Volume 61 — Mississippi Reports

Hon. W. G. Phelps, Chancellor. The appellant exhibited his bill against' the appellee, and alleged that he is the real owner of the land in controversy, commencing with a patent from the United States, and that his deeds will be shown at the hearing if requested; that he has been in uninterrupted adverse possession, by his tenants, for more than ten years, one tenant occupying the premises from 1877 to June 6, 1881, the date when the bill was filed; that the defendant is not…

<p>Appeal from the Circuit Court of Holmes County.</p> <p>Hon. C. H. Campbell, Judge.</p> <p>This vas an action on the bond of W. ~W. Smith given to obtain an injunction against the sale of land under a trust deed executed by him to secure a debt which he owed to S. D. Shackelford; and the plaintiff claimed his solicitors’ fees and expenses of attending the .taking of depositions in the chancery proceeding, and the cost incurred by the trustee preparatory to the sale which was prevented by the defendant’s injunction. The plea was that neither the note nor attorney’s receipt therefor had been delivered to the defendant or his attorney before this suit was instituted.</p> <p>This note was given by W. W. Smith to S. D. Shackelford as collateral security for the debt protected by the trust deed and was secured by mortgage in Nebraska. But Smith had contended in the Chancery Court that it had been collected by Shackelford or his Nebraska attorney and was a payment; and there was an agreement that Shackelford should return the note to Smith, if he proceeded to sell under the trust deed. The-final decree ordered that the injunction “be and the same is hereby dissolved,” that Shackelford deliver to Smith or his attorney of record in thirty days the note or his attorney’s receipt therefor, “ and that said injunction be in force till said delivery of the note or receipt,” and further that Shackelford recover in a court of law from Smith and the sureties on his bond “ all such costs and damages as may have resulted from the wrongful suing out of said injunction.”</p> <p>The court instructed the jury that if they believed from the evidence that S. D. Shackelford did not within thirty days from the date of the final decree deliver to W. W. Smith or his attorney of record in the proceeding in chancery the Nebraska mortgage note, or the attorney’s receipt therefor, they should find for the defendants. The jury found accordingly, and the plaintiff appealed.</p> <p>The delivery or non-delivery of the note does not affect the question whether the injunction was wrongfully or rightfully sued out. If any wrong -was committed, it occurred when the injunction was obtained. No subsequent negligence could condone the wrong. Damages are recoverable because Shackelford was compelled to expend money, which but for the injunction he would not have been called on to spend. The note was a Collateral security for the trust debt, and the only explanation possible of the clause touching its delivery to Smith is thai (he land was regarded by the parties as full protection.</p> <p>The decree established that the injunction was rightfully sued out. Unless the note was delivered in thirty days, the injunction was to be perpetuated. Dissolution of the injunction was conditional. Shackelford’s agreement was that he would return the ■Nebraska note, if he sold under the deed of trust, and the decree enforced this contract. Conditional dissolution is an adjudication that the injunction was rightfully obtained. High on Injunctions, § 1678. This delivery was a condition precedent to the dissolution of the injunction, and must be proved to have been performed before a recovery can be had upon the bond.</p>

Hon. T. J. Wharton, Judge. The appellant’s declaration in trespass on the case, to which the appellee’s demurrer was sustained, stated that the plaintiff paid his fare from Vicksburg to Jackson, Mississippi, and the defendant corporation, being a common carrier, between Vicksburg and Meridian, promised and agreed to convey him to Jackson, which is on the line of its railroad, “ and accordingly, said plaintiff, who was sick with fever, got on one of the defendant’s cars at…

Hon. T. J. Wtiarton, Judge. In this suit by the appellant against the appellee for the value of a mule killed by one of the company’s trains, the engineer was introduced by the defendant after the plaintiff’s evidence was closed, and testified that there was a heavy fog.when he first saw the mule coming up the side of the railroad bed, thirty feet in front of the ■engine, which was running twenty miles an hour and could not be stopped before it struck the animal.

An execution issued by the clerk of the Supreme Court of Mississippi, under a judgment of this court upon a forfeited bond for appearance on appeal was executed by the sheriff of Bolivar County, who took personal property supposed to belong to the sureties.

<p>1. Larceny. Domestic animal. Estray. Authority of law exists for taking up as an estray a wandering mule, whose owner is unknown; but such animal may be the subject of larceny.</p> <p>2. Same. Trespass. Conversion. Felonious intent. A man who unlawfully takes another’s personal property, not intending to steal, and afterward converts it, intending to steal, is guilty of larceny.</p> <p>S. Same. Lawful talcing. Fraudulent conversion. If the original taking is lawful and bona fide, however, a subsequent fraudulent conversion is not larceny, because there is no trespass.</p> <p>4. Same. Evidence. Conduct. The taker’s subsequent conduct and dealings with the property are admissible in evidence to show with what intent he first took possession.</p> <p>5. Same. Intent. Estray. If he professes to take the mule as an estray, intending at the time to steal it, he is guilty of larceny, for in such case the taking is a trespass, which the intent makes larceny.</p>

Hon. A. Gr. Mayers, Judge. At the trial of this indictment for murder, Mary Nicholson testified, for the State, that, when she was in jail with the accused, one morning after breakfast, they were sitting by the stove, and Betsy Ledbetter, in speaking about being there for killing a woman, said : “ If I did kill a woman, I’ll do it again; if I get out of here I’ll kill another one, for they are all against me up there.” It transpired on cross-examination that Mary was…

Hon. T. J. Wharton, Judge. In this action of replevin by the appellee against the appellant, the verdict was, “ We, the jury, find for the plaintiff, that he is entitled to the immediate possession of the mule in controversy, or its value, which we assess at fifty dollars; also five dollars interest on same at six per cent, from the time of taking; also twelve dollars damages for time lost by plaintiff in prosecuting his suit; also ten dollars punitive damages for attorney’s…

Hon. E. G. Peyton, Chancellor. Susan R. Henry, wife of B. W. Henry, was the owner of a plantation in Hinds County, part of which she had possessed for many years. The remainder she bought from S. W. Montgomery, and the purchase-money was evidenced by three notes secured by a special vendor’s lien reserved in the recorded deed.

<p>Appeals from the Chancery Court of Bolivar County.</p> <p>Hon. W. G. Phelps, Chancellor.</p> <p>Godfrey Frank exhibited his bill against J. H. Wright and Jennie E. Brander on March 8, 1881, to enforce payment of certain notes given for land, May 13, 1873, by sale of the land on which they were an express lien by reservation in the deed of conveyance made by the complainant to the defendants. On January 23, 1882, J. PI. Wright answered, averring payment of the notes in a manner stated by him. Leave was given November 17, 1882, to Godfrey Frank, to file an amended bill in thirty days.</p> <p>The amended bill of Godfrey Frank, filed December 13, 1882, states the original bill, and by amendment adds that when the defendants, J. H. Wright and Jennie E. Brander, purchased the land of the complainant, they were owners in common of the Boykin place and the Goff place, the latter more valuable; and they bought of the complainant to add to the value of the Boykin place, which was resided on and farmed by Mrs. Brander, while the Goff place was thus used by Wright; that Mrs. Brander was married, and hence the complainant looked for payment to Wright, who repeatedly promised it, but never paid; that after the original bill was filed Wright applied to compromise, and promised partial payment for a continuance, which was granted, but he did not fulfill his agreement.</p> <p>It is further s'tated, in the amended bill, that, after the original bill was filed, Mrs. Brander and Wright, on May 9, 1881, dissolved the planting partnership, he agreeing to assure her Ihe Boykin place and personalty and to pay the complainant, Godfrey Frank; and the Goff place was to belong to Wright; that mutual conveyances were executed accordingly, and filed for record on May 21,1881; that Wright continued to promise to settle with the complainant, only claiming some reduction, and that June 2, 1881, Wright conveyed the Goff place to Thomas H. Allen for ten thousand dollars.</p> <p>The amended bill states and charges that this deed is fraudulent and void as to the complainant and intended to defraud him and Mrs. Brander; that the complainant cannot reach this land, if the deed is valid; that the agreement between Mrs. Brander and Wright for dissolution was on file when Allen bought; that Allen knew that Mrs. Brander had an interest in the Goff place, and that Wright had agreed to pay the complainant; that Mrs. Brander has a lien on the Goff place for the amount of the debt jlue the complainant, and he has a right to enforce it upon the Goff place.</p> <p>The prayer of this amended bill, which made Thomas H. Allen a party, was for a cancellation of the deed to Allen, in so far as complainant’s debt was concerned, a sale of the Goff place to pay the complainant’s debt, and if any balance remained due, for a sale of the land sold to J. H. Wright and Jennie E. Brander and described in the original bill.</p> <p>Separate demurrers by Wright and Allen to the amended bill were filed May 12, 1883, and each of these assigned as causes that the matters set forth in the amended bill were not properly subjects for amendment; and that the amended bill made a new case and changed the frame and essential character of the original bill. These demurrers were overruled, and Wright and Allen separately appealed.</p> <p>On March 26, 1883, Mrs. Brander filed her answer, which she made a cross-bill. The answer admits that the statements of the original bill and those of the amended bill are true. The cross-bill attacks the conveyance by Wright to Allen as fraudulent as to her, at least as to her lien on the Goff place for the payment of the debt due to Frank, and prays for discovery by Allen as to the matters between him and Wright, and for the payment of the debt due the complainant, Godfrey Frank, out of the Goff place.</p> <p>J. H. Wright and Thomas H. Allen severally demurred to the cross-bill. Each demurrer assigned the grounds of want of equity on the face of the cross-bill and that the matters stated were not properly the subjects of a cross-bill, and Allen’s demurrer assigned the additional cause that he was not properly a party to the suit and could not therefore be made a party to the cross-bill. Wright and Allen again severally appealed from orders overruling these demurrers.</p> <p>The amended bill changed the frame and essential character of the original bill. Clark v. Hull, 31 Miss. 520 ; Miazza v. Yerger, 53 Miss. 135. It introduced a new party, who had no interest, and a new transaction which happened after the original bill was filed. Story Eq. PL, §§ 885, 886 and notes. Amendments can only be granted where the bill is defective in parties, or in prayer for relief, or in the omission or mistake of a fact or circumstance connected with the substance, but not forming the substance itself nor repugnant thereto. Lyon v. Tallmadge, 1 John. Ch. 184; Lodgers v. Lodgers, 1 Paige 424; Lenwiok v. Wilson, 6 John. Ch. 81; Belknap v. Stone, 1 Allen 572; Carey v. Smith, 11 Ga. 539; Larkins v. Biddle, 21 Ala. 252. When the amended bill is dismissed, the cross-bill must follow. Ladner v. Ogden, 31 Miss. 332; Thomason v. Neeley, 50 Miss. 310; Jacks v. Bridewell, 51 Miss., 881; Belcher v. Wilkerson, 54 Miss. 677; Clark v. Wilson, 56 Miss. 753. The cross-bill presents as to Wright a purely legal demand, and no equity appears on its face.</p> <p>No exception was taken to the order allowing the amend men and consequently this action of the court cannot be assigned for error. Tanner v. Hicks, 4 S. & M. 294; Truly v. Lane, 7 S. & M. 325 ; Pass v. McRea, 36 Miss. 143. A demurrer is not the mode of reaching this question. Dan. Ch. Prac. 426, 427. The question of making a new case by amendment is practically one of' costs. The rule against new matter in an amendment has been abolished. Dan. Ch.'Prac. 407. Pending the suit a new security for the same debt by the same parties was raised up for the complainant. The amendment therefore did not make a new case. The cross-bill was proper. Each of the four demurrers was rightly overruled. All four of these decrees should be affirmed, and in each appeal an attorney’s fee of fifty dollars should be charged against the appellants. Code 1880, § 1424. There is no merit in these demurrers. It is a hair-splitting theory on which they are founded.</p>

Hon. Warren Cowan, Judge. This action was on a policy of insurance filed with the declaration, which averred, only in general terms, that “ all notices and proofs required” had been made. The appellee pleaded non assumpsit only, and gave notice at great length that evidence would be offered to show that the house was not occupied by tenants, as represented when insured, and that when burned it had been vacant for months, but this notice contained no allusion to proof of loss.

Hon. E. G-. Peyton, Chancellor. On December 23, 1872, James. Held: in the case of Jones v. Smith, 33 Miss. 215, that three years and eight months Avas too long, although it noted the “forlorn condition” of the widow, Mrs. Jones, as being some excuse.

Hon. S. PI. Terral, Judge. This is au appeal from a conviction of murder, and a capital sentence. State’s evidence at the trial showed that the appellant, who had threatened to kill a man named Tutt, was seen with an open knife asking for him, and approaching a place where hours afterward the man’s dead body was found. A medical witness who examined the body stated that death was caused by a cut which severed the aorta near the heart.

<p>Appeal from the Circuit Court of Hiuds County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>This ivas an action of trespass in which the plaintiff, C. L. Robinson, claimed one thousand dollars damages for the taking of one bale of cotton by the defendants, a firm composed of T. M. Black and others. The case was tried on the plea of not guilty, Avhen the plaintiff proved that a member of the defendants’ firm got the bale of cotton at night from the house of a man, named David Warner, from Avhom he purchased it on account, and shipped it by express to Jackson, a station on the railroad ten miles from Avhere he first took the bale, and that he did this openly, Avithout any attempt to conceal his acts; that the plaintiff owned the cotton through a purchase from David Warner’s wife, and attempted to retake it Avithout success. The plaintiff also proved by several witnesses that Warner and his Avife had both stated that she rented land and made a crop on her oavii account, although the defendants objected to this testimony as hearsay; and under the same objection, the plaintiff had the express company’s employes to testify that they fabricated statements to deceive him when he came next morning searching for his cotton bale.</p> <p>The defendants then introduced one of the partners, who testified that their firm held a deed of trust on the crop of cotton to be cultivated by David Warner, and on his live stock, to secure advances of supplies during the year; and the trust deed, note, and supply bill Avere introduced, showing a balance due the defendants of two hundred dollars, which the witness said Avas correct. The Avitness added, that the live stock were valuable enough to cover this balance, but he thought that the plaintiff was trying to surpass him, and he was determined to get ahead of his adversary, and that therefore he went immediately, on discovering that Warner had sold the cotton, and took it on account, at a price fixed by agreement with him.</p> <p>For the plaintiff, the court charged: 1. That if Mrs. Warner OAvned the bale of cotton, and sold and delivered it to the plaintiff, and aftenvard one of the defendants acting for the firm took the bale, removed it, and converted it to their use, the jury should find for the plaintiff. ' 2. That if the taking and conversion Avere without fraud, malice, oppression, or willful wrong, the measure of damages was the value of the property taken and interest to this date; and, to this, the court added the words: “ and any other actual damages proved.” 3. If the taking or conversion was with fraud-, malice, oppression, or willful wrong, the measure of damages was the value of the property taken, and all actual damages proved to have been sustained by the plaintiff, and also such amount of punitory damages as the jury might see proper to assess. 4. A married woman, under our law, may rent land and cultivate it, and receive the profits as if she were unmarried. 5. If the defendants, knowing of the sale to the plaintiff, took and converted the cotton while holding ample security on other property for their debt, they were liable. 6. If David Warner sold or gave the bale of cotton to his wife, she acquired title subject to the deed of trust of the defendants after they had applied all the property embraced therein, except the bale, to the satisfaction of the balance due them, and the same title to the bale passed to C. L. Robinson.</p> <p>There was a verdict for the plaintiff for one hundred dollars, a motion for a new trial was overruled, and the defendants appealed from the judgment.</p> <p>1. Nothing was involved in the trial at law but the legal title, which was in the trustee. The plaintiff had illegally obtained the cotton. Code 1880, § 1177. It was still subject to the trust deed, and when David Warner waived his right to a public sale, and agreed to have the cotton shipped, and the proceeds applied directly to the trust, the plaintiff had no cause of complaint. Bison v. Barrier, 56 Miss. 394. Marshalling securities is unknown to the law. This is a doctrine of equity, and it cannot be engrafted on the legal system. The act by which the plaintiff acquired his pretense of claim was a violation of criminal statutes. Code 1880, §§ 2908, 2909. With little grace, therefore, does he claim damages from the owners of the property.</p> <p>2. Unless the plaintiff’s title was legal, he could not recover. No equity was available to him in the law court. Damages should, therefore, have been denied. But the court allowed exemplary damages in the charges. Hearsay evidence was admitted as a foundation for the claim, and erroneous instructions were allowed to give these rumors a force which they did not otherwise possess. Assuming the plaintiff’s title to be legal the charges were improper. The defendants could not subject themselves to punitory damages by asserting their rights under the deed of trust, even if they adopted a mistaken method.</p> <p>1. The woman held the cotton, after her husband’s gift, as bailee for the appellants, and she had no power to confer a title on the appellee. Lee v. Portwood, 41 Miss. 109. She could acquire no title by gift against her husband’s unsecured creditors. In fact, the whole pretense of a parol contract between husband and wife is in violation of the statute. Code 1880, § 1177. Robinson was a purchaser with notice, and if she had no title, he acquired none. Hull v. GlarJc, 14 S. & M. 187. But even the pretense of title was made out by hearsay testimony introduced under the defendants’ objection.</p> <p>2. The position taken by the plaintiff, which was sustained in the charges, clothed the law court with the power of an equity tribunal. Marshalling securities pertains to the chancery court; and this tribunal would require the complainant to come with clean hands, and not in the garb of a criminal. Code 1880, §§ 2908, 2909. Is a violator of these criminal laws a junior mortgagee or a purchaser in good faith ? In the case of Elson v. Barrier, 56 Miss. 394, a suit by the cestui que trust in his own name is approved. No objection can be urged to his taking the property by contract with the grantor, if he can recover in an action for its possession.</p> <p>1. The preponderance of evidence is that the woman rented the land on which she cultivated the cotton, and the verdict will not be disturbed. Kelly v. Miller, 39 Miss. 17. But assuming that the man gave the bale to his wife, this was a consideration good in law, and she became the owner against all persons, except the trustee, after condition broken. Keaton v. Miller, 38 Miss. 630. The title passed to Robinson by her sale, subject only to the contingent liability for the debt after application of the other property.</p> <p>2. The appellants’ partner was not the trustee, and had no right to seize the mortgaged property. When he converted the cotton, he was a mere trespasser, and became liable to an action. If he wished to test the rights of his firm, the trustee could have taken the cotton, or if Warner refused to deliver it, an action of replevin could have been instituted. By either of these methods the appellee’s right to contend for his interest in the bale would have been preserved. But the appellants, knowing that they had no legal rights, took the law into their own hands.</p>

Hon. B. F. Trimble, Judge. The appellant was indicted for murder in Sharkey County, on February 10,1882, and, next week, the venue was changed, on his application, to the County of Issaquena, where the record was filed in the following June, and in November the accused was convicted as charged, and sentenced to imprisonment for life.

Hon. T. J. Wharton, Judge. This suit was on a sequestration bond, which was fully described with its obligees in the declaration. The bond was conditioned for the payment of all damages which might accrue from the wrongful seizure of the property to be taken under the process.

Hon. T. J. Wharton, Judge. In this action by the appellee for rent, the only question was one of fact, whether the appellant held the land as owner or as lessee.

<p>Appeal from the Circuit Court of Issaquena County.</p> <p>Hon. B. F. Trimble, Judge.</p> <p>On March 9, 1883, the appellees sued out, before a justice of the peace in Warren County, a writ of attachment against W. T. Smith, returnable to the Circuit Court of Issaquena County, and a branch writ was issued to Lowndes County, where it was served upon the appellant as garnishee. The appellant answered on March 26, 1883, that it was not indebted to Smith. April 23, 1883, was the return day of the garnishment. On April 24, 1883, the plaintiffs filed their declaration, and next day took judgment against the defendant, Smith, by default. The garnishee’s answer was stricken out the same day on the plaintiffs’ motion, because filed before and not within the first three days of the term; and on April 26, 1883, judgment by default was entered against the appellant for the amount of Smith’s debt and the costs.</p> <p>Aside from the custom which existed in London, garnishment proceedings are purely statutory and cannot be pushed beyond the terms of the law. The statute is not construed liberally in favor of those invoking th'e remedy. Jemison v. Scarborough, 56 Texas 358; Drake on Attachment, § 451 a. Nothing is more important in taking judgment against a garnishee than that he should have a fair hearing. Drake on Attachment, § 658 d. Our practice is the one deemed too rigorous and repealed in Georgia. Garhart v. Boss, 15 Ga. 186. Usually judgment nisi is taken. Our courts, therefore, should look closely into the proceeding by which a garnishee is attempted to be held. The construction given to the statute by the court below is not the obvious one. It is not clear that effects or money coming into the garnishee’s hands after service of the writ are bound. Drake on Attachment, §§ 667, 671. But assuming that they are, what period must the answer of the garnishee cover ? All the statutory requirements are met when the time embraced is that between the service and the date that the answer is made. Section 2446, Code 1880, provides that the answer may be sworn to before an officer and forwarded to the court, and if this garnishee, for instance, had waited until the term began, its answer could not have been transmitted from Lowndes to Issaquena County before the close of the third day. It is not provided when the answer shall be verified. What benefit can the plaintiff derive from being kept in ignorance until the term begins ? If the garnishee receives property of the defendant at any time while the case is pending, the plaintiff can demand another answer. And if the garnishee is allowed time to answer after the term, he must include subsequent receipts. Shattuak v. Smith, 16 Vt. 132. The word “within,” as.used in this statute, means, before. Revert v. Read, 54 Ala. 529; Rawranee v. Russell, 77 Penn. St. 460; Yov/ng v. The Orpheus, 119 Mass. 179. In any event, the answer was not a nullity, and if further information was required time should have been allowed for the garnishee to afford it. It purported to answer the whole case and could not be stricken out-. Fox v. Hilliard, 35 Miss. 160. The spirit of the law has been violated in this case and the judgment cannot be sustained.</p> <p>Section 2444 of the Code provides that, in all cases, a garnishee shall answer within the first three days of the term, unless further time be granted. Section 2442 provides that he shall be cited to' answer what he owes the defendant, and what he was indebted to him when summoned. Section 2446 provides that if the garnishee fails to discover as directed the court shall enter judgment against him. It follows that the garnishment stands as a declaration that the garnishee is indebted to the defendant covering the time from .service to the return day. To say that he owed nothing when served is as bad a plea as to reply that he owes nothing at the return, day. Both dates must be embraced, with the intervening period. ■ No irregularity is in the proceeding in this case. The judgment was properly taken in the manner pursued because of the garnishee’s failure to answer up to the commencement of the term. If a writ of garnishment does not bind what may become due to the defendant after the date of the service or up to the return term, then in case of a debt depending upon the completion of a particular employment or performance of an entire contract, it could not be reached unless the garnishment should be served at the very instant the defendant might be entitled to claim it. The plain reading of the statute, however, requires a full disclosure of accounts between the defendant and the garnishee for all the intervening time between service of the writ and its return day. The garnishee, therefore, cannot by answering immediately before the defendant’s demand against him becomes due, cut off the plaintiffs’ right to subject the debt. If the plaintiffs were entitled to have the garnishee’s answer up to the return day, whether it was then indebted, the failure to make answer entitled the plaintiffs to judgment. Legally speaking, the garnishee disregarded the garnishment. Although summoned, it made no reply to the writ. The paper filed by the appellant was a nullity, which the plaintiffs were not required to regard. A failure to answer the writ is the case presented, and questions about time for amending an imperfect answer do not arise.</p>

Hon. E, G. Peyton, Chancellor. On February 28, 1854, a company was chartered with a capital stock of fifty thousand dollars to improve and manage as a place of public resort a medicinal well located on a tract of eight hundred acres of land which the corporators owned in Hinds County, Mississippi.

Hon. C. H. Campbell, Judge. In this case the plaintiff did nothing to cause the sheriff’s negligence, but he was urgent, and anxious to have the'writ served and returned according to law. Nothing marks this suit as one of the class pointed out in the opinion in the case of Simms v. Quinn, 58 Miss. 221. Wilson, the sheriff, was so averse to executing and returning the writ, as almost to refuse altogether to have any attempts made.

Hon. E. G. Peyton, Chancellor. P. M. Doherty, as administrator of the estate of W. Z. Mc-Crackin, appointed in January, 1883, upon the petition of the intestate’s creditors, filed a bill on February 22, 1883, against R. E. Craig and others, composing the firm of R. E. Craig & Co., and the heirs, William H. McCrackin and Estelle V. McCrackin, a minor, in which he alleged that on March 5, 1881, W. Z. Mc-Crackin, who at the time cultivated several farms, renting some and owning…

<p>Mandamus. Governor.</p> <p>The governor cannot be compelled by mandamus to perform any act.</p>

Hon. T. J. Wharton, Judge. The appellant sued on the contract mentioned in the opinion of the court, and the appellee filed several pleas. Among other .things he pleaded that the contract was parol. After demurrers to all the pleas were overruled, the plaintiff offered to answer the other defenses, but refused to reply to the plea which involved the Statue of Frauds. He tendered, however, an amended declaration, but the court refused to let him file it and dismissed the case.

W. G. Phelps, Chancellor of the Fourth District of Mississippi, on habeas corpus, discharging Ed. Boykin from the custody of C. H. Smith, contractor for prisoners in Washington County.

Hon. Warren Cowan, Judge. Lapp, Goldsmith & Co., sold to the appellant a draft by them on M. P. Durden, of Coffeeville, Miss., accepted by him, payable December 1, 1880. Held: upon a review of all the decisions. Guelich v. National State Bank, 41 Am. Rep. 110, and note. The same view is taken in Tennessee. Bank of Louisville v. First National Bank, 35 Am. Rep. 691 with note.

Hon. T.- J. Wharton, Judge. In this action for the destruction of the appellee’s crops by hogs a jury was waived, and the court gave judgment against the appellant upon the following state of facts: When the land was wild, a right of way was purchased for the railroad. Afterward the appellee bought property on either side of this grant, and in 1853 began to deaden the forest.

Hon. James M. Arnold, Judge. Louisa Williams filed her affidavit with the circuit clerk, claiming that she was entitled to a lien for her labor, and that of her minor sisters, on eight bales of cotton, four hundred and twenty bushels of corn, and some cotton seed and fodder, cultivated during the year 1882, upon land owned by Emma May, who had contracted to pay these laborers half the -cotton made and one-third of the other products, and that the joint interest of herself…

Hon. E. W. Williamson, Chancellor. James Parker, Mary Batchelor and her husband, filed this bill on March 30, 1881, against Mary McBee and her husband, Joshua McBee, G. A. Wilson and others, alleging that, on November 22, 1870, Batchelor and wife conveyed the land in controversy to James Parker, who agreed to hold it as trustee to pay a sum of money due him as trustee for Mrs. Batchelor and for her sole use and benefit; that to consummate this purpose Parker sold the land to…

T. J. Wharton, Judge of the Ninth Judicial District, in vacation, awarding a writ of mandamus to compel the issuance of a patent for swamp land, as asked in the petition of the State of Mississippi, by Henry S. Foote, District Attorney, at the relation of Frank Martin. The statements of the petition, which were admitted by the answer of Henry C. Myers, Secretary of State, are set forth in the opinion of the court.

<p>Infant. Decree. Bill to impeach. A decree, rendered in an infant’s favor on a bill filed in his name by next friend, cannot, in the absence of fraud, be re-opened by the infant, whether real or personal estate is involved. Sledge v. Boone, 57 Miss. 222, distinguished.</p>

Hon. A. T. Roane, Judge. • The appellant moved to quash an indictment which charged that on October 20, 1882, he “ unlawfully did exercise and carry on the business of a sewing-machine agent without first paying the privilege tax and obtaining a license so to do.” His motion was overruled, and he was convicted under the indictment. No violation of Code 1880, §585, is charged in the indictment. The law-does not tax a sewing-machine agent.

Hon. F. A. Critz, Chancellor. The appellants, minors, and their widowed mother, with whom they lived, were very poor. A small annual income was collected by their guardian, who filed an account on January 2, 1882, covering the time between July 1, 1880, and July 1, 1881, and containing items for this income paid the mother for the maintenance of the wards.

Hon. J. W. Buchanan, Judge. This action by the appellee against the appellant for the value of a mare resulted in a verdict for the plaintiff upon the following facts : Byrd Williams, who had given the appellant a trust deed on the mare, finding that it was unrecorded, sold her to Stark Hughes.

<p>1. Bill to Remove Clouds. Complainant’s title. How set forth.</p> <p>A bill to remove clouds from title is not maintainable if it alleges that the complainant is the true and equitable owner of said land by purchase from a person whose title it fails to show.</p> <p>2. Same. Creditors hill. Averments.</p> <p>Such a bill which discloses that tire complainant once had the right to subject the land as his vendor’s creditor, is not maintainable in this aspect unless it shows that he still occupies that position.</p>

Hon. A. T. Roane, Judge. At the trial of this indictment for grand larceny the State proved that Wash Jennings lost a heifer, and that the defendant, about three months afterward, exchanged a heifer of the same size and color, on the public road, about midday, without any attempt at concealment, and sold to a butcher the bullock which he received.

Hon. J. W. Buchanan, Judge. The appellant was indicted jointly with Wesley Hill for grand larceny, and convicted on the testimony of the latter, who, after severance, was, under the appellant’s objection, introduced as a witness for the prosecution. Undoubtedly Hill was an incompetent witness. The indictment was pending against him when he testified.

Hon. A. T. Eoane, Judge. At the appellant’s trial for murdering John Greiner, which resulted in a conviction of manslaughter, the State’s evidence showed that he went into the shop of Greiner, who was a butcher, and demanded something from his son ; that, getting angry at the boy’s refusal, he became abusive, and Greiner attempted to put him out; that, in the scuffle which ensued, he cut Greiner with a knife and struck him with a brick ; and that, although the wounds were…

Hon. A. T. Eoane, Judge. The appellant was indicted for the murder of Joseph M. Hawkins and convicted of manslaughter. The only witness of the occurrence testified that Hawkins was sitting near the door of his place of business about dusk one evening, when Payne rode up and requested an interview; that Hawkins declined to talk with him upon the ground that he was drunk, and.

Hon. W. S. Featherston, Judge. ■The appellant’s demurrer to the appellee’s declaration was overruled.

Hon. A. B. Fly, Chancellor. The bill alleged that on May 19, 1875, the appellant became administrator of the estate of P. R. Thomas, deceased, and on May 10, 1882, upon his final account previously filed and heard on exceptions of the distributees, a decree was rendered directing him to pay the funds in his hands to the parties entitled, and the appellees were named with others in the decree, with the sums to be paid them; that long prior to the filing of his final account…

Hon. J. W. Buchanan, Judge. On April 18, 1881, E. P. Sale sued out an attachment against H. D. Spratt and A. H. French for two thousand two hundred dollars which they, as partners, owed him. Personal property was seized and claimed by J. W. French ; but he failed to give bond, and the sheriff sold the property. Issue tendered by the plaintiff in attachment was joined by the claimant. Spratt and French traversed the grounds of attachment stated in the plaintiff’s affidavit.

Hon. J. W. C. Watson, Judge. The appellee moved the court to dismiss the appeal upon the ground that there was no judgment against the appellants from which an appeal to this court could be taken. . No judgment, affecting the appellants’ rights injuriously, exists in the court below. The order of condemnation does not bind them, because they are no parties to the attachment proceeding.

Hon. C. H. Campbell, Judge. T. T. Enochs and A. Woodward bought four mules, and each took two. Afterward they sold the mules to different persons, taking notes, which they divided. Held: and it fell to him in the division. This note was taken up by J. W. Therrell, who gave his note, payable to Enochs'& Woodward.

Hon. A. T. Roane, Judge. After the reversal of the former result in this case, Barbee v. Reese, 60 Miss. 906, the venue was changed on the plaintiff’s application. The present appeal by the defendant presents by special bill of exceptions only the following facts: The evidence showed that the defendant was very drunk at the time of the alleged assault by him upon the plaintiff, and the court instructed at her request: “ 3.

Hon. L. Haughton, Chancellor. A bill filed by the appellant against the appellee, to which the latter’s demurrer was sustained, sought to enforce a vendor’s lien upon the allegations that land which the complainant conveyed to J. A. Walton was, on December 6, 1875, sold ivith his consent by Walton to the appellee, who gave the complainant his note in lien of Walton’s obligation for the purchase-money. The land is subject to the debt evidenced by the substituted vendee’s note.

<p>Appeal from the Chancery Court of Monroe County.</p> <p>FIon. L. Haitghton, Chancellor.</p> <p>Mattie McAndrew filed her bill on January 12, 1881, alleging that she and her adult sister, Mary A. Hubbard, were the only heirs of A. G. Powell; that after their father’s death they, with their mother, who had married again, conveyed town lots, which they inherited, to A. H. French, who paid her mother and step-father for them much less than their value; that the complainant was an infant on October 23, 1876, and on January 18,1877, when, yielding to the persuasions of her mother and French, she, in ignorance of her rights, joined in the two conveyances, which together embraced their homestead and all their common pi’operty; that her mother used the purchase-money for her private purposes, and French at once took possession of the lots and has continued to collect the rents; that her mother never claimed dower in this property, and complainant is, therefore, entitled to half of the lots; and the bill prayed that her deeds to French should be canceled, an account should be taken of rents and profits, a decree for possession be made, and a writ of assistance issued, or for appropriate general relief.</p> <p>A. H. French answered, admitting that the complainant was the daughter and heir of A. G. Powell, deceased, and that she, with her only sister and her mother, sold and conveyed the property to him as alleged; but he denied that the price was inadequate, and averred that he was ignorant of the complainant’s minority when he bought, but that she stood by and permitted him to purchase, and received her share of the money, without notifying him that she was under age, and she was estopped to now repudiate the transactions; that a judgment existed against the estate of A. G. Powell in favor of one Houston, which respondent paid off with part of the purchase-money for the lots; that on January 3, 1876, he bought part of the property at tax sale, and he jfieaded the deed in bar; that he erected valuable improvements on the lots, and collected the rents only until January 1, 1882, when he sold the property to Mrs. E. A. McAllister; and he exhibited with this answer his bill of seven hundred dollars for the improvements, and filed the tax deed, which recited a sale on January 3, 1876, for the taxes of the fiscal year 1874.</p> <p>Depositions were taken and written evidence was offered by the complainant to prove that A. G. Powell died in 1864, the owner of the lots in controversy, on which his widow and daughters continued to reside; that the widow, an imperious woman, married again, and, with her husband and her adult daughter’s husband, negotiated the sale to French ; that notice was given to French before his purchase that Mattie was a minor, but he disregarded this; that Mattie’s mother and step-father used all the money and she received none; that dower was never assigned to the widow, but she held possession from the death of her first husband until she sold the property to French. The defendant’s evidence tended to prove that French, with Mattie’s acquiescence, settled a judgment against her father’s administrator with part of the purchase-money, and that she, though only eighteen years old, appeared to be twenty-one years of age; that Mattie married, and her husband, with her mother and the latter’s third husband, were actively prosecuting this case; that the mother told French in Mattie’s presence that the latter was over twenty-one years old; that, in fact, Matfie and her mother engaged in a scheme to defraud French and divide the profits of the adventure; but that the immediate cause of the sale of the lots was the existence of the judgment in .favor of Houston and a proceeding by the administrator of A. G. Powell’s estate to sell the land to pay debts; and that although thus pressed to an immediate sale, French paid more for the lots than-their market value at the time. On all the issues the evidence was conflicting.</p> <p>At the final hearing on the whole case, the Chancellor declared the complainant entitled to relief, and decreed that the deeds to French should be vacated so far as her interest was concerned; that her interest was one half and French’s the other; that an account should be stated, charging him as tenant in common for rents collected and allowing him credit for taxes paid and improvements erected; and this account was then stated and showed a balance of rents collected ; and it was further decreed that for the security of one-half of this balance, which was Mattie McAndrew’s part, a lien was declared upon the interest of French in the lots; that her half of the lots should be immediately given into her possession; that the former deeds to French should be canceled and the title vested in a commissioner named, who should immediately convey to Mattie McAndrew her half, and should convey to French his half when he paid the rent money due Mattie McAndrew, and that execution should issue against him for this sum and half the costs, which he was decreed to pay, while Mattie McAndrew was charged with the other half. From this decree A. H. French appealed.</p> <p>1. The appellee was not entitled to have the deeds vacated. She stood by and allowed her mother to deceive the appellant by stating to him that she was of age, and she received part of the money. After participating in this fraud, she cannot now disaffirm her deeds. Ferguson v. Bobo, 54 Miss. 121. Infants are responsible for their frauds, like adults. These persons, embarrassed and about to be sold out at auction, deceived the appellant, who bought their property at more than its market value, and paying their debts, left ■them some money; yet, at this very time, they were misrepresenting the appellee’s age in order to defraud the purchaser. Mattie McAndrew was entitled to no relief.</p> <p>2. Even if relief should have been granted, the final decree is erroneous. It fails to charge the land with the judgment paid by French, who was manifestly entitled to remuneration. Dower was conveyed by the deeds. In equity the transfer of the widow’s dower will be sustained, and the dower assigned to her grantee. 2 Scribner on Dower 43, § 37, and authorities cited. The appellant should not have been charged with rent. ' Mere possession does not make the co-tenant liable for use and occupation, Newbold v. Smart, 67 Ala. 326, and if it did, this case is not one for the application of the rule, because the appellant had no notice of the disaffirmance until the suit was brought. It was certainly erroneous to decree that the balance of rent found due was a lien on French’s interest in the property. If one co-tenant becomes liable to the other for use and occupation or for an agreed rent, it' is at most only a simple contract debt, with no lien on the land for its payment. Newbold v. Smart, 67 Ala. 326, and authorities cited. While Mrs. McAllister acquired her title pending the suit, she took it free from any lien, because none was created by filing the bill. If the tax title was valid, the bill should have been dismissed as to the lot which the tax sale covered. Manifestly the court had no power to divest the entire title and appoint the commissioner to reeonvey.</p> <p>Cancellation of the infant’s deed was proper without an offer to refund the purchase-money, for' no fact was established which amounted to an estoppel. Oooh v. Toumbs, 36 Miss. 685. Mattie McAndrew was properly decreed to be entitled to half the property and an account for rents. Dower cannot be taken into consideration. The lots were the property of the heirs of A. G. Powell, only subject to the dower of the widow, who had a right to relinquish it to her daughter. Powell died in 1864, and no dowser had been claimed by his widow up to the time of the sales by the appellee in October, 1876, and January, 1877. There is nothing in this case that assimilates it in the slightest degree to the case of Ferguson v. Bobo, 54 Miss. 121. In this case the appellee said nothing. She was present, it is true, at interviews between French and her mother, but there is no proof that she heard these conversations in full, and if she did hear them she was in the presence of her imperious mother, who overawed her. The sums paid on the judgment were part of the purchase-money of the lots, and should not be allowed in the accounting. The tax title, like the judgment, was bought up by French in order that his title might be free of incumbrances. This tax sale is void, and the deed is set up as a defense only. Taxes and improvements were allowed in the account. As to the provisions in the decree to enforce the appellee’s possession, she had a right to these, for half the property belongs to her. She is tenant in common with the appellant.</p> <p>The widow having failed to claim dower, lost her right and could not have it claimed by her grantee for her in this case. The controversy is whether Mattie McAndrew is entitled to half the property and half the rent. Clearly, the appellant knew that she was an infant and took the risk. He expected that her mother would compel her to ratify the sale when she reached her majority. The young lady’s marriage may have prevented this. But he took the chance of disaffirmance deliberately, with full knowledge of the facts, and if he loses it is his own fault. The formal matters about the decree amount to little in the general result and deserve no great consideration. The balance found due in the accounting will be nearly the same, however those questions are determined. Therefore the decree should be affirmed.</p>

Hon. W. S. Featherston, Judge. Posters and hand-bills, advertising “ a strictly first-class excursion,” over the appellee’s railroad to New Orleans, on October 25, 1881, stated that passengers could “remain five days in the city,” and added: “ Tickets good to return any day and on any regular train for five days,” and also these statements : “ Tickets on sale by our agents at all prominent stations,” and “ Fare for the round trip from Water Valley, $6.00.” These notices…

Hon. W. S. Peatherston, Judge, did not sit in this case, but Hon. C. H. Campbell presided by interchange.

Hon. L. Hauguiton, Chancellor. J. G. Conwill, who in 1863 was appointed by the Probate Court of Itawamba County administrator of the estate of W. G. Conwill, deceased, on December 22, 1865, filed his account of final settlement, and citations having been served on the distributees, a decree was rendered at the next term discharging the administrator and directing distribution, which was made.

Hon. Baxter McFarland, Chancellor. In the matter of the estate of G. S. Neal, deceased, the administrator, J. M. Neal, filed a petition on May 21, 1883, showing that debts aggregating more than eight hundred dollars and including the appellant’s account were contained in the register of claims against the estate, which consisted of two hundred and seventy-eight dollars in the administrator’s hands.

J. W. Buchanan, Judge. On September 5, 1883, the appellee sued in a justice’s court for the value of a colt killed by the appellant’s train, and summons was returned “ executed upon W. W. Allen, agent of the Mobile and Ohio Eailroad Company, by reading to him the within and also by giving him a true copy, September 5,1883.” On September 10, 1883, judgment by default was rendered, and on September 15, 1883, the railroad company appealed to the circuit court, which met on…

Hon. J. G. Hall, Chancellor. The appellants filed a bill to enjoin the execution of the deed of trust for insufficient description as stated in the opinion, and the appellees pleaded that the grantor in the two deeds was a necessary party, because they were entitled to have their trust deed reformed so as to perfect the description of the land.

Hon. J. W. Buchanan, Judge. The appellant was convicted of murdering his wife, Morgie Nelson, and sentenced to death. Nancy Troupe, the only witness of the occurrence, testified for the State that he came into a pen where his wife was milking a cow, and approaching her rapidly, put the gun which he was carrying to his shoulder and shot her, and after she fell struck her on the head.

How. J. W. Buchanan, Judge. On September 12, 1881, Lewis Bean sued Mary A. Neely for two thousand dollars’ damages for breaking and entering his close, and on October 3, 1882, a firm composed ‘of C. C. Dibrell and others, having a judgment in a justice’s court for one hundred and twenty-one dollars against Lewis Bean, obtained a writ of garnishment, which was next day served on Mary A. Neely. She answered, on October 9, 1882, that she was not indebted to Lewis Bean.

Hon. Chas. H. Campbell, Judge. Legislation constituting the power to issue the bonds is distinguishable from their consideration, which was the moral obligation resting upon Leflore County to bear a part of the indebtedness of Carroll County proportionate to the taxable property taken. Portwood v. Montgomery County, 52 Miss. 523.

Hon. A. T. Roane, Judge. The facts are stated in the opinion. The fifth instruction asked by the defendant properly announces the law. Its refusal was clearly error. The facts elicited in the process of trial clearly warranted this charge and the law demanded it. Community of profits constitute persons partners inter sese. 53 M. 707. The facts under the law made them partners. 48 M. 685; 52 M. 89.

Hon. C. H. Campbell, Judge. The writings of Judge Cothran could not after his death be enttered as a judgment under the order of Judge Campbell. Sagory v. Bayless, 13 S. & M. 153; Hardy v. Gholson, 26 Miss. 70; Wiggle ,v. Owen, 45 Miss. 691; Lane v. Wheless, 46 Miss. 666. After (expiration of the term a court has no control over its judgments, except as given by statute. By Code 1871, § 534, the decision of a .case taken under advisement must be made at the next term.

<p>1. Guardian and Ward. Probate court. Bond. Sureties.</p> <p>A bond given by a person as guardian of a minor, for whom the probate court has no jurisdiction to appoint a guardian, does not impose a liability on the sureties.</p> <p>2. Same. Void appointment of guardian. Sureties’ right to plead adjudication.</p> <p>In a suit by the infant against the sureties on the bond, a judgment that their principal is not guardian, is available to them, although rendered in a proceeding to which they were not parties.</p>

Hon. James M. Arnold, Judge. If the advances yvere made at Mobile, Alabama, to James Nance, a resident of Mississippi, the law, in the absence of an express contract as to the place for re-payment, implied a contract that the place should be Mobile. Guillander v. Howell, 35 N. Y. 657; Ooolidge v. Poor, 15 Mass. 427; Story Confl. LaAV, §§ 283, 287.

Hon. J. W. Buchanan, Judge. About nine o’clock on the night of September 14,1881, General W. F. Tucker, while sitting alone in the study of his residence at Okalona, was killed by a ball which was shot through the window and penetrated his heart. Persons attracted by the report came to the room and found his body.

Hon. A. B. Fly, Chancellor. The appellee’s petition asked that the appellant should be required to administer on the real estate as well as the personal property of the deceased, upon the ground that debts due the appellant were registered, and that land enough to pay them remained unsold.

Hon. A. T. Roane, Judge. At the trial of this indictment for murder, which resulted in a conviction and sentence to death, J. A. Thornton, under the defendant’s objection, testified for the State that when he, as deputy sheriff, had Green Peden in custody, taking him to jail after an attempted'hearing on a writ of habeas corpus, the prisoner, who was disappointed at the result, made a statement, that without anything being done'by the officer to induce him to confess or to…

Hon. W. S. Featherston, Judge. This case was before this court at a former term and will be found reported in 58 Miss. 790. The facts presented by the record now are substantially the same as on the former trial.

Hon. Warren Cowan, Judge. Mandamus by appellant to compel the clerk of the circuit court to file his declaration in a suit at law without prepayment of the “ docket fee ” required by “an act to make the County of Warren, in this State, a separate circuit and chancery court district, and to provide for defraying the expenses of courts therein,” approved April 11,1876, on the ground that that act violated Article XII, § 20, of the Constitution of Mississippi.

Hon. W. S. Featherston, Judge. The facts are stated in the opinion. The court below erred in allowing the amended bill of particulars to be filed. It embraced shipments of cotton during a period of twelve months, covering many distinct shipments without specification of time or name of consignee, or what shipments were undelivered or deficient.

<p>Appeal from the Chancery Court of Chickasaw County.</p> <p>Hon. Baxter McFarland, Chancellor.</p> <p>The facts are stated in the opinion.</p> <p>It appears from the bill that there are other preferred creditors who should be made parties. If the appellee claims under the assignment they are eestuis que trust, and if by virtue of the payment of the money they have an interest in the fund. Burrill on Assignments, §§ 457, 493; Han. Ch. Prac. 190. The appellee acquired no right by virtue of the deposit to set-off against the appellant’s claims. Money deposited by the assignee was not the money of Murdock & Parchman. Beekwith v. Union Bank of New York, 9 N.. Y. 211. As to the appellee, which is an assenting creditor, the assignment is valid. Bump Fraud. Con. 457, 460.-Prevention of a multiplicity of suits is not sufficient ground in this case to sustain the jurisdiction. West v. The Oity of New York, 10 Paige 539. In the case of Bishop v. Rosenbaum, 58 Miss. 84, all the attachments were on the same property. The appellee does not pay the money into court, disclaim all interest, and ask for an interpleader.</p> <p>The bill is maintainable to avoid a multiplicity of suits. Bishop v. Rosenbaum, 58 Miss. 91. A number of attachments have been levied upon the property, the same question is involved in each of these cases, and one decree will determine all of them. Delivery of the assets under the assignment renders it valid. Baldwin v. Flash & Go., 58 Miss 593; Baldwins. Flash, 59 Miss. 61. The facts constitute an equitable assignment of the fund. 2 Story Eq. Jur., §§ 1044, 1047. If the written assignment is void and there is no equitable assignment, the bank clearly has the right to set-off the debt due it against the claims of creditors of Murdock & Parchman. Dunnon v. Roylston Bank, 27 Miss. 194; National Bank v. Peek, 127 Mass. 298.</p> <p>When money is deposited in a bank it ceases to be the money of the depositor, and the relation of creditor and debtor springs up. Morse on Banking, 26 d seq. It necessarily results, therefore, that the right to set-off the deposit against the claims of the creditors of Murdock & Parchman exists.</p>

<p>1. Equitable Estoppel. Divestiture of legal title.</p> <p>According to what is perhaps the weight of authorities, the owner of the legal title to land cannot be divested of it upon the ground of equitable estoppel by parol, except where it is shown that there has been some element of fraud or intentional wrong in the acts or declarations by which it is sought to estop him. Whether there may not be an estoppel as to the legal title to land where there has been no fraud or deceit. Query. But no estoppel can arise where the misstatement relied on is as to a fact which could in no event have affected the legal title.</p> <p>2. Sajie. Statute of limitations. Improvements.</p> <p>Where a party purchases land, taking a deed, and executes his notes and deed of trust for the purchase-money and afterward rescinds the sale, without surrender or cancellation of the deed, and the vendor takes possession of the land without a reconveyance, and pays the taxes on it, and 'claims and uses it as his own through a series of years, with the full concurrence of the vendee, and upon the faith of the verbal rescission, the vendee afterward asserting his legal title to the land would be estopped from setting up the statue of limitations as to the notes given for the purchase-money, the taxes paid with interest, and from claiming the benefits of any acts done by the vendor, or from claiming the benefit of improvements erected on the land in good faith by a purchaser from the vendor after the rescission.</p>

Hon. Ralph North, Judge. William Harris was indicted and convicted of burglary and grand larceny. The indictment contained but one count, embracing both charges. The defendant moved to quash for this reason, and the motion was overruled. The indictment charged the prisoner with stealing the pistol of D. Moses, and the proof shows that it was the pistol of Simon Moses.

Hon. Balph North, Chancellor. The appellants, on the 15th of September, 1883, filed a petition in the Chancery Court of Adams County against the appellee, alleging that they were the sole devisees of their deceased father and that said appellee probated their father’s will and qualified as his executor in 1866, they then being respectively eight and five years of age.

<p>Appeal from the Circuit Court of Copiah County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>This was an action of trespass for false imprisonment, and is here on demurrer. The declaration alleges that the defendant, E. C. Williamson, as Mayor of the town of Hazlehurst, caused the plaintiff, "V. R. Wilcox, by his body to be brought before him, and then and there arraigned the said plaintiff, and of his own motion, without any charge against said plaintiff supported by affidavit of any person, and without any writ or warrant causing him to be brought before him, as aforesaid, and although the plaintiff had entered no plea but demanded a trial by jury, the said defendant did maliciously, wrongfully, and unjustly, contriving and intending to fine, imprison, harass, oppress, and injure the said plaintiff, maliciously, unlawfully, and willfully did pretend to convict the said plaintiff for violation of the “ revenue laws,” as the defendant said, of the town of Hazlehurst. The declaration further declares that the said Williamson imposed a fine of ten dollars and costs on plaintiff, which the plaintiff refused to pay, whereupon the said Williamson ordered him to jail, refusing to grant him an appeal, although he tendered a good and sufficient bond. That the plaintiff was actually put in jail, and was enlarged upon his payment, under protest, of the amount of the fine and costs. The plaintiff sues for twenty-five hundred dollars damages.</p> <p>The declaration was demurred to on the following grounds:</p> <p>1. Because the declaration shows no cause of action against the defendant.</p> <p>2. Because the declaration is insufficient in law.</p> <p>The demurrer was sustained, and from the judgment of the court sustaining the demurrer this appeal is taken.</p> <p>It is not a question of arrest without warrant, but a conviction without complaint or information being made by any one. The complaint is a necessary jurisdictional act. Without it the mayor had no jurisdiction, and if he exceeded his jurisdiction he is a trespasser and liable to an action for false imprisonment. That the complaint is necessary has been expressly decided in this State in Bingham v. State, 59 Miss. 529. See opinion of court at page 530. We refer the court further to Bishop Criminal Procedure, vol. 1, § 636; 10 Am. Dec. 102; 12 Am. Dec. 170; 15 Am. Dec. 264; 6 Am. Dec. 200. As to the refusal of the appeal, see ‘2 Hilliard on New Trials 180, note.</p> <p>The rule announced by the Supreme Court of Maryland is the only safe and correct one. That a justice of the peace is liable for malicious, fraudulent, and corrupt conduct, but not for error of judgment, or mistake honestly made. Knell v. Briscoe, 49 Md. 414. Any other rule would destroy the provision of the law, which is not for the protection of the judge so much as for the benefit of the public, whose interest it is that all judges, superior and inferior, should exercise their functions with independence and without fear of consequences. The misconduct complained of in the declarations in this case must have been shown to have been malicious, willful, and corrupt. This is the only safe ground to stand upon. In support of these views, see Yates v. Lansing, 9 Johnson (N. Y.) 395, as reported in 6 Am. Dec. 290, and notes; Randall v. Brigham, 7 Wall. 535; Reid v. Hood, 2 Nott & McCord 168 J Moak’s Underhill on Torts 188; Stone v. Graves, 40 Am. Dec. 131, and notes; Stewart v. Southard, 17 Ohio 402; 18 Am. Dec. 432; 7 Am. Dec. 574, 731; Jones v. Hughes, 9 Am. Dec. 364.</p>

Thomas Morrison owed Delmas Bros, nineteen dollars and eighty-three cents, for supplies for his vessel, plying a trade in the navigable waters of this State.

Hon. A. T. Roane, Judge. The appellees brought an action of ejectment against the appellants, the appellees claiming under the will of one Martha Fitzgerald, deceased, the appellants claiming under deed from John Haywood Fitzgerald, deceased. The case comes up on an agreed state of facts, which are as follows: Martha Fitzgerald died in June, 1860, testate.

Hon. J. B. Chrisman, Judge. The facts are stated in the opinion. The defendant had been put upon his trial. He had been confronted by the witnesses against him. They had been subjected to' cross-examination. A piece of meat claimed to be a part of the meat hog stolen had been exhibited to and “carefully examined by the jury,” and witnesses had testified on direct and cross-examination as to its identity and the marks by which they identified.

Hon. J. W. Buchanan, Judge. On the 17th of March, 1866, W. L. Duncan was by the Probate Court of Tishomingo County adjudged to be insane, and T. D. Duncan appointed his guardian.

<p>Appeal from the Chancery Court of Clay County.</p> <p>Hon. Frank A. Critz, Chancellor.</p> <p>The facts are stated in the opinion.</p> <p>1. There was no jurisdiction and no equity. Code 1880, § 1738, 1739; Hall v. Green, 60 Miss. 47 ; Fleming v. Grafton, 54 Miss. 79; Story’s Equity Pleadings, §§ 227, 513-514.</p> <p>2. The Statute of Limitations and Laches. Code 1871, § 1265; Code 1857, § 555, art. 97 ; Code 1871, §§ 1176,1193; KerrisonvStewart, 93 U. S. 149-163; Meeks v. Olpherts, 100 U. S. 564; Fressly, v. Ellis, 48 Miss. 584; Rorer on Judicial Sales, §§ 26, 212; Moore v. Schultz, 13 Pa. St. 102; Rawlings v. Baily, 15 111. 180; Rorer on Judicial Sales, §§ 11, 12, 14, 15, 16, 17, 18, 21, 24, 31; Griffith v. Bogert, 18 How. (U. S.) 194; Bun-can v. McNeil, 31 Miss. 704, 706; Kleineke v- Woodward, 42 Tex. 314-315; Murchison v. White, 54 Tex. 81-86; Rorer on Judicial Sales, §§ 466-469, and authorities cited. On the seven years’ Statute of Limitations. Phelps v. Jackson, 31 Ark. 272; Murchison v. White, 54 Tex. 81; Goff v. Robins, 33 Miss. 153. On the ten years’ Statute of Limitations. 2 Story Eq. Jur., §§ 1195, 1202; Blasdel v. Locke, 52 N. H. 238 ; Hayes v. Quay, 68 Penn. St. 263; Byers v. Banley, 27 Ark. 77.</p> <p>3. Resulting trust: A loan on credit or charging to account will not raise a resulting trust. 1 Perry on Trusts, § 133; Wilson v. Sibley, 54 Miss. 656; Coles v. Allen, 64 Ala. 98; Gibson v. Foote, 40 Miss. 788; Steere v. Steere, 5 John. Ch. 19-20; Botsford v. Burr, 2 John. Ch. 408-416; Kendall vr. Mann, 11 Allen 18; McCarroll v. Alexander, 48 Miss. 136-139; VanByke v. Johns, 12 Am. Dec. 81-86; Reavis v. Garrett, 34 Ala. 558-564; Capers v. McCaa, 41 Miss. 487 — 489; Bowman v. O'Reily, 2 G. 361; Gee v. Gee, 32 Miss. 190; Titcomb v. Morrill, 10 Allen 15; Marx v. Bavis, 55 Miss. 387; Pascoag Bk. v. Hunt, 3 Ed. Ch. 583; Ensleyn v. Ballentine, 4 Hump. 233; Hawthorn v. Brown, 3 Sneed 462; Wilson v. Sibley, 54 Miss. 556; Coles v. Allen, 64 Ala. 98; Reavis v. Garrett, 34 Ala. 558-564; Phelps v. Jackson, 31 Ark. 272-278; 2 Story Eq. Jur., §§ 1196, 1197, 1198, 1201, 1201 (a), 1210, Yol. I, § 422; lb. 1254,1257; Yol. I, Perry Trusts, § 135; Dozier v. Lewis, 5 C. 579; 2 Perry Trusts, § 843.</p> <p>1. Wbo are proper parties to the bill ? Taylor v. Webb, 54 Miss. 36; Leach v. Shelby, 58 Miss. 688. It is held an objection to the bill that the Dancys, heirs of Moye, and purchasers of the property, are not made parties defendant to the bill. We see no merit in the objection. Their connection with the land sought to be subjected to the payment of our decree is of a twofold nature: (1) as heirs of Moye, (2) as purchasers of the property in their own right. We cannot see how it can be claimed that they are necessary or even proper parties as heirs of Moye. This land was in no sense real assets of estate of Moye, and hence it is not necessary to make them parties as it would be were it in the hands of the administrator, and is governed by the rules relating to personal assets. Henson v. Ott, 7 Ind. 512 ; 18 A.rk. 24; Loring, Judge, v. Cunningham and others, 9 Cush. (Mass.) 87; Sutters’ Heirs v. Ling, 25 Penn. St. 466. Proceeds of realty in some cases are real assets having the incidents and immunities of land descended, but none of them can apply to this case. 61 N. Y. 497; Hyde et al. v. Warner et al., 46 Miss. 28. Case in which investment of personal assets held to be real assets, principle excludes this case. Hardee v. Cheatham et al., 52 Miss. 41.</p> <p>2. Are the parties bona fide purchasers, etc. ?</p> <p>(1.) Recitals in the deed and report of sale showed them the character of the ownership of the Dancy children, that it was purely of a trust character. Georgia Digest, Yol. II, 541, notice 1; Gordon v. Sizer, 39 Miss. 805; Martin v. Nash, 31 Miss. 324; Deason v. Taylor, 53 Miss. 701; Lee v. Newman, 55 Miss. 371; 1 Story’s Eq. Jur., § 400; 16 Am. Dec. 754, note; 23 lb.'47, note; Hill on Trustees, 3d Am. Ed. 769, 770.</p> <p>(2.) Protection by the record or decree. The statutory law upon assets for the payment of debts of deceased is precisely the same fixed by statute to secure estates the purchase-money of property thereof sold ou credit. Apply the cases on that subject of protection of parties in making purchases, by record or decree. The parties are not protected by the record or decree of the court. Lambeth v.. Elder, Adm’r, 44 Miss. 84-87; Brown v. Barlow, 51 Miss. 8,31, 12.</p> <p>(3.) The circumstances of the sale of the Oliver land and purchase by the Dancys were in effect a sale to foreclose the vendor’s lien of the estate of Moye thereon, a purchase thereat by the estate of Moye, and a resale thereof to the Dancy children on a credit by the estate of Moye. The report of sales to them sets out, to wit: purchase-money “ to be credited upon the decree and to be accounted for by said heirs in the final settlement of the estate of Wyatt ‘ Moye deceased.” Knowing then that it was a sale on credit, they were in duty bound to see whether it had ever been paid for by their having any distribution after payment of debts. Deason v. Taylor, 53 Miss. 701; Hill on Trustees, 3d Am. Ed. 769.</p> <p>3. As to our general right to subject this land to payment of our decree: McLeod v. First National Banh, 42 Miss. 99; Proper v. Leatherman, Administrator’s use, etc., 4 Howard 237; Simmons v. Holmes, 49 Miss. 149; Lsom, Treasurer, v. First National Banh, 52 Miss. 916-917 ; Borie v. Pollock, 54 Miss. 10; Buckingham v. Wesson, 54 Miss. 534; Borie v. Pollock, 55 Miss. 314 ; Bernheim & Co. v. C. & P. Beer, 56 Miss. 151; National Bank v.Lnsurance Co., 104 U. S. 68; Colt v. Lasnier, 9 Gown. (N. Y.) 320; Field v. Schieppelein, 7 Johnson Ch. 150; Story’s Eq. Jur., §§ 1251, 1258, etc.; Hill on Trustees, §§ 761, 763, 768, etc.</p>

Hon. A. T. Roane, Judge. The appellee, a deputy sheriff, levied an execution upon certain personal property. The execution issued from a judgment which had been rendered by R. B. Holiday, a justice of the peace, in favor of Roper against Charles Clark. Rosa Clark obtained a writ of replevin from Holiday against the officer, the writ being made returnable before T. A. Hanserd, another justice in the same county.

Hon. A. T. Roane, Judge. Robert H. Edmunds, a young man of large estate, was born on .July 12, 1838, and became of age July 12, 1859. He was married on the 29th of October, 1857, before he obtained his majority, .and his property was turned over to him by his guardian.

<p>1. Garnishment. Claim, by third party. Section 2449, Code 1880, construed. Section 2449 of the Code of 1880 is but the adoption in courts of law, mutatis mutandis, of the equity principles underlying bills of interpleader. It is essential in both courts that the party invoking the judgment of the court as to who is the true claimant shall make known his condition as stakeholder within a reasonable time after notice of the double claim.</p> <p>2. Same. Interpleader after final judgment. When the statute speaks of an interpleader after final judgment, it must be held to mean that the right will exist when notice of adverse claim by third party has only been received by the garnishee after final judgment, but not as applying where the knowledge existed before judgment and was voluntarily withheld.</p> <p>3. Same. Case in judgment. Where the contest was as to whether a note made payable to the wife by the garnishee summoned as debtor of the husband belongs to her or could be reached by the creditors of the husband, and it was decided that the note could be so reached and the garnishee knew these facts, and also knew during the whole time that the note had been transferred but kept the knowledge to himself, it is too late after final judgment against himself and after the expiration of the term to demand an interpleader.</p>

Hon. Samuel H. Terral, Judge. The facts are stated in the opinion. 1. It is error to try the issue raised by a defeudant who pleads, before making some disposition of the ease as to the defendant who does not plead. Davis v. Frierson, 2 How. 805; Barker v. Justice, 41 Miss. 240; Taylor v. The State, 50 Miss. 79; Pollen v. James, 45 Miss. 129; Parisot v. Green, 46 Miss. 747. 2.

Hon. J. B. Chrisman, Judge. The facts are stated in the opinion. 1. The declaration stated a cause of action arising under § 1311 of the Code of 1880, and the demurrer should not have been sustained ; and for this reason we insist the judgment should be reversed. 2. Kyzer leased the land from Middleton, who was then owner, the first of January, 1880, and the rent was to become due January 1, 1881.

Hon. Samuel H. Teeeal, Judge. The facts are stated in the opinion. The court refused to allow counsel for accused to read to the jury the opinion of this court rendered in the case of Bangs v. State of Mississippi, above cited. This was error, and a new trial should be granted appellant. Smith v. State, 59 Miss. 867. 1. The fourth instruction for the State complained of is correct. It does not require the danger to be actual, but only apparent.

Hon. Ralph North, Judge. This was an action of assumpsit brought by appellee against William Noonan and Henry Polkinghorne as joint and several makers of a promissory note for the sum of sixteen hundred dollars, dated February 21, 1880, due twelve months after date, and bearing interest at the rate of ten per centum per annum from date.

Hon. Ealph North, Chancellor. The appellant filed her bill in the court below against Metcalf, .administrator cum testamenti annexe of Anthony Smith, and the .appellees, who are in possession of certain lands, as owners devised by •said Anthony Smith, subject, as the bill alleges, to the charge of a legacy in the form of annuity, bequeathed to her by the will of said Anthony Smith.

Hon. Ralph North, Judge. At the October term, 1882, of the Circuit Court of Adams County, the appellant, David Rattray, was indicted by the grand jury for libel.

Hon. J. B. Chrisman, Judge. The facts are stated in the opinion. 1. The mayor and aldermen had no power to make either the first or second contract, and they were void. The power of a municipal corporation is only such as the charter confers on them, either expressly or as incidental to its very existence, and so necessary to the enjoyment of some special grant that without it that right would fail. Gaines v. Coats, 51 Miss. 335; Syhes v. Mayor of Columbus, 55 Miss. 115. 2.

<p>Ejectment. Homestead exemption. Waiver.</p> <p>A party entitled to a homestead exemption, and who has failed to assert it in a chancery proceeding in which his rights are fully adjudicated, and the land ordered to be sold in general term, cannot afterward claim the exemption so as to defeat a purchaser claiming under the decree of the chancery .court who has brought ejectment to recover possession of the land.</p>

This was an action of ejectment instituted by the appellants, on the 29th day of September, 1882, in the Circuit Court of Wilkinson County.

Lawrence County. Hon. A. G. Mayers, Judge. 1. It does not do to argue that a woman cannot lawfully hold an office, for the statute was intended to and by its terms applies to persons unlawfully in possession of offices. Its language is, “ whether such person be lawfully entitled.” 2. Of course, where an officer brings a suit to a recovery in which he is only entitled by reason of being such officer, the question is a different one from that now before the court.

Hon. J. W. Buchanan, Judge. A verdict will not be set aside because of the omission of the jury to pass upon all the issues, unless the omission prejudices the party complaining. White v. Bailey, 14 Conn. 276. Failure to decide the issue as to Hoskins & Bro. The subsequent judgment should be set aside and judgment entered in the appellant’s favor on the first verdict. The circuit court was right in sustaining the motion in arrest of judgment.

<p>1. Mistake. Actual notice. Purchaser under execution.</p> <p>A court of equity will not correct a mistake in the description of land in a deed against one who having actual notice at the time of his purchase bought the land at execution sale founded on a judgment rendered in favor of a party who liad no notice of the mistake at the time he recovered judgment. Simmons v. North, 3 S. & M. (i7, criticised.</p> <p>2. Execution Sale. Purchaser. Judgment creditor. Notice.</p> <p>Thefact that a purchaser at execution sale is not a bona fide purchaser for value does not deprive him of the right which the plaintiff in this judgment has as a creditor, to subject to the payment of the judgment, lands of the debtor of the conveyance of which he 1ms no notice, actual or constructive.</p> <p>3. Registry Act. Creditor without notice.</p> <p>Under $ 1212, Code 1880, creditors without notice and subsequent purchasers for value without notice are put upon the same footing and protected to the same extent.</p> <p>4. Purchasers under Execution. Implied trust. Judgment creditor.</p> <p>A purchaser under a judgment against a trustee of property in which there is an implied trust does not acquire the right of the beneficiary, nor is the judgment creditor entitled to subject the property by virtue of the registry act.</p> <p>5. Same. Unrecorded instrument. Judgment creditor without notice.</p> <p>■When the debtor has a beneficial interest in the property, and conveys it by absolute deed or mortgage, or makes a declaration of trust in the land, and the instrument is not acknowledged, or proved and recorded, it is void as to judgment creditors without notice, and a purchaser under such judgment will be protected.</p>

Hon. L. McLaurin, Chancellor. Notice was served on the complainants that a motion to dissolve an injunction in a cause pending in the tenth judicial district would be heard before the Chancellor of the said tenth district, at the city of Jackson, which is in the ninth judicial district, and the motion was accordingly' so heard and sustained.

Hon. J. B. Chrisman, Judge. The appellee brought an action of replevin against the appellant for two bales of cotton. Appellant claimed the cotton as landlord and by virtue of a deed of trust for a balance due her from John Scott, husband of appellee, for supplies.

Hon. J. B. Chrisman, Judge. E. A. McGill, the appellant, brought an action of replevin against Howard, appellee, for two bales of cotton. The appellant claimed under a chattel mortgage on the cotton for supplies. Howard was the tenant of one Feltus, and it was proved on the trial that he owed his landlord for rent and supplies. The landlord did not assert his claim.

Hon. J. B. Chrisman, Judge. The appellants brought an action of replevin against the appellee to recover the possession of a certain raft of cypress timber valued at six hundred dollars, and also six hundred cypress logs valued at the same- sum.

Hon. C. H. Campbell, Judge. The appellee, while attempting to enter a passenger coach of the appellant company in the night time, fell from the platform of the ear and received injuries on account of which she brought suit and recovered a verdict for seventy-five hundred dollars. It was a starlight night in August. The natural light was sufficient to enable persons to move about in any direction without difficulty.

Hon. George Wood, Chancellor. On the 24th day of January, 1878, Harriet Gurlie gave Freeman Jones, Sr., a bond for title to a certain tract of land in Jackson County, title to be conveyed to said Jones upon the payment by him of forty dollars, a balance due on the purchase-money. The property was a homestead.

Hon. Samuel H. Terral, Judge, The facts are stated in the opinion. The first question presented to the court is, has the Mayor’s Court of the Town of Biloxi, under the constitution and laws of the State of Mississippi jurisdiction over the offense charged in the indictment here preferred against this appellant to solve this question in the affirmative. The court is referred to Article I, Sec. 31, of the bill of rights ?

<p>Appeal from the Circuit Court of Hinds County.</p> <p>Hon. T. J. Whartón, Judge.</p> <p>'The facts are stated in the opinion.</p> <p>In R. R. Co. v. Patton, 31 Miss. 182, the court says: “ The law imposes upon such companies the greatest strictness in providing all things necessary to the safety of passengers which care, skill, and foresight require.” This is the extent to which our court has gone. It is not true as a proposition of law that the railroad companies of the country are to have the “ best appliances for the management of their trains.” They are bound to furnish reasonably safe and convenient means for the transportation of passengers; but the only ditty they owe cows straying on their track is to avoid killing as far as possible, and they would be blameless if, w'ith the instruments they have, they do all they can to save the “ lives ” of the cattle. If it were conceded that they were bound to have air brakes in respect to passengers, it would not follow that they must be provided out of mercy to cattle. The duty to passengers rises to the highest point and exacts the greatest care; carriers of passengers owe no duty to cows. They are under an obligation to the owner, and that consists in exercising reasonable care and caution to avoid killing the animals. Every precaution against accident should be adopted which gives reasonable promise of being useful and is not so expensive as to justify its rejection. They are not bound to adopt, in addition to previously possessed means, a new and improved method because it is safer and better than the one in use by them if it is not requisite to the reasonable safety and convenience of passengers and the expense is excessive, for the cost may be a sufficient excuse for not adopting it. Le Baran v. East Boston Ferry Co., 11 Allen 312. The duty is to use the.utmost care in regard to the ordinary and usual appliances and means of carrying on their business. They are not to lake every possible precaution to prevent injury, for that would be inconsistent with the cheapness and speed which are among the chief objects of railway traveling. They are to afford proper and reasonable securities against danger. Warren v. Fitchburg JR. R. Co., 8. Allen 227, 230. We know that the courts of New York hold otherwise and require railroad companies to avail themselves of all new inventions and improvements known to them which will contribute materially to the safety of their passengers when the utility of such improvement has been thoroughly tested and demonstrated ; but even there the rule is applied with a reasonable regard to the ability of the company and the cost of the improvements. JELegeman v. Western R. R. Co., 3 Kan. 9; Smith v. N. Y. & H. R. R. Co., 19 N. Y. 129.</p> <p>The first instruction sets forth the well-recognized doctrine that if the evidence showed the want of ordinary care and skill on the part of the company or its agents, they were liable for damages done to stock. The second instruction announced that the law required railroad companies to have the best appliances for the management of their trains and locomotives and skilled employees, and if by lack of these they injured stock, they are liable for damages. These instructions are clearly within the law as announced by this court. See 31 Miss. 156; 46 Miss. 573; 59 Miss. 280.</p>

Hon. C. H. Campbell, Judge. The facts are stated in the opinion. 1. Appeals in the circuit court shall be tried anew in a summary way without pleading in writing. Section 2354, Code 1880. And there- are no exceptions made by the provisions of the code referred to between litigants in justice’s court who suffer judgment by default to be rendered against them, and those who appear and plead as to their right of appeal.

Hon. T. J. Wi-iarton, Judge. The facts are stated in the opinion. Section 2700, Code 1880, under which the indictment is found, has never been construed, and we would request the court, should this case be reversed upon other grounds, to give to it a judicial construction,as many different interpretations have been placed on it.

Hon. T. J. Wharton, Judge. The appellant sued the appellee to recover damages for a cow killed by a train of the appellee. On the trial it was shown that at the point where the cow was killed the railroad track had been fenced by the appellee for some distance on both sides.

Hon. E. G-. Peyton, Chancellor. On motion to dismiss the appeal. 1. The decree appealed from is not final. The case is still pending in the chancery court. The injunction may be reinstated. Code 1880, § 1917. It does not change the case that damages were allowed on dissolution of the injunction. That is merely an incidental matter, like the allowance of costs against either party in the progress of a case.

Hon. W. Gr. Phelp„ Chancellor. The appellee was the widow and executrix of Gr. W. Bowles, who’died testate in 1875. At the time of his death Bowles owned certain real estate and held the note of one Allen for the unpaid purchase-money for a half section of laud sold by Bowles to Allen. Bowles left one child surviving him, who is still a minor. Appellee renounced the will of her husband and took out letters of administration on his estate.

Hon. A. G. Mayers, Judge. R. E. Swilly entered into the following contract with W. A. Moore, agent for James Haley: “This agreement, made and entered into by and between W. A. Moore, agent for James Haley, of the first part, and R. F. Swilly, of the second part, to wit, The party of the second part agrees to pay W. A. Moore sixty dollars for the rent of a place known as the Haley Place and now occupied by said Swilly, as rent for the year 1882, and one hundred dollars for…

Hon. T. J. Wi-iarton, Judge. The appellee brought an action of ejectment against the appellants claiming the land in controversy as having been sold to the-State under the “Abatement Act,” approved March 1, 1875.

Hon. A. G. Mayers, Judge. The appellees made an assignment for the benefit of their creditors, preferring some of them.

Hon. T. J. Wharton, Judge. The appellee sued the appellants to recover damages for a mule killed by the locomotive and cars of the latter. At the time the mule was killed the train was running on a down-grade around a sharp curve from right to left. The engineer was at his post on the right side of engine, but from his position, owing to the sharpness of the curve, could not see the mule, and did not see it until it was struck.

Hon. E. G. Peyton, Chancellor. The appellee filed a bill to foreclose a mortgage which he held upon the lands in controversy. The mortgage bears date April 2, 1879, and was duly recorded, and recites that it was given “to secure a promissory note dated 2d day of April, 1879, due five years after date, with interest at the rate of ten per cent, per annum, payable annually, on the 1st of each January,” but fails to state the amount of the note.

. Hon. Charles H. Campbell, Judge. W. H. Andrews brought suit in the justice’s court against the appellant on the following open account: West Miss., January 31,1883. Illinois Central Railroad Co. To W. 3. Andrews, Dr. 1882, Dee. 25. • To killing one cow,.........$30.00 1883, Jan. 10. To killing one cow,.........25.00 “ “ To killing one .ox,.........15.00 $70.00 This account; was sworn to under § 1637 of the Code of 1880.

<p>1. Scire Facias. Not reciting date of judgment nisi. Judgment final.</p> <p>When the scire facias fails to recite the day or term of court when the judgment nisi was rendered, and a plea of nul tiel record is interposed, it is error to render judgment final without first amending the writ.</p> <p>2. Same. Appellate proceedings. Amendment.</p> <p>When the record fails to show the date of the judgment nisi in proceedings on a forfeited recognizance the ease will be reversed on appeal, and amendment allowed when the case returns to the lower court.</p> <p>3. Recognizance. Judgment against one surety. Dismissal as to others.</p> <p>Where the return on the scire facias shows that the principal and all the sureties</p> <p>on the bond, except one, could not be “ found,” it is not error to dismiss as to those not “ found” and to proceed to judgment against the surety served. Pounds v. The State, 60 Miss. 925.</p>

Hon. W. G. Phelps, Chancellor. Blanton bought from Bolton a' tract of land and executed a deed of trust upon it to secure the deferred payments of purchase-money. Subsequently, while Blanton was in possession and before any steps had been taken to foreclose the trust deed, although some of the notes had matured, Blanton conveyed to the appellant a right of way through the land for its railroad, which was built and is now being operated over the right of way.

Hon. E. G. Peyton, Chancellor. The facts are stated in the opinion. 1. It seems clear that, though there is in the bill a prayer for general relief, none other would be admissible under it than the enforcement of a vendor’s lien. To obtain this is the entire scope and purport of the bill. Any other relief would operate a surprise on defendants not to be tolerated. Daniell, Ch. 3, C. & Pr. top 449, 450; Code 1880, § 1868. 2.

Hon. T. J. Wharton, Judge. In January, 1882, Parker, the appellant, with one McGee, came to the store of the appellee, Clark, and brought with them a written lease by which McGee was to pay Parker twenty-five bales of cotton as rent for two hundred and twenty acres of the “ Ivanhoe Plantation,” in Yazoo County, for the year 1882. Clark was requested by McGee and Parker to furnish McGee with supplies for the year to carry on his farming operations on said land.

<p>Appeal from the Circuit Court of Lauderdale County.</p> <p>Hon. Samuel H. Terral, Judge.</p> <p>It appears that in December, 1881, the appellant, who was then occupying the premises at a rent of ten dollars per month, agreed to rent the same from the appellee from the 1st of January, 1882, to the 1st of September of that year at an increased rent — to wit, thirteen dollars per month — upon condition that the appellee would at once repair the premises, which were very much out of repair. No repairs were made, but the appellant continued to occupy the premises until the month of March, 1882, when he surrendered them to the appellee, who at once took possession of the premises and offered them for sale, making no objection to the abandonment by the appellant and giving him no notice that she intended to attempt to hold him for rent after the surrender of the premises. Appellant paid rents for January and February, 1882, and abandoned or surrendered the property in March, 1882. Appellee brought suit for rent for April, May, June, and part of March, 1882, amounting to fifty-two dollars, for which amount she recovered judgment in the circuit court.</p> <p>The court gave the following instructions for the plaintiff : (1) “ The agreement to'repair and subsequent failure to do so did not of itself release the defendant from his obligation to pay rent for the whole term, as contracted for, unless the jury believe there was a provision in the contract that he might quit unless the repairs were made.” (2) “ If the house needed repairs to make it habitable or comfortable, the defendant would have had the right under the law to have them done at the expense of plaintiff; but if the defendant elected to quit before his time expired in consequence of -such needed repairs, he is not released from his obligation to pay rent for the whole time, unless the plaintiff accepted the premises of defendant. And if the jury should so believe there was.no acceptance of the surrender, they will find for the plaintiff the amount proven to be due for the whole term agreed upon.” (3) “Unless the jury shall believe from the testimony that plaintiff accepted possession of the premises and agreed expressly or impliedly to relinquish the contract for rent, they should find for the plaintiff.”</p> <p>The following instructions, asked by the plaintiff, were refused: (2) “ Even if the jury should believe from the testimony that plaintiff did attempt to sell or rent after defendant abandoned the place, this does not release defendant from his obligation to pay full amount, as contracted- for.” (5) “ Taking possession of the house by the plaintiff after defendant had abandoned it, if done by the plaintiff merely for the protection of the house and not as an acceptance of the release does not discharge defendant-.”</p> <p>The following instructions were given for the defendant: (1) “ The court instructs the jury that if they believe from the evidence that Kiernan gave notice that he was going to surrender the place and that plaintiff, Mrs; Germain, accepted the keys to the house and took possession of the premises, then that is an acceptance of the surrender and the jury should find for the defendant, Kiernan, as to all rent due after such surrender.” (2) “ The consent to the surrender may be implied from circumstances, and if the jury believe from the circumstances, as shown by the testimony, that there was an implied consent upon the -part of Mrs. Germain, the plaintiff, for the defendant, Kiernan, to leave the place; then they will find for the defendant, Kiernan, for all rent charged after such leaving of the premises.” (3) “ That the burden of proof is on the plaintiff, and unless she establishes her case by a preponderance of testimony they will find for Kiernan.” (6) “ If the jury believe from the evidence that defendant rented of plaintiff a house for a certain price per month and that plaintiff was to keep the premises in repair, and if they further believe that the plaintiff failed to keep the premises in repair, the defendant would not be liable for the agreed price, but for only the actual rental value of the premises.”</p> <p>1. The first instruction for the plaintiff was erroneous. There need not have been an express proviso that appellant was to be allowed to quit the premises in case of failure on part of appellee to make the necessary repairs, and repairs, too, which had been expressly and implicitly agreed upon. That he was to have the right to abandon the premises in that event was clearly implied, because it was a legitimate inference, dictated by reason, justice, and common, sense. Blackstone, Vol. II, Book IV, Chap. XXX, p."443. The law upon which this instruction is based rested upon the idea that the obligation of the tenant to pay rent and the obligation of the landlord to repair were separate and distinct, each entirely independent of the other. But in this case the express agreement of the lessor to repair the premises and of the lessee to pay a larger rent than formerly were dependent upon each other, and a failure to perform one rescinds the other. Parsons on- Contracts, Vol. I, Book III, Ch. Ill, § 2, p. 443.</p> <p>2. The third instruction was error, because it was clearly inapplicable to the case at bar. Under the law upon which counsel rely for this instruction the lessee would be bound to leave the premises in good repair, “ wind and water tight,” and in a tenantable condition, even though they were out of repair when he moved into them. (See authority cited above.) This would inflict a palpable injustice and is not in keeping with the advanced liberality of American jurisprudence. To say that it was the duty of the lessee to repair the premise’s and recoup for the sum expended in making the house habitable would be manifestly erroneous in this case.</p> <p>3. The surrender and peaceable acceptance. Upon this point there is no conflict in the evidence. “ It is sufficient if there was an actual change of possession and an actual acceptance by the lessor of the abandoned premises.” “ Or it may be an abandonment and surrender of the premises to the landlord if he aeeepts the same although no new contract is substituted.” “ It is a surrender when the lessee does something incompatible with the lease and the lessor assents or co-operates.” Parsons on Contracts, Ch. Ill, § 4. The lease was abrogated just so soon as the appellant abandoned and the appellee accepted the surrender and told him where to leave the keys. It is axiomatic that no person can take advantage of his own laches. Not only did the appellee take possession of the property peaceably and accept the surrender without signifying her intention to hold the appellant responsible for the. entire term, but she immediately advertised the premises for sale.</p> <p>4. We feel no hesitation in insisting that the verdict of the jury is “ manifestly wrong,” and “ the evidence greatly preponderates . against it.”</p> <p>The landlord is under no obligation to make repairs unless he expressly covenants to repair; and then his covenant to repair and that of the tenant to - pay rent are independent of each other. A failure, therefore, of the landlord to make repairs does not discharge the tenant from his obligation to pay rent, nor will he be discharged from his obligation to pay rent when he has quit the premises on account of the landlord’s failure to make the repairs, unless there is a provision to the effect that he may quit if the repail's are not made. Parsons on Con., Vol. I, 501, and authorities cited. There was no error in allowing the jury to take out, on their retirement, instructions refused. Section 1714, Code 1880, merely says that instructions given may be taken out by the jury, without saying whether they shall or shall not take out those refused. The latter part of said section, which makes it the duty of the clerk to first mark all instructions so given or'refused, as the case may be, sufficiently provides against any mistake by the jury as to what the law is applicable to the case, as given to them by the court. We forbear any comment on the testimony as to the condition of the premises, as it is a well-settled principle that it is the province of the jury to settle conflicts in the testimony of witnesses. We will, however, call attention to the testimony of Ramsey and Broach, wholly disinterested witnesses. This cause has been decided by two juries adversely to appellant, which, considering the amount involved, ought to have ended the litigation.</p>

Hon. James M. Arnold, Judge. Ou the 16th day of December, 1867, Alexander Jeffries filed a petition in the Probate Court of Noxubee County setting forth that Walter Jones Tate ivas a minor and also non convpos mentis, and asked tó be appointed his guardian. Letters of guardianship were accordingly issued to him.

Hon. T. J. Wharton, Judge. The facts are stated in the opinion. In this case it will be contended for appellees that appellants were employes of Ferguson & Brothers, who were sub-contractors; that Smith & Brother were the parties who contracted with the railroad company, and that no other persons than Smith & Brother can claim the benefit of the statutory lien. Code 1880, § 1379.

Hon. L. Haughton, Chancellor. In 1849 one Zachary died, and in his will bequeathed a portion of his estate to Mrs. Julia A. Walton for life and at her death to her children. The husband of Mrs. Walton in 1854 received from the estate of Zachary the sum or three thousand five hundred and eighty-eight dollars and used the same in the purchase of the laud in controversy in this case, taking the title in his own name.

<p>1. Raieroads. Personal injury. Attempt to board moving train.</p> <p>A party cannot recover in a suit against a railroad company for injuries received while recklessly attempting to board a moving train, although it is shown that the train was improperly equipped and that some of its appliances were defective.</p> <p>2. Same. Previous successful attempts.</p> <p>Under the above circumstances the fact that the plaintiff was in the habit of boarding moving trains, or that he had been seen to do so on previous occasions with impunity, will not avail him.</p> <p>S. Same. Section 1047, Code 1880. Employes.</p> <p>Section 1047 of the Code of 1880 does not embrace employes among those to whom a right of action is given by it.</p> <p>4. Same. Violation of law by company. Eight of employes to recover.</p> <p>It is better policy to deny to employes a right to recover for violations of law in which they are actors.</p>

Hon. E. G. Peyton, Chancellor. The facts are stated in the opinion. The only question to be considered in this case is, does § 2086, Code of 1880, apply to cases of this character? The debts sought to be collected are the debts of E. Euevoldscn individually, and not as administrator of the estate of his deceased wife. No debt due by his wife’s estate is sought to be collected.

Hon. Chas. H. Campbell, Judge. The facts are stated in the opinion. 1. Under our view of the law, it seems clear that the frauds and deviations from the prescribed mode of condemnation nullify the whole proceedings, and can be interposed in its avoidance either collaterally or otherwise.

Hon. E. G. Peyton, Chancellor. Parties owning over a half interest in the property filed a bill for sale for partition. The owners of the other interests resisted the sale in good faith upon several substantial grounds. The case ivas argued and the Chancellor directed a sale to be made. A sale tvas made and set aside. Another sale Avas made and also set aside. From the decree setting aside the last sale an appeal Avas taken to this court and here decided.

Hon. W. S. Featherston, Judge. R. E. Wimberly, the appellee, proceeded by mandamus in the circuit court against the appellant, treasurer of the town of Coffee-ville, to compel him to pay two warrants, drawn by the mayor of the town on the treasurer, on the 26th day of February, 1883, the warrants representing an indebtedness contracted by the old corporation of CofPeeville before the repeal of .its charter in 1880, and adjudged to be a charge against the new town or…

Hon. Warren Cowan, Judge. In December, 1882, the appellant rented a plantation in Sharkey County from the appellee. The lease was to expire on the 31st of December, 1883, commencing the 1st of January, 1883. In consideration of the lease of the land and the hire of two mules the appellant executed two promissory notes, one for five hundred dollars, due the 15th day of November, 1883, and the other for five hundred and eighty-five dollars, due the 20th day of December, 1883.

Hon. A. T. Eoane, Judge. At the general election for county officers in Tallahatchie County in November, 1883, J. H. Steele and W. M. Calhoun were rival candidates for the office of sheriff, Steele being the nominee of what was known as the “ Independent party,” and Calhoun the nominee of the Democratic party. Steele received eight hundred and eighty-six votes and Calhoun received six hundred and ninety-one.

Hon. Samuel H. Terral, Judge. The facts are stated in the opinion.

<p>Appeal from the Chancery Court of Washington County.</p> <p>Hon. W. G. Phelps, Chancellor.</p> <p>The lands in controversy were sold by the sheriff of Washington County to the State in the. year 1880 for taxes of the year 1879. In 1881, Wm. Griffin purchased them from the State and sold them to the appellee, who exhibited her bill against the appellant and his tenant in possession, seeking a decree to confirm her title, and from the decree to that effect this appeal is taken. The defense interposed in the court below was that one E. G. Sims was elected assessor for 1879, and that at the July meeting, 1879, of the board of supervisors said Sims presented his assessment roll sworn to, according to the Act of March 5, 1878, entitled “An Act in relation to the public revenue,” for reception and ratification. The roll was rejected and E. G. Sims appointed to make or complete the assessment roll. At the September meeting, 1879, of the board of supervisors, the assessment roll of E. G. Sims was presented, accepted, and ratified, and all subsequent proceedings, in reference thereto regularly had. The chancery clerk of Washington County testified that there had not been any other roll filed in his office except the one filed by Sims in July, 1879, and that the roll handed to the sheriff and under which the sale was made, was a copy of the roll containing the oath of Sims of July, 1879. The roll was introduced, and showed that on July 7, 1879, Sims had attached the affidavit required by the act of 1878, but did not show any subsequent affidavit, and it is insisted that the absence of a subsequent affidavit vitiates the sale of the lands for taxes.</p> <p>We affirm that the rejection of assessment roll by the board at their August meeting made the oath of July 7, 1880, of the assessor a nullity, and the book itself as valueless for divestiture of title. If this view is adopted as correct, it only remains for us to determine if the affidavit of the appointed assessor was a fundamental essential, and the requirements of the act of 1878, § 31, of such a mandatory character as to make a compliance therewith an indispensable prerequisite before there could be a legal assessment.</p> <p>1. It may be safely affirmed as a general rule that the party claiming title under a tax sale must show that the acts required to be done under the statute in order to divest the title of the former owner were performed by the officers of the law, and not simply by persons who assumed to act in an official capacity. Blackwell on Tax Titles, second edition, p. 91 and p. 345. This doctrine is more forcibly expressed by Judge Cooley in his work on Taxation, p. 289. Warner v. Grand Haven, 30 Mich. 24; Sibley, v. Smith, 2 Mich. 486; Lacey v. Davis, 4 Mich. 140; Colby v. Russel, 3 Greenl. 227; Johnson v. Elwood, 53 N. Y. 431; Townsend v. Wilson, 9 Penn. St. 270; Johnson v. Qoodridge, 15 Maine 29; Eellar v. Savage, 20 Maine 199. Where the statute requires the tax list to be verified by an oath made and subscribed, this means an oath duly certified in writing, and the absence of it is fatal to the proceedings. Cooley on Taxation (1876), 216 n.; Yender v. Wheeler, 9 Texas 408 ; 26 lb. 296; Robson v. Osborn, 13 Texas 298; 28 lb. 36; Mawle v. Board of Supervisors, 5 Reporter 473; Brevoort v. Brooklyn, 14 Reporter 247. We have a recent decision of our own court. “ A book in the chancery clerk’s office, containing names of persons and descriptions of lands, under caption.” Land sold for taxes January 3, 1876, without signature, certificate, or authentication of any kind, by the sheriff or other person, is insufficient to show title in this State. Maysor v. Banks, 59 Miss. 447. This is a lucid enunciation of the principles we maintain as applicable to our cause.</p> <p>2. The members of the board are only pro tanto assessors; their powers are limited; they act judicially in equalizing and in this respect their decision is conclusive. They have special and limited jurisdiction, and any unauthorized action is void; and their powers like those of all similar boards, are to be strictly construed. Cooley on Taxation (1876) 290 — 291, see n. 3.; Tweed v. Metcalf\ 4 Mich. 575; 16 lb. 12; Bellinger v. Gray, 51 N. Y. 610; State v. Allen, 43 111. 456; 49 lb. 517; 50 lb. 424;. 53 lb. 477. They can cure defects in an assessment on the principle of equalization, but they cannot make an assessment.</p> <p>Was the assessment roll which was properly sworn to and filed by Sims in July, 1879, and which was afterward rejected by the board of supervisors as being 'incomplete, after being completed by Sims under an order of the board and refiled and accepted as the assessment roll for that year void because the officer completing the roll failed to append his affidavit to the same, as required by law ? This was the question relied upon by appellants in the lower court. The making of the affidavit is not a condition precedent the non-performance of which could in the least affect the taxpayer. The oath of the assessor is not conclusive upon the board of supervisors, nor would it be upon a taxpayer. It was only intended that the officer charged with the duty of making a correct assessment should certify to the board of supervisors in the most solemn manner known to the law that he had discharged the duty imposed upon him by virtue of his office. This declaration under oath is for the assurance and satisfaction of the board of supervisors, and cannot in any manner affect the rights or liabilities of a taxpayer. We think the requirements of the statute in this respect directory, the compliance or non-compliance with which could in no wise affect the validity of the assessment roll. Virden v. Bowers, 55 Miss. 1; Wolf v. Mñrphy, 60 Miss. 1; Cooley on Const. Lim., 2d ed., 77 ; Cooley on Taxation 215, 219, et seq.; 2 N. J. Report 378. The law requires a valid assessment, but the affidavit is no part of an assessment. As to what constitutes an assessment, see Cooley on Taxation 258.</p> <p>In what possible manner could the failure of Sims to “ swear ” to the roll work the appellant an injury — what interest could it affect? None whatever. The purpose of the law, I imagine, was to require the assessor to make oath to the roll that he had faithfully performed his duty, and in the event he had not, he was liable to be punished. As to third persons, the statute is directory. Cooley on Const. Lim. 77 and 78, lays down this rule: “ Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory ; but if the act is performed, but not in the time and precise mode indicated, it may still be sufficient if that which is done accomplishes the substantial purpose of the statute.” . In the notes to Blackwell on Tax Titles, Balch's Edition, 262, the following decision of the Supreme Court of New Jersey is quoted: “ That°the assessors shall assess property at its full and fair value, etc.;” and it is also provided that every assessor shall annex to his duplicate an oath in writing that all assessments in his duplicates have been made according to the requirements of said statute. Held, that the annexing such oath or affirmation was directory. State v. Metz, 2 Vroom (N. J.); See Yirden v. Bowers, 55 Miss. 1; Wolf v. Murphy, 60 Miss. 1; Powers v. Penney, 59 Miss. 5.</p>

Hon. E. W. Williamson, Chancellor. S. G. Carradine traded with Dunn & Co., general merchants, and became indebted to them in the sum of eight hundred and twenty-one dollars. About three hundred dollars of this indebtedness was for vinous and spirituous liquors sold by Dunn & Co. to Carradine at various times in quantities less than one gallon.

Hon. B. F. Trimble, Judge. The facts are stated in the opinion. The appellant was tried and convicted by the verdict of only eleven jurors. The right to be tried by a jury of twelve men is a constitutional privilege. See Constitution, Art. I, Sec. 12, also Carpenter v. State, 4 How. (Miss.) 163. The number of twelve jurors is there said to be the number contemplated in the constitution, also see Code of 1880, §1695.

Hon. Samuel H. Terral, Judge. E. E. Eeese brought an action of trespass against the appellant railroad company to recover the statutory damages of fifteen dollars per tree for seventy-nine trees alleged to have been cut and taken by the company from his land without his permission. Eeese obtained a judgment in tiie lower court, from which the railroad company appeals.

<p>1. Cbiminal Law. Self-defense. Instruction.</p> <p>It is error to instruct the jury that they could not acquit a prisoner on the plea of self-defense unless they believed or had reason to doubt whether the deceased was at the time seeking to murder the prisoner or that he had reason so to believe.</p> <p>2. Same. Great bodily harm.</p> <p>It is not incumbent on the prisoner to do more than to raise a doubt in the mind of the jury as to whether he had a right to believe that the deceased was at the time seeking to do him some great bodily harm and that the only way to avoid this was to take the life of deceased.</p>

Hon. T. J. Wharton, Judge. Ballou and wife executed a deed of February, 1877, on the land in of trust to Faler & Có. on 19th controversy, and on that day it was lodged with the clerk of the chancery court for record. It was recorded but the cleric misdescribed the land, giving different quarter section from that described in the deed.

Hon. A. T. Roane, Judge. On the 28th day of January, 1881, P. H. Huston and J. A. Hogan and H. H. Hogan executed the following promissory note: “ On the first day of January next we or either of us promise to pay to Mrs. A. H. Pattison or order the sum of two hundred and eighty-seven dollars and fifty cents for value received, with interest at ten per cent, after maturity.” On the 1th day of December, 1881, P. H. Huston as principal and the two Hogans as sureties,…

Hon. F. A. Ceitz, Chancellor. The facts are stated in the opinion. 1.

Hon. J. M. Arnold, Judge. Frank & Bro. sued out an attachment against B. & B. C. Richardson, non-residents, and summoned W. M. Coltraine, Mary E. Coltraine, his wife, as garnishees, to answer what they owed B. Richardson.

Hon. Warren Cowan, Chancellor. The appellee is holder of certain certificates of stock in the Vicksburg Gas Company, a corporation chartered by the legislature of this State. The certificates were pledged with the appellee by Geo. M. Klein, a banker, as collaterals for money loaned Klein. Together with the certificates they hold Klein’s power of attorney to have the stock represented by the certificates transferred on the books of the company to its name.

Hon. Warren Cowan, Chancellor. On the affirmance of the decree in this case by the supreme court, Ciarle v. German Security Bank, ante, the appellee moved for a decree allowing five per cent, damages under § 1422, Code of 1880. The nature of the proceeding in the lower court will be seen by reference to the preceding case. 1.

Hon. J. G. Hall, Chancellor. The facts are stated in the opinion. 1. The description of the land in the trust deed, made by T. W. Fowler to B. N. Dunn, contains a “ patent ambiguity,” and is therefore void. Is this a patent ambiguity? The question is answered by the description itself as soon as read. “ Two hundred and twenty-two and a half acres off the south and west part of south half of section 24, town 1, range 7.” What idea does this description convey?

<p>Injunction Bond.* Suit on. Under § 1919, Code of 1880.</p> <p>Section 1919, of the Code of 1880, does not change the rule announced in Penny v. Ilolberg, 53 Miss. 507, that an action cannot be maintained on an injunction bond until final determination of the case.</p>

Hon. J. B. Chbisman, Judge. The appellant was indicted for murder.

Hon. J. G. Hall, Chancellor.' The decree in this case was rendered on the 11th of April, in vacation, and an appeal granted at the time the decree was made and as part of it. The bond was executed on the 14th of April and the summons issued on the 21st and served on the 22d of April, returnable to the April term of the supreme court.

Hon. Samuel H. Terral, Judge. Appellant rented a small field from one Reagan for the year 1882, and had rented and cultivated it for some years' previous. In January or February, 1882, the appellee, without the consent of appellant, having purchased a right of way for its railroad from Reagan, the landlord, surveyed its line and built its roadbed through appellant’s field, without any express objection on the part of appellant.

<p>1. Trust. Confirmation by court of sálelo trustee. Rights of beneficiaries. • 0., as administrator of the estates of two and guardian of other heirs interested in certain land, joined in a bill Avith a co-heir equally interested with those represented by him and obtained a decree ordering the sale of the land by a commission. C. purchased and took possession, claiming the land as his own. Held, that C. held the land subject to the rights of those toAvard Avhom he sustained a fiduciary relation to have him declared trustee for them.</p> <p>2. Same. Subsequent purchaser. Notice. Those afteiuvard dealing Avith the party as to the lands held by him as above Avere chargeable Avith notice of all facts sliOAvn by the record of the suit, under the decree in Avhich he purchased, but not Avith notice of any matter aliunde Avhich may have existed betAveen him and the beneficiaries.</p>

Hon. L. Haughton, Chancellor. In 1863 J. G. Conwill was appointed administrator of the estate of J. J. Livingston, deceased, by the Probate Court of Itawamba County. In July, 1868, said administrator filed his account of final settlement in said estate, and at the August term, 1868, said court granted a decree approving said final account and discharging the administrator.

Hon. J. W. Buchanan, Judge. Contestant’s petition alleges the holding of an election for sheriff of Monroe County, November 6, 1883, at which Sykes was the candidate of the Democratic party and the… Held: “ ballot-box stuffing,” the refusal of election officers to count the votes publicly, and false counting of the ballots.

Hon. W. S. Featherston, Judge. The facts are stated in the opinion. 1. The entry cannot be considered a judgment of the court because it has none of the essential requisites of a judgment. Jacob’s Law Die. 3 Bl. Com. 395. 2. The entry does not pretend to be the adjudication or decision of the court, but is only a recital by the justice of what William Swain did. 3.

<p>Appeal from the Circuit Court of Copiah County.</p> <p>Hon. T. J. Wharton, Judge. .</p> <p>The facts are stated in the opinion.</p> <p>1. The plaintiff in the court below was not entitled to judgment against appellant as rendered by the court. Appellant, within the time allowed him, filed an answer to the garnishment, which, although defective in not stating that he was not indebted at the time of the service of the writ, etc., is a denial of indebtedness; hence upon the answer no judgment could be rendered against, him. Nelson did not except or controvert the answer, so that the answer stands .as true in fact, and its insufficiency was waived by not being excepted to. Judgment cannot be rendered against a garnishee on his answer unless his liability clearly appears. Smith v. Bruner, 23 Miss. 508; WHlicms v. Jones, 42 Miss. 270; MeNeil v. Boctche, 49 Miss. 442; Drake on Attachments 659 ; Smithers v. Fiteh, 1 S. & M. 541.</p> <p>2. Even should a motion have been the proper way for appellee to reach judgment without excepting to or traversing the answer, I submit that the motion upon which this judgment was rendered is unintelligible, .and from it it is impossible to say whether appellant was to be treated as admitting indebtedness or failing altogether to answer or as answering insufficiently. I take it that a fair construction of that motion is, that the court ignored Little’s answer and treated him as failing to answer. The judgment is -certainly erroneous, also, because the amount seems to have been fixed by the suggestion of Nelson’s attorney in the motion. No evidence seems from the record to have been offered, and if it had it could not have been admissible because there was no issue on which to admit testimony. Williams v. Jones, 42 Miss. 270.</p> <p>The statute, Code 1880, § 2446, provides for judgment against garnishees to be final unless good excuse be shown to the contrary at the term when rendered, where they fail to appear and discover '“as by this chapter directed.” The direction is in § 2423 and § 2442, that the garnishee shall say what he owed the defendant at the time of service. In the case at bar apjíellant ivas served with process April 2d, and did not answer until April 24th, and he failed to discover what he owed on the day of service. We ■stand on the statute. Clearly there is no error on the face of the récord. The judgment against the garnishee was duly rendered on a motion formally filed and spread on the motion docket, and without objection, during that term.</p>

Hon. E. W. Williamson, Chancellor. The facts are stated in the opinion. Mr. Justice Cooper, being a party to the suit, and Mr. Justice Campbell, being related to some of the parties in interest, took no part in the decision. The case was heard by a special court composed of Mr. Justice Chalmers and Messrs. Ed. Clark and S. S. Calhoon, special judges. 1. The statute of limitations cannot be invoked by an executor against the claim of a legatee.

B». B. Campbell, Special Chancellor. Hon. W. G. Phelps, Chancellor, being disqualified by interest, did not sit in the case. Held: with other advances made him, as a part of the trust estate received by H. G. Vick. (3.) In that suit it was not sought to enforce this claim against the estate of Henry G. Vick.

Hon. A. T. Boane, Judge. The facts are stated in the opinion. The accused should be discharged, because of the discharge of the jury which tried him at the May term, 1883, without their having found a verdict. Const, of Miss., art. 1, sec. 5. That discharge is sought to be excused on the plea of necessity, and the necessity is sought to be made out by two processes, first, the jury were unable to agree; second, the term of the court had drawn to a close without verdict found.

<p>1. Evidence. Question of fact left to jury. Case in judgment.</p> <p>C. by parol directed the engineers of the N., J. and C. R. R. Co. not to intrude upon her land. Her lot was, however, invaded and an excavation made. The road entered upon the excavation and built its track and used the roadbed.</p> <p>Whether she assented to such entry and use is doubtful, she denying it and others asserting that she did. She sued the railroad for damages both for tiie excavation and the subsequent entry. The court below held thatsliecould obtain damages only for the excavation, to which she had not assented, and not for the subsequent entry. Held, that this ruling was incorrect because it virtually assumed the disputed question of fact against the plaintiff.</p> <p>2. Railroads. Right of way. Verbal dedication. Evidence. Competency.</p> <p>In a suit in trespass by the owner of land against a railroad company for damages alleged to have been sustained because of the excavation of and entry upon the land by defendant fot its right of way, it is error for the court to exclude from the consideration of the jury evidence tending to show that the plaintiff verbally agreed to dedicate the right of way over the land in controversy, and that she promised verbally to sign a writing to that effect whenever called upon, even though the only consideration for said promise was that the defendant would locate its depot at a particular place named.</p> <p>3. Same. Right of way. Damages. Disclaimer. Burden of proof.</p> <p>Where the owner of lands brings suit in trespass against a railroad company for excavations and entry upon his land for a right of way, proof that the plaintiff with full knowledge of all the facts relinquished all damages because of said alleged trespass will operate as a complete defense to the action, the burden of proving the disclaimer and its extent being upon the defendant.</p> <p>4. Same. Character of the use. Private, not public.</p> <p>The grant of lands to a railroad. company for its right of way is for a private, and not a public use.</p> <p>5. Trespass upon Lands. Notice to refrain from entry. Subsequent acquiescence.</p> <p>Where the owner of land has previously forbidden a party to make an entry</p> <p>upon his land, such party cannot by mere acquiescence on the part of the owner, obtain a right to do so.</p> <p>6. Practice. Immaterial amendment. Case in judgment.</p> <p>C. brought suit against N., J. and C. R. R. Co. for damages in the sum of five hundred dollars. After the conclusion of the argument of counsel for plaintiff, leave was obtained to amend the declaration and bill of particulars so as to claim seven hundred and fifty dollars. Defendant objected to the granting of the leave to amend, pn the ground that it was an amendment of material allegation of the pleading, and that it operated as a surprise. The jury found for the plaintiff in the sum of two hundred and fifty dollars, and from the judgment defendant appealed to this court. Held, that no injustice was done defendant by the leave to amend granted, the verdict of the jury being for an amount less than that originally laid in the declaration.</p> <p>7. Railroads. Power to locate depots, limitations upon the power.</p> <p>The railroad authorities have unlimited power to locate their depots for the best interest of the community and of the road, even though a money consideration be paid therefor, but they cannot make a matter of commerce of them as a punishment to a non-subscribing town.</p>

Hon. L. McLaurin, Chancellor. On the 3d day of July, 1883, the appellees filed their bill in the chancery court, praying a personal decree against Mary G. Clarke, appellant, executrix of the last will of Charles B. Clarke, deceased, for half of the proceeds of a certain promissory note described in the will, upon the following state of case: In the year 1859 Charles B. Clarke, now' deceased, gave his promissory note to Gibson Clarke for three thousand dollars, bearing ten…

Hon. F. A. Critz, Chancellor. On the 20th day of February, 1877, Lewis E. Smith executed to - George G. Dillard, as trustee, for the benefit of P. W. Phillips, a deed of trust upon certain described land and personal property to secure the payment of two thousand dollars, evidenced by the promissory note given by Smith to Phillips of same date, to cover advances and plantation supplies for the current year, and payable December J, 1877.

Hon. Warren Cowan, Judge. The facts are stated in the opinion. The only question I will notice in this case is that of the exclusion of the testimony offered in the lower court respecting threats of personal violence made by the deceased against the prisoner before the killing, and especially the threat made in Ryan’s store a short time before the encounter and immediately communicated to the prisoner.

<p>1. Criminal Law. Indictment. Evidence befo/e grand jury.</p> <p>The court cannot inquire into the character of the evidence before the grand jury upon which an indictment is found.</p> <p>2. Special Venire. Fraudulent names in jury box. Case in judgment.</p> <p>A special venire was being drawn when it appeared that certain names had been put into the box fraudulently. The court ordered the box to be purged of the fraudulent names and the drawing to proceed. Meld, that this was not error.</p> <p>S. Jurors. Compelling accused to challenge each as presented.</p> <p>It is not error in a capital case to compel the accused to challenge the jurors as they are presented.</p> <p>4. Same. Competency. Discretion of court.</p> <p>One juror stated that he was “ a cousin ” of a party indicted for the same offense as the prisoner on trial. Another stated that he “ had a sympathy for the boys ” on trial. The court set both aside. Meld, that it was in the discretion of the court to do so.</p> <p>5. Same. Power of the court. Impartial jury.</p> <p>The court always has power to impanel an impartial jury, and when it is clearly ■ seen that such only is the effect of its ruling it will be sustained.</p> <p>6. Witnesses. Put under the rule. Right to examine one who remains -in court-</p> <p> room. </p> <p>Allowing a witness to be examined who remained in the room while all the others are under the rule is a matter wholly within the discretion of the court and is not assignable as error.</p> <p>7. Trial. Prolonging the term,. Conflicting with a special term. Case in judg-</p> <p> ment. </p> <p>The term of court expired while a ease was on trial. The term, being prolonged under the statute, happened to fall on a day fixed for a special term of court. The trial was proceeded with and concluded, notwithstanding the conflicting terms. Held, that this was not ground for error, the accused being in no way injured thereby.</p>

Hon. E. G. Peyton, Chancellor. The facts are stated in the opinion. We insist, first, that Williams was indebted to Marshall for negroes, and his verbal agreement to pay to his children did not alter the statute of limitation. The claim was barred, then, three years from the date of the transaction, to wit, 1860.

Hon. W. G. Phelps, Chancellor. The facts are stated in the opinion. 1. Under the terms of the second post-nuptial settlement, the fund therein secured in default of appointment or desire by Mrs. Betsy Johnson was to be held by the trustee for “ her heirs,” and by apt technical language all the marital rights of the husband were excluded. The words of exclusion are strong enough to have excluded curtesy if the subject of the second trust had been land.