where the evidence is circumstantial, jurors with scruples of that kind should be rejected. Jones v. State, 57 Miss. 684. The law-makers did not by this statute intend to secure such jurors to the accused, for it was useless to repeal the Act of 1872, which provided that opposition to capital punishment should not disqualify, if the repealing statute, by permitting juries to affix imprisonment, re-enacted the same rule. The statute as construed requires for jurors unbiassed persons who neither favor nor oppose the death penalty. Change in this construction, while showing the great injustice done by courts which have followed these decisions, will effectually abolish capital punishment in this State, for one juror who opposes the death penalty can coerce a verdict in accordance with his views.</p> <p>2. The second instruction for the State is subject to criticism. The jury had the undoubted right to fix the punishment at imprisonment for life; and it was within their discretion to exercise this right in a spirit of leniency to the accused, whether the court thought they were warranted by the evidence in so doing or not. If the jury were misled by the language of this charge, and thereby prevented from giving the prisoner the benefit of the lower penalty, or if there is doubt in the mind of the court as to whether the instruction had this effect, the defendant ought not to suffer death under this verdict. But it is submitted for the judgment of the court.</p>

Hon. S. S. Calhoon, Judge. To an indictment charging him with an assault and battery, committed on January 10, 1880, upon Milly Moore, the appellant filed a plea alleging that the grand jury had previously presented that he on that day did wilfully, feloniously, and of his malice aforethought, kill and murder Milly Moore, to which he had pleaded not guilty, and upon which, after trial by a jury, he was acquitted and discharged; that the State introduced the same witnesses…

Hon. S. S. Calhoon, Judge. Judgment with stay of execution for one year was rendered, on Sept. 27, 1880, for the appellees against W. E. Yancy, by consent and upon his acknowledgment in open court of the debt evidenced by his note filed with the declaration. Judgment by default was given on March 30, 1881, in favor of the appellants against the same defendant. In like order the judgments were enrolled.

Hon'. B. F. Trimble, Judge. Upon the appellee’s affidavit and bond, made Nov. 13, 1880, for a prospective indebtedness to her of land rent, a writ of attachment was issued and levied on cotton, which the appellant replevied. His declaration demanded damages for the taking and detention.

Hon. C. H. Campbell, Judge. In this suit, by the appellee, on a note signed by J. A. Durden and the appellant, demurrers were sustained to the second plea, which averred that after the maturity of the note the plaintiff, without the knowledge or consent of the appellant, who was a surety, agreed with Durden that if he would pay one hundred dollars annually until the demand was satisfied, it should be extended one year after each of such payments, and to the fifth plea, which…

Hon. R. W. Williamson, Chancellor. On Jan. 29, 1878, W. F. Stigler borrowed from George Wilson nine hundred dollars at twenty per cent per annum interest, and executed his note,.including one year’s interest, for one thousand and eighty dollars, secured by a deed of trust on land. He paid one year’s interest when due.

Hon. Upton M. Young, Judge. For the purpose of carrying dirt from a hill which he was cutting down, the appellant hired a mare and, cart from the appellee, who furnished an inexperienced negro boy for driver. While a fall was being made at one end of the work, the rule was for the cart to be loaded at the other.

Hon. Upton M. Young, Chancellor. John A. Mason died intestate January 17,1881, in Louisiana, where he owned his residence with other property, and left surviving him two sisters, a half sister and three brothers of the half blood residing in North Carolina.

<p>1. Attachment. Claimant’s issue. Trust deed. Payment.</p> <p>A trust deed upon property attached may, on the trial of a claimant’s issue, interposed by the trustee, be proved to have been satisfied pending suit ; in which event the plaintiff should have judgment for the property, and the claimant for such costs as accrued before satisfaction. Butler v. Lee, 54 Miss. 476, distinguished.</p> <p>2. Same. Bill of exceptions. Judgment.</p> <p>A special bill of exceptions taken at the trial, in order to present only the question whether such payment could be proved under the issue, is sufficient, although it fails to disclose a judgment for the debt against the defendant in the attachment proceeding.</p>

Hon. S. S. Calhoon, Judge. After this claimant’s issue between the appellant, a trustee, and the appellees, the grantor’s creditors, who attached goods covered by the trust deed, was remanded for a new trial (58 Miss. 593), the plaintiffs added, by leave of court, over the claimant’s objection, the issue that the trust debt was discharged' after the original issue was formed, by payments prior and subsequent to the levy.

Hon. J. W. C. Watson, Judge, did not sit in this case, but Hon. J. A. Green presided by interchange. On January 17, 1881, J. B. Rosenfeld, a storekeeper, who, weeks before, had announced his intention to make an assignment, applied to Watson, Watson & Smith, telling them that he put himself in their hands.

Hon. E. G. Peyton, Chancellor. 1. The grant is not rendered void by the exception which refers for certainty to the exemption laws that define the property and describe the only mode of its allotment. Delay of identity, which is the effect of the statute, is not fraudulent. Dow v. Plainer, 16 N. Y. 562.

<p>1. Assignment for Creditors. Powers of trustee. Replenishing stock.</p> <p>An assignment by an insolvent storekeeper for the benefit of his creditors is not rendered fraudulent on its face by power in the trustee to make such small purchases of goods as will better enable him to sell the stock on hand to the best advantage of the beneficiaries.</p> <p>2. Same. Discretion. Modes of sale.</p> <p>In such instrument the trustee may be empowered to dispose of the stock in lots, at auction or in due course of trade, at discretion, for the speedy termination of the trust, consistently with the interest of creditors.</p> <p>3. Same. Lawyer’s fees.</p> <p>He may be authorized to pay proper lawyer’s fees for preparing the assignment and maintaining it when assailed, but not fees for which the grantors might thereafter become liable in litigation growing out of the assignment.</p> <p>4. Same. Construction. Ambiguous powers.</p> <p>If a power is susceptible of two constructions, one of which will render the assignment legal and the other illegal, the former will be adopted in order to uphold its validity according to the maxim ut res magis valeat quam pereat.</p> <p>5. Same. Fraud in fact. Offer to compromise.</p> <p>The grantor’s offer to compromise with his creditors after the execution of the assignment is a circumstance to be considered by the jury, but it is erroneous to instruct them that from that fact they may infer that the deed was fraudulent.</p> <p>6. Same. Instruction. Evidence.</p> <p>Misdescription of a preference as for the benefit of an estate, of which the grantor is administrator, should not be charged to make the deed fraudulent, if the evidence shows that the debt is due adult heirs of another estate, and that he has no interest in either.</p>

Hon. A. G. Mayers, Judge. The appellees assigned their stock of merchandise to a trustee to sell, and, after paying the expenses of executing the trust, to distribute the proceeds pro rata among all their creditors, who should agree to receive the same in full discharge of their claims, and the balance ratably among the others.

Hon. B. F. Trimble, Judge. The appellee, trustee in the assignment described in the opinion, brought this action of replevin against the appellant, a sheriff, who, by virtue of writs of attachment, sued out by creditors of the grantor, had taken from the possession of the trustee the property which he held under the conveyance. 1. The assignment was fraudulent in law.

Hon. W. G. Phelps, Chancellor. According to the allegations of the bill, the grass is not of the class of objects which takes its character as a nuisance from its locality, as, for instance, a powder-mill; but it is characterized as a public evil in agricultural districts wherever and by whomsoever introduced. It follows from the theory of the complainants that all farmers may treat its introduction as an indictable offence, and have recourse to an injunction.

<p>1. Jurisdiction. Justice’s Court. Amount in controversy. Splitting demand.</p> <p>A person who serves another for twenty consecutive months, under a contract which fixes no rate of compensation, cannot by charging differently for the last seven months split the demand and sue for thirteen months in the Circuit Court and for the remainder before a justice of the peace.</p> <p>2. Same. Single contract. Severance by act of parties.</p> <p>Separate suits cannot be maintained for different portions of an entire demand growing out of a single contract, requiring for its decision the investigation of one state of facts, unless the parties have severed the contract by the form in which it is evidenced.</p> <p>3. Same. Book accounts. Single indebtedness.</p> <p>One suit only is admissible on book accounts where the parties’ agreement, their course of dealing, or the known custom of the country, warrants the belief that it was intended that the several items should constitute one indebtedness, whether due at the same or different times.</p> <p>4. Same. Independent causes of action. Consolidating vexatious suits.</p> <p>The plaintiff need not embrace in one suit independent transactions though all due, but may bring as many actions as he has separate causes, subject to the right to be consolidated, at his cost if vexatious, but without ousting the jurisdiction. Ammons v. Whitehead, 31 Miss. 99, and Ashy. Bee, 51 Miss. 101, affirmed; Scofield v. Pensons, 26 Miss. 402, and Mobile Sf Ohio Railroad Co. v. State, 51 Miss. 137, overruled.</p>

Hon. J. W. C. Watson, Judge. The appellee, a physician who attended a wounded convict, sued the appellant in a Justice’s Court for the recovery of his bill, and the latter defended successfully upon the grounds that he was not liable for the debt, and that the suit should have been by the board of supervisors upon his bond as county contractor. The plaintiff appealed to the Circuit Court, where on the facts stated in the opinion he obtained a verdict.

Hon. L. Haughton, Chancellor. The appellee filed a bill to confirm a title acquired at a sale of land delinquent for taxes of the year 1877, the appellants answered that the county levy for that year was void because the board of supervisors fixed the rate at nineteen mills, and the Chancellor, at the final hearing upon the evidence, confirmed the tax title.

Hon. J. A. Green, Judge. The statute (Code 1880, c. 12) provides for the relief of all paupers, and divides them into such as are required to be supported at the poor-house, and such as cannot be cared for there. This case falls under Code 1880, § 629, which governs the latter class, and the allowance is authorized in § 626. As the allegations of the petition bring the case within the statute, the demurrer should be overruled.

<p>1. Husband and Wife. Curtesy. Res adjudicata. Ejectment.</p> <p>The fact that a purchaser at a trustee’s sale recovers in ejectment against the grantor after his wife’s death does not affect, in her children, a title acquired by her through sales of the land under judgments against her husband older than the trust deed.</p> <p>2. Same. Fraudulent conveyance. Sheriff’s sale. Debtor’s admissions.</p> <p>Under a bill by the vendees of such purchaser, to cancel the children’s title because obtained by their mother fraudulently, admissions of her husband, made soon after her purchase, are competent, if at all, only on proof of conspiracy, as explanatory of his possession, or as part of the res gestee with the conveyance.</p> <p>3. Same. Covenant of warranty. Purchasing paramount title.</p> <p>In such case the wife is not estopped by her husband’s covenant of warranty in the trust deed to acquire the superior title under the judgments, and her purchase does not inure to the benefit of the cestui que trust. Hardeman v. Cowan, 10 b. & M. 486, and Taylor v. Eclcford, 11 S. & M. 21, disapproved.</p> <p>4. Same. Fraud. Evidence. Burden of proof.</p> <p>The transaction is, however, very suspicious, and slight circumstances, such as her husband making the purchase and paying the money, and her want of apparent means, throw on her, and volunteers under her, the burden of showing good faith, and, unless they do so, warrant the cancelling of their title as fraudulent.</p> <p>5. Same. Limitation of actions. Bill to remove clouds.</p> <p>Lapse of ten years after the wife’s purchase under the judgments will not bar vendees of the purchaser under the trust deed from maintaining their bill to vacate her title, if he recovered the land within that period, in ejectment against the tenant by the curtesy, and his vendees continue in possession.</p>

Hon. A. B. Í'ly, Chancellor. The appellee, as executor of the will of the late J. C. Norris, petitioned for the sale of the land in controversy to pay the testator’s debts on deficiency of personal estate and of other real estate. The will, which was exhibited with the petition as part thereof, is described in the opinion.

Hon. Sam Powel, Judge. Separate records of deeds are not required by the statute (Acts 1880, p. 145) dividing Panola County into two court districts. Section 5 alone refers to record books, and it does not mention deed records. A matter of such general importance as changing the place for recording muniments of title cannot depend on implication. Distinct language is necessary to warrant so grave an alteration.

Hon. J. B. Morgan, Chancellor. Eliminating the parol agreement leaves no case in the bill. That agreement is within the Statute of Frauds (Code 1871, § 2896), and parol evidence is not admissible to establish it. Gibson v. Foote, 40 Miss. 788; Bartlett v. FicJcersgill, 1 Cox, 15. Part payment of the purchase-money, after the transaction, does not alter the case. Beaman v. Bucle, 9 S. •& M. 207 ; Boxy. Stanford, 18 S. & M. 93; McGuire v. Stevens, 42 Miss. 724.

Hon. James M. Arnold, Judge. The appellant was indebted to the appellee in the sum of ten thousand dollars, upon a promissory note, made on May 22, 1876, and due three years after date, and was also liable to A. A. Winston on account of his indorsement of notes to the aggregate sum of eight thousand eight hundred and fifty dollars ; and in order to secure the payment of these direct and contingent obligations, when about starting to the State of Coahuilla, to take charge of…

Hon. Sam Powel, Judge. In the case of State v. Baker, 47 Miss. 88, the provision of the Code of 1857, which is re-enacted in Code 1871, § 1760, under which this suit is brought, is construed, and a father’s right to sue upon the clerk’s bond for the penalty is settled in accordance with previous rulings of this court. Detterly v, Yeamans, 39 Miss. 475; Bates v. Stokes, 40 Miss. 56.

Hon. Sam Povvel, Judge. In this action by the appellee, which resulted in a recovery of the penalty prescribed by Code 1871, § 1760, from the appellant, a circuit clerk, for issuing, without the consent of the former, a license for the marriage of his daughter, who was under eighteen years of age, a demurrer which assigned the failure of the declaration to allege that both parties for whose marriage the license issued were under the statutory age, was overruled, and the…

Hon. J. W. C. Watson, Judge. Under the statute allowing the defendant to plead on or before the third day of the return term (Code 1871, § 681), this judgment is premature, and must be reversed. Davis v. Patty, 42 Miss. 509. The error is a matter of record, which could not be waived by failing to object during the term, and which is subject to review, without exception, by the appellate court.

Hon. J; W. C. Watson, Judge. 1. As the horse is not held by virtue of the attachment, but under the execution issued on the judgment by default, the reversal of that judgment, ante, 167, takes away the foundation of the appellees’ case. The burden is on the plaintiffs in execution to show: first, a valid judgment; and, second, that the horse is the property of Burns. Thornhill v. Gilmer, 4 S. & M.' 153 ; Bichman v. Williams, 50 Miss. 500.

Hon. J. W. C. Watson, Judge. Except under authority conferred by our statute the administrator appointed in Tennessee could not sue in this State. Wilkins v. Fllett, 9 Wall. 740; Klein v. French , 57 Miss. 662. Suit is authorized by Code 1880, § 2091, but on specified conditions, which were not complied with in this case. Nothing was produced except a copy of alleged letters of administration, not certified according to the act of Congress.

Hon. J. A. Green, Judge. Whether “ billiards ” is a game of chance is a question, not of law, but of fact to be decided by the jury. Courts take judicial notice of what ought to be known within the limits of their jurisdiction. 1 Greenl. Evid. § 6. Differences in the nature of games are not of that character.

Hon. Sam Powel, Judge. The appellants, commission merchants in New Orleans, La., agreed with S'. Barbee, a store-keeper in Mississippi, that they would advance him money at a specified interest and commissions during the year 1880, and that he should ship them cotton, which was to be sold by them for his account and the proceeds applied to its payment. Advances were made and cotton shipped accordingly, and, on Jan. 31, 1881, he owed them one hundred dollars.

<p>Appeal from the Chancery Court of Warren County.</p> <p>Hon. Upton M. Young, Chancellor.</p> <p>An injunction against the levy of executions, under judgments obtained by Alexander Kuhn and Field, Morris & Fenner against the appellant, was dissolved on motion upon the face of his bill of interpleader, without proof or answer, notwithstanding the allegations that, upon his note payable to Brown & Bro. he was garnished in an attachment by Field, Morris, & Fenner, who obtained judgment on his answer admitting the debt, before he heard of its indorsement to Alexander Kuhn.</p> <p>The debtor could not plead the assignment when garnished, because, he had no knowledge that the note was indorsed, and he could not plead the judgment in attachment against him when sued on the note, because it was res inter alios acta. Kellogg v. Freeman, 50 Miss. 127 ; Horton v. Grant, 56 Miss. 4Ó4 ; Lewis v. Dunlop, 57 Miss. 130. Unless he can maintain his bill of interpleader, he must pay the debt twice. The bill may be filed after judgment. • Oldham v. Ledbetter, 1 How. 43. Unlike Yarborough v. Thompson, 3 S. & M. 291, no mistake of law led in the case at bar to the erroneous answer to the garnishment, but the appellant, although he exercised diligence, was misled as to the facts, and his application to the Chancery Court is not to obtain relief which would be denied him at law, but to make his legal remedy effectual. Code 1880, § 2449 ; 1 Story Eq. Jur. § 27.</p> <p>Having negligently permitted two judgments in favor of different persons to be recovered against him for the same debt, the appellant cannot obtain relief in a court of equity without showing fraud on the part of the judgment creditors. Yarborough v. Thompson, 3 S. & M. 291. If he had a defence to the indorsee’s suit, which the garnishment was not, he should have pleaded it before'judgment at law. When garnished, it was his business to find out whether the attachment debtor still held this negotiable paper.</p> <p>Protection is afforded at law, by the statute, to a garnishee who is not negligent. Code 1880, §§ 2447, 2449. Unless he avails himself of this, he cannot obtain relief in equity after two j udgments are rend ered against him. Yarborough v. Thompson, 3 S. & M. 291. This result of a garnishee’s carelessness is common, and is rarely relieved against. Drake on Attachment, §§ 658, 658 e. He is a trustee, whose duty it is to know the facts, and to set them forth in time to protect himself and preserve the fund.</p>

Hon. Sam Powel, Judge. An account against the appellant was filed before a justice of the peace on Oct. 9,1880, by the appellee, and summons was served personally the same day. After reciting these facts, the record of the Justice’s Court proceeds, as follows: “ This cause was continued upon application of the plaintiff till Friday, Oct. 22, 1880, this Oct. 14, 1880.

Hon. W. G. Phelps, Chancellor. The entire scheme was fraudulent. After procuring the issuance of an execution upon the judgment against himself, Joseph McGuire, who had vested in his son, O. G. McGuire, a title by gift, in order to perfect it as he stated at the execution sale, had another son to purchase from the sheriff. The money used in this purchase was derived from a mercantile business in which Joseph McGuire furnished the capital, and it, therefore, belonged to him.

^Appeal from the Chancery Court of Panola County. Hon. J. B. Morgan, Chancellor.

Hon. B. F. Trimble, Judge. ’ In this action by the appellant upon a note of the appellee for two hundred and sixty dollars in her favor as administratrix, he pleaded (1) non assumpsit, and (2) that since executing the note he was engaged by her to superintend her business in administering the estate, and at her instance he expended two hundred and ninety dollars for its benefit, as shown by an itemized account; that the items of money were received by her for the use of the…

Hon. J. B. Morgan, Chancellor. Two sons of Elijah Wilbourn, the appellants, who were the devisees of all his land, petitioned for the probate of the holographic will mentioned in the opinion, and citations issued for the other heirs. The appellees answered, and, upon the evidence at the final hearing, the Chancellor decreed that the instrument attested by J. F. Hobgood and another witness was the true will, and dismissed this petition.

Hon. F. A. Critz, Chancellor. The appellee and F. M. Snook, a farm manager, who were engaged in planting jointly on land of the former, purchased, on Jan. 12, 1876, two mules, for two hundred and twenty dollars, from John M. Morgan & Son, who agreed to furnish them five hundred dollars in supplies during the year.

Hon. Sam Powel, Judge. Partners, the appellant and J. A. Harris, differing about their final settlement, agreed, Feb. 24, 1878, in writing, signed by themselves and one Graham as Harris’s surety, to submit their controversy to certain arbitrators and to abide by their decision. The arbitrators on Sept. 15, 1880, awarded in writing to the appellant the sum of eighteen hundred and eighty dollars.

Hon. J. A. Green, Judge. As the appellee received the benefit of the note in the payment of firm debts for which he was liable, he should refund the money collected, according to the terms of the partnership receipt. Without notice of his partner’s transaction, the appellee is not liable for the money, because the business of the firm was not to collect debts due to their customers.

Hon. J. A. Green, Judge, presiding at the trial, in vacation.

Hon. S. S. Calhoon, Judge, did not sit in this case, but Hon. J. B. Chrisman presided, by interchange, at the trial in vacation. In June, 1881, the board of supervisors of Hinds County entered upon its minutes an order that half a township should be taken from the Auburn supervisors’ district and added to that of Edwards, and also the further order that the voters of this territory who were previously in the Auburn election precinct should vote in the Edwards precinct.

Hon. Sam Powel, Judge. At the expiration of his term of office as county treasurer, on the first Monday in January, 1880, the appellant retained the book upon which he kept the receipts and expenditures of county funds, and when his. successor, on March 20,1881, demanded the book, he refused to deliver it, and, when indicted, moved to quash upon the grounds that he was not an officer when the offence was committed, or when the Code of 1880, creating the offence, went into…

Hon. Sam Powel, Judge. A special bill of exceptions, signed during the progress of the trial, which resulted in the conviction of the appellant for larceny, states that the owner of the money, alleged to have been stolen, was sworn as a witness, and, among other things, testified to a confession of the defendant immediately after the theft, and while she had possession of the money, and that she was subsequently offered as a witness in her own behalf, when the court…

Hon. J. A. Green, Judge. Municipal corporations have no implied authority to incur debts, borrow money, or subscribe to the building of railroads. Such power must be conferred by express grant. Leonard v. Canton, 35 Miss. 180; Sykes v. Columbus, 55 Miss. 115; Trustees v. Cherry, 8 Ohio St. 564; Hopple v. Brown Township, 13 Ohio St. 311; Aurora v. West, 22 Ind. 88; Butler y. Charlestown, 7 Gray, 12; Dillon Mun. Corp. §§ 106, 372, 766.

Hon. J. W. C. Watson, Judge, presided at the trial of this case, and Hon. J. A. Green presided at the new trial, by interchange.

Hon. J. W. G. Watson, Judge. At the trial, under this indictment for an assault with intent to commit murder, the court, upon the evidence set forth in the opinion, gave the following, among other charges, for the State : (5) “ In cases of mutual combat, if one party enters into the contest dangerously armed, and fights under an undue advantage, and kills his adversary, such killing will be murder ; and, if the jury believe from the evidence that Levi Aldrige, the defendant,…

<p>Appeal from the Chancery Court of Clay County.</p> <p>Hon. F. A. Critz, Chancellor.</p> <p>A creditor of Alfred Ellis, deceased, seeks, in this bill, to establish his claim and foreclose a trust deed executed by the administrator, T. S. Ellis, for the benefit of sureties on his bond. The trust is that if the sureties are discharged the deed shall be void, but if either of them is compelled by law ■ to pay any part of the penalty, the trustee shall sell the land ;;and remunerate him. A surety and T. S. Ellis are dead, and their estates are insolvent. The other surety and the estate of Alfred Ellis are also insolvent. Administration of Alfred Ellis’s estate is pending in Lowndes County, but the appellant proceeded in Clay County, where the land lies, where the surviving surety and B. F. Doster, who claims the land, reside, and where the estates of the deceased surety and T. S. Ellis are being administered. To the bill, which alleged these facts, the appellees’ demurrer was sustained.</p> <p>1. The jurisdiction is in the Chancery Court of Lowndes County and also in that of Clay County. The only reason for proceeding against Alfred Ellis’s estate is to exhaust the remedy on the administration bond and against the intestate’s land. Paine v. Pendleton, 32 Miss. 320 ; Webster v. Parker, 42 Miss. 465; Solimán v. Bennett, 44 Miss. 322. The estate of T. S. Ellis, the land, is the object of the suit, which was properly brought in the county where it is situated, where this estate is in-process of administration, and where the persons interested reside. Code 1880, §§ 1834,1835, 2084; Code 1871, § 976; Burruss v. Fisher, 23 Miss. 228; Sunt v. Potter, 58 Miss. 96 ; State v. Sumphreys, 7 Ohio, 223.</p> <p>2. The case of Osborn v. Noble, 46 Miss. 449, is erroneous so far as the obiter dicta contained in the opinion are concerned. In Jones v. Quinnipiack Bank, 29 Conn. 25, the, same doctrine is stated. In the latter case, as in the former, the security was strictly a personal indemnity to the surety, and did not provide for payment of the debt, and yet the court held that, if the principal became insolvent, the surety could not release. Both these cases are against the weight of authoi’ity. Ross v. Wilson, 7 S. & M. 753 ; Sinsdill v. Murray, 6 Vt. 136 ; Whipple v. Briggs, 28 Vt. 65; Kirkpatrick v. Bowk, 80 111. 122; 1 Story Eq. Jur. § 499. In the case at bar, however, there was no release, and the decisions are uniform that the creditor, under such circumstances, can enforce the trust deed. Belcher v. Eartford Bank, 15 Conn. 381; Lewis v. BeForest, 20 Conn. 427 ; Ohio Life Ins. Oo. v. Reeder, 18 Ohio, 35; Keyes v. Brush, 2 Paige, 311-313 ; Markell v. Fichelberger, 12 Md'. 78 ; Moses v. Murgatroyd, 1 John. Ch. 119 ; Kip v. Bank of New York, 10 John. 63 ; Van Orden v. Durham, 35 Cal. 136, 145, 146. It mates no difference whether the security is for the payment of the debt or is for the mere personal indemnity of the surety. In either case, when the principal debtor becomes insolvent, and the creditor has no other means of enforcing his demand, he may resort to the security. New Bedford Savingp Ins. v. Fairhaven Bank, 9 Allen, 175,178 ; Vail v. Foster, 4 N. Y. 312; Aldrichy. Martin, 4 R. I. 520; Belcher y. Hartford Bank, 15 Conn. 381, 383 ; Lewis v. DeForest, 20 Conn. 427, 441-444; Tilford v. James, 7 B. Mon. 336, 337; Bank y. Stewart, 4 Dana, 27 ; Haven y. Foley, 18 Mo. 136, 139; Breedlove y. Stump, 3 Yerger, 257 ; Kirkman y. Bank of America, 2 Cold. 397, 407; Roberts y. Richards, 36 111. 389, 342, 343 ; Bishop y. O'Conner, 69 111. 431, 437; Constant y. Matteson, 22 111. 546, 556, 557; Seibert y. True, 8 Kansas, 52, 62, 63; Saffold v. Wade, 51 Ala. 214; Watson y. Rose, 51 Ala. 292; Carman y. Noble, 9 Penn. St. 366. 371, 372; CornwelVs Appeal, 7 Watts & S. 305, 307 ; Ohio Life Ins. Co. v. Reeder, 18 Ohio, 35, 46, 47; Van Orden y. Durham, 35 Cal. 136, 144; Markell v. Kichelberger, 12 Md. 78, 84; Owens y. Miller, 29 Md. 144, 161 ; Moses y. Murgatroyd, 1 John. Ch. 119; Keyes y. Brush, 2 Paige, 311, 312, 313; Wright v. Morley, 11 Yes. 12; Bank y. Douglass, 4 Watts, 95 ; Miller y. Howry, 3 P. & W. 374; Haven y. Foley, 19 Mo. 632.</p> <p>3. Cases cited in support of the decision in Osborn y. Noble, ubi supra, proceed on a misconception of the effect of the instruments. A security to be void on payment of- the debt is conditioned for such payment. Carpenter v. Bowen, 42 Miss. 28; Paris y. Hulett, 26 Vt. 308; Kastman y. Foster, 8 Met. 19 ; Roberts v. Colvin, 3 Graft. 358; Ohio Life Ins. Co. y. Ledyard, 8 Ala. 866 ; Helm v. Young, 9 B. Mon. 394. It is admitted, in Osborn y. Noble, that the creditor is entitled to be subrogated to the surety’s rights, and that the only reason why the former cannot enforce the security is that the latter cannot. This is an erroneous view. When the principal and surety are insolvent, the creditor may protect himself in advance of injury by a restraining order, and the court having jurisdiction for one purpose will grant full relief. Henry v. Compton, 2 Head, 549; Saylors v. Saylors, 3 Heisk. 525, 532 ; Harlan v. Sweeny, 1 Lea (Tenn.), 682, 686 ; Creen v. Crockett, 2 Dev. & Bat. Eq. 390; Rice v. Downing, 12 B. Mon. 44; Keokuk v. Love, 31 Iowa, 119, 124 ; Towe v. Newbold, 4 Jones Eq. 212,214; Bunting v. Ricks, 2 Dev. & Bat. Eq. 130; Daniel v. Joyner, 3 Ired. Eq. 513, 520, 521; Kunkel v. Fitzhugh, 22 Md. 567, 576 ; Keyes v. Brush, 2 Paige, 311, 313 ; Curtis v. Tyler, 9 Paige, 432; Moses v. Murgatroyd, 1 John. Ch. 119 ; Saffold v. Wade, 51 Ala. 214 ; Toulmin v. Hamilton, 7 Ala. 362; Breedlove v. Stump, 3 Yerger, 257, 267; Bussell v. Clark, 7 Cranch, 69 ; Carman v. Noble, 9 Penn. St. 366, 371. The character of the instrument is fixed by its condition, and the condition is the happening of that event or contingency which will discharge the trust. It is not a question of contract. New Bedford Savings Ins. v. Fairhaven Bank, 9 Allen, 175,178; Hopewell v. Cumberland Bank, 10 Leigh, 206; Osborn v. Noble, 46 Miss. 449. This instrument is not a mere personal indemnity, but a security for the administration bond. It is conditioned for the surety’s discharge, and was broken when a legal claim upon the obligation was preferred. Miller v. Howry, 3 P. & W. 374; Bank v. Douglass, 4 Watts, 95; Stroh v. Kimmel, 8 Watts, 157 ; Carman v. Noble, 9 Penn. St. 366.</p> <p>argued orally.</p> <p>1. The Chancery Court of Clay County has no jurisdiction. Alfred Ellis’s estate is in process of administration in the Chancery Court of Lowndes County, and the bill should have been filed in this court. Code 1880, § 1997. Filing this suit is an effort to change the county for administering the estate. In Lowndes County the appellant could have full relief. The facts that the land covered by the trust deed is in Clay County and that the surety resides there are no reasons for resorting to the court of that county to enforce a demand against an estate pending in another.</p> <p>2. No judgment has been entered on T. S. Ellis’s administration bond; and, consequently, his sureties have sustained no loss. The condition of the trust deed is not broken. This instrument is an indemnity against a contingent liability, and, in such a case, there can be no substitution until the liability becomes absolute. For years this court has adhered to that doctrine, and, in the case of Osborn v. Noble, 46 Miss. 449, affirmed it, after a thorough review of all the preceding decisions. The bar and the public have acquiesced in this as the law of this State, and it cannot be now overturned by decisions from other States. Rights have vested, and disputes have been settled under this law, which should stand unless plainly wrong. The following cases are in harmony with the case of Osborn v. Noble, ubi supra, and were authority for that decision : Bibb v. Marlin, 14 S. & M. 87; Bush v. Stamps, 26 Miss. 463; McLean v. Ragsdale, 31 Miss. 701.</p>

Hon. Sam Powel, Judge. Buffington ivas not engaged in “ business ” within the meaning of Code 1880, § 1300. Such a business as a grocery or dry-goods store is contemplated. Distinctions must be made, or the law of agency will be subverted by this statute. The mischief to be-remedied was the perpetration of frauds by asserting secret titles, and the statute should be restricted to that end. Buffington’s insolvency, and the fact that he was a mere agent, were generally known.

Hon. J. W. C. Watson, Judge. R. W. Pannell, an old man, who lived in Pontotoc County, hired Jim Collier, and lodged him near his house.

Hon. James M. Arnold, Judge. At the trial of the appellant, under an indictment for grand larceny the State introduced testimony to the effect that, on a rainy night a cow was stolen by two men, one of whom, walking with a half-soled shoe, led her by a rope, and the other rode behind and drove her; that by the tracks in the road, the animal was traced to a butcher’s pen ; that the appellant’s boy was found here, and the owner of the animal called on the appellant, who,…

I-Ion. J. B. Chrisman, Judge. The appellee, to whom the owner of a horse which was killed by a locomotive assigned his claim for damages, brought this action against the appellant, and proved, at the trial, that tracks of the horse, as if running, were seen for two hundred yards along the road-bed, and pieces of its body were scattered about a bridge of trestles, which began at the point where the horse’s tracks ceased to be visible.

Hon. J. S. Hamm, Judge. The appellee sued the appellant for damages for killing his horse by negligence in running its locomotive through the city of Bay St. Louis. Held: in Memphis Railroad Oo. v. Blaheney, 48 Miss. 218, that when both parties are equally at fault no damages should be allowed, unless voluntary and guilty negligence be shown.

Hon. F. A. Critz, Chancellor. 1.. If proper parties were found to be wanting at the final hearing, and no previous objection was made, the court should not have dismissed the bill, but have remanded it to rules in order that the parties could be brought in. 1 Dan. Ch. Prac. 287. The trustees had no interest in the suit. Remainder-men need not look to trustees for protection, but may apply for injunctions against waste committed by life-tenants.

Hon. L. Haughton, Chancellor. The answers in this case denied the allegations of the bill that the assignment for creditors and the conveyance to Zelda Bean were fraudulent, and that Murray, the assignee, was incompetent and insolvent, and, upon the motion for the appointment of a receiver, which was heard on bill and answers at the same time as the demurrers, no evidence was introduced. 1. A deceased person’s estate is liable on a note given for his debt by his executor.

<p>Contract. Money payable on condition which can never occur.</p> <p>A -written promise to pay for a vessel’s rigging, ninety days after its first return trip, can be enforced although the vessel is lost at sea, and, in this event, is payable in that time after the expiration of the period usually required for such trip.</p>

Hon. J. B. Chbisman, Judge. At the trial of this action, ejectment by the appellee against, the appellant, the former, in order to prove his title introduced in evidence, over the latter’s objection, a document in the form of a deed from the State, which concluded, “ In testimony whereof, these presents are signed, sealed and delivered in the name of the State,” by the auditor, “ who has hereunto subscribed his name and affixed his seal of office,” &c. An acknowledgment was…

Hon. E. G. Peyton, Chancellor. There being no privity of contract between the appellant and the appellee, but only privity of estate, the action is local and cannot be maintained, for the reason that the land does not lie within the jurisdiction of the court in which the bill is filed.

A motion, filed February 4, 1882, by the appellee, to docket and dismiss this appeal, which was returnable the first Monday in January, 1882, upon the ground that no transcript of the record was filed, was met by a motion on the part of the appellant for a rule on the clerk of the Chancery Court of Choctaw County to send up the transcript, or show cause why he should not, and an affidavit of the appellant was filed, from which it appeared that the original record was lost,…

Hon. E. G. Peyton, Chancellor. The appellants, who attached a stock of goods of their debtor, W. T. Meek, filed this bill to vacate a prior attachment and judgment rendered thereunder, and to compel the sheriff to pay over to them the proceeds of the sale of the goods, upon the ground that Hamilton Moody, who sued out the prior writ, was not the owner of the note upon which it was based, but had indorsed it to W. H. Merkel.

Hon. E. G. Peyton, Chancellor. argued orally and in writing. 1. The existence of the deed of trust did not invalidate the tax deed. Held: in the case of McLaughlin v. Green, 48 Miss. 175, that Green having enjoined McLaughlin from enforcing his mechanic’s lien could not acquire a tax title to the land, on the ground that it was an unconscionable advantage thus to deprive McLaughlin by injunction of the fruits of his judgment, until the advantage accrued and then avail…

Hon. H. S. Van Eaton, Chancellor. This bill in chancery against the sureties upon the tax collect- or’s bond of John D. Moore (elected in November, 1871, sheriff of Lincoln County) in the penalty of five thousand dollars, and the appellants, sureties on his official bond in the penalty of ten thousand dollars, was filed by R. W. Millsaps, co-surety on the latter bond, who alleged that he advanced money to satisfy judgments for taxes collected by Moore in 1872 and not paid…

Hou. S. S. Calhoon, Judge. In this action for a ward upon the bond of her guardian, the appellants, the administrator of the guardian’s estate and sureties upon his bond, pleaded that he performed the condition of the obligation.

Hon. J. A. Green, Judge. Replevin will not lie against a person not in possession of the property. Grrace v. Mitchell, 31 Wis. 533; Hall v. White, 106 Mass. 599 ; Richardson v. Reed, 4 Gray, 441; Haughton v. Newberry, 69 N. C. 456 ; Code 1871, §§ 1529, 1530, 1535. A plaintiff in execution has no right to possession.

Hon. J. S. Hamm, Judge. This is an action of debt upon the tax collector’s bond of G. W. Johnston, late sheriff of Hancock County, for the sum of two thousand dollars collected by him from privilege tax payers, during the autumn of 1880, and not paid into the State treasury.

Hon. J. B. Chrisman, Judge. To a motion upon the official bond of C. Farish, as sheriff, for failing to return an execution on the return day, Oct. 7, 1878, the defendants pleaded, but subsequently confessed demurrers to their pleas, and, by leave of court, pleaded over, when demurrers to the latter pleas were sustained.

Hon. Ralph North, Judge. After conviction under an indictment returned on Dec. 10, 1880, for selling vinous and spirituous liquors on Nov. 2,1880, in less quantities than one gallon without license, the appellant moved in arrest of judgment, upon the ground that Code 1871, § 2690, imposing a penalty for retailing liquor without license, was repealed by the Code of 1880, which took effect on November 1 of that year; and also moved for a new trial, upon the ground that the…

Hon. S. S. Calhoon, Judge. The appellee, upon an affidavit, which doubled the debt by repeating it, and a bond in the penalty of twice the sum due, sued out an attachment against J. S. Terrel, which named the appellants garnishees. The sheriff returned the writ, “executed by levying upon one lot of goods,” which was delivered to E. W. Blanchard on his claimant’s bond, and further “ executed the within process on’’the garnishees, naming them.

Motion to dismiss appeal from judgment of the Circuit Court of Noxubee County for fift)’-two dollars, on appeal from a Justice’s Court, where the appellee sued, on July 27, 1880, for fifty dollars, due March 10,1880, and interest, and obtained judgment accordingly The question involved in the motion was decided in the case of Jaclcson v. Whitfield, 51 Miss. 202. This decision has become a rule of practice, and rights have vested under it.

Hon. B. F. Trimble, Judge. The appellee filed against the appellant a declaration in assumpsit, containing two counts, one for two hundred and five dollars for board furnished him, and the other for one hundred, and forty dollars received by him for the plaintiff’s use.

Hon. T. B. Graham, Chancellor. The appellant filed this bill to confirm a conveyance made to him on March 3, 1879, by the collector under his purchase at a sale for the taxes of 1878 of land which an appellee had sold to another on credit. The appellees answered that there was no approval of the land assessment roll of Leake County, in 1875, under which the sale took place.

Hon. S. S. Calhoon, Judge. In this action of ejectment by the appellant against the appellee, the source of title was in M. A. Harrison, who conveyed this, with other lands, to John Everett, the vendor of Joseph Morton. The latter paid the purchase-money in full for the part of the land which he bought, and took possession. His widow married the appellee, and- died before this suit began.

1-Ion. R. W. Williamson, Chancellor. The appellant, who obtained judgments before a justice of the peace, on Feb. 26,1881, against one of the appellees, and purchased his land under the executions, filed this bill to cancel his conveyance to his wife, the other appellee.

Hon. Upton M. Young, Judge. An execution on a judgment rendered Dec. 1,1881, for the appellant against Henry Bazinsky, was levied upon the contents of a bar and billiard saloon, which were claimed by the appellee as trustee in a deed of trust executed on June 7,1881, by Henry Winstein, to secure Wachenheim & Herman the purchase-money for the property. A jury was waived, and the circuit judge decided in favor of the claimant.

<p>1. Books of Account. Competency as evidence.</p> <p>A physician who sues his patient’s administrator, being incompetent to testify as to the debt, may introduce his books, which are the best evidence that he can produce, although not the best evidence of which the case admits.</p> <p>2. Same. Preliminary proof.</p> <p>In such a case the books of original entries, if apparently fair and unobjectionable, are admissible in evidence without preliminary proof that the physician ever attended the intestate in his lifetime.</p> <p>3. Same. Suppletory evidence.</p> <p>The books alone are not sufficient to prove their competency, but the oath of the physician who made the entries may be given as suppletory proof to the court on this question.</p> <p>4. Same. Estate of deceased person.</p> <p>Admissibility of the books is not destroyed by the fact that the person who made the entries is incompetent as a witness to establish his own claim against a deceased person’s estate.</p> <p>5. Same. Hieroglyphics and key.</p> <p>If the entries in the books are hieroglyphics, the key with which to decipher them may be put in evidence, after the books are adjudged competent and are introduced.</p> <p>6. Same. Provinces of judge and jury.</p> <p>The judge decides upon the competency of the books, the jury upon thek sufficiency, and the facts that it is not shown that they were correctly and properly kept, and that the entries do not correspond with the account sued on, relate alone to the latter consideration.</p> <p>7. Same. Discussion of doctrine.</p> <p>The doctrine of the competency of books of account as evidence in various cases discussed, the authorities reviewed and the reason and scope of the rules illustrated.</p>

<p>1. Municipal Privilege Tax. Police power.</p> <p>The exaction of forty dollars a year for the privilege of hack driving in a city, not being for the expense of labor and material in issuing the driver’s license, cannot be" sustained under the police power, which is inapplicable to revenue purposes, and from which the power to tax, which only exists as clearly granted, cannot be implied.</p> <p>2. Same. Taxing power.</p> <p>The exaction cannot be sustained under the power in the charter to tax property and the callings of merchants, auctioneers, brokers, vendors of lottery tickets, and keepers of taverns and of theatres, circuses, and other exhibitions to which an admission fee is charged, for the callings embraced are only those which are enumerated.</p> <p>3. Same. Voluntary payment.</p> <p>If the city marshal, as tax collector, threatens to stop a hack unless this tax is paid, and the hackman takes out a license and pays, complaining only that the-amount is exorbitant, the payment is voluntary and cannot be recovered back from the city.</p>

Hon. S. S. Calhoon, Judge, decided upon the demurrers to the pleas in this case, and Hon. J. B. Chrism an presided, by interchange, at the trial. Liabilities arising by operation of law, like the duty to refund taxes illegally collected and the right to recover the money paid, are not embraced in the words “verbal contracts,” or governed by the three years’ limitation prescribed in the amendatory statute. Acts 1876, p. 252.

Appeal and cross appeal from the Chancery Court of Bolivar County. Hon. W. G. Phelps, Chancellor. Godfrey Frank’s intestate, Isaac Hudson, qualified as executor of Harriet L. Porter’s will in January, 1860. The estate, which was in debt, consisted of slaves. In December, 1863, an annual account was filed, showing the payment of all the debts, and that the executor had expended five hundred dollars 'and received nothing.

Hon. Upton M. Young, Judge. Although the judgment of dismissal was erroneous, so far as it rested on Code 1871, § 679, it was nevertheless a final disposition of the case, and could not be treated as a nullity. This judgment rests also, however, upon the additional ground that no docket fee was paid, under Acts 1876, pp. 238, 239. After rendering the judgment, the court had no further jurisdiction of the case, and the only remedy for errors, if any existed, was an appeal.

<p>Appeal from the Circuit Court of Kemper County.</p> <p>Hon. J. S. Hamm, Judge.</p> <p>In this action upon the county treasurer’s general bond given under Code 1871, §§ 261, 262, for fines belonging to the school fund misapplied by J. G. Felton, the treasurer, his sureties’ demurrer to the declaration was sustained upon the ground that the special bond prescribed in Code 1871, c. 39, art. 10, protected this fund.</p> <p>The sections of the Code of 1871 under which the bond was given, and the condition thereof, show that the obligors are liable for the sums claimed in the declaration. If this court, in the case of State v. Mayes, 54 Miss. 417, decided that the bond given under Code 1871, §§ 261, 262, was no security for the school fund, that conclusion must be shaken, by comparing these sections with § 309 ; and from the decisions in the cases of State v. Matthews, 57 Miss. 1, and State v. Harney, 57 Miss. 863, arises an irreconcilable incongruity, which must result in the reconsideration of the incorrect opinion in the earlier case.</p> <p>The opinion in the case of State v. Mayes, 54 Miss. 417, is conclusive of this controversy. Sureties on the general bond are not liable for the school fund. The cases of State v. Matthews, 57 Miss. 1, and State v. Harney, 57 Miss. 863, which may have caused this action, present entirely distinct questions from the one here involved. Special duties regarding the school fund are imposed by a statute which requires a specific bond for their performance, and this bond is the only protection for this fund.</p>

Hon. A. B. Fly, Chancellor. The appellants, who, with an appellee, compose the board of directors of the “ Salem Co-operative Association No. 508 of Mississippi,” a mercantile firm, filed his bill in behalf of themselves and all other shareholders and partners, except the defendants, J. C. Page, the defaulting storekeeper of the association, and the sureties on his bond, in order to recover for alleged breaches of the condition.

Hon. R. W. Williamson, Chancellor. 1. The will contains no general residuary clause. The word “ residue,” in the eighth article of the will, does not comprise the entire estate, but is confined to the undisposed-of portion of a particular fund, out of which the testator has just made some specific appropriations.

Hon. E. G. Peyton, Chancellor. Samuel F. Vaughn died in 1862, intestate, and without lineal heirs, leaving a personal estate, consisting entirely of a claim against his brother, A. J. Vaughn, for land which he sold him. His administrator, G. B. Downing, sued on this claim, and, in 1870, obtained a decree fixing the amount of it, and directing the land to be sold for payment.

<p>1. Grounds for Attachment. Fraudulent contracting of the debt.</p> <p>A purpose to defraud is necessary to constitute a fraudulent contracting of the debt within the meaning of the eighth ground for attachment contained in Code 1880, § 2415.</p> <p>2. Same. False representations. Subsequent to the contract.</p> <p>False representations of the debtor, after contracting the debt, that he has property from the proceeds of which he will pay, does not make the debt fraudulently contracted within this statute.</p> <p>3. Same. Incumbrance on property. Effect as evidence of fraud.</p> <p>The fact that he orders goods, promising to send a sight draft on receipt of them, when he has incumbered a large part of his property, is a circumstance for the jury, but not alone conclusive of his intent to defraud.</p> <p>4. Same. Fraudulently contracted debt. Example.</p> <p>If, as an inducement to the seller to ship the goods, he promises to send a sight draft to pay for them, and at the same time entertains the purpose not to give the draft, the debt is fraudulently contracted.</p> <p>5. Same. Purchaser’s belief of his own solvency.</p> <p>The fact that he believes when he orders the goods that he will be able to pay for them does not acquit him of fraud, for he may intend not to do this.</p> <p>6. Damages for AVrongful Attachment. Subsequent levies by others.</p> <p>Judgment creditors who levy executions in consequence of an attachment are severally responsible, and the attaching creditor is not liable for the injury occasioned by them.</p> <p>7. Same. Measure of damages. Compensation.</p> <p>Under Code 1880, if a plea in abatement is sustained, the recovery is confined to compensatory damages caused by the issuance of the attachment.</p> <p>8. Damages for Wrongful Attachment. Loss of business.</p> <p>Loss of business as to goods seized, caused by the seizure, may be a factor in the computation of damages if shown as a matter of fact and not as the opinion or estimate of witnesses. Alexander v. Jacoby, 23 Ohio St. 358.</p> <p>9. Same. Expenses of defence. Deprivation of property.</p> <p>Such damages are allowable in an issue as to the rightfulness of an attachment as would be reasonable in an action on the attachment bond, as for instance the expenses of the defence and loss occasioned by the seizure or sale o£ property.</p>

Hon. J. W. C. Watson, Judge. A principal is liable for exemplary damages for the act of his agent or for his negligence in all cases where he would be liable if he himself had done the'act. New Orleans Railroad Go. v. Bailey, 40 Miss. 395. A plaintiff recovers of a defendant where his servant in the course of his business acts recklessly or abuses his authority. Cooley on Torts, 538 and n. 1.

Hon. S. S, Calhoon, Judge. After the plaintiff in ejectment proved that he was tenant by the curtesy and rested, the defendants introduced an auditor’s deed, with the evidence stated in the opinion, in order to show a title to the land under a sale for taxes of his deceased wife ; when the court, sitting without a jury, found for the plaintiff, and the defendants appealed. The book, or a certified copy of the same, was admissible in evidence.

Hon. C. H. Campbell, Judge, did not sit in this case, but Counsellor Jason Niles presided by consent.

<p>Appeal from the Circuit Court of Hinds County.'</p> <p>Hon. S. S. Calhoon, Judge.</p> <p>At a municipal election in January, 1882, the appellee, whose name was upon ninety-four scraps of envelopes and other paper used as tickets, was returned as elected, was commissioned and assumed the office of mayor of the town of Edwards in Hinds County, and the appellant, an opposing candidate, whose name was on thirty-six tickets conforming to Code 1880, § 13T, sought to oust him as a usurper upon the grounds that he was not elected and that he represented this county in the State legislature. The petition which asked that the “ relator ” should be installed as mayor, and on which a summons issued citing the appellee “ to answer an information in the nature of quo warranto,” was demurred to, because the appellee, if incapacitated, could be ousted only by the State through its authorized officer, and not by the appellant who showed no interest, and because the general election law does not apply to the town, and its charter does not prescribe the kind of tickets for municipal elections; but the court heard the evidence and then dismissed the proceeding.</p> <p>1. This is a case of contested election, in which the appellant alleges that he received the highest number of legal votes. His remedy was not confined to a technical proceeding by quo warranto. He had the right to sue under Code 1880, § 150, and the requirements of this statute are met by the case as presented. No special interest need be shown, but even that appears, for the relator is the elected candidate. This statute provides that the person in whose favor the jury shall find shall be commissioned by the governor. The prayer to oust the appellee and instal the appellant was in conformity with this law.</p> <p>2. The statute regulating ballots (Code 1880, § 137) applies to municipal elections. Under our Constitution all elections are by ballot. It is competent for the legislature to prescribe the kind of tickets to be used. This having been done, an election by ballot is one with these tickets. The charter, although passed before the Code, does not and could not dispense with this constitutional requirement. By virtue of his office, the mayor of Edwards is a justice of the peace, and the general law applies in terms to his election. Again, the appellee holds two offices. This is illegal. As a representative in the legislature he is precluded from becoming mayor.</p> <p>The appellant, who is not entitled to the office, cannot maintain this quo warranto proceeding either by the common law or under the statute. Miller v. Palermo, 12 Kansas, 14; Comr monwealth v. Farmers' Bank, 2 Grant Cas. 392; State v. Smith, 32 Ind. 213; State v. Boat, 46 Mo. 528; State v. Moffitt, 5 Ohio, 358 ; Sublett v. Bedwell, 47 Miss. 266 ; Brady v. West, 50 Miss. 68 ; Hydev. State, 52 Miss. 665; Code 1880, §§ 2585, 2587. A person can be mayor of a town and a member of the State legislature at the same time. The duties of a justice of the peace might be attached by statute to any office. ' But, if the appellee could not hold both offices, his qualification as mayor vacated that of representative.</p> <p>2. Tickets at the municipal election in Edwards were not required to conform to Code 1880, § 137. If town elections were embraced in the general election law, the provisions of the charter would have to be disregarded, and registration inspectors and commissioners would be required. When the constitutional requirement of elections by “ballot” was adopted in 1869, no form of ticket was essential. The charter (Acts 1871,> p. 371) does not prescribe the kind of tickets to be used, and the subsequent Code of State statutes is inapplicable. Code 1880, § 8 ; Kirie v. B,hoads, 46 Cal. 398. This Code was not intended to alter pre-existing charters, and did not have that effect.</p>

Hon. J. W. C. Watson, Judge. At the trial, the court charged the jury for the appellee, over the appellant’s objection, upon the evidence detailed in the opinion, thus: 2.

•Hon. C. H. Campbell, Judge. In this action of trespass on the case against a railroad company for killing the plaintiff’s horses, the defendant moved for a new trial upon the ground, among others, of the court’s refusal to give the following charges, which the company asked: 4.

Hon. J. W. C. Watson, Judge. There was nothing in the case to justify the fourth instruction. Its effect was to give a license to the jury, apt to take such a bias. The effort of the court to correct its error, by requiring a remittitur, fell short of the mark'. The plaintiffs had selected their neighbors to value the stock. They valued with a view to make that valuation effective for suit or settlement. It was the cash value.

<p>Appeal from the Circuit Court of Chickasaw County.</p> <p>Hon. J. A. Gkeen, Judge.</p> <p>Secondary evidence was inadmissible to prove the contents of the report until its loss was shown. Reasonable diligence in searching for it where it was likely to be found must be proved, and extraordinary searches in the office of the superintendent, who had himself given it to the district attorne3r, looks more like suppression than an effort to produce the document. One of the reasons of the rule that requires the best evidence, or that proof which most certainly exhibits the true state of facts to which it relates, and rejects secondary or inferior evidence, when it is attempted to be substituted for evidence of a higher or superior nature, is grounded upon the reasonable suspicion that the substitution of inferior for better evidence arises from sinister motives, and an apprehension that the best evidence, if produced, would alter the case to the prejudice of the party. Bouvier Law Die. (5th ed.) 485. Search must be made where the paper probably is, and the person who probably has it must be called as a witness. Chaplain v. Briscoe, 5 S. & M. 198; Parr v. Gibbons, 27 Miss. 375. Greater diligence should be used in the search for papers, which are the foundation of an indictment in a case of felony involving the character and liberty of a citizen, than in an ordinary suit at law. Spalding v. Bank of Susquehanna County, 9 Penn. St. 28. Under the seventh section of our Bill of Rights the accused has the right to be confronted by the witnesses against him; the contents of the written report were testified to by the prosecutor, without confronting him with the report itself or showing even ordinary diligence in searching for it.</p> <p>1. The averment in the indictment is that none of said pupils attended school the number of days reported. The evidence shows that many of them did attend the number of days stated in the report. Of the whole number two were discovered who probably did not attend during March, but who were in attendance during the month of February. Upon this state of case, the State’s instruction objected to should not have been given. The roll might have been altered through malice or mischief, without the principal teacher detecting the error, or he may have made a mistake. ■ It is not presrrmed that he knew personalty all the pupils.</p> <p>2. The court erred in striking out the word “ strong ” from the charge asked by the defendant. Roscoe Crim. Evid. 823, 824; 2 Bisli. Crim. Proc. §§.866, 867; Wharton Am. Crim. Law, 761, 762.</p> <p>3. The law only permits the introduction of secondary evidence when it is made clearly to appear that such evidence is the best that can be had. This was not done, as to the report. Sebree v. Dorr, 9 Wheat. 658; Chaplain v. Briscoe, 5 S. & M. 198; Barr v. Gibbons, 27 Miss. 375; Coohe v. Woodrow, 5 Cranch, 13; Scott v. Loomis, 13 S. & M. 635; Roscoe Crim. Evid. (7th Am. ed.) 7; 2 Russell on Crimes, 739; 1 Greeul. Evid. § 82 et seq.</p> <p>1. The proof sufficiently showed that it was impracticable to produce the report sworn to by the appellant, and consequently evidence of its contents was admissible. The evidence is so strong upon this point and the rule of law is so well recognized that elaboration is useless.</p> <p>2. As the charge is divisible, the indictment can be sustained upon the evidence that some of the pupils did not attend. This is proof that the affidavit was false, when it is in fact shown that some of the pupils did not attend, as it states. The State’s instruction, therefore, was entirely proper.</p> <p>3. The court did not eiT in striking out the word “ strong ” from the charge for the defendant. It is sufficient to say to the jury that there must be two witnesses, or the testimony of one witness and corroborating circumstances. Brown v. State, 57 Miss. 424. To use the word “ strong ” wrould not state the law accurately,"and might mislead the jury. The corroborating circumstances must be sufficient to constitute evidence of value, nothing more. If it is not sufficient, a conviction will not be sustained, but the question of sufficiency is one rather of law than of fact.</p>

Hon. F. A. Critz, Chancellor. 1. The appeal is proper to settle the principles of the cause and to avoid expense and delay. Code 1880, § 2311. An order refusing to proceed operates as injuriously to the appellant’s rights as a decree overruling the motion to dissolve ; and if the Chancellor grants the appeal, the case is within the statute. The provisions of Code 1880, § 1915, do not prevent an appeal under the circumstances of this case. 2.

Hon. James M. Arnold, Judge. A girl with whom the appellant was in love refused to let him escort her home from church one night, and went with another man. At a dark spot in the path, he confronted them with a drawn pistol, and without a word shot first at the girl’s escort, and grazed his cheek, and then at her, the ball striking her between the eyes and passing through her brain. He was convicted as charged under an indictment for murder, and sentenced to be hanged.

Hon. James M. Arnold, Judge. The appellee, by her purchase from Smith, acquired no title to the property superior to the appellant’s attachment for rent, for she did not buy in good faith without notice of the landlord’s claim. Cooper v. Baker, 54 Miss. 637. But further, at common law, all goods found on the leased premises, even those of a stranger, were liable to distress.

Hon. Sam Powel, Judge. At. the trial of an action of replevin by the appellee, trustee in a deed of trust executed by the appellant’s firm, to secure a creditor, the evidence tended to show payments upon the debt secured, and the court refused to charge for the defendant : (1) that if the jury believed that the defendant was indebted on the mortgage debt they should find in their verdict the amount so due; and instructed the jury for the plaintiff, (2) that they were not…

Hon. L. Hahghton, Chancellor. The appellant’s petition for dower, which alleged that her husband died in 1852, owning a quarter section of land and his dwelling-house thereon, where she resided continuously until March, 1881, when she was ousted by force, was dismissed upon demurrer by heirs, the appellees, as barred by the Statute of Limitations. The appellant’s right to dower became fixed by her husband’s death and is governed by the statute then in force. Hutch.

Hon. B. F. Trimble, Judge. The appellant, who, on Feb. 10, 1882, was indicted for murder, and afterwards was convicted and sentenced to be hanged, filed a transcript, into which all the instructions were copied, with the mark “ Given, S. F. Shelton, Clerk,” upon each; but there was .no bill of exceptions, save the one to the order overruling the motion for a new trial described in the opinion. argued orally and in writing.

Hon. E. G. Peyton, Chancellor. The appellees are the two daughters of Nancy and. John A. Glover. Held: when she gave the trust deed to the appellant, essential to the ends of justice. 2. When the trust deed was executed, Mrs. Glover owned an estate in the land, the corpus of which could be incumbered to secure her husband’s debt. This estate was a vested remainder in fee expectant upon Mrs. White’s life-estate.

<p>Appeal from the Chancery Court of Washington County.</p> <p>Hon. W. G. Phelps, Chancellor.</p> <p>Alberto Incisa, Marquis di Camerana, as a subject of the kingdom of Italy, filed this bill against Henry C. Bate and Joseph and Eugenia Bertinatti, to enforce his claim, under the will of his wife,to Riverside Point, her plantation in Washington County, and alleged that he married Ella Bass, a resident of Mississippi, and daughter of Eugenia Bertinatti, and lived with her on the plantation until 1871, when, in May of that year, she died in Memphis, Tennessee, and her will, which was attested according to the laws of Mississippi, having been probated the following year in Tennessee, a certified copy thereof was afterwards duly probated in the Chancery Court of Washington County, under the statute of this State, the will and all the proceedings in the courts of both States being exhibited with the bill; that, before their marriage, his wife had conveyed a one-third interest in the plantation to her brother, and by the will she devised a third interest to the complainant, and a third in trust for her mother; that Eugenia Bertinatti and hex-husband, Joseph, reside at the Hague, he being the accredited minister to Holland .from the kingdom of Italy, of which he has always been a subject; that the brother died, having made a will by which he devised the whole plaxitation to trustees for his mother’s use, and at her death to Henry C. Bate, which casts a cloud on the complainant’s title ; and that the interest of his deceased brother-ixx-law and of his mother-in-law should be ascertained by partition, and then subjected to his demand for rents which they have collected and consumed without accounting for his one third. There was an appropriate prayer for relief. A demurrer, by Henry C. Bate, the appellant, was overruled, although it assigned among other grounds that the will had never been probated so as to affect the land in this State.</p> <p>argued orally and in writing.</p> <p>The very groundwork of the right to recover in this case is the will of Ella Incisa di Camerana. It is an equitable action of ejectment. This will is an exhibit. It is connected as a part of the chain of title, and is offered as evidence. When we examine the probate of the will, we find it to fall far short of showing those facts required to be proved for the purpose of divesting the title of the heir-at-law. The form of proof of wills is fixed by statute. Code 1871, § 1117; Code 1880, § 1963. These enactments must be followed. Evans v. Evans, 10 S. & M. 402; Raglamd v. Green, 14 S. & M. 194 ; Martin v. Perkins, 56 Miss. 204. The cases of Sturdivant v. Neill, 27 Miss. 157; Morris v. Morris, 27 Miss. 847; Fotheree v. Lawrence, 30 Miss. 416, affirm the well-established doctrine that the will of a resident or domiciled citizen or inhabitant of this State must be executed according to the ceremonies and solemnities of the State of Mississippi. Such is the generally received doctrine. Crusoe v. Butler, 36 Miss. 150 ; Story Confi. Laws, §§ 441, 584. Ella di Camerana was a citizen of Mississippi. Did marrying a foreigner change her domicile, or even her citizenship ? The bill avers that Alberto di Camerana intermarried with Ella Bass. But they made their home on her plantation in this State, and their domicile was here, although she was daughter of Eugenia Bertinatti, a wife of a resident of the Hague.</p> <p>Wills are not evidence in support of title to property until probated in the jurisdiction in which the property is situated at the testator’s death. Wells v. Wells, 35 Miss. 638. The statute relative to authenticated copies of wills refers exclusively to foreign wills. Riley v. Moseley, 44 Miss. 37 ; Wilson v. Cox, 49 Miss. 538. The attempted record in this State of the probate in Tennessee was void. Sturdivant v. Neill, 27 Miss. 157; Morris v. Morris, 27 Miss. 847. The fact that the execution of the will was duly proved in open court by a subscribing witness, and then registered by the clerk on the records of the court, does not establish that the will was legally admitted to probate, and this is all that appears in this case. Stuart v. Siuanzy, 12 S. & M. 684; s. c. 23 Miss. 502; Fotheree v. Lawrence, 30 Miss. 416 ; 1 Redfield on Wills, 405. This case is not affected by the Act of Congress. Dorsey v. Maury, 10 S. & M. 298 ; Crusoe v. Butler, 36 Miss. 150. Laws of Tennessee require that all the witnesses living must be produced to prove the will. Tenn. Code, §§ 2162, 2163, 2168, 2486 a, 2486/, and authorities cited. It is ordinarily considered necessary in courts of common law (in those States in which the probate of a will is not regarded as conclusive in respect to lands) to call only one of the subscribing witnesses, if he can speak to all the circumstances of the attestation, but he must be able to prove all the facts necessary to a full and perfect execution of the will, in order to dispense with the other witnesses, if they are alive and within the jurisdiction. 1 Jarman on Wills, 222. The general rule, where land is involved, is to produce all the witnesses. Evans v. Evms, 10 S. & M. 402; Ragland v. Green, 14 S. & M. 194. There is also a distinction between cases where the moving party seeks to set aside the will, and cases where the moving party is a devisee seeking to establish it; the rule which makes it imperative to call all the witnesses to a will must be considered as applicable in the latter case. 1 Jarman on Wills, 223 ; 6 Wait’s Actions and Defences, 384. This will was admitted to probate in Tennessee in 1872. At that time we had an express provision in the Code of 1871, which cannot be found in the laws prior to 1871, and which section has not been carried forward into the Code of 1880,— we refer the court to § 1117, which requires that all the witnesses to the will must prove it.</p> <p>1. We concede the general rule to be, that a will must be probated and established according to the law of the testator’s domicile and in the courts of his domicile, and that this is so, though the testator makes his will and dies outside of his domicile. Sturdivant v. Neill, 27 Miss. 157 ; Bailey v. Osborn, 83 Miss. 128. If this rule, however, be rigidly applied here, it would follow that the courts of this country would have no authority to probate the will of Ella Incisa di Camerana, — her domicile, for aught that appears in the bill, being in Italy. Bnt the rule does not apply here, and cannot apply, if we are correct in our view of the law as to the domicile of Ella Incisa after her marriage, for then her will could not be probated in either the State of Tennessee or that of Mississippi. In Still v. Woodville, 38 Miss. 646, it was clearly held that when a decedent was domiciled in Louisiana, but owned property in this State, the courts of this State were bound to take jurisdiction of it, for the benefit of the true owners, and could, therefore, prove wills and admit them to record. It is true that before a will can be admitted in evidence, in support of title to property therein bequeathed, it must be regularly probated in the jurisdiction where the property is situated; and equally true that the probate, in a foreign State, of the will of a testator who died there, but whose domicile was in this State, is ineffectual to devise property situated in this State. Wells v. Wells, 35 Miss. 638. But, in Cameron v. Watson, 40 Miss. 191, it was held that when a married woman, having power to make a will as to real and personal property situated in Arkansas, is domiciled here, and makes a will in pursuance of such form, the will should be probated here, though there is no property on which it could take effect. In Crusoe v. Butler, 36 Miss. 150, the law applicable to this case is fully enunciated. When it appears from the probate of a will that there are three subscribing witnesses, it may be proved by one witness, so as to authorize its probate to pass realty, if the witness examined proves that it was duly attested by the others. If the record of the probate of such a will states that “ it was duly proved by one of the witnesses and admitted to probate,” and it does not affirmatively appear that this witness proved only the attestation by himself and execution in his presence, it will be presumed, in a controversy respecting the title of the real estate thereby devised, that the witness testified to every fact necessary to the due execution of the will to pass real estate, and the probate will be valid as to the realty. The decree of the Chancery Court, allowing the probate of such authenticated copy of a will, cannot be attacked collaterally, but only by a direct proceeding for that purpose.</p> <p>2. The statute authorizing the probate of authenticated copies of wills proved according to the laws of other States, proceeds on the facts that the execution of the will has been determined by a court having jurisdiction, and whose judgment is based upon the laws of its own country in determining the validity of the will. Stwrdivant v. Neill, 27 Miss. 157 ; Wilson v. Cox, 49 Miss. 538. The statute is very plain : “ Authenticated copies of wills, proved according to the laws of any of the States of the Union, . . . and touching or disposing of estate within this State, may be admitted to probate in the proper court.” Code 1857, p. 435, art. 49. Not until 1880 did our statute expressly authorize the probate of foreign wills, as such. The statutes of Tennessee, where this will was executed and proved, provide that written wills with witnesses thereto, when not contested, shall be proved at least by one of the subscribing witnesses if living; and the courts of that State have given the statute a liberal exposition. Thompson & Stegers’ Code, § 2171; Burroio v. Ragland, 6 Humph. 481, 486; Hodges v. Bauchman, 8 Yerger, 186, 188; Mosely v. Wingo, 7 Lea, 145. We have in this case all the elements required in the deraignment of title.</p> <p>made an oral argument.</p>

Hon. W. G. Phelps, Chancellor. On March 18, 1882, after the transcript was filed in the Supreme Court, upon this appeal by W. J. Weir and Celeste Weir from a final decree in the case of Max Killian v. J. D. H. Weir et al., a summons was issued by the clerk of the Supreme Court for J. D. H. Weir to join in the appeal returnable on April 3, 1882, the first day of the present term.

Hon. J. B. Morgan, Chancellor. Under Code 1880, § 442, the appellant could be allowed the sums of fifty dollars and the three dollars a day given circuit clerks. The case of Ex parte Patty, 56 Miss. 499, relates alone to services as clerk of the board of supervisors, and is inapplicable to the point now under consideration.

Hon. L. Haughton, Chancellor. The appellant, trustee for the infant children of Martha L. Jamison, filed this bill to enjoin the execution of judgments obtained in the spring of 1879, by the appellees against her husband, alleging that soon after her marriage, her father, J. A. Walker, in 1861, gave her a note due him from William C. Coopwood, who paid the same to her husband in land, which he sold and used the money, and that after her death in 1868, J. T. Jamison, her…

Hon. C. H. Campbell, Judge. On Jan. 2, 1878, the appellee conveyed two hundred and twenty-five acres of land to A. H. and J. A. Wilson for the recited consideration of twenty-five hundred dollars, seven hundred and seventy-one dollars and forty-eight - cents cash, and the remainder in the note of J. H. Greer. His wife signed the conveyance, but the acknowledgment, which with the deed was written by the appellee, failed to state that she sealed or delivered the instrument.

Hon. J. W. C. Watson, Judge. At the trial of an indictment for carrying a concealed weapon, to wit, a pistol, on Nov. 4, 1880, the appellant, under his plea of prior conviction and punishment for this offence, offered the following record: — “ S. E. Bigham v. “Tiie State,— “ Carrying Concealed Pistol.” This day S. E. Bigham came before me, an acting justice of the peace for the county of Union, and acknowledged that he did on the 4th day of November, 1880, carry a pistol,…

Hon. Upton M. Young, Judge. Citizens and tax payers of Warren County brought suit for the use of the county against A. H. Arthur, supervisor for the first district, and J. F. Baum and others, sureties upon his official bond, given under the Act of April 4,1876, and alleged, as breaches of the bond, that the board of supervisors had made forty-seven illegal appropriations almost exclusively as to roads, ferries and bridges during his membership, which were specified in…

Hon. Ralph North, Judge. Upon an affidavit which charged the appellant with an assault with intent to commit murder, he was carried before a justice of the peace, who convicted him of assault and battery and imposed a fine.

<p>Appeal from the Circuit Court of Lee County.</p> <p>Hon. J. A. Green, Judge.</p> <p>Burwell Johnson was tried and convicted before the mayor of the incorporated town of Tupelo under an ordinance against gaming. He was afterwards indicted under the State law for the same offence, and pleaded the former conviction in bar. The court below held that the mayor as justice of the peace had no jurisdiction of the offence of gaming, and that conviction under the town ordinance was no bar.</p> <p>1. No one can be twice tried for the same offence. Const. art. 1, § 5. By act of July 20, 1870, under Const, art. 1, § 31, the Mayor’s Court was established in Tupelo. By State law the town was chartered (Acts 1870, pp. 395, 401), and authorized to enact ordinances. Under State law the accused has been once therefore convicted and punished.</p> <p>2. Plainly Code 1880, § 2858, does not deprive justices of the peace of jurisdiction in cases of gaining, given by another section of the Code, but it is merely directory to the officers whom it names.</p> <p>If the former conviction was under the town ordinance, it was no bar to the indictment under the State law, and if by a justice of the peace, he had no jurisdiction. Code 1880, § 2858. He could only bind the party over to the Circuit Court.</p>

Hon. C. H. Campbell, Judge. The confession was inadmissible because the corpus delicti was not proved and because the writing required by law was not produced. Stringfellow v. State, 26 Miss. 157; Pitts v. State, 43 Miss. 472; Jenkins v. State, 41 Miss. 582; State v. Laliyer, 4 Minn. 368; Peter v. State, 4 S. & M. 31; Wright v. State, 50 Miss. 332. Evidence of Nash’s admission was in his absence competent as res gestee of the confession.

Hon. Ralph North, Judge. Special bills of exceptions, signed at the appellant’s trial which resulted in his conviction for the murder of J. P. Boar-man show that a member of the board of supervisors was called by the State and testified that he had written a document which was produced as Boarman’s dying declaration, as the questions which he asked were answered by Boarman, who after hearing the whole read over to him approved and signed it, that the appellant then proposed…

Hon. E. A. Ceitz, Chancellor, did not preside in this case, but counsellor Geoege A. Evans acted as chancellor pro hac vice.

Hon. C. H. Campbell, Judge. The appellants are heirs of a creditor, who was secured by a trust deed executed by Gr. D. Bustamente, and recorded Feb. 8, 1873 upon land, which the beneficiary purchased at the sale by J. T. Butt, the trustee, on Nov. 24, 1879. The appellee is Bustamente’s wife, who on Nov. 14, 1877, purchased from the State the land which, on Jan. 3, 1876, was sold for the taxes of 1875.

Hon. C. H. Campbell, Judge. At the trial of the issue made upon the appellees’ claim of property, which was seized under the appellants’ attachment against Townsend & Martin, the plaintiffs, without introducing their judgment in attachment, announced that thejr had closed their evidence ; but when the claimants immediately, without any proof, stated that they also closed, and asked that the jury should be instructed to find in their favor, the plaintiffs asked leave to…

Hon. Upton M. Y.oung, Chancellor, did not preside in this case, but Counsellor Thomas Catchings acted as Chancellor, pro Jiao vice. Wm. M. Pinekard purchased from Wm, Vick seventy-six acres of land bounded by a line beginning at a post on the bank of the Mississippi River, and intersected by the Warren-ton Road which began at the southern end of Washington Street in the city of Vicksburg.

<p>1. Garnishment. Answer. Defects in original decree. When available.</p> <p>A garnishee cannot avail himseli of the fact that the decree on which the garnishment issued was made without service of process, if the record of the Chancery Court shows service, pro confesso, and a recital in the decree that the process was returned duly executed against the defendant who was legally before the court.</p> <p>2. Same. Judgments and decrees. False recitals. How attached.</p> <p>Garnishees may contradict by parol the recital of jurisdictional facts in judgments or decrees of foreign courts or domestic courts of limited jurisdiction ; but the record of a domestic court of general jurisdiction cannot be attacked collaterally, and false recitals of service in such a court must be reached by a direct proceeding.</p>

Hon. J. A. Green, Judge, did not preside at the trial of this ease, but W. L. Clayton acted as judge pro hae vice.

Hon. J. B. Chrisman, Judge. The appellant filed his petition in the Circuit Court against the appellee, who was returned as elected to the office of mayor of McComb City at an election of town officers held on Dec. 5, 1881, under the charter, alleging that he received a greater number of legal votes than the appellee, and asking for a jury to try the right to the office. A demurrer upon the ground that this remedy was inapplicable was sustained.

Hon. J. B. Chrisman, Judge. A can of tea shipped from New Orleans, Louisiana, to the appellee at Brookhaven, Mississippi, was broken, and he refused it and wrote to the consignor, who sent his letter with a complaint to the head officer of the express company at New Orleans. The officer forwarded the inquiry and letters to the route agent, who referred them to his subordinate, the agent at Brookhaven.

<p>Appeal from the Circuit Court of Wilkinson County.</p> <p>Hon. J. B. Chrisman, Judge, did not sit in this case, but Hon. Ralph North presided by interchange.</p> <p>The appellee, upon evidence that he had open, adverse possession continuously from 1859 until 1881, recovered in ejectment against the appellant, who, as stated in the opinion, had a deed to the land.</p> <p>Under Code 1857, p. 898, which is a statute of limitations and alters Hutch. Code, p. 829, which vested title, ten years’ adverse possession will not support a recovery from the true owner. Ellis v. Murray, 28 Miss. 129; Eord v. Wilson, 35 Miss. 490 ; Dixon v. Cools, 47 Miss. 220; Davis v. Bowmar, 55 Miss. 671.</p> <p>The ordinary statute of limitations makes ten years’ adverse possession such evidence of title that the possessor, if after-wards dispossessed, can maintain ejectment against the owner. In time, simple possession will ripen into a perfect title. Gtladney v. Barton, 51 Miss. 216.</p>

Hon. C. H. Campbell, Judge. 1. The exception to the rule which excludes hearsay testimony in favor of the declarations of deceased members of a family made ante litem motam as to pedigree is well recognized, and under it the declarations are evidence of the facts. 2 Starkie Evid. 1099. This principle has been recognized in some of the earliest decisions of the courts of Virginia.

Hon. F. A. Crttz, Chancellor, having been of counsel in this case, Hon. T. B. Graham presided, by interchange. Upon the evidence stated in the opinion, the Chancellor, over the appellants’ objection, gave tbe following instructions for the appellee : “ (1) The issue to be determined by the jury is the validity of a will which has heretofore been duly admitted to probate as the last will and testament of P. W. Tucker, deceased, by this court.

Hon. W. G. Phelps, Chancellor. The decree of foreclosure was collusive. The object was to defeat these creditors. The pretended price was grossly inadequate. Manifestly this was a mere scheme by which the mortgagee was to acquire the legal title and hold it for the mortgagor’s use. Under such circumstances, subsequent judgment creditors have the right to subject the equity of redemption and to redeem. argued orally and in writing.

<p>1. Bill of Exceptions. Time of presentation. Extension by court.</p> <p>Under Code 1880, § 1718, a bill of exceptions to a judgment overruling a motion for a new trial must be presented to the judge during the term or within ten days afterwards ; and, if objection is made in the Supreme Court, a bill presented later will not be considered, although an order extending the time is on the minutes of the Circuit Court.</p> <p>2. Same. Extension of time by agreement. How evidenced.</p> <p>The parties by consent can extend the time for presenting the bill beyond ten days, and where no objection is made in the Supreme Court, the extension will be assumed to be by agreement, but if the point is raised, the consent to be binding must be evidenced by the record or the bill of exceptions.</p> <p>8. Same. Presentation in time. Estoppel by conduct.</p> <p>If the bill of exceptions is, within ten days after adjournment of the term, presented to the judge, who refers it to the appellee’s counsel for suggestions, the latter after holding it longer than the statutory period, is estopped to deny that it was presented in time, and the bill, although signed after ten days, is valid.</p> <p>4. Levy of Execution. Laches. Loss of lien.</p> <p>A lien acquired by the levy of an execution on land is lost as against a subsequent bona fide purchaser without notice by waiting four years before selling.</p>

Hon. J. B. Morgan, Chancellor. This was a bill with a prayer in the alternative, to vacate conveyances as fraudulent as to a subsequent mortgage or to foreclose a prior mortgage.

Appeal and cross appeal from the Chancery Court of Lincoln County. Hon. H. S. Van Eaton, Chancellor. The court below erred in overruling the demurrers to the bill of interpleader. An administrator cannot interplead the estate. He is an interested party. He is constituted by the court a trustee to look after and protect the interest of the estate for the benefit of creditors and heirs.

Hon. H. S. Yan Eaton, Chancellor. This bill was filed, on July 6, 1880, by Mary A. Porter, against her own husband, H. B. Porter, and Jane Jones, and the latter’s husband, D. A. Jones, to cancel a deed in trust, on land in Claiborne County, executed April 80, 1877, by the complainant, to secure D. A. Jones, a merchant, for advancing her supplies to cultivate the land, and a deed of the same land to Jane Jones, dated March 3, 1878, and signed by the complainant, upon the…

<p>Appeal from the Chancery Court of Monroe County.</p> <p>Hon. L. Haughton, Chancellor.</p> <p>The appellants, who hold a certificate of deposit of the banking house of Adams, Spratt & Co. issued after Adams’s death, filed this bill against Mrs. French, his executrix and residuary legatee, and Spratt his sole surviving partner, setting out the will and a chancery decree without notice, discharging the executrix and giving her all the testator’s estate, and praying that the assets of the bank and Adams’s entire estate be subjected, or that appropriate relief be given. A demurrer was sustained with leave to amend.</p> <p>1. The will authorizes the business to be carried on as before the testator’s death, and new contracts to be made and obligations to be incurred, for two years and such further time as may be necessary to close up the banking without injury to either party. This construction has been acted on by the surviving partner and the executrix, who is the residuary legatee. While so conducting the bank, the appellants’ money was received, and the appellees cannot now repudiate this construction. Davis v. Boiumar, 55 Miss. 671; Qalanan v. McClure, 47 Barb. 206 ; Thomas v. Brooks, 6 Texas, 369 ; Thayer v. Hollis, 3 Met. 369 ; Herman on Estoppel, § 323. If further time was not necessary, this is peculiarly within the knowledge of the executrix; the burden of proof is upon her, and she must show the fact.</p> <p>2. An intention to make the entire estate liable, whether invested in the bank or not, is clearly deducible from the will. Continuance of the business is the testator's chief object; from it the legacies are to be paid, and final settlement under the will is impossible until the banking is closed. The testator’s intention fairly expressed must govern. The real question is, “ Whether by operation of law, on a true construction of the instrument,” the general assets are liable. Pitkin v. Pitkin, 7 Conn. 307, 312. But adopt the specific language used in Burwell v. Mandeville, 2 How. (U. S.) 560, and we claim that, there is, disclosed in Adams’s will, in clear and unambiguous language, an intention to make his general assets liable for the firm debts contracted after his death. A similar construction of exactly analogous language is given by the Supreme Court of Pennsylvania, in Commonwealth-v. Pittsburgh, 41 Penn. St. 278, approved by the United States Supreme Court, in Seybert v. Pittsburg, 1 Wall. 272.</p> <p>3. Firm assets have been divided between Spratt and the executrix. The estate was certainly liable to the extent of the firm assets, and the executrix, as residuary legatee, has received these assets. She, as executrix, is liable therefore for the amount in her hands subject to this character of debt. Whether she has received sufficient to pay this debt, or what amount more or less she has received, must be set up in her answer.</p> <p>4. Under authority of Hunt v. Potter, 58 Miss. 96, the jurisdiction of the Chancery Court is clear. And, on general principles, it makes no difference whether she now holds the assets as executrix or residuary legatee. She holds them as trustee for the creditors of the estate, and "as such can be pursued in a court of chancery.</p> <p>5. While debts .remain unpaid, a final account and discharge of an executor will not discharge him from liability to be sued as executor on such claims. Henderson v. Winchester, 31 Miss. 290 ; Pollock v. Buie, 43 Miss. 140. And particularly will this rule apply to a case like this, where the executrix was discharged, without notice, on the ground that she was sole residuary legatee, and the debts were paid, though it appeared, in fact, from her petition, that the estate was not ready for final settlement, and by order of the court she took the whole estate in her own hands.</p> <p>6. Even if, under the will, the estate of Adams is not liable at all, the executrix is individually. According to all authorities, if she individually allowed her means, or means belonging to her as residuary legatee, to remain and be employed in the trade or business of banking, she is liable though she be a married woman, under Code 1871, § 1780. That she did so allow said means to so remain and be employed, sharing in the profits, is clear from the bill.</p> <p>7. The objection of the appellees, that this appeal is not properly taken, on account of the “ leave to amend ” granted in the interlocutory decree appealed from, is without force. No matter what the decree contains, it is an interlocutory decree, and the court has granted an appeal therefrom, “ in order to settle the principles of the cause.” Code 1880, § 2311. Objection should be made to the Chancellor, as it was in his discretion to grant the appeal. It was eminently proper to reserve leave to amend in the decree sustaining the demurrer of part of the defendants, so that if the Supreme Court should affirm the decree on account of some amendable defect or omission in the bill, the complainants might still stand in position to assert their rights.</p> <p>1. Authority cannot be found in the will for continuing the banking business after two years, except for the purpose of closing it, and borrowing money was no part of the winding up of the concern. Continuance of a partnership after the death of one of the partners must be authorized by distinct and positive directions in the will for that purpose, fixing the duration. Kirhman v. Booth, 11 Beav. 273; Travis v. Milne, 9 Hare, 141; Parsons Part. 455; 3 Williams on Executors, 1793. Estoppel upon the executrix does not result from her consent to the continuance of the business. She must at least have knowledge of this particular transaction. To avail the appellants, it must also appear that they were influenced by it, and induced to make the deposit upon the faith of the acts and conduct of Spratt and the executrix. Herman on Estoppel, §§ 323-325. The law charges the appellants with knowledge of the will of Adams and of the power of Spratt and the exeeu-i trix, and the limitations upon that power. Sm.ith v. Ayer, 101 U. S. 320.</p> <p>2. If Spratt had authority to bind the estate of Adams by the contract of deposit which he made with the appellants, it is not chargeable upon the general assets of the estate, but only upon the assets of the firm of Adams, Spratt & Co. Burwell v. Mandeville, 2 How. (U. S.) 560; Smith v. Ayer, 101 U. S. 320 ; Jones v. Walker, 103 U. S. 444; Pitkin v. Pitkin, 7 Conn. 307 ; Alsop v Mather, 8 Conn. 584; Cutbush v. Cutbush, 1 Beav. 184 ; Ward v. Harrington, 29 Miss. 238; Hagan v. Barksdale, 44 Miss. 186 ; JEdgar v. Cook, 4 Ala. 588 ; Stanwood v. Owen, 14 Grajr, 195 ; Bacon v. Pomeroy, 104 Mass. 577. If the assets of Adams, Spratt & Co. alone are chargeable, then they can be reached by a decree against the surviving partner. Thei-e can be no action against the executrix unléss the decree subjects the general assets. Edgar v. Cook, 4 Ala. 588.</p> <p>3. It is contended that if the estate of Adams is not liable, then the executrix individually is. The firm „ business of Adams, Spratt & Co. was continued under the will of Adams by Spratt, the surviving partner, and not by the executrix. It is the party who conducts the business after the death that becomes individually liable. The executrix, not having conducted it, is not liable. Ex parte Carland, 10 Yes. 110 ; Citizens' Ins. Co. v. Ligón, ante, 305. Moreover, Mrs. French was a married woman, and her compliance with the will, in receiving profits and the like, was not within the purview of the statute which charges the estate of a married woman for the debts of a trade or business in which she engages. Netterville v. Barber, 52 Miss. 168; Newman v. Morris, 52 Miss. 402; Duncan v. Robertson, 58 Miss. 390.</p>

Hon. L. HauG-hton, Chancellor. Julia A. Tippin and her husband, John B. Tippin, with Clementius and Lee Walton, orphan minors, by their next friend Julia A. Tippin, on Sept. 27, 1880, filed this bill in chancery against Washington L. Walton and George C. Coleman, and process was made returnable the first Monday in March, 1881.

Hon. J. B. Chrisman, Judge, did not sit in this case, but Hon. Ralph North presided by interchange. In 1853, the town of Woodville contracted with the West Feliciana Railroad Co. for the purchase of a lot and house in the town, for thirty-five hundred dollars, payable in three instalments, for the use of public schools.

Hon. R. W. Williamson, Chancellor. In 1869, J. D. Butler contracted to buy land from Mrs. Le-grand, who executed a bond for title, but being unable to pay her all the purchase-money, he induced J. M. Doyle to advance One thousand four hundred dollars, on Jan. 23, 1871, and to take a deed from her, absolute in form. Doyle verbally agreed to convey the land to Butler, whenever the latter should repay the sum he had advanced, with fifteen per cent per annum interest.

Hon. I\ A. Critz, Chancellor, did not preside in this case, but W. L. Clavton acted as Chancellor 1. The purchaser’s right to charge the land with the sum paid is well settled independently of statute.