Volume 60 — Mississippi Reports

H'oh. E. G. PeytoN, Chancellor. On the 1st day of March, 1880, the sheriff of Hinds County sold a certain lot of land lying in the city of Jackson, for the taxes which were then due and unpaid, and F. A. Wolfe became the purchaser thereof.

Hon. S. S. CalhooN, Judge. This action of ejectment was brought by E. A. Enochs against Abner T. Miller and Eliza Miller, to recover a tract of land, described in the declaration and in the deeds adduced in evidence to support the plaintiff’s title, as “ one hundred and seven acres in the south part of south-east quarter of section twenty-two, township three, range two west, in the county of Hinds, and State of Mississippi.” The defendants, on the trial, objected to the…

Hon. U. M. Young, Chancellor. In August, 1878, James Grant became a member of the “ endowment rank” of the order known as the “ Knights of Pythias.” The section or lodge to which he attached himself was located at Vicksburg, in this State, where he resided. This order was incorporated in the District of Columbia, in 1870, and under its charter, there obtained, the subordinate lodge of Vicksburg was organized.

Hon. A. Gr. Maters, Judge. On the 23d day of November, 1881, J. L. Harris & Co. sued out a writ of attachment against J. T. Boyd, and caused the same to be levied ivpon certain personal property, which the sheriff took into his possession. A few days thereafter, Mrs. A. A. Lombard filed an affidavit, claiming that the property was hers, and that it was not liable to the plaintiffs’ attachment.

Hon. B. F. Trimble, Judge. On the eighth day of December, 1881, John Chaffe & Sons sued A. W. Benoit and his wife, Ida Benoit, in assumpsit, for $2,344.36, which it was alleged that the defendants owed jointly to the plaintiffs.

Hon. C. H. Campbell, Judge. On the 13th of March, 1882, an action was brought in the name of the State, suing for the .-.use of Holmes County, against J. S. Hoskins and his sureties, on his bond as tax-collector of that county, for two several sums of money, for the years 1876 and 1877 respectively, which, it was declared, he had collected and failed to pay over to the treasurer of the county as the law required of him -and as he was bound by the terms of bis bond to do. 'J.…

MotioN to file and docket a record herein. The case presented by the motion is fully stated in the opinion of the court.

<p>1. Chancery. Bill to subject equitable assets. Knowledge of fraud. Bar of remedy. Case in judgment.</p> <p>L., for the purpose of defrauding E., a minor, to whom he was indebted, sold his entire estate, and with the proceeds bought certain promissory notes made by his brother, S., and nominally transferred them to M., the wife of the latter, and who was insane. S.', participating in the fraud, executed a deed on land which he owned to secure the payment of the notes, and at the same time verbally gave to L. one hundred acres of the land, and put him in possession of it, but without any written evidence of title., The land was sold under the deed of trust and nominally bought by M., on the 1st of March, 1870. On the 25th of May, 1873, E., through her guardian, recovered a judgment, in the Federal court, against L.; but it was not rendered in the county where the property is situated, and was never enrolled in that county. In a few years thereafter, L., S., and M. had all died; and thereupon the heirs at law of M. sold and conveyed the land to H. Several executions were issued upon E.’s judgment, and the last one was' returned, as having been levied on a part of this land, but that was after it had been sold to H. G-. bought E.’s judgment, and, on the 28th of May, 1880, filed a bill against H. to subject the land to the judgment, as the equitable assets of L.’s estate. The only averment of knowledge of the fraud on the 'part of H. was that he knew S.’s wife was insane, and that S. owed her nothing. The bill was de.murred to. Held, that the bill is not maintainable (1) because the charge of knowledge on the part of H. was not sufficient; and (2) because the time having elapsed in which the lien of the judgment would have expired if there had been any, a court of chancery will not enforce the judgment against equitable assets.</p> <p>2. Judgment. Federal judgment. Effect of failure to enroll.</p> <p>Under the statute of this State requiring the enrollment of judgments in order to create a lien, the judgment of a Federal court has no lien on propertj' of the defendant situated in a county where the judgment was not rendered, and where it has not been enrolled.</p>

Hon. F. A. Critz, Chancellor. In July, 1877, K,. S. Hudson, executor of the last will and testament of John F. Gray, deceased, filed a bill praying for an order of court to sell the lands devised for the purpose of reimbursing him for expenditures made on account of the estate, and for distribution amongst the devisees, and alleging that the lands were of such a character that they could not be partitioned.

Hon. S. S. CalhooN, Judge. In April, 1880, Samuel L. Boyd, brought an action of assumpsit against James W. Ricketts, William T. Brister, William Hewett, John Brister, and John A. Campbell, on a promissory note signed “ Ricketts & Brister,” the name of a mercantile firm. The declaration alleged that the defendants were partners composing the firm of Ricketts & Brister.

Hon. W. G. Phelps, Chancellor. On the seventh day of April, 1880, F. A. Cox and others filed a bill against W. H. Johnson and James B. Johnson, and in connection therewith sued out an attachment which they caused to be served on Charles H. Smith, as garnishee.

Hon. S. S. Calhoon, Judge. On tbe 8th of July, 1882, this action was brought in the name of the State, for the use of Hinds County, against Farrar Morrison and the sureties on his bond, as tax-collector of Hinds County during the years of 1880 and 1881, for certain alleged defalcations in not paying oyer to the county treasurer taxes collected by him for the county. His term of office expired with the thirty-first day of December, 1881.

Hon. B. F. Trimble, Judge. Joseph Podesta brought an action before a j ustice of the peace against Wolf Aaron, upon an itemized open account, to which was attached the affidavit of the plaintiff that the account was correct and due by the defendant.' The defendant did not put in an appearance in the justice’s court and a judgment by default was rendered against him.

Hon. Warren Cowan, Judge. The case is sufficiently stated in the opinion of the court. I. The court below erred in not allowing the appellant to withdraw his plea of guilty. The Constitutions of the State and the United States give to every person charged with an offence the right to a trial by jury, if he desires it. In this case it is desired.

Hou. B. F. Trimble, Judge. Sect. 17 of the act incorporating the “ Board of Levee Commissioners of Bolivar, Washington, and Issaquena Counties,” approved 27th of November, 1865, provides that when any owner of land shall object to the building of a levee thereon, or claim compensation for damage he may sustain in consequence thereof, the president of the Board of Levee Commissioners, or such owner, may apply by written petition to the clerk of the Board of Police of the…

<p>Appeal from the Circuit Court of Hinds County.</p> <p>Hon. S. S. Calhoon, Judge.</p> <p>The case is sufficiently stated in the opinion of the court.</p> <p>In the case of Anderson v. /Sachs, 59 Miss. Ill, the assignment gave to the assignee power to collect or sell at public or private sale the notes and accounts assigned; and, on this point, the court say : “The authority given to the trustee to sell the choses in action, while unusual, does not inevitably or certainly tend to the injury of creditors. On the contrary, it may be that under some circumstances it would be of decided advantage that such course should be pursued.” It was objected that the trustees, protected by this authority, might sacrifice the choses in action and greatly impair the value of the trust estate; but the answer of the court was that no power to administer the trusts can be given which may not be abused by the faithless, and that a fraudulent abuse of the power would render the trustee personally liable to creditors, while they are always subject to the control of the Chancery Court. The power thus given was said to be analogous to, and not more susceptible of, abuse than the power to compound with debtors, which has been upheld by the courts.</p> <p>In that case, however, there was the grant simply of a power to sell choses in action in the alternate, which could only be exercised in good faith and to promote the interests of creditors. This power, like all other usual powers granted in assignments, was subject, in its exercise, to the control and supervision of the Court of Chancery. If the trustee should undertake to execute the power in a case where the choses in action were clearly collectible and thereby endanger them, or if he attempted to sell at an inopportune time or place, the Court of Chancery could interpose. It would be an argument against this privilege to say that the trustee became, or would become, personally liable, for -this personal liability would amount to nothing in nine cases out of ten. As suggested by this court, the' trustee in Anderson v. /Sachs took all his powers “ subject to the control of the Chancery Court,” and thus saved the unusual power granted by the assignor. Indeed, without the express power the court would, in a proper case, grant the power to sell or compound debts, and this was the extent to which the assignor went in the case cited. The trustee was to collect first; on failure to collect he was clothed with power to sell. He was not restrained in any way as to the power for collecting, or the time within which he was to collect debts. That was left to his best judgment and his good faith, — subject to the supervisory control of the courts. The assignor knew that it became the trustee’s duty, as soon as he accepted the trust, to use all necessary means, by action or otherwise, to realize the debts, and that if a debt ivas lost by his neglect- of duty, when the debtor had sufficient property to pay, he would .be personally liable for the loss, although he may have acted without any improper motive. RoyalVs Admr-v. McKenze, 25 Ala. 363. He knew that his trustee, if he-discharged his duty, would begin and prosecute all necessary suits, and institute all other proceedings necessary for the collection of all outstanding claims. Irwin v. Keen, 3 Whart. 347 ; Ogden v. Prentice, 33 Barb. 161. Presupposing that that this would be done, he gave the authority to sell dioses in action; and he knew that any abuse of even this power would render the assignee personally liable. This case-, therefore, only anticipated what would have been done by the Chancery Court in the exercise of its undoubted jurisdiction, whenever the proper showing could be made, and does not apply to the case at bar. The court very well saw the unusual power granted, thus considered, did not inevitably or certainly tend to the injury of creditors, — and, in reply to the suggestion that choses in action might be sacrificed, said, that there was a remedy open to the creditors, by an appeal to the Chancery Court, or a personal action against the assignee.</p> <p>But we think the reasoning of the court in Anderson v. Sachs, and the conclusions from that reasoning, necessarily upset the argument in this case. The provision in the-bankrupt law on this subject is: “The assignee may sell and assign, under the direction of the court, and in such manner as the court shall order, any outstanding claims or other property in his hands, due or belonging to the estate, which cannot be collected by him or received without unreasonable or inconvenient delay or expense.” Bev. Stats. U. S., sect. 5064. Here, then, is a practical exemplification of the views of the Congress in reference to bankruptcy proceedings, and a perfect illustration of what every man knows to be necessary to prevent frauds. And yet, it is part of the history of the country that, under this power so carefully guarded, creditors are daily swindled and insolvents enriched by the sale of what were supposed to be uncollectible, but which were really collectible, claims.</p> <p>Our own statute authorizes the Chancery Court, by decree, to authorize any executor or administrator to sell or compromise any claims due the estate which cannot readily be collected, if the executor or administrator shall petition for that .purpose, and shall show that such sale or compromise will promote the interests of the estate ; but no such order of sale shall be made until twelve months have elapsed from the grant of letters. And if a sale be ordered, it shall be made at the courthouse door,.for cash, to the highest bidder; but the executor or administrator shall first give twenty days’ notice of the time and place of sale, by advertising in a newspaper printed in the county, if there be such, but if not, then in a newspaper published in some convenient county. Code 1880, sect. 2065 ; Code 1857, p. 447, Art. XCV. ; Code 1871, sect. 1155.</p> <p>In 1844, the High Court of Errors and Appeals decided that the executor might release or compromise a debt, and if, in so doing, he appears to have acted for the benefit or the estate, he will not be chargeable with it as assets. Berry v. Barker, 3 Smed. & M. 639 ; Bailey v. Bilworth, 10 Smed. & M. 409 (1848) ; Longer. Shackleford, 25 Miss. 566 ; Oulledge v. Berry, 81 Miss. 348 ; 43 Miss. 517. But be can have no power to sell collectible assets, and no power to sell apparently uncol-lectible assets, without proceeding in the mode pointed out by statute.</p> <p>If we recur to sect. 2065 of the Code of 1880 it will be Seen that twelve months must have elapsed before any order of sale could be made, and that twenty days’ notice in a newspaper must be given before the assets can be offered for sale. Here, then, we have the provisions of our own statute on this subject, and the bankrupt law, both of which indicate quite plainly the view taken by the State and national Legislatures on this very important subject, and the policy of our State, at least, is never to give to trustees for creditors the original right to sell choses in action. The twelve months’ time w'as specified, because within that time it was supposed all collectible debts could be recovered ; the twenty days’ notice in a newspaper, because of the publicity given to the matter, and the beneficent result to flow from it. There was in the mind of the law-giver the thought and knowledge that sales of accounts and notes in this State, where the anti-commei’cial law rule prevails, would, under ordinary circumstances, realize nothing of moment; and even in the case of officers, bonded and sworn, it was deemed necessary to leave it wholly to the court to say whether such sales should be made or not, and to fix the character of the notice for sale that should be given, The additional fact may be mentioned that as to assignees in bankruptcy and executors, the general public would have the right of access to books and papers, so as to determine the approximate value of the choses in action offered for sale. It lends some weight to these suggestions that, at common law, choses in action are not assignable at all, and only are made so by our statute.</p> <p>We presume that no one at all familiar with the daily transactions of life can doubt but that the inevitable or certain result of a wholesale disposition at public auction, on ten days’ notice, of choses in action, accounts and notes, whether due or not, would be the injury of creditors. If that be the result, we think the case of Anderson v. Sachs condemns, by an irresistible inference, the assignment made by Sta-pleton & Brother. The court cannot shut its eyes to the fact that, as a rule, assignees are the intimate friends of the assignors, and when the assignor’s wife is the principal preferred creditor, it can hardly need argument to demonstrate that she alone would have the proper appreciation of values at any bidding made under the assignment.N The outside world would be in the dark, without chart or compass, and the courts would be wholly powerless to arrest the sale without infringing upon the very deed under which the assignee was acting, bjr making a wholly different contract for the parties. That cannot be done.</p> <p>But it may be urged here that many of the claims, if due, might be within the jurisdiction of a magistrate, and the time allowed would suffice. To this, we answer that the court must consider the assignment as if the claims were equally within the exclusive jurisdiction of the Circuit Court. Besides, if the debts were of $150 or less, it could make no difference. Had the assignee sued and gotten judgment, an appeal could have been taken to the Circuit Court, which could not have been heard or decided before the sale day appointed by the assignor ; and with a pending appeal, in a good case, the trustee would have been forced to sell, though he may have known that the debt was perfectly good, and best interests of the creditors were being sacrificed. If, in the exei'cise of his power, he had sued in the Circuit Court, the very same result would follow ; for, before a plea of non assumpsit could be filed, he would be'compelled to sell the assets at public auction. Certainly, the children of this generation, who are as wise'as the children of the light, in all that works for their interest, would not be slow to take in the situation, refuse to pay their debts, and work to postpone collections for the dax^ of general deliverance. Thus we reduce the whole argument to this: Stapleton makes an assignment, providing for the collection of his debts, giving no sort of discretion to his assignees, and requiring them, at the end of nine months, to sell these debts, whether due or not, at public auction,’on ten days’ notice. He thus prevents the possibility of consummating the collection of these debts otherwise than by a sale, and directly does that which must result in a sale of every account and note he held, due or not due, good, bad, and indifferent. In effect, while enjoining upon his trustees to sell, he saj's to his debtor friends, “ Don’t pay, and you can buy in your debt for a song a few months hence, or my wife will, and make terms favorable to you.” He, therefore, summarily cuts off all power to sue for or compound any debt, and checks settlements in any way other than that which conforms to his plan of operations.</p> <p>It is hardly necessary to say that a man cannot do that indirectly which the law prohibits to be done directly. If the assignment had prohibited the assignee from suing at all, or compounding any debt, there can be no doubt that it would be void, for many reasons. What difference does it make, when the necessary result of its provisions is the same ? It seems to us to lje very apparent that Stapleton intended this very thing, — the logical result of his assignment, — and that his wife and Carson should buy in every asset he had, fqr a song, and thus become owners of his property and business.</p> <p>On the provision of the assignment, directing a sale at auction of the dioses in action, remaining uncollected, at the end of nine months, we ask leave to say : —</p> <p>That authority to sell dioses in action, at auction, may be given by the assignment, is unquestioned. Anderson v. Sachs, 59 Miss. Ill; Bump’s Fr. Conv. (2d ed.), 412. The time for making the sale may be fixed by the assignment, if reasonable. What would be a reasonable time, depends upon the nature and character of the property assigned, and the time necessary to collect and convert it into money. What would be reasonable in one case might be utterly unreasonable in another. Bump’s Fr. Conv. (2d ed.), 400, 401; Burrill on Ass. (2d ed.), 200. The question of the reasonableness of the time in this case was settled by the verdict of the jury, who had, in evidence before them, the facts and circumstances which revealed the nature and character of the choses in action — whether within magistrate’s or circuit court jurisdiction — whether secured bjr deeds of trust or not, and the residence of the parties from whom were due. With all the facts and circumstances of the case before them, and considering the provisions of the assignment in connection with the facts and circumstances, as they were directed to do by the instructions of the court, as given in the eighth charge for the plaintiffs, the jury found the assignment to be not fraudulent in fact, and that the time prescribed in this case was reasonable. Counsel cannot assume before this court that the choses in action assigned are collectible in the Hinds County courts — that they are within the jurisdiction of the Circuit Court, or, if within magistrate’s jurisdiction, that appeals would be taken to the Circuit Court of Hinds County, and on this assumption argue that the choses in action could not be collected by suit before the time fixed for the sale, and that the assignment cuts off all power to sue or collect in any way other than by sale at the end of nine months.</p> <p>When does the language of an assignment, such as the one in this case, make it void on its face for fraud? I answer never, if it be possible by proof to show that it is not fraudulent against creditors ; hence, if the suspected clause may or may not be fraudulent under outside facts, it does not make the act fraudulent per se, or on its face. Such clauses may arouse suspicion ; may, if unexplained, be enough to sustain a charge of fraudulent intent, just as a fact proved, and unexplained might do ; but these do not make the assignment void on its face, for proof may show them to be consistent with fair dealing to the creditors. In contrast to these are certain other clauses that no pi’oof can show to be consistent with fair deal-' ing to the creditors; such are, reservations to the debtor adversely to the creditors, the debtor’s right to continue in possession and use for a long time befo,re sale, his right to continue trade on the goods conveyed, etc. No proof could show such clauses to be consistent with fair dealing to the creditors. Clauses of the former kind may be evidence of fraud-ulant iutent, but counter-proof may show them to be reasonable and just to creditors. Then the court or jury wants the outside facts: then the deed is not fraudulent on its face. Clauses of the latter kind cannot by proof be reconciled with reasonable and just dealing with creditors. Then the deed is fraudulent on its face. The former are symptoms of a fatal malady, which a full diagnosis may show not to exist; the latter is the fatal malady itself. This doctrine is well sustained by authority, and authority brings it directly to the point in this case, for authority shows directly that reasonableness of time given by the first deed for final sale and closing the trust comes within the former class, and not within the latter. Burrill on Ass., p. 285., sects. 214, 215 ; p. 478, sect. 345; Bump’s Fr. Conv. 401, 402; 59 Miss. 99. Our own decisions hold that a clause conferring on the trustee power to sell such dioses in action at auction, comes within the former kind and not within the latter. 59 Miss. 113.</p> <p>The only inquiry then is : could proof show that an auction sale of the remaining debts after nine months’ diligent effort to collect,— and the court cannot presume that the trustee would not do his duty,— was fair dealing with the creditors. The inquiry turns on time alone. Burrell and Bump, ubi supra, show that such a limitation is of the former kind and not of the latter — and does not render the deed void on its face. So far from this case being suspected on the nine months’ time, it develops the soundness of the doctrine. The assignment conveys about $9,000 of goods, aud about $7,000 of accounts, notes, and agricultural trust-deeds ; in the Circuit Court, the details and character of these assets of both classes were before the court and jury; they are' not here because plaintiff’s instructions, asked and refused, did not involve them, and therefore plaintiffs did not put them in their bill of exceptions. The assignment creates the following mode of converting those assets into money for payment of debts : —</p> <p>The trustee, with diligence, to sell the assets for cash, at public auction or private sale, as he may think most beneficial to the creditors ; as soon as practicable collect and recover all debts ; keep an account of cash receipts from sales and collections ; from those receipts, without delay, pay costs and debts. Such is the line of the trustee’s duty ; collaterally, he is told, “ that if he should deem it for the best interest of the creditors to sell the goods at retail, then he shall pay proceeds of sales and collections to creditors at the end of every thirty days;” and further, that if he should adopt this latter plan, pursue it for nine months, and at the end of that time find himself with a remnant of goods unsold and debts unpaid, he will sell the remnants of both goods and debts (after due notice) at auction, and pay proceeds of such sale to the creditors. To epitomize the plan presented, it is, promptly sell the goods for cash, at public auction or private sale, as you may think is best for the creditors ; collect and recover (judgment, I suppose) the debts as rapidly as possible ; if you deem it for the best interest of creditors to sell the goods at retail, do it. In the meantime, collect and recover as rapidly as possible, pay the creditors as fast as you get the money from either source. If this lasts nine months and a remnant of goods and debts still remain, close the trust by sale at auction for cash, and paying proceeds to creditors. Observe that to the end of nine months the trustee’s duty is diligence in collecting debts, selling goods, and paying over proceeds ; he is given during that time discretion, controlled only by the interest of creditors. He could close the trust any day that he could make it for their interest. Plainly, the policy of the assignment is to have the remnants of both goods and debts reduced to nothing, or as diminutive a value as possible, then sell them and- close the trust. It will take very cogent logic to convince the court that the plan prescribed for the trustee could not, by proof, be shown to be consistent with fair dealing with the creditors! The objection is, that notes, accounts, and trust-deeds may be a part of the remnant, which at the end of nine months, maybe sold at auction'; that an auction sale is all right as to both goods and choses in action, and the nine months is all right as to goods, but so wrong as to the remnant of the choses in action as to make the trust-deed, in everything else perfectly sound, void on its face, because no possible proof could show that nine months’ limitation to be consistent with fair dealing to the creditors. Now I think that it is perfectly impossible to form such a conclusion on the face of the deed, just as impossible as to the debts as to the goods. The goods might be perishable in a month; if, therefore, a month’s limitation for the auction had been prescribed as to them, it would be impossible to say on the face of the deed, that it was unfair to the creditors. As to the debts, until the court and jury know the general character and amount of each debt, how many of them could probably be collected by suit, how many not’, in what courts suits must be brought, the- probability that proceeds of collections .forced would remunerate expenses thereofi,- and other items bearing on each particular case, it would be improbable for either to say that the limitation prescribed was unfair dealing with the creditors ; in some cases of valuable and solvent debts, five or six years might not be too long to keep up the trust, in others of insignificant and insolvent debts, ten days is long enough ; in others of small debts, some solvent and some insolvent, it is purely a matter of judgment in each case dependent on the extrinsic facts; the same provision might in one deed make that deed perfectly void for fraud iii fact, and in another leave it perfectly valid because there was no fraud in fact. The extrinsic facts proved would contrast the effect of the same provision in the two deeds. For example, suppose that of a hundred choses in action so conveyed, there was not a reliable debt amongst them, would it be fair dealing with the creditors to prescribe or permit that as to those debts the trust should remain for years, suit be brought on them, and costs, expenses, trustee’s salary, and lawyer’s fees be paid from any trust-money on hand? Which would be more faithful to creditors, for the assignor, who knows all the extrinsic facts, to prescribe a rule fair in his judgment, or clothe a trustee of his own selection with power to protract the trust expenses, the trust values, and his salary for years? Would it be any more fair dealing with the creditors to burthen the money on hand with numerous suits producing nothing, but squandering the fund on hand on the trustee, his lawyer, and the officers of the courts?</p> <p>Now, I use these incisive points to show that the court cannot say on the face of the deed that the nine months’ clause was not a wise provision in favor of the creditors, much less can the court say on its face, that it is a fraudulent provision against their interest. Without that the court cannot pronounce the deed fraudulent on its face.</p> <p>Under our statute a purchaser of any of the choses in action at such auction sale, would take as perfect legal title as he would to other personal property ; for choses in action, like all other personal property, may be assigned by trust-deed to secure creditors. Code 1880, sect. 1507.</p> <p>Burrill and’Bump, each in his statement of what is so assignable for that purpose, mentions mortgages, debts, choses in action, generally, including promissory notes, bills of exchange, bonds, book accounts, insurance policies, judgments, executions, decrees, etc., all under the denomination of personal property. Burrill on Ass., pp. 129, 130, sects. 100, 101. Bump’s Fr. Conv. 236, and authorities.</p> <p>Both Burrell and Bump develope the principles which govern such conveyances of personal property for the benefit of creditors, when fraudulent on their faces and when not, sanction the direction of such auction sales of personal property, and as to time of such sales of personal property, sanction both more and less than nine months. True, that in defining these principles neither mentions choses in action specially as controlled by them in reference to time, but what is more important is that neither makes exceptions of them, neither even hints that there is a distinction between them and other personal property in that respect. The truth is that on a question of fraud there is no necessity for or propriety in such a distinction, unless outside circumstances imperatively demand it in the particular trust-deed.</p>

Hon. C. H. Campbell, Judge. The case is stated in the opinion of the court. The only question in this case is as to the effect of the deed executed by Wm. B. Little to Wm. É. Rosamond.

Hon. J. M. Arnold, Judge. On the 18th of July, 1882, F. L. Jones was indicted for the murder of Thomas Jones, which, it was charged, occurred on the 3d of July, 1882.

MartiN Marshall, Esq., Special Judge, by agreement of parties, Hon. Warren Cowan being disqualified, because having been of counsel in the case. Lewis Kent sued D. H. Silver and T. W. Shields, as a company of common carriers engaged in the business of carrying freight by steamboat from St. Louis to New Orleans and intermediate points on the Mississippi River.

Hon. S. S. Cali-ioon, Judge. The main question in controversy in this action depends upon the construction of a deed of trust, the premises and granting part of which are as follows: “This deed of trust, made this third day of May, a. d. 1880, witnesseth: That whereas Henry C. McPike, party of the first part, is indebted to Harrison & Lewis in the sum of sixty-eight hundred, nineteen and dollars, on his promissory note of even date herewith ; and whereas, said party of the…

Hon. A. Gr-. Mayers, Judge. Upon the recommendation of the persons appointed under an act of the Legistature, approved March 9, 1882, to assist in the… Held: without exception, so far as I have been able to ascertain, that personal property, transitory in its character,— merely passing through a State,— is not subject to taxation elsewhere than at the domicile of the owner. Such property has no situs in legal contemplation, and is only taxable where the owner resides.

Hon. B. F. Trimble, Judge. This is an action of ejectment brought by M. P. Metcalfe and wife against John M. McCutchen and Susan P. Taylor; and from a judgment in favor of the defendants, M. P. Met-calfe appealed to this court. The facts of the case, and the points in controversy are stated in the opinion of the court.

Appeals from the decision of Hon. T. J. Wharton, Judge of the Ninth Judicial District, refusing to grant writs of mandamus in the cases stated in the^opinion of the court. There is no specific appropriation of the common school fund proper by the constitutional and statutory provisions in relation thereto, since all must be distributed without regard to any one year. It must all be distributed with the sole restriction that it must bq pro rata.

<p>Bankruptcy. Effect on title to land. Suit by bankrupt.</p> <p>One who has been adjudged a bankrupt cannot afterwards recover a tract of land, not exempt property, upon the strength of a title held by him at the time of the adjudication of his bankruptcy, as such title must have passed to the assignee, unless he has been subsequently re-invested with the title, or there he circumstances to raise the presumption of his right to assert the same.</p>

R. B. Campbell, Esq., Special Chancellor, by agreement of parties, Hon. W. Gr. Phelps, being disqualified to preside, because a solicitor in the case. In April, 1873, Anne E. Bardwell and others filed a bill in chancery, against J. B. Baird and others.

Hon. R. W. Williamson, Chancellor. The case is stated in the opinion of the court. Conceding, for the purpose of argument, that the sale was fraudulent, the decree was, nevertheless, erroneous in not allowing J. W. McLean to be reimbursed the sums paid out in discharge of encumbrances and taxes, and in the erection of valuable improvements, less the rents received by him.

Hon. E. G. PaytoN, Chancellor. On the sixteenth day of June, 1853, William Tigner signed and acknowledged a deed purporting to grant and convey to his two sons, Clark H. and Williapi -N. Tigner, a large tract of land, known as “ Millbrook plantation,” in Wilkinson County, together with the slaves, stock, and other personal property thereon, “for and in consideration of the sum ■of $60,000, secured to be paid by a number of notes, payable in five annual instalments, to be…

<p>Appeal from the Chancery Court of Yalobusha County.</p> <p>Hon. A. B. Fly, Chancellor.</p> <p>In August, 1880, E. M. Sayle, surviving member of the firm -of D. L. Sayle & Co., filed the bill in this case, against W. T. & P. J. Brett, alleging that in January, 1880, the Bretts, in order to collect the rent which Sayle & Co. owed them as •sublessees of a certain plantation, sued out a writ of seizure against E. M. Sayle, as surviving partner, and caused the same to be levied on six bales of cotton, and judgment was after-wards rendered by the Circuit Court in favor of the Bretts for the $330 as the value of the cotton, it having been retained !by Sayle under a forthcoming.bond ; that in the trial of that proceeding, Sayle offered as a set-off to the demand for rent an ■open account for $568, which the Bretts owed Sayle & Co. for merchandize, but the court refused to admit the account as a ■set-off, on the ground that the account was not admissible as a set-off in such a proceeding, and that the Bretts are insolvent, and while complainant cannot make his debt out of them, they will collect their judgment against him, unless prevented by the interposition of the Chancery Court. The bill prayed for an injunction restraining the Bretts from the collection of their judgment, and the amount due thereon be applied as a part payment of complainants’ claim against them.</p> <p>The defendants answered the bill, averring that they leased the plantation referred to in the bill from one E. P. Williams, ■and then sublet it to Sayle &Co., who, in a written contract, agreed to pay Williams the same rent as that for which the ■defendants had leased the premises from Williams, and that eomplainant was not allowed to set-off against the demand for rent his account against the defendants, because the rent was due to Williams and not to the defendants. Proof was taken by both sides, and on the 30th of March, 1882, the court below rendered a decree in accordance with the prayer of the bill. Thereupon the defendants appealed.</p> <p>No fact could be more conclusively proven, than the fact proven in this case that the Circuit Court, in the writ of seizure case, excluded the account of appellee against the Bretts, as a set-off to the demand for rent, upon the sole and sufficient ground that the rent was due to Williams, and that the Bretts were seeking in that action to recover for Williams. But the chancellor could not be induced to decide the case upon its merits, but continuously interposed the technical objection that the judgment of the Circuit Court recited that payment thereof should be made to the appellants.</p> <p>The court below ought to have risen above technically quibbling about the face of the judgment, and looked, in conformity with the rules of law and equity, to the whole record. 56 Miss. 246 ; 56 Miss. 573. The judgment or decree is not only interpreted by the preceding record, but the preceding record controls it. Dogan v. Broivn, 44 Miss. 235 Finally, the court having assumed jurisdiction of the matter, and having-taken full proof, ought to have decided the case upon its mei’-its, as abundantly shown by the proofs.</p> <p>There is' no error in the decree allowing the set-off and perpetuating the injunction, because : —</p> <p>1. The Circuit Court had no jurisdiction of the set-off. The suit in that court was a proceeding in rein, and the jurisdiction of the court was confined to the property seized under the writ. When that was disposed of, the jurisdiction was at an end. Hartsell v. Myers, 57 Miss. 135 : Buvrass v. Banders 57 Miss. 211; 57 Miss. 605.</p> <p>2. The Circuit Court having no power to allow the set-off, a court of equity will interfere and grant relief. The insolvency of appellants, Brett, the judgment-creditors, is the special intervening equity that confers the jurisdiction. Condon v. Shehcm, 46 Miss. 710 ; Perkins v. Coleman, 51 Miss. 298; 3 Humph. 220; 2 Head, 194.</p> <p>3. As to the pretence of appellants that the rent belonged to E. P. Williams and not to them, the judgment of the Circuit Court in their favor, rendered at their instance, is a conclusive answer against them.</p>

Hon. J. W. BuchaNAN, Judge. In 1870, there was set apart to Mary A. Duckworth, as the widow of J. J. Duckworth, deceased, and his two children by a former wife, as exempt property, a lot of personalty, consisting of household and kitchen furniture, farming utensils, horses, cows, hogs, etc. On the 15th of September, 1874, Mary A. Duckworth married again. In March, 1881, she died.

MotioN in Supreme Court. L. G-. Johnson sued out an attachment against Frank P. Devens and others as non-residents, for an alleged indebtedness of $1,000, and caused a writ of garnishment to be served on Mattingly, Son & Co. The defendants in the attachment, denied the indebtedness, and in the trial of the issue in respect thereto the court instructed the jury to find for the defendants, which they did.

EugeNE JOHNSON, Esq., Special Chancellor, by agreement of parties, Hon. J. B. Morgan being- disqualified. In 1865, S. C. Myers became a surety on the bond of George Myers, as administrator of the estate of his father, George Myers, deceased. In April, 1877, the distributees of this estate brought an action on the bond of the administrator and recovered a judgment thereon for $1,622 against him and his sureties.

Hon. J. A. GreeN, Judge. On the twenty-fifth day of July, 1879, an execution was issued by a justice of the peace, on a judgment in favor of T. H. Clopton, for the use of F. S. Clopton, against J. D. McAl-lister. It was levied by the constable, W. E. Love, upon a horse, as the .property of the defendant; but the constable became uneasy about the levy, and required the plaintiff to furnish him an indemnifying-bond.

Hon.C. H. CAMPBELL, Judge. The case is sufficiently stated in the opinion of the court. The question presented is, whether the cotton raised on the leased premises could be levied on more than thirty days after its removal from the premises, or thirty days after the debt became due. Prior to the act of April 17, 1873 (Stats. 1873, p. 79), there was no lien for rent on personal property or crops. ArbucJde v. FTelms, 50 Miss. 556.

Hon. A. B. Fly, Chancellor. A statement of the case will be found in the opinion of the court. 1. The question presented in this case was decided in the case of the Bank of Holly Springs v. Pinson, 58 Miss. 421 ; or if not so decided it was the fault of Mrs. Pinson.

Hon. J. G. Hall, Chancellor. A demurrer to the appellee’s bill was filed by the appellant in vacation, and at the next term of court was set down for hearing by the appellee, and the court then overruled the demurrer as of course, for the .reason recited in its order that the defendant had not appeared in person or by attorney, or set down the demurrer for hearing, or shown cause why it should not be overruled.

<p>.Partnership. Preliminary contract. Contemporaneous contract. Chancery jurisdiction. Case in judgment.</p> <p>L. filed a bill alleging, substantially, that he built on the land of the defendant, A., a grist and flouring mill, under an agreement that each party should contribute one-half of the amount requisite for its erection and equipment, and that when completed it should be operated in copartnership for nine years, the net profits to be equally divided as they accrued, and at the expiration of the time named, the defendant to repay complainant the sum .originally advanced by him, with interest at a stipulated rate; that complainant was to give his personal attention to the business, and the defendant was to furnish one skilled operative to assist him. The bill further states that the partnership has expired by limitation; that during'its existence the net profits were regularly and equally divided as they accrued; but that defendant, having failed during a portion of the time to furnish the assistant promised, had, by agreement, paid complainant fifty dollars per month in lieu of the assistant, except the sum of $47, which was still due on that account. 'The purpose of the bill was to collect this $47, and, also, the sum of $3,500, the amount contributed by L. as his half of the expense of the erection and •equipment of the mill, and interest thereon; and it sought an account as between partners, and prayed for the establishment of a lien on the land for the amount found to be due, and for the sale of the property to satisfy the decree to be rendered. The bill was demurred to on the ground that the complainant has a complete and adequate remedy at law; and the demurrer was sustained Held, that there is no element of partnership involved in the matters complained of, and the demurrer was properly sustained.</p>

Hon. L. Haugiiton, Chancellor. On July 28,1881, A. J. Stricklin filed this bill against W. L. Stricklin, Mary Stricklin, E.E. Brown, Heirmann & Kalin, and S. L. Sanders, a constable of the county, to enjoin the sale of the land in controversy, which was levied on under two judgments obtained in a justice’s court in favor of Heirmann & Kahn against W. L. and Mary Stricklin, alleging that W. L. and Mary Stricklin conveyed the land in April, 1881, to E. E. Brown, who on June…

Hon. A. T. EoaNE, Judge. The appellants, having recovered a judgment against John Á. Wilkings, had an execution issued thereon and levied upon a certain stock of goods and merchandise. Mrs. Lou O. Wil-ldngs, wife of the defendant, in the execution, claimed the property as her own. An issue to test her claim was made and tried by the court, upon aii agreed statement of facts.

Motion in Supreme Court. The appellants in this case appealed, without supersedeas, from a decree of the Chancery Court ordering the sale of a tract of land to pay a certain indebtedness declared to be a charge thereupon.

<p>Appeal from the Chancery Court of Lee County.</p> <p>Hon. L. Haugi-itoN, Chancellor, being sick, Hon. F. A. Critz presided.</p> <p>On December 19, 1876, G. B. Merritt sold and conveyed to one Stevens certain real and personal property, on a credit of one, two and three years. Three notes for two thousand dollars each, maturing in twelve, twenty-four, and thirty-six months, were given to Merritt by Stevens, and each note was secured by a separate trust-deed on the property sold. On December 23, 1876, Merritt sold the first note, which matured on December 19, 1877, to Merritt, Allen & Co., the owners of the Exchange Bank at Tupelo, Mississippi, and assigned the note, with the trust-deed which secured it, to the purchasers. The trust-deed was filed for record the same day, in the office ■of the chancery clerk of Lee County, where the property was ■situated. The other two notes and trust-deeds were taken to Mobile, Alabama, and left with J. L. Murphy, who held them, apparently for Merritt, until February, 1878, when they were brought back to Tupelo by Merritt, who delivered them to Morton & Elliott, merchants of that place, as collateral security for his indebtedness to this firm and advances which they were to make him. These trust-deeds were filed for record on February 22, 1878, after they came into the hands of Morton ■& Elliott. F. M. Goar, the president of the Exchange Bank, was trustee in all three deeds. On account of his interest in the note purchased by the bank, he declined to act as trustee. H. C. Medford, one of the appellants, was appointed trustee in the deed held by the bank, .and the appellee, W. A. Mc-Canless, was made trustee in the other'two deeds, then held as collateral security by Morton & Elliott. In December, 1879, H. C. Medford advertised all the property for sale under the bank’s trust-deed, when W. A. McCanless, trustee in the ■other deeds, filed a bill alleging that the first note was paid, and that, if not, the notes were all three due and were of equal dignity; that Medford would apply the proceeds of the property, which was insufficient to pay all the notes, to the first one before the others, and prayed that Medford be enjoined from selling; that an account be taken, the property sold, and the proceeds applied pro rata in payment of the amounts due on the several notes.</p> <p>After the injunction was served the defendants, F. M. Goar and J. M. Allen, composing the firm of Merritt, Allen & Co., and doing business under the name of the Exchange Bank, and G. B. Merritt, answered the bill. They denied that any payment had been made except a small one credited on the note ■of the bank. They also denied that the liens were of equal dignity, and claimed that theirs was superior to the others : First, because it was first made, first assigned, first due, first secured, and its security first recorded. Second, because Merritt’.s purpose in dividing the debt and securing the notes by separate deeds was to enable himself to impart this preference to them in their order by recording them at different times, and that to carry out his contract with the bank, made-in accordance with this purpose, he agreed that the first trust-deed should be filed for record and the others withheld, and that the first one, which he then held with the others, should, when he sold it to the bank, be a preference lien over the other-two deeds.</p> <p>The evidence for the complainant failed to show any payment but the one credited. The defendant’s evidence proved the special agreement for preference set up in their answers. But the assignment to the bank was in these words: —</p> <p>“ For value received, I transfer the within note to Merritt,. Allen & Co.</p> <p>“ December 23d, 1876. G. B. Merritt.”</p> <p>On the objection that the defendant’s evidence setup a parol agreement contemporaneous with this writing, the chancellor-excluded their testimony.</p> <p>From a decree granting substantially the relief prayed for in the bill, the defendants appealed.</p> <p>1. Where there are several notes secured by different deeds-of trust and falling due at different times, and they have been assigned, the preference should be given to the one which falls due first. Our decisions, which conflict with the current of American authority, in holding that mortgage notes secured by the same instrument are payable pro rata if all due, are erroneous, and should not be extended. The assignment of the note and mortgage is alone evidence sufficient to show a design to give a preference. Jones on Mort. 822 ; Walker v. Dement, 42 III. 272 ; Bank of Bngland v. Tarleton, 23 Miss. 173.</p> <p>2. In this case, however, an agreement for the preference is proved. The owner of the notes had the light to contract thus. Jones on Mort., sects. 606, 822. It was competent to prove this by parol evidence. The original contract was verbal and only part of it was. reduced to writing. 1 Greenl. on Ev. 284; Whart. on Ev., sect. 1015. The evidence is not introduced for the purpose of altering the writing, but of proving the entire contract and thus explaining the written -part. Miller v. Fichton, 31 Pa. St. 260. When the-contract, as in this case, is verbal and not intended to be embraced in the writing, it can be proved by parol. Randle v. Turner, 17 Ohio, 268 ; Gilman v. Moody, 43 N. H. 371. The cases cited by appellee’s counsel merely state the general doctrine, that a written contract cannot be varied by verbal proof.</p> <p>The general rule in cases like this one is that the notes should be paid pro rata. Cage v. Her, 5 Smed. & M. 410 ; Teny v. Woods, 6 Smed. & M. 150. The application of this rule cannot be prevented by an understanding existing only in parol, and made contemporaneously with the written contract. Martin v. Cole, 104 U. S. 30 ; Bast v. Bank, 101 U. S. 93; West v. Smith, 101 U. S. 271. Parties who have put their contracts into writing cannot vary them by parol evidence: Wren v. Hoffman, 41 Miss. 619. There is here no question of the consideration. Cooke v. Blackburn, 57 Miss. 691: s. c.-58 Miss. 539. But this preference, even if it could be given by parol, cannot be enforced against innocent purchasers'of the other notes, who have paid value for them without notice of the understanding. Jefferson College v. Prentiss, 29 Miss. 55 ; Cutlery. Supervisors, 56 Miss. 115 ; Fthridge v. Gallagher, 104 U. S. 35. This testimony is too vague to vary the written contract, even if it was admissible for this purpose.</p> <p>' If the fund is insufficient to pay all the notes, the holders take pro rata. Parker v. Mercer, 6 How. 320 ; Henderson v. Herrod, 10 Smed. & M. 631; Pugh y. Holt, 27 Miss. 461; Wooten v,. Buchanan, 49 Miss. 386. The parties’ rights are measured by their written contract, which cannot be varied by parol. Bast v. Bank, 101 U. S. 93 ; Martin v. O-ole, 104 U. S. 130.</p>

Hon. J. A. Oreen, Judge. On November 14, 1881, the appellee made affidavit before a justice of the peace of Monroe County that W. A. Hanly would next day be indebted to him for rent of land in Clay County, and that he had removed his effects. Bond being given, a writ of attachment was issued by the magistrate and levied upon property, which the appellants replevied as innocent purchasers from the absconding tenant.

Hon. L. Haughton, Chancellor. The case is stated in the opinion of the court. 1. Land cannot pass by nuncupative will unless the statute of this State authorizes it. Jenner v. Harper, 1 P. Wms. 247; Dale v. Smith, 64 N. C. 52; Redf. on Wills, 201. Our statute does not admit of such a construction. Code 1880, sects. 1262, 1266, 1269. Upon this point there is no room for doubt. 2.. The other question is not so clear.

Hon. J. W. Buchanan, Judge. This was an action of assumpsit upon a promissory note executed by W. H. Neal to the order of W. E. Berry, and assigned by the latter, for valuable consideration, to the appellants. Neal pleaded the general issue, and gave notice that the note sued on was made only for the accommodation of his codefendant, Berry, an'd that he'received no consideration whatever therefor. The evidence is stated in the opinion of the court.

Hon. J. M. ArNOlu, Judge. Under an, execution in favor of the appellees, the sheriff seized property of S. W. Carothers, the defendant in execution, including some which he held under a small attachment,, and sold it, when this defendant gave him a bond to have the money forthcoming to abide the judgment, and the sheriff gave Carothers the money.

Hon. A. T. KoaNE, Judge. The appellant having been indicted for perjury made a motion to quash the indictment on the ground that it failed to charge that the false swearing was “feloniously” done. The motion was overruled, the defendant was tried and convicted, and appealed from the judgment of the Circuit Court. The omission of “ feloniously ” in the indictment for perjury is fatal to the indictment, and the court erred in not quashing it.

Hori. J. M. Arnold, specially presiding, by exchange with Hon. J. W. Buchanan. On the 2Gth of September, 1881, the Okolona Savings Institution recovered, in the second district of Chickasaw County, a judgment for $345 against 11. W. Haley, which was duly enrolled in that district on the 10th of October, 1881.

Hon. J. W. BuchaNAN, Judge. The case is stated in the opinion of the court. Sect. 2623, Code 1880, provides that the sheriff shall deliver to the successful party the property in dispute, whenever no bond is given, and the property remains in the hands of the sheriff, as in this case. This mandate is positive and peremptory.

<p>Murder. Indictment. Assault and battery.</p> <p>A statutory indictment for murder does not embrace a charge of assault and battery with intent to murder; and if the accused is convicted of the latter offence, the judgment should be arrested. Moore v. The State, 59 Miss. 25, cited.</p>

Aureal from Circuit Court of Chickasaw County. Hon. J. W. BuchaNAN, Judge. Held: by him were within reach of summary process, and not disposed of within thirty days. The pleadings in this case correspond substantially with the decision made, and the ruling of the judge is in accordance with the decision of Patty v. Bogle, 59 Miss. 491.

Hon. E. W. Williamson, Chancellor. In 1868 J. E. Boyd was appointed guardian of the person and estate of W. F. Hawkins, a minor, about seven years old. In 1876 the minor ran away from the custody of his guardian, who then presented to the court a final account of his guardianship. and asked to be discharged*from his trust as guardian.

Hon. S. W. Williamson, Chancellor. W. R. Baker filed the bill in this case to obtain a decree of confirmation of his title to a certain tract of land bought by him from the State, and which had been previously sold to the State under the act of the Legislatui’e, approved March 1, 1875, and known now as the “ Abatement Act.” The bill alleged that the land was sold to the State, in 1869, for the taxes of 1868, and not having been redeemed nor purchased, was subject to the…

Hon. R. W. Williamson, Chancellor. A statement of the case will be found in the opinion of the court.

Hon. S. S. Calhoon, Judge. W. B. Sorsb}', for the use of L. F. Chiles, brought these three several actions against the defendants above named, upon three several policies of insurance issued by the defendants respectively, insuring a stock of goods and merchandise against fire. The pleadings of the several defendants admitted the loss, but set up other defences to the actions, each of which is stated in the opinion of the court.

lion. N. W. Williamson, Chancellor. This was a demurrer sustained to a bill to enforce a ven-dee’s notes secured by a lien on the land purchased and a mortgage on other property. The other facts of the case are stated in the opinion of the court. 1. The administrators had a right to compound the debt in exchange for the land and to sell the latter for the benefit of the estate.

Hon. J. W. Buchanan, Judge. This indictment for grand larceny charged the appellant with stealing a cow, the property of George Valerius Young; and the appellant pleaded not guilty. The material incidents of the trial are stated in the opinion of the court. 1. To constitute larceny, not only the conversion but also the taking must be felonious. 2 East P. C. 694; 2 Arch. Grim. Pr. 1184.

Hon. L. HaughtoN, Chancellor. Answering the appellant’s petition for a sale or division of the land of W. M. Fulford, deceased, as a devisee of an interest in the remainder, the appellees alleged that the life-tenant, Nancy Y. Fulford, exercised before she died her-power, under the will of her husband, to dispose of the fee by conveying it. to them, and hence that the right of their sister, the appellant, in remainder did not exist.

Hon. A. T. RoaNe, Judge. The case is stated in the opinion of the court. Negligence is not shown ; but gross negligence is essential to the liability of the appellant-, who is a mere bailee without reward. This is not altered by the book-keeper’s use of small sums as change, because this did not endanger the deposit,, and was done with Hall’s permission. Story on Bail., sects. 89, 90 ; Edw. on Bail., sects. 89, 90.

Appeal and Cross-Appeal from the Circuit Court of .Adams County. Hon. Ealph North, Judge. The pase is sufficiently stated in the opinion of the court, but it is deemed proper to set out here, in full or partially, certain sections of the Code of 1880, which are discussed and construed by the court. They are as follows : — “Sect. 1578.

Hon. J. W. BuchaNAN, Judge. This was a suit on an account for $54, brought in a justices’ court by It. B. Cobb against the appellees. They pleaded, as an off-set, &n itemized account for $56 goods furnished the plaintiff, and their account closed with this item : “ Dec. 18, 1880, To cash, $100.” The credits were $49 in work, $1 in cash, and $60 in cotton. All the items were admitted in both accounts,'which were identical, saving the $100 item of set-off, which was contested.

Apbeal from the Circuit Court of Yalobusha county! Hon. J. W. C. Watson, Judge. The appellee petitioned for mandamus to compel the appellant, mayor of Coffeeville to issue warrants on the town treasury to pay allowances for the petitioner’s salary, exhibiting orders of the Board of Mayor and Alderman allowing him $75, January 7, 1878, and $170, January 6, 1880. The mayor answered that he had no power to issue the warrants.

Hon. J. A. Green, Judge. Sarah E. Clopton and her husband sued John O’Connor upon two counts, one for money had and received, and the other, a special count, alleging an indebtedness of the defendant to Mrs. Clopton for money collected by him from her as usurious interest. An exhibit was attached to the plaintiff’s declaration, showing the particulars of the demand. He plead a general denial of the indebtedness charged.

Hon. A. T. Roane, Judge. The case is stated in the opinion of the court. This was not a prosecution by the wife, who, on the contrary, lived on good terms with her husband. She was, therefore, incompetent, even if she had been willing, to testify. Byrd v. The State, 57 Miss. 243. But she objected. Surely this did not add to her competency. Only where the wife prosecutes her husband for personal injuries can she testify against him. Anon., 58 Miss. 20.

Hon. James M. Arnold, Judge. Thomas Grant lost his cow and found her hung on a gallows. Recognizing her by marks, he interrogated the butcher, who said Dennis Barnes sold her to him. Dennis was arrested. He gave several conflicting accounts of the beef adventure, and, among other things, said that Alex. Constantine told him to take a cow and sell it, and that he was about fixing up to carry the money to Constantine.

<p>1. Bona Fide Purchaser. Assignee for creditors.</p> <p>An assignee of property for the benefit of the assignor’s creditors is not a bona fide purchaser for a valuable consideration.</p> <p>2. Landlord and Tbnant. Conflict between landlord and assignee.</p> <p>A landlord has the right to cause goods assigned by the tenant for the benefit of his creditors to be seized in attachment for rent if they would otherwise be-liable, notwithstanding the assignment, the landlord’s claim being good against every one not a purchaser in good faith and for value.</p>

Hon. C. H. Campbell, Judge. The caséis stated in the opinion of the court. The relations of landlord and tenant, and of vendor and ven-dee, may co-exist if the parties consent. Taylor’s L. & T., sect. 25 ; White v. Livingston, 10 Cush. 259 ; Saunders v. Mus-grove, 6 B. & C. 524. The landlord’s lien is prior to a deed of trust given by the tenant. Code 188, sects. 1301,1359.

Aureal from the Chancery Court of Oktibbeha County. Hon. P. A. Critz, Chancellor.

Hon. J. M. ARNOLD, Judge. B. F. Avery & Son sued Myers, Houseman & Co., a firm alleged to be composed of M. Houseman, G-. Held: that embarking in the new venture, and participation in the profits, made them partners. In the case at bar, Ligón did not embark the share of Myers in new ventures as was done in Wightman v. Townroe. In Ex parte Genland, 10 Yes. 109, the question as to the liability of the executors was not raised. In Thompson v. Brown, 4 Johns.

W. S. Featherston, Judge of the Second Judicial District, on habeas corpus. K-. L. Andrews was a resident of Hardeman County, Tennessee, before his death, which, occurred there in October, 1881. He had a wife and two minor children, and just before his death, which he then anticipated, he requested D. C. Wrells to assist his wife, after his death, in rearing his children and managing their estates. After the death of K..

Hon. Lafayette Haughton, Chancellor. A statement of the case will be found in the opinion of the-court. The facts in this case are very similar to those in Cogburn-v. Hunt, 54 Miss. 675; 56 Miss. 722, and 57 Miss. 682. It was held in that case, as reported in 56 Miss. 722, that a sale by the State, through its auditor, is a tax-sale within the-meaning of sect. 1718 of the Code of 1871.

Hon. J. A. GreeN, Judge. J. P. Harris executed a deed of trust to O. B. Cowden, as trustee, to secure a certain indebtedness to J. H..Stone. .

Hon. A. B. Fly, Chancellor. The bill filed in this suit on the 14th of November, 1870, by Mrs. Mary F. Mays against Gr. N. Dickerson, Gr. D. Dickerson and H. L. Machem, alleges substantially tbe following facts : In 1871, John H. Machem purchased of L. J. McDonald a house and lot in the town of Ashland, Benton county, which he intended for the use and benefit of the complainant, Mary F. Mays, and her brother, H. L. Machem, who were his children.

Appeal and Cross-Appeal from the Chancery Court of Monroe County. Hon. L. Haughton, Chaiicellor. This ease was before this court at the April term, 1882, and is reported in 59 Miss. After it was reversed and remanded, upon that appeal of Prairie Lodge, the garnishee, the insurance company, filed a petition to vacate the decree upon the policy on which the garnishment decree was founded, and alleged as the reason that process was not served on the insurance company’s agents.

Hon. J. W. BuchaNAN, Judge. The Lee Mutual Fire Insurance Association was indicted “ for, that it did exercise the privilege of a fire insurance company, or association * * * without having paid the price and obtained the license therefor, as required by the revenue laws of the State.” A motion was made to quash the indictment on the ground that it was vague and uncertain. The motion was overruled.

Hon. A. B. Ely, Chancellor. On the 11th of April, 18713, N. D. Gray gave to E. A. Meaders, for borrowed money, his promissory note, due eight months after the date thereof, for $907.50, “ with twenty per cent interest from date per annum.” To secure the payment of the note Gray executed to W. P. Meaders, as trustee, a deed of trust on certain lands.

Hon. A. T. RoaNE, Judge. The case is stated in the opinion of the court. 1. First, upon the liability of the county to pay this amount under the quarantine statute. Sect. 790, Code 1880, provides for the appointment of a chief health officer of the county, prescribes his qualifications, and fixes the amount of salary to be paid him. Sect. 795 prescribes the manner of establishing State quarantines.

Hon. J. B. MORGAN, Chancellor. This appeal was taken by Mrs. Hattie A. Brantley, the defendant in the court below, from a decree in favor of the complainant, upon bill, answer, and proofs. The questions presented by the pleadings, and the effect of the proof are indicated in the opinion of the court. 1.

Hon. J. W. C. WatsoN, Judge. H. A. Fleming was indicted in Yalobusha County for murder, in the killing of Edward Gardner. On the application of the defendant a change of venue was granted to Calhoun County. A trial in the Circuit Court of the latter county resulted in his conviction. He was sentenced by that, court to be hung, and from that judgment he appealed to this court. A motion was made for anew trial.

Hon. C. H. Campbell, Judge. The appellee purchased a ticket from the agent of the appellant from Winona to Grenada. Held: that whenever it appears that the accident was of that kind which, according to common experience, does not usually occur except from some fault of the carrier himself or his servants, or from some imperfection in his conveyance or its appliances, or from-the unsafe condition of his road, a prima facie case is made against him.

Hon. J. W. C.*Watson, Judge. S. P. Brown was convicted in the court below of the murder of J. L. Sadler.

Arread from the Circuit Court of Monroe County. Hon. J. A. GreeN, Judge.

Hon. W. S. FeatherstoN, Judge. The appellant was indicted for keeping a l’estaurant without a license. By agreement, the case was tried by the court, and he was convicted.

Hon. George Wood, Chancellor, specially presiding by exchange 'with Hon. F. A. Critz. The opinion of the court upon the former appeal in this case (59 Miss. 594), contained a statement of facts which may be appropriately reproduced here : “A few days after the death of P. W. Tucker there was found among his private papers a will bearing date about eighteen months before his death, perfect in all its parts, except that the name had been torn from it.

Hon. H. S. Van Eaton, Chancellor. On the 15th of June, 1876, Lina Hastings and her husband, William Hastings, executed to W. C. Miller, as trustee, a deed of trust on certain lands belonging to Mrs. Hastings.

<p>1. Tax-Sale. Judicial proceedings. Act of 1872. Insufficient notice.</p> <p>The revenue act of .1872 (Acts 1872, p. 1) provided that upon receipt of the lists of delinquent lands the Boards of Supervisors should cite the owners of the land to appear on a day named and pay the taxes, or show that the same had been paid, and that if the owners respectively failed to do either of these things, the board should enter judgment condemning the lands to sale on a certain day, not less than thirty days from the date of the judgment, for the payment of the taxes due thereon. A judgment under this act fixing the day of sale in less than thirty days from the date of the judgment is void, and a sale thereunder confers no title on the purchaser.</p> <p>2. Same. Sect. 8, Art. XII, Constitution, applied.</p> <p>Sect. 8, of Art. XII, of the Constitution which declares that “the courts shall apply the same liberal principles in favor of such titles (tax-titles) as in sales by execution,” applies only to that class of cases in which, the power of sale existing, it has been defectively or irregularly executed, having no application to those matters which are necessary to be done to confer such power.</p>

Hon. J. B. Chrisman, Judge. On the 22d of February, 1869, Rowan Temples and others brought this action of ejectment against Dempsey B. Cain to recover a certain tract of land, which the plaintiffs claimed as the heirs of Loyd A. Temples, deceased, and which the defendant held as the purchaser therepf at a sale by the administrator of decedent’s estate.

Hon. J. B. ChRISMAN, Judge. Ejectment by the appellee against the appellant, who the evidence showed held the land and cultivated it by permission of the former, without any lease or express contract whatever since 1867, when he first took possession by McDaniel’s license.

Hon. J. B. Chrisman, Judge. ' A sufficient statement of the case will be found in the opinion. 1. We take it to be the correct practice to note the exceptions during the progress of the trial bpfore the referees, and embody,them in a bill of exceptions, that the action of the referees may be reviewed by the court to which they report. In fact, the Supreme Courts of the States of Minnesota and Obio have so decided.

Hon. H. S. Yan EatoN, Chancellor. On the 6th day of January, 1875,-Pleasant Smith gave to L. Alcus& Co. his promissory note for $250, for a debt due from him to them, and at the same time he and his wife, Nancy Smith, executed to Alcus & Co. a deed of trust with E. H. Thompson as trustee, on certain personal property and the homestead exemption in lands belonging to the husband, to secure the payment of the note.

Apjpjsal from the Chancery Court of Alcorn County. Hon. F. A. Critz, Chancellor. . L. M. New was the owner in fee ,of lot 3, block 51, in Corinth, and J. M. New was the owner of other property. On April 17, 1871, they jointly borrowed from the Tishimingo Savings Institution the sum of $1,000, and gave therefor their joint promissory note payable on December 17, 1871, and bearing interest at the rate of two per cent per month, paj7able monthly in advance.

Hon. J. B. ChrismaN, Judge. On the 27th of June, 1882, Pfeifer & Dreyfus sued out an attachment for $7,420.39, against H. M. Ferris, and caused the same to be levied upon certain personalty and realty as the property of the defendant. On the 29th of June, 1882, F. H. Hartman presented an affidavit claiming certain articles of the personal property seized' under the writ of attachment.

Hon. L. HaughtoN, Chancellor. This appeal is from a final decree on the evidence dismissing a bill which sought to review a final settlement made by the appellee or guardian of the appellant’s estate. Three items of the guardian’s account were controverted, and they •are stated with the facts relating to one of them in the opinion •of the court.

<p>1. Attachment. Claimant’s issue. Judgment against defendant, whether part of record, or evidence,</p> <p>In the trial of the issue between a plaintiif in attachment and the claimant of property levied upon, the judgment in favor of the plaintiff and against the defendant in attachment is a part of the record, and need not be offered in evidence by the plaintiff in making out his case.</p> <p>2. Same. Claimant’s issue. Hearsay evidence. Res gestee. Case in judgment.</p> <p>When the plaintiff in an attachment seeks to disprove the claim of a claimant of the property levied on, by showing that defendant, prior to the issuance of the attachment, sold to the plaintiff’s witnesses some property which was originally a part comprised with that in controversy, it is competent for the claimant after showing by his witnesses that, prior to the issuance of the attachment, they had bought, a part of such original property from the defendant, to prove by them that the defendant said at the time of the sales to them, respectively, that the property belonged to the claimant, who left the same with him for sale. Such statements of the defendant were a part of the res gestae and explanatory of the sales.</p> <p>3. Same. Claimant’s issue. Practice. Evidence. Contradiction of witness. Right to explain.</p> <p>In the trial of a claimant’s issue in attachment, the plaintiff asked the defendant in the attachment, who was testifying on cross-examination, if he did not lend to the claimant five certain sums of money, severally named, at several different dates particulary specified; and the witness answered in the negative. The claimant having closed his evidence, the plaintiff in rebuttal offered in evidence five checks and the bank books containing the accounts of the defendant and claimant, respectively, in connection with the testimony of a witness having the books and checks in charge, to the effect that those checks were drawn by the defendant in favor of the claimant, and, when presented at the bank, were credited to the claimant’s account and on the same day charged to that of the defendant. The checks corresponded in date and amount to the inquiries above stated. The claimant then offered to reintroduce the defendant to prove that the checks were not given for a loan to the claimant, and to explain the transaction in which they were given. The court upon the objection of the plaintiff refused to admit the proffered testimony. Held, that the matter inquired of being material, it was not just to contradict the witness, without having asked him about the checks eo nomine, and then to deny him the right to explain.</p>

Hon. H. S. Van Eaton, Chancellor. On the thirteenth day of March, 1882, H. & C. Newman, commission and cotton brokers of New Orleans, La., exhibited this bill in the Chancery Court of Amite County,… Held: and that the property so conveyed be also subjected to the payment of their claim.

Hon. F. A. Critz, Chancellor. On the second Monday of March, 1876, the tax-collector of Clay County sold to the State a certain tract of land for the taxes due thereon for the year 1875. The collector filed the list of lands sold to the State on that day, embracing the tract referred to, in the office of the chancery clerk of the county.

Hon. T. J. Wharton, Judge. On the 7th of April, 1882, Francis L. Fanning brought this action of ejectment against Ed. Funches and W. P. Barnes, to obtain possession of a certain tract of land, which he claimed under a tax-title. These facts were developed on the trial of the case: The land in controversy was sold to the State in 1878 for the taxes of 1877. It was subsequently bought from the State by the plaintiff.

<p>1. Garnishment. Possession of note. Judgment against attorney.</p> <p>It is error for the court to render judgment in'attachment against a garnishnee because of his having in his possession, for collection as an attorney, a promissory note due by a third person to the defendant.</p> <p>2. Same. Judgment against attorney on judgment in favor of defendant.</p> <p>It is also erroneous to render judgment against a garnishee in attachment because of his having in charge for collection, as an attorney, a judgment which he has recovered in favor of the defendant in attachment against a third person, and this rule is unaffected by sect. 1765 of the Code of 1880, which authorizes the sale under execution of a judgment in favor of the defendant in the execution.</p>

Hon. T. J. WhartoN, Judge. On the 30th of December, 1881, Gregory, Stagg & Co. sued D. S. Hurlbut in attachment, and had G. S. Dodds summoned as a garnishee. The plaintiffs recovered a judgment against Hurlbut; but Dodds answered the garnishment, denying any indebtedness to the defendant, and stating that he was indebted to Hurlbut’s wife-in the sum of $500, for furniture bought from her in December, 1881.

Courj; of Wilkinson County. Hon. H. S. VAN EatoN, Chancellor. The case is stated in the opinion of the court. The injunction was properly granted in the first instance, and should have been continued to the final hearing. Appellant alleges great injury .about to be done him. He does not use the word “irreparable;” but states facts, and the law draws the conclusion that it is irreparable.

<p>Appeal from the decision of Hon. H. S. YaN EatoN, Chancellor of the Tenth Judicial District, sitting, in vacation, at-Woodville, in Wilkinson County.</p> <p>Under an act of the Legislature, approved January 30,. 1882, entitled “An act providing for the establishment of a. public landing on the bank of the Mississippi River, in the county of Wilkinson, and for other purposes,” the Board of Supervisors of that county, upon the petition of J. D. Cage and others, citizens of the county, had caused a certain lot of ground belonging to Louis Trager to be laid off and marked for a public landing on the Mississippi River. Thereupon Trager filed the bill in this case to enjoin the petitioners, Cage and others, and their attorneys, the members of the Board of Supervisors, and the sheriff, from taking any steps towards using or leasing the lot for a public landing, and from executing an order of the Board of Supervisors in reference thereto. A temporary injunction was granted. The defendants answered, and made a motion to dissolve the injunction. The motion was overruled, they appealed. The questions presented for adjudication are sufficiently stated in the opinion of the court.</p> <p>The special act under discussion provides that the owner of the land shall be allowed until the next meeting of the Board •of Supervisors after the report of commissioners is received and approved to make his claim for damages, and provides the mode of assessing the same, and of paying it, and forbids the sheriff from taking possession of the land until the damages are paid. Acts 1882, p. 273, sects. 4, 5. These provisions are clearly in accord with the Constitution and the •construction given it by the courts. It might be objected that the duty of making the application for damages devolves •on the owner of the land under the act of 1882,- and that it •differs, in this respect, from the Code of 1880. Such an ■objection could not be maintained, for the Legislature, in granting railroad charters, generally confers the right of applying to have damages assessed on either the owner or the corporation, and if it is empowered to grant the right in the alternative, it can certainly grant it to either one of the parties interested; and surely no person could be fitter to apply for -damages than he to whom the damages were due. But this •special act is clearly constitutional for another reason. It is .almost identical with the statute providing for the laying out •of public roads ; and as to the means provided for obtaining •compensation by the land-owner, they are identical. The principle involved in the two statutes is the same. Both provide for an exercise of the right of eminent domain, and both ■provide for setting apart of private lands for public uses ; and if the one be constitutional, the other must be also. See Blalce v. McCarthy, 56 Miss. 654. Another objection urged to the constitutionality of the special act is that it does not ■provide for sufficient legal notice to the land-owner. Sect. 1 •of the act provides that five days’ notice shall be given the owner, and if he is a non-resident the notice shall be given by posting on some conspicuous place on the'land. This provision is substantially the same with that in the Code for giving notice to owners through whose lands it is desired to lay out a public road, and the argument already advanced on another point applies with equal force here. Sufficient notice in this case is shown by the averments in the answer, that defendant in error had personal notice of the filing of the petition and that his agent residing on the land was also notified. And we find this further confirmed by the fact that at the meeting of the Board of Supervisors in December, 1882, the appellee was present by counsel, enjoining and restraining the board from further proceedings. It is further objected that the clause authorizing the Board of Supervisors to lease said landing is unconstitutional. It is well settled that the power to-exercise the right of eminent domain may be delegated to private persons or corporations, and that reimbursements in the way of tolls and charges are admissible. 34 Miss. 240; 4 Wend. 672. It is urged by counsel for appellees that appellant’s case is fatally defective in that the record fails to show that the commissioners, who laid off the landing, were freeholders. He regards it as a jurisdictional fact, which must appear affirmatively. We submit that the question of qualification of the commissioners has no relation to, or effect on, the question of the jurisdiction of the court. The situs of of the land, the petition and notice to the owner, gave the court jurisdiction. The appointment of commissioners was-but a step in the progress of the suit. It is presumed the requirements of the law were complied with.</p> <p>The proceedings here to appropriate the private property of appellee for a pretended public use are by virtue of an act of the Legislature, approved Januai’y 30, 1882, and will be found on p. 231, et seq., of the Acts for that year, and is special for the county of Wilkinson. This enactment of the Legislature is unconstitutional, for the reasons : —</p> <p>1. That it authorizes the taking of private property for public use without providing that compensation be first made to-the owner, and is therefore in violation of sect. 10, Art. I., Bill of Bights of the Constitution of this State. It is wholly unnecessary to offer any reason whatever for this view, or to cite auy other authority in support of it, than the case of Pearson v. Johnson, 54 Miss. 259. The case before this court then arose under chap. 29, Code 1871, which, in its essential features, is similar to the special actreferred'to, 'and is identical with it in the failure to provide that compensation must be assessed and actually made or tendered to the owner. It is true that both provide that if the owner claims compensation or damages for the land he shall within a specified time petition the Board of Supervisors, setting forth the nature and character of the damages claimed. See sect. 4, Special Act, 1882, and sect. 1884, Code 1871. This, however,, the court, in the case cited, says does not satisfy the Constitution. See 54 Miss. 263. The Code of 1880, chap. 26, sect. 918, provides that compensation must be assessed and actually made or tendered to, the owner before his property is taken. Now, the order of the Board of Supervisors does not pretend to make appellee compensation, nor does it provide that Babus, appellee’s tenant, and whom appellee is bound to protect, shall be first compensated in money, but directs a warrant to issue, and at once orders appellant Miller, as sheriff, to open said lot of ground.</p> <p>2. It is an attempt to deprive appellee of his property without due process of law, and therefoi’e violates sect. 2 of the Bill of Bights. Without referring to any text-book or decisions of any courts, as to what is meant by due course of law, it is only necessary to say that any enactment of the Legislature which authorizes the taking of property without due and legal notice to the owner is unconstitutionál and against the law of the land. Due and legal notice is direct or personal service of process, or a substituted service by publishing or posting, and if the latter mode is of necessity bound to be adopted it must be in such a manner as is calculated to bring it home, if possible, to the knowledge of the party to be affected. Cooley’s,1 Const. Lim. *404. The special act here (sect. 1, p. 274), provides that if the owner is a non-resident, five days’ notice shall be given by putting up such notice in some conspicuous place on such land, and the appelleee is a non-resident, and that is the only notice given appellee of the proceedings bad by the Board of Supervisors. It is plain that such pretended notice as this was not calculated to apprise appellee of the pendency of the proceedings to deprive him of his property.</p> <p>But aside from this, the act complained of, badas it is, has not been complied with, for it provides that the commissioners who are to examine the public landing, etc., shall be freeholders or householders and residents of Wilkinson County. See sect, 1, p. 274, Acts 1882. It was evidently the intention of the Legislature that none but residents of the county, who were interested in land, should serve as commissioners, and the Board of Supervisors fail to appoint such persons as commissioner's in this case. Nor can it be presumed that the commissioners thus appointed were possessed of the necessary qualifications, for the Board of Supervisors, being a court of special jurisdiction, nothing can be presumed in its favor, but the record must show affirmatively that the statute was strictly complied with. Cooley’s Const. Lim. *’406, 407. Allenv. Levee Commissioners, 57Miss. 167.</p>

Hon. S. H. Teeral, Judge. Edmund Bang was indicted for the murder of James Ladner, was convicted and sentenced to be hung. He appealed to this court and assigned for error the action of the court below in giving the third and fourth instructions for the State, and in modifying the first instruction asked- by the appellant. The objectionable instructions given for the State are in the following language : — “3.

Appeal and Cross-Appeals from the Chancery Court of Tunica County. Hon. J. G-. Hall, Chancellor. On the second day of September, 1875, John C. Fizer and W. C. Folkes, both residents of Memphis, Tennessee, purchased a large tract of land lying in Tunica county, Mississippi. The purchase was made wholly upon credit, and the price to be paid $12,750, was divided into five equal annual instal-ments, payable respectively January 1, 1878, 1879, 1880, 1881 and 1882.

Hon. Kalph North, Chancellor. The case is stated in the opinion of the court. The fourth ground of demurrer is like unto the third, only it is more strongly expressed and points out a graver defect in the bill of complaint than that which we have just discussed. Said bill seeks to compel only an accounting of the business pertaining to the described lands without reference to the other business of the alleged partnership.

Hon. H. S. Van Eaton, Chancellor. On the 20th of January, 1883, the New Orleans, Baton Rouge, Vicksburg &Memphis Railroad Company filed a petition in the Chancery Court, reciting that, in the construction of the company’s road, it would be necessary to pass through and over a certain tract of land belonging to E. S. Drake, who could not agree with the petitioner as to the value of the land (one hundred- feet in width), required in the construction of the road and asking for…

Hon. H. S. Van Eaton, Chancellor. The bill in this case was filed on the 24th of June, 1882, by Samuel Boyd and Bichard Herrick, survivipg partners of the firm of Samuel Boyd & Co., against Jacob M. Frankenbush, F. C. Englesing and John Burnet, composing the firm of J. Burnet & Co., and others.

Hon. T. J. Wharton, Judge. Cuff Warden was indicted for grand larceny and tried and convicted in October, 1882. From the judgment of the court below he appealed to this court.

MotioN in Supreme Court. Moss & Co., citizens of this State, having recovered a judgment in the Circuit Court against the Chicago, St. Louis and New Orleans Railroad Company, the defendant appealed to this court; and the Circuit Court, in pursuance of an act of the Legislature, entitled “An act for the relief of certain litigants ” (Acts 1882, p. 110), assessed afee of $350 as a reasonable attorney’s fee for the appellees, in case the judgment should be affirmed.

<p>Limitation or Actions. Judgment in favor of executors. Suit by legatees. Gase in judgment.</p> <p>T. died in 1864, having made a last will and testament, and leaving several children as his devisees and legatees. On the 20th of October, 1886, the executors of T.’s will recovered a judgment in the Circuit Court against K. Several executions were issued on the judgment, and all were returned “ nulla bona.” The administration of the estate was closed and the executors discharged on the 28th of September, 1875. On the 12th of December, 1881, the legatees filed a bill in chancery to subject to the judgment against K. certain lands which it was alleged he had fraudulently conveyed to his wife. The bill discloses the facts, (1) that at the date of the testator’s death, one of the legatees was of full legal age, and under no disability; (2) that when the judgment was rendered all of the legatees were under the disability of infancy or coverture; and (3) that one of the legatees had attained her majority and was under no disability on the 2d of April, 1867, when the Statute of Limitations, which had been suspended during the war, began to run again. The defendants demurred to the bill on the ground that the complainant’s right of action was barred by the Statute of Limitations. The complainants claim that the statute did not begin to run against their cause of action till the rendition of the judgment; while the defendants contend that it began to run from the death of the testator, or on the 2d of April, 1867. Held, that the right of action was conferred by the will, and, ordinarily, the Statute of Limitations would have begun to run from the death of the testator, assuming that the debt had matured at the time of the testator’s death; but, as the statute was then suspended, it did not begin to run against the cause of action till the 2d of April, 1867, when it again became operative. And, as the right of the complainants was joint, and not joint and several, and one'of them was then under no legal disability, the statute ran against all, and all were barred at the same time.</p>

Hon. George Wood, Chancellor. The case is sufficiently stated in the opinion of the court. There is only one open question in the case, and that is, whether Boards of County Police, under the constitutional provision giving them “ full jurisdiction ” over roads, ferries, and bridges, have the right to grant an exclusive ferry franchise.

George Wood, Chancellor of the Seventh Judicial District, on habeas corpus. The writ in this case was sued out by Evariste Bourgeois, who was, on the 25th of July, 1882, committed to jail on the sentence of the mayor of the city of Bay St. Louis on a charge, made on the oath of the city marshal, of being drunk and disturbing the peace within.the limits of the city of Bay St. Louis.

Hon. S. S. CalhooN, Judge, specially presiding, by exchange with Hon. J. B. ChrihmaN. This is a suit in ejectment brought by James Hardie and Isabella Brigins against J. B. Chrisman and Charles Chrisman, to recover the possession of 160 acres of land. The plaintiffs introduced in evidence a patent issued by the United States to themselves in 1859, and rested.

Hon. J. B. ChrismaN, Judge, specially presiding by exchange with Eton. Balph North. On the 8th of June, 1881, Ben. Fletcher was indicted for the murder of Albert Davis ; and in April, 1882, he was tried, convicted, and sentenced to be hanged. Thereupon he appealed to this court.

County. Hon. J. B. Chrisman, Judge. Tbe case is stated in the opinion of the court. It is manifest, from the testimony introduced by defendant, that plaintiff A. S. Brandon acquired no title by the supposed deed from W. W. Semple. The testimony of W. W. Semple is positive, direct, and not contradicted, that there was never an actual or implied delivery of the deed from himself to A. S. Brandon.

Hon. George Wood, Chancellor. A statement of the case will be found in the opinion of the court. Held: that where one tacitly licensed the erection of a building on his land he could not maintain ejectment on his title. 5 Term Rep. 556.

Hon. W. S. Featherstojx , Judge. Appellant was indicted for murder in the killing of H. B. Boon. He was a tenant of Mrs. Boon, wife of deceased, and was indebted to deceased for supplies furnished during the year 1882.

<p>Appeal from the Circuit Court of Wilkinson Count/.</p> <p>Hon. J. B. Chkisman, Judge.</p> <p>Walker Guice and Basil Guice were indicted in Adams County for the murder of Alexander Hawley. Upon the application of the defendants the venue'was changed to Wilkinson County. Adams County constitutes the Twelfth Judicial District of this State, but the order for the change of venue was made by Judge J. B. Chrisman of the Tenth District, and the record does not show how he came to bepresidingin the Twelfth District. In empanelling a jury to try the case, the .court,conducted the examination of the jurors as to their competency, and refused to permit counsel for the defendant to ask them any questions. The third instruction was in these words : “If the jury believe from the evidence that the defendants, with pistols and knives» that were deadly weapons, shot and stabbed the deceased, and thereby killed him, then the use of such deadly weapons is 'prima facie evidence of malice and an intention to murder, and before this presumption is overcome it must be shown by the evidence in the case, to the satisfaction of the jury, that at the time of such use of such deadly weapons, the defendants were in immediate, real or apparent, danger of their lives or some great bodily harm from the deceased, and such danger must have been urgent, present, and imminent at the very time of the killing.” The defendants were convicted and sentenced to imprisonment in the penitentary for life. They thereupon appealed to this court. The assignments of error are indicated in the opinion of the court, which also contains a statement of the facts established by the evidence and certain rulings of the court that were excepted to.</p> <p>1. The court will judicially know that Ralph North is judge in the Twelfth District, but this court cannot know that J. B. Chrisman is judge anywhere. And the court cannot presume that the name J. B. Chrisman, that happens to appear on the minutes of Judge North’s court, means that “ Joseph B. Chris-man, of the Tenth Judicial District, was over there and presided.” Had the record recited that there was an interchange if judges of the Tenth and Twelfth Districts, that would do ; but this record is too uncertain, it seems to me. In fact, by this record, it is shown that no order was made removing this case by any^ authority known to the law, and appellants were tried without jurisdiction in-the court.</p> <p>2. It was error not to allow the prisoners to examine jurors.</p> <p>3. It was error to remove O. B. Hayes from the jury arbitrarily, because the judge thought he saw the juror was drunk, without taking any pains to learn whether he was drunk or not.</p> <p>4. It was error to deprive defendants of the men drawn on the venire, by refusing to call McGehee and others.</p> <p>5. It was error in the court below to rule out testimony offered by defendants to prove the character of deceased, and threats made by him against defendants — appellants. The court admitted Walker Guice to testily to an act of deceased, alleged to be an overt act. An act was proved that was recognized as an overt act by the court below, for unless he did so regard it the instruction 'on that subject would have been meaningless. Had deceased let his hands remain in his lap, had he held the line's, had he lifted his hat with one hand and stroked his hair back with the other, the court would have said, as in the Holly Gase, there was no act proved that could be construed into an overt act; on the contrary, those would all have been regarded as innocent acts that showed no possible intention of evil. But the moment he saw appellants, he threw his hand to his hip pocket — or pistol pocket — that presented a subject of inquiry at once, — “ in these days of improved fire-arms,” “ when a moment’s delay might mean death,” — an inquiry to be made in the light of facts to be proved, for that act, too, might be innocent, and it “ might be fraught with deadly meaning when all preceding facts are disclosed.” Had the proof been admitted and had shown that deceased was a stranger to appellants, or a friend that never quarrelled with them; or an-amiable, pious youth, or an innocent school-boy on his way to college, as counsel would have it, why the act would have been a trifle, indeed ; but if, on the other hand, the proof had shown that he was a violent, dangerous man, revengeful, reckless of human life, habitually carried fire-arms and other deadly weapons concealed upon his person, was skilled in their use and ready to use them with deadly effect on small provocation, and had the reputation that he would pursue, and had pursued his enemies to the death ; that he was quick to take offence and to kill; added to this that he was a bitter enemy of the accused, and considered them his enemies ; that he persistently showed his venom towards accused by uttering the foulest slanders upon their family; that he had threatened, time after time, to kill defendants, up to the time of the killing; that he had made frequent attempts to carry said threats into execution, and had nearly succeeded, and only failed by the interposition of by-standers, —then the act would have had meaning, and a deadly meaning. This the proffered proof would have shown. If these things could not have been proved of the deceased it is significant that the district attorney and counsel for the State were so prompt and vigilant to keep out all proof of his character and threats. Had he been an innocent youth or a school-boy, as is claimed, the proof of that fact would have been strong against the accused. Yet they desired to open the question and the State shrunk from it, although surrounded by a cloud of witnesses that knew him. On this subject our court say: “ The single question presented to the court is one of relevancy or pertinancy, and not of force or value as testimony.” Scott’s (Jase, 56 Miss. 290. Counsel for the State contends that, admitting there was an overt act, the proof shows that the danger, real or apparent, had passed before the appellants shot. This position is untenable. 1. Because the evidence does not support it. Walker Guice says that when Hawley saw them he immediately threw his right hand to his hip pocket, and the accused jumped across the pavement and fired at him, and although they moved down the street, the killing was done in a few seconds. 2. If the accused were in real danger at the time, and therefore justified in attacking Hawley, they were not required to cease, but might pursue their assailant and slay him to put the danger away. But the proposition itself defeats itself. The counsel argue that the proof shows that the danger had passed. Showed to whom? It would be a strange position to assume that the jury had the right to examine and decide whether a certain act foreboded danger to accused, from the circumstances and surroundings at the time, and then say that the court could on the same testimony decide that the danger that the jury were considering had passed before the killing. It seems to me that the question as to whether the danger had passed is so clearly one for the jury, that it does not admit of argument. Had the danger passed, and if so, how long? And should the accused have seen and realized that it was passed, under the circumstances and excitement of .the occasion, depends entirely on proof before the jury. It seems auamolous and not serious to say that the jury are the sole judges as to whether a certain act evinces danger, and then the court shall say when the danger ceases. The very question as to whether there is danger is decided when the court decides it has ceased. Even had the danger ceased, it would have been a question for the jury whether, and if so when, the accused would be required to see and act upon that new feature, amid the excitement of the moment. On the proposition that the danger had ceased, I think it not out of place to suggest that if the danger, real or apparent, existed at the beginning, so as to justify the accused, and therefore they 'were then not guilty until it became apparent to them that the danger had passed, and when the blood was up by a remembrance of all the wrongs of the past, they killed their antagonist, I submit it would not be more than manslaughter, and the testimony should have been admitted for that reason. The'third instruction is condemned by the authority of The State v. ITill, 69 Mo. 453, citing 66 Mo.; The State v. Coleman,. 6 Rich. 185 (1874-75); Steimheyer v. The People, 95 Ill. 390; Bryant v. The State, 63 Tenn. (7 Baxt.) 67; Bobh v. The State,.8 Texas, —; and particularly Hawthorn v. The State, 58 Miss. 789. This instruction directs the jury that before the presumption of murder arising from the killing with deadly weapons is overcome, “ it must be shown by the evidence in the case, to the satisfaction of the jury, that at the time of such use of such deadly weapon, the defendants were in immediate, real or apparent, danger.”</p> <p>T. JR. Stoclcdale, also made an oral argument.</p> <p>1. Conceding it- to be essential that an order should be made with reference to the interchange of judges, the objection now urged, that the minutes of the Adams County Court do not show an order, comes too late. If such an order was not in fact made, objection should have been taken in that court. If it had been there made the order would have been at once properly entered. As no objection was there urged, it must, under our statute, be conclusively presumed that the order was duly made, but by the clerk’s oversight omitted from the record, or possibly never placed upon the minutes at all.</p> <p>2. It is the duty of a Circuit Court to see that a jury capable of ti-ying a case is organized. The drunken juror was therefore properly dismissed. As to those serving on the grand and petit juries, the action of the judge was proper. It was not his duty to take them from these juries and put them in the box merely because their names were upon the special venire.</p> <p>3. The court propérly excluded the proposed testimony as to the slanderous statements concerning the sister of defendants, and as to the threat which had been made by the deceased. The slander uttered by him, no matter how foul, could not be made the basis of justification. The threats were not admissible because no overt act was committed indicating a purpose to carry them into execution. What constitutes an overt act is purely a matter of law. The court must always pass upon the act proposed to be put in evidence, to determine whether, if established by competent testimony, it is a circumstance fit to be considered by the jury. Holly v. The State, 55 Miss. 424. An overt act is something done indicating a purpose to inflict threatened violence. If the act proposed to be estab-lisbed does not, in the opinion of the judge, indicate such purpose, or rather, if in his judgment it does not reasonably tend to indicate such a purpose, it is clearly his duty to refuse the proffered proof as to threats, for they are only admissible as giving color and meaning to an act which, without reference to them, indicated violence, and if there is no such act they cannot be admitted. In determining whether an overt act had been committed the judge looked at all the testimony. He knew that no person could suppose that Hawley contemplated at that time, in the place he was, and under the ch’cumstances which surrounded him, doing or attempting to do any violence towards the Guice brothers. If we believe that he did put his hand behind him (which we do not), we do not believe, and Guice could not have believed, that Hawley entertained the sightest idea of doing any violence to anybody. The fact that he placed his hand behind him, if it had been done while he was on foot and upon meeting the Guices in the street, might have been an overt act, because, under those circumstances, it might have been interpreted as indicating an intention to do violence to them. But the act when performed by him, while seated in a wagon, being driven along the street and going past the place where they were standing, has no significance whatever, and none could have been attached to it by any reasonable man. It is therefore insisted that no overt act was established, or attempted to be established, and that consequently no foundation was laid for the introduction of the threats. But the threats were properly excluded, even if the placing of his hand behind him can be regarded as an overt act. If the Guices could haye inferred that he intended doing violence to them, their minds must have been speedily disabused of such an impression, for it is not pretended that this motion of his hand was succeeded by any other act, either really or apparently hostile. Yet these men, with a brutal and savage ferocity, never approached by anything which has ever come within my knowledge, pursued him, shot him, and stabbed him to death. His efforts to escape were frustrated by them purposely. No threats could justify such inhuman and barbarous and unnecessary homicide as defendants, by the unanimous testimony of the witnesses, are shown to have committed.</p> <p>4. The third instruction for the State does not, as claimed by counsel, indirectly exclude from the attention of the jury all the testimony except that the homicide was accomplished by deadly weapons. On the contrary, it informs them that the presumption arising from the use of deadly weapons is not to prevail if they believe from the evidence in the case that there was real or apparent danger to them at the time.</p> <p>5. As to the instructions asked by defendants, but refused, it is sufficient to say that they are either covered by those granted or are inapplicable to the case as presented to the jury-</p> <p>argued the case orally.</p>

Hon. S. S. Calhoon, Judge. On the 3d day of November, 1881, the appellant purchased a ticket from the appellee and took passage on a freight train on appellee’s railroad from Jackson to Madison Station. The train stopped at Madison Station, the engine being opposite the station, and the conductor’s caboose, in which appellant was riding, was something over a hundred yards from the platform of the station.

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

Hon. S. H. Terral, Judge. On May 9, 1879, Wm. D. Wheelwright & Co., lumber dealers in New York City, wrote Walter Denney & Co., who are owners of large mills at Moss Point in this State, the following letter: “On terms named to Mr. Gause we have arranged for a shipment of a cargo of all heart .pitch pine to Eio for your account, procuring a cash advance of $9 per M. on the bill lading (which, advance we will endeavor to increase to $10 and expect to do so), and chartering a…

<p>Appeal from the Circuit Court of Warren.Couuty.</p> <p>Hon. Warren CowaN, Judge.</p> <p>Davidson & Son held a policy of insurance in the Western Assurance Company of Toronto, Canada, for the sum of $2,000 on their stock of goods in a country store near New Carthage, Louisiana. On the morning of the 19th of February, 188 2 the stock of goods was totally destroyed by fire, and L. A. Davidson, one of the members of the firm of Davidson -& Son, wont immediately to Vicksburg, and about 1 o’clock a. m. of the 20th of February, assigned to I. T. Hart all the right title, and interest of the firm of Davidson & Son in this policy. Hart lived at Woodville, and the firm of Davidson & Son was largely indebted to him. When Hart made his last advance of money to Davidson & Son, some time before the fire, they had promised and agreed, at all hazards, to secure him, should misfortune overtake them. The assignment and the policy were delivered by Davidson to T. Mayer, for Hart, but Mayer was not the agent of Hart for any purpose. The assignment was placed on record in the chancery clerk’s office, in Warren County, at 8 : 20 o’clock a. m. of the 20th of February. At 9 o’clock a telegram was sentbjr Davidson to Hart at Wood-ville, informing him of the assignment to him. In the meantime an attachment had been sued out, before a justice of the peace, returnable to the Circuit Court, by Forbes & Beck against Davidson & Son, with a garnishment against the Western Assurance Company. Before Hart received the telegram, and before he had any notice of the assignment to himself, the garnishment had been served upon the insurance company. As soon as Hart received the telegram from Davidson, he answered, accepting the assignment. The Western Assurance Company paid into court the amount due on the policy. The appellant, Hart, claimed the money by virtue of the assignment. The writ of attachment and garnishment was served and returned by a constable of the county, with his proper in-dorsement of the receipt and service thereof, but it also had an indorsement on it to the effect that it had been received by B. F. Beck, sheriff, for the constable by whom it was served. The attachment having been sustained, a trial of the claimant’s issue was had, and the claimant objected to the introduction of the writ of attachment in evidence on the ground that it could not be lawfully received or returned by an officer having an interest in the writ, and then offered to prove that B. F. Beck was one of the plaintiffs in the attachment. The objection to the admission of the writ was overruled and the evidence offered by the claimant was excluded. From a judgment in favor of the plaintiffs in attachment the claimant appealed to this court.</p> <p>1. The assignment of the policy being for the benefit of Hart, he will be presumed to have accepted it. 2 Greenl. on Ev. (7th ed.), sect. 297 ; Wall v. Wall', 30,Miss. 97 ; 2 Salk. 618.</p> <p>2. It was the intention of Davidson & Son to vest title in Hart, and such being their intention, the delivery by them of the policy to Mayer, eo instanter vested title in Hart. Jones v. Swayme, 42 N. J. 279; Byars-v. Spencer, 101 III. ,429; Rawson v. Fox, 65 Ill. 200; Gunnell v. Gockerill, 79 Ill. —; Campbell v. Iiuhn, 45 Mich. 513; Readv. Robinson, 6 Watts & S. 331; Thatcher v. St. Andrew’s Church, 37 Mich. 264.</p> <p>3. The agreement between Hart and Davidson & Son before the fire, that Hart should be secured in any event, may be considered as a ratification in advance of the assignment. 3 Co. 26 b ; 1 .Stra. 165 ; 2 Salk. 618.</p> <p>It will not'be denied that unless the writ was lawfully served and returned, no proceedings in the case could be based on it-Now, the return of an execution or attachment is the indorsement of the action of the officer on it, and its delivery to the proper custodian of the office out of which it issued. Beall V. ShattucJc,' 53 Miss. 358. And the return by the constable directly to the Circuit Court would be void, and would give the court no jurisdiction. Tucker v. Byars, 46 Miss. 551; Bar-nette. King, 55 Miss. 101. It is therefore necessary, in order to make out the legal return of the writ, to resort to the illegal and void act of the sheriff in returning his own writ. For if the sheriff’s act in returning the writ was void, then there was no return at all, because the constable did not in fact return it. The delivery to Hart through Mayer rvould have yested the property in him from the time of its taking place. See 4 Kent’s Com., marg. p. 455, note b; Ibid., marg. p. 456, note a. Because that was the then intent of Davidson, and there was nothing to qualify the delivery. See Ibid. 456, note a. The deed was operative until a dissent or disclaimer. Ibid. 455, note b. The only way for Hart to avoid it was to reject it.</p> <p>Where the conveyance is made directly to the creditors, their assent must be given at the time of the assignment, as it requires the agreement ot two parties to make a contract. Jones v. Dougherty, 10 Ga. 289; Burrill on Assign. 389. The subsequent assent to the assignment could not affect the rights of Forbes &Beck. Welch v. Sackett, 12 Wis. 253 ; Bell v. Farmers’ Bank, 11 Bush, 38; The Commonwealth v. Jackson, 10 Bush, 427 ; Goodall v. Stinson,, 7 Blackf. 439 ; Tuttle v. Turner, 28 Texas, 773 ; Parmelee v. Simpson, 5 Wall. 85 ; Harrison v. Phillips Academy, 12 Mass. 476; Denton v. Perry, 5 Yt. 387 ; Oxnard v. Blaise, 45 Me. 602 ; Thayer v. Stark, 6 Cush. 15 ; Baker v. Haskell, 47 N. H. 480; Foley v. Howard, 8 Iowa, 59 ; Dote v. Bodman, 3 Mete. 142 ; Day v. Griffith, 13 Iowa, 104; Baird v. Williams, 19 Pick. 385; Jones on Mort., sect. 104. The fact that when Davidson borrowed the money from Hart he assured him that 'in case misfortune should overtake him he would secure him, cannot add anything to the strength of the grantee’s case. The agreement was too vague and indefinite to be of any force. Day v. Griffith, 13 Iowa, 104; Baird v. Williams, 19 Pick. 385 ; Gobb v. Chase, 54 Iowa, 253 ; Jones on Mort. sect. 108.</p>

Hon. T. B. Graham, Chancellor. A statement ©f the case will be found in the opinion of the court. It will be seen that Niles’ judgment against Roby was rendered more than ten months before any conveyance from Roby either to Mrs. Allen or to Mrs. Davis. When that judgment was obtained, to whom did these lands belong? Did Mrs. Allen or her mother before her have any title, either legal or equitable, to these lands until the 16th of July, 1878?

Hon. A. G. Mayers, Judge. The case is sufficiently stated in the opinion of the court. The license issued by the sheriff and the order of the Board of Supervisors granting the license to Cooper & Lowry should have been admitted in evidence. But it is claimed that the license is void/because the sheriff failed to state, in the receipt given by him, the house in which the liquors were to be sold.

Hon. A. G. Mayers, Judge. John I. Palmer brought an action of replevin against John Gaddis, before a justice of the peace, for a bale of cotton. The defendant gave bond, as provided by statute, with H. W. Crook as surety, and retained the cotton. The justice of the peace found against Gaddis and Crook, requiring them to deliver the cotton to Palmer or to pay him the value thereof with damages, amounting to $65.

<p>Jtjdqment-Lten. Priority. How preserved. Notice under seet. 1787 of Gode of 1880.</p> <p>If the holder of a judgment with a prior lien acquired by enrollment as provided insect. 1736 and 1737 of the Code of 1880, upon being notified by a judgment-creditor having a subsequently acquired judgment-lien, to proceed in the.collection of his judgment, causes an execution to be issued and placed in the hands of the sheriff, that is all the law requires of him in the preservation of his lien, and he is not required to point out to the sheriff the property subject to the execution.</p>

.Appeal from the Chancery Court of Warren County. Hon. Warren Cowan, Chancellor. This is an appeal from a decree granting relief to W. C. H. McKinney, the complainant in the court below, upon a state of facts set forth in the opinion of the court. - ...

Hon. T. J. WhartoN, Judge. The case is sufficiently stated-in the opinion of the court. 1. Under our law and in view of the, provisions of the statutes of this State, no matter what is held in other States, we assert that the court below had no jurisdiction of this case. We cannot presume to be wiser than the law. The highest evidence of what the law is we have been accustomed to believe is the solemn declarations of this court.

T. J. WhartoN, Judge of the Ninth Judicial District, on an application for a mandamus. The petition for a mandamus in this case, filed on the 21st of November, 1882, by H. S. Foote, district attorney, “on the relation of J. K. Chalmers,” against H. C. Myers, Secretary of State, was based upon the same grounds, substantially, and virtually sought the accomplishment of the same purpose, as that in the case of II. C. Myers, Secretary of State, v. J. It.

<p>1. Assignment. Condition in deed. Power of trustee. Unauthorized sale.</p> <p>"Where a deed of assignment for the benefit of the creditors of the assignor requires the trustee named in the deed to convert into money, “by a sale for ready money,” all the goods, chattels, and choses in action assigned, the . trustee has no power to sell the same on a credit, and such sale confers no title on the purchaser.</p> <p>2. Judgment. Purchaser th'e?:eof. Caveat emptor.</p> <p>The rule of caveat emptor applies to the purchaser of a judgment as well as to the purchaser's of other classes of personal property.</p> <p>3. Garnishment. Right of garnishee to contest assignment of judgment. Practice. Pleading.</p> <p>One who has been garnished under a writ issued upon a judgment at law, may make the defence that the party at whose instance he has been summoned, and who claims to be assignee of the judgment, has no title to the judgment; and lie may do this hy a motion to dismiss the garnishment on the ground that “the attorney who caused the writ to be issued is not the attorney of the plaintiff in the judgment,” though the better practice is for the garnishee to plead that the garnishment proceedings are being conducted on behalf of a person not the owner of the judgment.</p>

Hon. C. H. Campbell, Judge. Keiru sued Warfield for an alleged trespass of the latter in cutting and taking, or causing to be cut and taken, trees on the laud of the former. The declaration contained two counts : the first for the statutory penalty for the trespass alleged ; and the second for the actual value of the trees alleged to have been cut and taken.

Hon. T. B. Graham, Chancellor. In March, 1874, the firm of McLaurin & Stevens, doing business as merchants in the town of Goodman, took from A. F. Polk to one Neville, as trustee for their benefit, a deed of trust upon his crop of cotton and corn to be grown that year ■ on a certain tract of land which he was then cultivating, to secure a debt then due by him to them and a further indebtedness to be contracted during that year.

Hon. B. F. Trimble, Judge. The case is stated in the opinion of the court. filed a brief, discussing fully the merits of the case, but it is not deemed proper to report the same here, as the opinion of the court is based exclusively upon a question of practice, raised in this court by the appellee after the filing of the brief for the appellant.

<p>1. IircnEEEPER. Liability for baggage lost by one not a guest. Payment of bill.</p> <p>M., who had spent the night at an inn, paid his bill and had his name checked from the register in order to release himself of liability as a guest during a day’s absence at a neighboring town, where he went on business, intending to return at night. During his absence a valise left by him with a friend in the room which he had occupied before leaving the inn was lost. He demanded payment for his valise and contents, which being refused he brought suit for the value thereof against the innkeeper. B.eld, that the relation of innkeeper and guest having been intentionally terminated by M., he cannot hold the innkeeper responsible for the loss of his valise, which occurred after he had ceased to be a guest of the inn. The fact that he expected to return and again become a guest of the inn did not continue the relation of guest and host during his absence.</p> <p>2. Same. Criterion of liability. Mutual rights of guest and hoét.</p> <p>An innkeeper is chargeable as such because of the profit derivable from entertaining. The right to charge is the criterion of his liability. When the liability of the guest to be charged as such ceases, his claim on the innkeeper expires, subject only to his right to hold the innkeeper responsible for his baggage during such time as may be reasonable, under the circumstances, to effect a removal thereof. .</p>

Hon. WarreN CowaN, Judge. E. O. Stanard & Co. were merchants doing busifiess in St. Louis, and Halpin, Bonham & Co. were merchants doing business in the city of Vicksburg; and the latter had been for several years buying goods from the former, when, on the 31st of March, 1881, Halpin, Bonham & Co. bought a bill of goods from Stanard & Co., which were on that day shipped from St. Louis to the buyers in Vicksburg.

Hon. Warren Cowan, Judge. Shannon & Peck being licensed traders in the city of Vicksburg, dealing in horses and mules, had some mules and four mares, which they were offering for sale from day to day at their place of business. These animals were seized under an attachment sued out by J. C. Blum & Co. against Shannon & Peck. Ada C. Shannon filed an affidavit in the attachment proceedings, claiming the four mares.

A. B. PittmaN, Esq., Special Judge, by agreement of the parties, Hon. Warren Cowan being disqualified. A. M. Paxton and others, citizens of Warren County, for the use of the Board of Supervisors of that county, brought this action against A. H. Arthur and his sureties upon his bond as a member of the Board of Supervisors during the years 1878 and 1879.

<p>1. Limitation of Actions. Fraudulent concealment of cause of action. Statute construed.</p> <p>Where, by reason of the perpetration of a fraud, a cause of action has arisen against one not occupying any relation of trust or confidence towards the party acquiring the right of action, and the fraud is a matter of public record, and no affirmative act is done or declaration made, calculated to lull suspicion, then there is no such fraudulent concealment of the cause of action as will suspend the operation of the Statute of Limitations.</p> <p>2. Same. Absence from State. Residence elsewhere. Rule. Exception.</p> <p>The rule that in order to stop the running of the Statute of Limitations by reason of absence from the State there must be a concurrence of absence from the State and the acquisition of a fixed residence or domicil elsewhere, is subject to the exception that where the absent debtor leaves no residence or domicil in this State, at which constructive service of process may be made upon him, the statute will not run in his favor, though he should not acquire a residence or domicil out of the State.</p> <p>3. Same. Absence from State. No residence elsewhere. Case in ¡judgment.</p> <p>Where a bachelor, who, during his residence in this State, usually boarded at a hotel, has absented himself from the State for two years, and left no place at which, or person with whom, a summons could be placed so as to give him legal notice of the institution of a suit against him, he cannot claim the protection of the Statute of Limitations during that time upon the ground that he never acquired a new location elsewhere, but remained a resident of this State.</p>

Hon. WarreN CowaN, Judge. Emma Farkas was killed on the 13th of July, 1882. ■ A coroner’s jury was summoned to investigate the killing.

S. M. SheltoN, Esq., Special Chancellor, presiding, by agreement of the parties, Hon. Warren CowaN, being disqualified to preside in this case. Phoebe E. Stiles qualified on the 5th day of October, 1876, as administratrix of the estate of her deceased husband, J. D-Stiles. Appraisers were appointed, and the personalty of the estate was appraised by them.

Hon. H. S. VaN Eatou, Chancellor. On the 27th of December, 1880, J. B. Chrisman filed the bill in this cause seeking the confirmation of a tax-title to a certain described tract of land, and alleging substantially the following facts as entitling him to the relief: In 1857, James Currie entered the land from the United States under a law authorizing actual settlers to enter public lands at twelve and a half cents per acre; and though Currie made the required oath as to…

Hon. S. S. CalhooN, Judge, specially presiding, by exchange with Hon. J. B. Chrism an. Isabella Brigins and James Hardie brought this action of ejectment to recover of D. W. Chandler a certain tract of land which they claimed as the heirs of Robert Hardie, who in his lifetime had a patent thereto from the United States. The defendant claimed title to the land through a tax-collect- or’s deed. The judgment was in favor of the defendant, and the plaintiffs appealed.

J. C. Heidelberg, Esq., Special Chancellor, presiding by agreement of the parties, Hon. George Wood being disqualified. On the 30th day of November, 1874, G. W. Taggert recovered a judgment against Mrs. C. A. Baker before a justice of the peace for Jackson County. Subsequently, J. E. Muse purchased from Mrs. C. A. Watson (formerly Mrs. Baker) certain lands.

Hon. Lauch McLauriN, Chancellor. The case is sufficiently stated in the opinion of the court. Can a stranger to a judgment call it collaterally in question by showing that the basis of the judgment, the chose in action sued on, was fraudulently procured and a fictitious debt without consideration? The appellee demurred to this part of the bill in the court below, and this constitutes the second error assigned.

T. M. Miller, Esq., Special Judge, presiding by agreement of parties, Hon. WarreN CowaN being disqualified to preside in the case. For the year 1880, the Board of Supervisors of Warren County levied a tax of twenty-two mills on the dollar of taxable property in the County of Warren. C. B. Allen and several other individual tax-payers of Warren County employed Messrs.

<p>1. Chancery Practice. Bill io subject property held by wife. Heirs of deceased husband as parties.</p> <p>In a suit in chancery by the creditors of a decedent to subject to their demands land bought by him and which he has fraudulently caused to be conveyed to-his wife, his heirs are neither necessary nor proper parties to the bill.</p> <p>2. Pratoulent Conveyance. May be attached by whom. Existing creditor Subsequent creditor.</p> <p>A conveyance made to defraud existing creditors, cannot be set- aside at the instance of a subsequent creditor, where it does not appear that the debtor-intended to defraud such subsequent creditor, nor that the latter gave credit upon the faith of the debtor’s ownership of the property conveyed.</p> <p>3. Chancery. Pleading and practice. Decree, whether against individual or administrator.</p> <p>C. and D. filed a bill in chancery against I. as administrator of the estate of J., deceased, to recover the value of some personal property, which it was-alleged had belcmged to them and had been sold by the defendant as such administrator, together with the property belonging to the estate of the decedent, the whole having been previously appraised as the property of the estate. A decree was rendered, which, though establishing the facts alleged in the hill, required that the money due the complainants should he paid by “the defendant,” without the addition of words describing him as administrator, and without in any manner fixing a charge upon J.’s estate. Held that the decree was against I. individually, and not as administrator.</p> <p>4. I’BAtrDTJLBNT Conveyance. Holder of title, when a trustee for creditors Measure of their rights as to the property.</p> <p>Where one indebted beyond his ability to pay, purchases land with his own means and causes the title thereto to be conveyed to another, the law con- ' clusively presumes that his purpose is to defraud his creditors. The intention of the debtor, in such case, being unlawful, no trust arises in his favor, but ■the law impresses upon the holder of the fraudulent title, the character of a trustee for the benefit of the creditors whom the debtor has sought to defraud; and the property thus held may be subjected to the demands of such creditors to the full extent of its value, without regard to the amount of money invested in it by the debtor.</p> <p>5. Same. Title in wife. Bill by creditor. Claim of dower.</p> <p>Where an insolvent debtor has purchased land with his own means and caused the title to be conveyed to his wife, and bis creditors file a bill to subject the property to the payment of their demands, the wife is not entitled to dower in such land.</p>

Hon. C. H. Campbell, Judge. Alice G. Ransom recovered a personal judgment against W. H. H. Duff, “for rent due and unpaid.” Upon this judgment an execution was issued and levied on cei’tain personal property, which was replevied by Maggie O. Duff, wife of the defendant in the execution.

Hon. J. B. Chrisman, Judge. W. C. Miller, as sheriff and tax-collector of Wilkinson County, levied upon a horse and buggy belonging to R. M. McGehee, for his unpaid taxes of 1882. McGehee brought re-plevin for the property. The Board of Supervisors had levied for the year 1882 a tax of seventeen and a half dollars on the thousand dollars of taxable property for county purposes.

Hon. W. S. Featherston, Judge. The case is stated in the opinion of the court. 1. The recoi’d shows a clear case of tort of the most outrageous character possible, without defence, mitigation, or justification. Wherever a tort is clearly established, and the proof discloses no legal excuse or justification, the right to a recovery is absolute — some damages, if only nominal, are compelled to be awarded. 1 Sutherland on Dam. 10,11, 12, 162. 2.

A. B. Fly, Chancellor of the Second Judicial District on habeas corpus: The ease is stated in the opinion of the court. Sect. 10 of the Constitution confers upon the Governor the power to grant reprieves and pardons, and remit fines, etc., in all criminal and penal cases, except treason and impeachment. In cases of treason he may grant reprieves only by and with the consent of the Senate, and to that end may respite the sentence until the next session of the Legislature.

Lauch McLauriN, Chancellor of the Tenth Judicial District, on habeas corpus. The appellant being in the custody of the sheriff of Wilkinson County under an indictment for murder, through his counsel presented to the chancellor of the district a petition for a writ of habeas corpus, and for his release upon bail. The chancellor granted the writ, and heard testimony upon the application for bail; but the application for bail was denied, and the relator was remanded to jail.

Hon. S. H. Terral, Judge. C. H. Williams sued the Planters’ Insurance Company for having, as alleged, maliciously prosecuted him upon a charge of arson, in burning a house in which he was interested, for the purpose of procuring the insurance money which would become due thereon. The plaintiff recovered a judgment for |10,000, and the defendants appealed to this court.

Hon. C. H. Campbell, Judge. The case is stated in the opinion of the court. ■ The judgment nisi was rendered at the August term, 1881, of the Circuit Court against CLulf Sims and surety jointly for $100. The alias scire facias recites that the judgment nisi was rendered at the January term, 1.882, against E. Cluff Sims and Pounds, his surety, for $100 each, or severally. Here are three variances between scire facias and judgment nisi, viz. : 1.

Hon. J. S. Hamm, Judge. At the October term, 1876, of the Circuit Court of Harrison County, Washington House, having been indicted for larceny, entered into a recognizance with K. C. Saffold as surety to appear at the April, 1877, term of the court. House failing to appear at the latter term a judgment nisi was taken against both him and Saffold on the recognizance, and a writ of scire facias was issued to both.

Hon. S. H. Terral, Judge. Tbe case is stated in tbe opinion of tbe court; The instructions of defendant to its agent to cut trees on defendant’s right of way were inadmissible as evidence, and should have been excluded. Even if admitted as evidence, tbe railroad authorities are presumed to be present always along the line of tbe road, looking on and commanding every act done by servants in the scope of their employment.

Hon. S. S. CalhooN, Judge. The case is stated in the opinion of the court. A jury was waived, case submitted to the court below, and from a judgment in favor of the defendant, the plaintiff appealed to this court. Sect. .1204 of the Code has no application to this case.

Hon. J. M. Aenold, Judge. George Holland was indicted for aiding prisoners charged with felony, to escape from the county jail of Clay County.

<p>Appeal from the Circuit Court of Jasper County.</p> <p>-Hon. A. G-. Maters, Judge.</p> <p>•By the act approved May 11, 1871.( Acts 1871, p. 96) the tax--assessor was required to return- and file his assessment-irolí for that year on the first Monday in June, 1871. The assessor of Jasper County did' not return and file the assessment roll for 1871 until the first Monday in September of that year. Daniel Mclnnis and others, heirs at law of J. Mclnnis, deceased, brought this action of ejectment against the appellant to recover certain hands, to which they deraigned title from the United States. . The defendant claimed under a deed from the tax-collector of Jasper County, the land having been sold on the first Monday in. June, 1874, for the unpaid taxes of 1873 upon the assessment of' 1871 above referred to. Upon objection made by the' plaintiff the court refused to admit the tax-collector’s deed in evidence. The verdict and judgment were for the plaintiff and the defendant appealed to this court.</p> <p>The whole theory of the law is that the failure of the assessor to complete and return an assessment-roll on the day named does not render a list subsequently completed and approved, absolutely void. Wolfe v. Murphy ante, 1; Gamble v. Witty, 55 Miss. 28 ; Virden v. Bowers, 55 Miss. 1; Friteh v. Johnson, 51 Miss. 73; Smith v. Nelson, 57 Miss. 138.</p> <p>The assessor having failed to present the assessment-roll for 1871 until September, and the law requiring that it should be presented on the first Monday in June, all levies and sales under it were illegal and void and no title passed to purchasers at tax-sales under it. Virden v. Bowers, 55 Miss. 1; Jones v. Burford, 26 Miss. T94.</p>

Hon. 'J. W. BuchaNAN, Judge. The case is stated in the opinion of the court. The court held that although the amended answer denied all indebtedness to the defendants, yet as it appeared that the garnishees owed somebody he did not see how they could be injured by having a judgment rendered against them. We submit that this is a wrong principle sought to be established for the first time in our State. To state this case is to decide it.

Hon. Warren Cowan, Judge. In the fall of 1875 Herman Denio was elected to the office of clerk of the Circuit Court of Warren County, for the term of four years, commencing on the first Monday in January, 1876. Before entering upon the discharge of his duties he gave a bond, as prescribed by the general law.

Hon. C. H. Campbell, Judge. Alex. Alexander was indicted for the larceny of a cow. He was tried and convicted and from the judgment of the court below sentencing him to the penitentiary, he appealed to this court. The second instruction is calculated to mislead the jury by the manner in which it is framed, which fact I submit to the court. Johns. Case, 2 Conn. 569; Algheri’s' O ase, 3 Conn. 584, and Jenkin’s (Jasé, M.S. form.

Ira D. Oglesby, Esq., Special Judge; presiding by agreement of the parties, Hon. A. T. Roane being disqualified. This appeal was taken by William J. Bates, plaintiff in the lower court, from a judgment, in favor of the defendant, Sallie Aven, administratix of the estate of Albert D. Wells, deceased, rendered upon the facts stated in the'opinion of this court.

Aureal from the Circuit Court of Tallahatchie County. • Hon-. A. T. KoaNe, Judge. On the 27th of May, 1881, J. L. Fletcher brought this action of ejectment to recover of H. S. Trewalla, possession of certain lots of land lying in the town of Charleston, in Talla-hatchie county. The lots were sold to the State on the'first clay of March, 1880, for the delinquent taxes of 1879 ; and on .the 19th of March, 1881, the}»- were purchased from the State by the plaintiff.

Hon. J. B. Morgan, Chancellor. I. D. Hall brought suit in a justice’s court against J. B. Bozeman for the sum of $116. Process was duly served on Bozeman, but before the day of trial it was agreed between the plaintiff and defendant that tlie case should be submitted to arbitration, and that the suit should await the result of the arbitration.

Warren Cowan, Judge of the Eleventh Judicial District, on habeas corpus.

<p>Appeal from the Circuit Court of Pike County.</p> <p>Hon. J. B. ChrismaN, Judge.</p> <p>In this action by the appellee, the widow of Michael J. Doyle, in behalf of herself and children, the original declaration upon which issue was joined and the first trial had, averred that Doyle, an engineer of the appellant, while in obedience to orders of the company, was proceeding north, drawing the pay-car between Michigan City and 'Grand Junction, at a point about two miles south of the latter point in Marshall County, in the State of Mississippi, was killed in a collision with a south bound freight train of the railroad company, and that such collision was caused by the negligence and mismanagement of the company, and that Doyle did not contribute to his own injury, but was at the time in the execution off his duty, and so doing with due care, prudence and caution:</p> <p>At the first trial, after the plaintiff’s evidence was closed, the defendant moved to exclude all the evidence, because it showed that the accident and Dojde’s death occurred in Tennessee, and, also, because it failed to show any negligence on the part of the company. This motion was sustained by the court, and the plaintiff offered to amend her declaration so as to show that the death occurred in the State of Tennessee, and further, so as to show that plaintiff, the widow of Doyle, and the children mentioned in the declaration, were and are his only next of kin and that by the laws of Tennessee, an action was given for the benefit of herself and the children, under the circumstances detailed in the declaration. This application to amend was denied, and the court, at the request of the railroad company, instructed the jury to find for the defendant, the railroad company, and verdict and judgment were accordingly returned and entered. On motion to set aside this judgment and for a new trial, the court set it aside and awarded a new trial.</p> <p>■ The evidence at the first trial, and as much of that upon the second trial (which resulted for the plaintiff) as is necessary to understand-the decision, is set out in the opinion.</p> <p>1. The first verdict was right, and the new trial was erroneously granted. It appeared from the plaintiff’s evidence that the collision occuiTed in Tennessee, where Doyle was killed by the negligent disobedience' of orders on the part of fellow-employees. Statutes giving this right of action have no extraterritorial force. Pierce on Railroads, 389 ; Rover on Interstate Law, 155, 156 ; Milne v. Morton, 6 Binn. 365 ; Hoyt v. Thompson, 19 N. Y. 207 ; Woodward v. Roane, 23 Ark. 523 ; Bennoyer v. JSTeff, 5 Otto, 714; King v. Vance, 46 Ind. 246; Richardson v. JST. Y. Cent. R.'R. Co., 98 Mass. 92 ; Weed v. Chapman, 2 Iowa, 524 ; Blanchard y. Russell, 13 Mass. 1; Graham v. Monsergh, 22 Vt. 543 ; Indiana v. Hel-mer, 21 Iowa, 370; Richardson v. Burlington, 33 N. J. 192. Comity was not invoked in the declaration, even if a right of action given by foreign statute could in this way be enforced here. Selma, Rome <& Dalton R. R. Co. v. Lacey, 49 Ga. (43 Georgia) 106. But however that may be, it is well settled that the company is not liable for the death of an employee, caused by the negligence of his fellow-employees. Hew Orleans, Jackson & Great Northern R. R. Co. v. Hughes, 49 Miss. 258; Horva v. Mississippi Central R. R. Co., 50' Miss. 178. It results that the first verdict should stand, and judgment be entered here for the defendant.</p> <p>2. We understand the rule to be, that when the testimony of the plaintiff falls so far short of entitling her to a verdict, that were a verdict rendered in plaintiff’s favor, the court would, on motion for a new trial, set it aside, then the court, on defendant’s application, would exclude all the testimony from the jury ; and invoking its application here, we say the court correctly excluded all the plaintiff’s testimony on the first trial, and the court erred when it set aside a rightful verdict and judgment in favor of defendant. But there was no evidence, at the second trial, of negligence by the train dispatcher. A scintilla of evidence, or a mere surmise that that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence. Toomey v. Lindon & C. R. R. Co., 3 C. B. (N. s.) 146-150. This language met the approval Bramwell, B. Oarninan v. Eastern Counties R. Co., 4 Hurl. &N. 781 — 786. See, also, Jackson v. Metropolitan R. R. Co., 3 App. Cas. 193; Jewell v. Pan, 13 C. B. 916 ; Ryder' v. Wombwell, L. E. 4 Exch. 38; Beauven v. Portland Co., 48 Me. 291 ; Lemanv. Brooklyn, 29 Barb. 234. This is the settled law of England, and most of the United States, and ought to prevail everywhere. It certainly does in Mississippi. Of course this is aside, from the question as to whether the train dispatcher and Doyle were fellow-servants. No other testimony in the case related to negligence.</p> <p>Doyle’s death resulted from his fellow-employees’ negligence, and the company, therefore, is not liable.-v. -, 85 N. Y. 61. This principle is familiar, and has been often announced by this court, but the facts of the case cited are suggestive. Orders to wait were received by the freight train, and owing to its not waiting the collision occurred. Negligence was imputable to the officers of this train, who testified for the plaintiff, at the first trial, that they understood and disobeyed the orders. The first verdict should stand. There is nothing in the argument that the road was divided, and the engineer of the pay-train was out of his division. The negligent fellow-servants were under the control of the same person as Doyle, of the same grade, and doing the same kind of work. Doyle consented to run the pay-train, and was in the habit of doing so. The relation of fellow-servant has been held to exist between a switch-tender and an engineer, a telegraph operator and a fireman, and a section boss and all below the general superintendent. New Orleans, Jackson & Great Northern R. JR. Go. v. Hughes, 49 Miss. 258. No evidence exists tending to show negligence of the company. On the contrary, the plaintiff proved that the collision was caused by the fellow-emplovees disobeying positive orders. Under such circumstances, the first verdict was right, and a judgment should be entered here upon it.</p> <p>I. The statutory right of action in another State can be enforced here, because, (1) the action was transitory, though generally statute ; and ( 2) the statutes of the two States are substantially the same; and if the action was local, still the cause of action having occurred in Mississippi,'the right of action is complete under the Mississippi statute.</p> <p>(a.) Statutes which merely keep alive a common-law right by allowing remedy to enforce it after the death of the person differ from those which create a new right, and are differently treated. Cooley on Torts, 262, commenting on Lord Campbell’s act. The distinction stated by Cooley is elaborated at length, and with learning and ability, in the following cases : Folkes, Admr., v. N. & JD. JR. JR. Go., 9 Heisk. 832 ; Reade v. Great JEastern R. R. Go., L. E. 3 Q. B. 555. It will be observed that the acts of Mississippi and Tennessee are, with respect to the above proposition, identical with Lord Campbell’s act. Now, we insist that as the right continued and kept alive, was, at common-law, transitory, the same right surviving to the widow and children is transitory. It is not a new and statutory right. Lurniclc v. Railroad Go., 18 Otto, 11.</p> <p>(5.) Where the statutes of two States, giving a right of action are substantially alike, a recovery may be had in one State for damages, sustained by a tort committed in the other. This doctrine is stated in Pierce on Eailroads, 389, referring to a number of cases collated in note 8, and Cooley on Torts, 266, shows it to be the doctrine in Georgia in his comments on the case of the Selma, Rome & Dalton R. R. Go. v. Levy, 49 Ga. 106. The cases referred to by Cooley, as sustaining a contrary doctrine in New York, have been explained, and shown to establish a different doctrine in the case of Leonard v. Golumbia Steam Navigation Go., 84 N. Y. 48, decided in 1881, where the rule is discussed at great length, and the reason of it given. Hence, we insist that though the death and cause of the death may both have occurred in Tennessee, the action was maintainable in Mississippi. N. O., J. & G. N. R. R. Go. v. Wallace, 50 Miss. 244.</p> <p>(c.) It is well settled that when the tort is committed in one State, but the injury, the result of that tort, occurs in another State, the action may be brought in either State. In the first State, because there was done the act which caused the injury, and in the latter State, because there the plaintiff suffered the injury. 2 Waite’s Act. & Def. 126 ; Thayor v. Rroolcs, 17 Ohio, 489 ; Foot v. Edwards, 3 Blatehf. 313. Thus, we insist, that the action was well brought.</p> <p>2. Whether Doyle’s death resulted from the negligence of a fellow-servant acting with him in the same common employment and under the same master, or from the negligence of one holding to the defendant the position of vice principal, under whose orders Doyle was working and bound to obey, was a question of fact, and we submit was properly left to the jury, who have responded to it favorably to the plaintiffs.</p> <p>The train dispatcher was not Doyle’s co-employee, but his superior. 2 Thomp. on Neg. 1026, 1027; Ghicago & Northwestern R. R. Go. v. Moronda, 93 Ill. 302 ; Ryan v. Chicago R. II- Go., 60 Ill. 171; Whart. on Neg., sect. 229 ; Booth v. Boston R. R. Co., 73 N. Y. 38; Felhe v. Boston R. R. Co., 53 N. Y. 550. The correct rule, we take it, is stated in Ohio, in the case of Berea Stone Co. v. Kraft, 31 Ohio St. 291, 292, and it is this: “Where one servant is placed by his employer in a position of subordination to, and subject to the orders and control of another, and said inferior servant, without fault, while in the discharge of his duties, is injured by the negligence of the superior servant, the master is liable for such injury.” A number of authorities are referred to in support of this doctrine by the court delivering the opinion ; and the doctrine is sustained by a long line of authorities in other States. It is proved that the death of Doyle was caused by the train dispatcher’s negligence in transmitting the orders. If the train which killed Doyle had followed orders as interpreted by the company’s experts, it would now be at Grand Junction. But in not standing there forever, the officers of the train obeyed the reasonable intent of the orders, which was to proceed unless stopped there. If the direction meant to wait for orders at that point, why were no orders sent? The verdict is conclusive of this point, and herein lies the company’s negligence. Because it was a question of fact, the first trial was wrong, and the second verdict is for plaintiff. We, therefore, insist that the second verdict was right, and the judgment should be affirmed.</p>

Appeal and Cross-Appeal from the Chancery Court of Marshall County. Hon. A. B. Fly, Chancellor. The case is stated in the opinion of the court. The Chancery Court had full and ample jurisdiction of the subject-matter of this new bond, and of its own mere motion to take it without the institution of any proceedings by the sureties on the former bond, or by any party in interest.

Hon. J. A. Green, Judge. After this case was remanded, on reversal of the judgment for errors in the charges in view of the facts, a suggestion of ■error was filed for the appellee and a reargument grauted upon the single point, whether the transcript presented an •objection which this court could notice.

Hon. C. H. Campbell, Judge. Moss & Co. delivered to the Chicago, St. Louis & New Orleans Railroad Company forty-six bales of cotton to be transported by the latter from Winona, Miss., to New Orleans, La.

<p>Appeal from the Circuit Court of Holmes County.</p> <p>Hon. C. H. Campbell, Judge.</p> <p>G. D. Abels being the owner of nine head of horses and one mule, shipped the same from New Haven, Ky., to Durant, Miss., a station on the' line of the Chicago, St. Louis & New Orleans Railroad Company under a special contract of shipment, containing, among others, the following stipulation : “ Inconsideration that the said party of the first part (the R. R. Co.) will transport for the party of the second part (Abels), one car load of horses and mules (ten head more or less) from New Haven, Ky., to Durant Station, at the rate of $120 per car load and a free passage to the owner or his agent on the train with the stock, the same being a special rate, lower than the regular rate .mentioned in said tariff, the said party of the second part thereby relieves said party of the first part from the liability of a common carrier in the transportation oí said stock and agrees that such liability shall be only that of a private carrier for hire. And said party of the second part hereby accepts for such transportation the cars provided by said company and used for shipment of such stock and hereby assumes all risk of injury which the animals or any of them may receive in consequence of either or any of them being wild, unruly, or weak, or maiming each other or themselves, or in consequence of heat or suffocation, or other ill effects of being crowded in the car, or of loss or damage from any cause or thing not resulting from the. negligence of the agents of the said party of the first part.”</p> <p>The mule was injured on the trip, and when the car load arrived at Durant Abels refused to receive the mule and it was turned loose upon the commons. He brought the suit to recover the value of the mule, a verdict was returned in favor of the plaintiff, and from such judgment the Railroad Company appeal to this court.</p> <p>That public policy which guards the shipper of goods, and which imposes upon common carriers liability, except for injury or loss by the act of God or the public enemy, however well founded, must yield to common sense and the securities of commerce. It is obvious to the common mind that the-transportation of live stock or animals in great numbers,’ or indeed in any quantity by rail, is peculiar and exceptional. They are liable to sicken, to injure themselves and to be injured by each other, by the jolting and swaying of the cars, for this liability or susceptibility is admitted to be, and in practice is found to be, so constant and universal, that injuries not otherwise explained may always be safely set down to causes inherent in the character of the freight, and the mode of transportation. We ask attention to the observations of Christiancy in Mich. Ii. Go. v. M.cDonough, 21 Mich. 165, on these peculiarities. If the court should not adopt the conclusions of the-Michigan court, that the obligation of a common carrier does no attach to the transportation of animals by rail (and the conclusion is that of the English courts), that case and those upon which it rests abundantly show that we have in such cases what we have in the shipment of fruit, inherent tendencies to damage, which damage, when found to have occurred, will be referred by a natural law always at work to produce it — to the tendency. So that when we find the car safe, and the road good, and no-fault in the management, and yet injury, the carrier lias the prima facie case on the plainest principles of justice and good sense. In any event, it is clear that the transportation of animals must be governed by special contracts ; for the sufficient reason that they cannot be carried on the basis of the law of common carriers. Here the contract reduces the case to a question of negligence. By the contract the parties agree that the liability of the carrier will be that of a private carrier for hire; that is to say, the liability must arise from the negligence of the carrier only, and that negligence, as in the case of a mere bailment, must be shown by the plaintiff. 21 Wis. •81; 44 Wis. 405. But above and beyond this, the proof here showed distinctly and circumstantially that the injury did not arise from defects in the car, the road, or the management, and was rationally attributable to that cause always at work, from the animals, coupled with the necessary hazard of the mode of transportation. The car was shown tobe safe and adapted to the purpose and nine out of ten animals arrived safely and in good condition. On the state of the case as it stood before the jury, the defendant stood acquitted, and the court should have instructed that the plaintiff must show negligence. The res ipsa loquitur did not exist in the first place, because damage of one out of ten animals in one car by no means involved the idea that the negligence of the carrier caused the damage. Here the inference is the very reverse. The condition in the contract requiring notice was reasonable. The mule was turned upon the commons without custody of any sort and this was such a removal or mingling with other stock as was contemplated by the contract. Nothing could be more within its meaning than turning the mule out, not to be housed or penned, in a town. Express Oo. v. Hunnicutt, 54 Miss. 566 ; Lawson on Car. 149; Qoggin v. Kansas R. Oo., 12 Kan. 416 ; Hice v. Kansas E. R. Oo., 63 Mo. 3. We do not consider the ruling in the Railroad Oo. v. Moon, 39 Miss. 822, as establishing a doctrine in conflict with the right to stipulate as to the value to be put on animals. Here, then, was a deliberate contract signed by the shipper. A horse dealer is a fair match for any railroad company, “ scheming corporation or trickster.” Public policy is a good thing, but we can conceive of no policy so important to trade and commerce, to thrift, to business, as that which allows some men to take care of themselves, and make such contracts as they think for their interest. A paternal government is a curse, and a paternal judiciary may be said to be not less objectionable. Are we not, in this pursuit of corporations and carriers, allowing one idea to dominate too much. It rnay become hypochrondria. 98 Mass. 239 Railroad Go. v. Eenlein, 52 Ala. 606 ; Hutehinsp.ii-wtJar. pp. 100,101, sects. 248, 249 ; RailroadJ2,o/.V.~Henlein & Barr, 56 Ala. 368. There seems no reasoyfto doubt that an express • contract fixing value must be rejected. In Harvey v. Railroad Go. 6 Am. & Eng. E.AL Cas. 207 (Missouri), the court affirmed the general Proposition that such contracts did not violate the rule thatacarriers may not exempt themselves from negligence. In jthe particular case it is true there were other reasons for tjiie judgment, but the court plainly intended to support the/Alabama case.</p> <p>Eailroad companies cannot, in consonance with the great objeciyliad in view in their charters, surrender their character ofypublic carriers, and, by contract with individual shippers, assume that of private carriers, and the company must be free /from negligence. The duty of the railroad company is to carry and deliver safely. If the loss or injury can-be ascribed to a failure to do what diligence and care would suggest was feasible to have been done, then the public carrier cannot shield himself behind an exemption in the bill of lading. 49 Miss. 725 ; 58 Miss. 911. The court properly construed the artfully contrived printed contract made with appellee, and the jury were properly charged, and returned a verdict in accordance with the law and the facts in this case. Appellant is liable for attorney’s fee, both in this court and the court below, whether appellee is a citizen of this State or not; but if the Act of 1882, p. 110, only allowed attorney’s fee to citizens of the State, there is no evidence that G. D. Abels was not a citizen of Mississippi at the time he brought this suit, and the judgment is proper and just and legally entered against the corporation.</p> <p>The instructions for the plaintiff are certainly correct. They announce the simple doctrine that defendant was a common carrier, and was responsible for the negligence or mis''^s'itmduct of their agents and employees, and that it was their duty" fó-pí’.íiyide litable ears for the safe transportation of the freight that they ,’.undertook to carry for the public. These are their common-law IhuMJilies and duties as common carriers, and by no contract can theytlimit or abridge their duties and liabilities in this respect. Fufe». A railroad company acting as a common carrier of animals is\^ubject to all the duties and liabilities of a common carrier. lOlQliio St. 65 ; 8 Kan. 623 ; 26 Yt. 247; 47 Iowa, 262 ; 71 N. Y. 18\A¿ ■" A 0. 61 (30 Am. Rep. 13). And cannot, by special í’onÍK-’u limit its common-law liability. 10 Ohio St. 65. CommonV1 .Tiers cannot, by contract, evade liability for their own negligence, nor limit it to gross negligence. 24 Minn. 506; 10 bQhio St. 65 ; 8 Kan. 623. A contract purporting to limit the liability of a common carrier must be reasonable. The provision ofNt.he contract that notice of damage must be given before removal of property, was unreasonable. The shipper might not know', of damage received by his stock until after he had received \ them, but still, under the contract, he could not sue. Such stipulations are unreasonable. 81 N. C. 438 ; 22 Ind. 21; 44 \ Ala. 101; 2 Hilt. 19. As the court has' decided that the allowance of attorney’s fee is unconstitutional, we will enter a remittitur for that amount.</p>

Hon. L. HaugjhtoN, Chancellor. The bill in this cause sets forth these facts : — The complainants are the daughter and widow of Dr. Amos Ward, who died intestate in July, 1875, the owner of a considerable real and personal estate, heavily embarrassed with •debts. The estate consisted of a plantation of some three thousand acres, with the usual personal property found on such places, and a residence in the city of Aberdeen. The plantation was under mortgage for about $30,000.

Hon. B. F. Trimble, Judge. Martha L. Dingey and others brought this action of ejectment, on November 26, 1880, to recover of A. J. Paxton, the possession of a certain tract of land. On the trial, the plaintiffs introduced in evidence a deed from Hewett, Norton & Co., dated October 7, 1869, which for aval uable consideration conveyed to H. C. Dingey the land in controversy.