Volume 62 — Mississippi Reports

Hon. T. J. Wharton, Judge. In 1873, when C. T. Harrison was deeply indebted, a certain tract of land was bought by him of O. P. Barrett and the title thereto taken in the name of his wife, Nannie J. Harrison.

<p>Appeal from the Chancery Court of Scott County.</p> <p>Hon. T. B. Graham, Chancellor.</p> <p>The bill in this cause was filed by W. H. Lacey, as the sole heir of his father, J. B. Lacey, deceased, to enforce specific performance of a bond for title to a certain tract of land, given by J. C. Harper and Lod Moore to J. B. Lacey. Ann H. Harper, the widow of J. C. Harper (he being dead), and administratrix of his estate, and the children of the decedent, were made parties defendant to the bill. Ann H. Harper demurred to the bill because of the failure to make Lod Moore a party to the suit. The demurrer was overruled and the defendants answered.</p> <p>The allegations of the bill and the scope and effect of the evidence are sufficiently stated in the opinion of the court. The deposition of the complainant was taken to show that he had never had in his possession the title-bond above referred to, and did not know and never had known who had the same, the object being to establish the loss of the bond, with the view of proving its contents by secondary evidence. His deposition was confined to the points indicated, and the contents of the bond were proven by other witnesses. The defendants made a motion to suppress the complainant’s deposition, but the motion was overruled. Upon final hearing the court rendered a decree ordering a conveyance of the interest of J. C. Harper, deceased, in the land embraced in the bond for title to be executed to the complainant. From this decree Ann H. Harper appealed to this court.</p> <p>The demurrer should have been overruled and the court was correct in overruling the same, because Moore was not a proper party to this suit. Nothing was sought of Moore and nothing was sought of Harper that affected Moore in any way. The bill shows that at the time of the purchase and sale of the land there was a separation and division of the interest of each of Harper and Moore — each taking notes for his half of the purchase-money payable to himself, and not payable to them jointly but severally. The bill then shows that Harper has been paid the amount agreed to be paid to him, and asks that he, or his administratrix, be required to deed to complainant whatever interest said J. C. Harper had in the land.</p> <p>The appellee did not testify to establish his claim against the estate of a deceased person, he only said he did not know anything. as to the whereabouts of the bond for title, or whether such title-bond ever existed or not. Discard his testimony out of the case, and then we have shown all we could show and by the best testimony.</p> <p>The court allowed the complainant, W. H. Lacey, to testify as to the loss of this title-bond. Now the statutes of our State declare that “ no person shall testify as a witness to establish his own claim of any amount for or against the estate of a deceased person, which originated during the lifetime of such person.” Rev. Code 1880, § 1602. Now what is meant by claim? Does the demand of complainant to have the administratrix make him a deed to this land fall within the provision of the statute? It has been held time and time again that any right or demand whatsoever, against the property, either real or personal, of a dead man, is a claim within the meaning of the statute, if such a right originated during the lifetime of such deceased person. Lamar v. Williams, 39 Miss. 347; Rothehild v. Hatch, 54 Miss. 560. See also Jack v. Bride-well, 51 Miss. 887; Jones v. Sherman, 56 Miss. 564.</p> <p>But if every fact set out in the bill be true, still this suit should have been abated and the demurrer for want of proper parties sustained. By statute of our State all parties holding land jointly are made tenants in common. Now it seems to be well settled that tenauts in common of an undivided interest must either sue or be sued jointly, on rights connected with the land. Story’s Equity Pleading, § 159. See also Fellows v. Williamson, 17 Vesey Jr. 312 ; Calvert v. Bradley, 16 How. (U. S.) 580; Foley v. Addenbrooke, 4 A. & E. 197; Bradburn v. Botjield, 14 M. &. W. 589.</p>

Hon. S. H. Terral, Judge. The case is stated in the opinion of the court. 1. It is only necessary under § 2688, Revised Code of 1880, in order to repel the statute of limitations that an acknowledgment of the debt be made in writing by the party chargeable therewith.

H. W Williamson, Chancellor of the fifth judicial district, on habeas corpus. Cornelia Fullilove sued out the writ in this case against Peter and Rachel Banks, husband and wife, to obtain the custody of her child, a son seven years old. The evidence adduced at the hearing of the petition established these facts : The parties are all negroes. The petitioner is an unmarried woman and her child illegitimate.

Hon. T. B. Graham, Chancellor. On the 3d of February, 1880, Philip Hart sued P. H. Jones in the circuit court for four hundred and thirty-eight dollars and twenty-seven cents. On the 9th day of that month Jones executed to R. N. Eubanks, as trustee, a deed of trust upon certain lands to secure an alleged debt of the grantor to his mother, Nancy Jones. At the August term, 1880, of the court, Hart recovered a judgment in his action against Jones.

Hon. T. J. Wharton, Judge. A sufficient statement of the ease will be found in the opinion of the court. The first instruction asked for the defendant and granted by the court is erroneous, for it misleads the jury into the belief that they cannot render a verdict against the defendant for the damage done by stock not actually owned by Handy. This we conceive is not the law.

Hon. Ralph North, Judge. The case is stated in the opinion of the court. On the death of the defendant in attachment the suit is in rem if it be continued without revivor, and cannot afterward be revived against the administrator. Code of 1880, § 2466; Holman v. Fisher, 49 Miss. 472; Lewenthal v. Miss. Mills, 55 Miss. 101. Without the statute, § 2466 supra, death dissolved the attachment, and the suit abated. Drake on Attachments, § 443.

Hon. T. J. Wharton, Judge. J. B. Eoss sued the Natchez, Jackson and Columbus Eailroad Company for one hundred and fifty dollars, as damages for the alleged killing of a mule. At the trial the plaintiff proved his ownership of the mule, and the 'killing by a locomotive being run by an employee of the defendant, and then rested his case.

Hon. T. J. Wi-iarton, Judge. H. A. Hedrick brought this action against the Vicksburg and Meridian Eailway Company to recover one hundred dollars as the value of a mule alleged to have been killed by one of the defendant’s trains. At the trial one witness testified for the defendant and related what he said were the circumstances attending the killing of the mule. His testimony was in conflict with that given for the plaintiff.

Hon. Warren Cowan, Chancellor. The case is sufficiently stated in the opinion of the court. Before the passage of the act in question the powers of a chancery court to set aside a sale for inadequacy of price was confined to cases where the inadequacy was so gross as to raise a presumption of fraud per se.

Hon. B. F. Trimble, Judge. On the 6th of March, 1 §82, certain lots of land situated in the town of Greenville were sold by the sheriff and tax collector for the taxes of 1881, and were struck off to the State. On the 7th of March, 1883, the lots not having been redeemed by the former owner, they were sold and conveyed by the auditor of public accounts to O. B. Crittenden.

Hon. Ralph North, Judge. On the 9th day of January, 1884, the firm of Wright Bro’s sued out an attachment against Henry Woods, returnable to the March term, 1884, of the circuit court.

Hon. F. A. Critz, Chancellor. In March, 1873, J. B. Allgood was, by the Chancery Court of Noxubee County, appointed guardian of the person and estate of Elizabeth Neill, a lunatic, and as such guardian received the sum of three thousand two hundred and fifty-six dollars and thirty-eight cents.

Hon. T. J. Wharton, Judge. J. A. & A. J. Matlock, on the 24th of January, 1882, borrowed two hundred and fifty dollars of E. S. Cobb, but gave him their promissory note for three hundred dollars, due on the 1st of January, 1883, with interest at ten' per cent, per annum, and to secure payment of their note they executed a deed of trust upon a certain tract of land belonging to them. On the 1st of January, 1883, the makers of the note paid fifty dollars thereon.

Hon. Warren Cowan, Chancellor. Formerly the Mississippi Siver ran immediately by the city of Vicksburg, but by a change in its course in the year 1877 it left that city about a mile from its channel, thereby greatly damaging the harbor there, which became dependent upon a lake that for some years prior to the inception of this controversy, in January, 1884, has been navigable only a part of each year.

Hon. T. J. Wharton, Judge. The case is stated in the opinion of the court. It is incumbent upon plaintiff to establish the value of the ties and the number used by the company. A review of the whole testimony discloses the fact that Bolls neither established the value of his ties nor the number used by the defendants. As to number, his testimony is only as to what were rejected and not what were used.

Hon. T. J. Wharton, Judge. This action of ejectment was brought by M. Wolerstein against Ada Bunch and others to recover certain lots of land in the possession of the defendants. The defendants plead “ not guilty,” and a trial was had upon an agreed statement of facts.

Hon. E. Gr. Peyton, Chancellor. The bill in this case was filed on the 3d day of March, 1884, by Mary Day Strong and others against Sim. Harrison, sheriff, and others. The prayer of the bill was for an injunction prohibiting Harrison, as sheriff, to sell under executions held by him certain lands described in the bill, for an account to ascertain the amounts due on the executions, and for general relief. The Chancellor granted a temporary injunction.

1 Hon. Kalph North, Judge. A statement of the case will be found in the opinion of the court. It is submitted that Stanton, the workman whose negligent and improper conduct is complained of, was the agent and servant of the city, and that the doctrine of respondeat superior applies.

Hon. T. J. Whabton, Judge. On the 15th of April, 1882, David Warner executed a deed of trust upon his crop to be grown that year, his horses, mules, cattle, and other personal property, to secure the payment of his promissory note of that date, given to Black, Todd & Co., merchants, for the sum of four hundred and twenty-three dollars and fifty cents, then advanced or to be thereafter furnished in money and supplies by them to him during that year.

Hon. W. G. Phelps, Chancellor. W. K. Ingersoll filed the bill in this case against F. W. Anderson, sheriff and tax collector of Issaquena County, to obtain an injunction restraining the defendant from collecting certain taxes claimed by him as due for the year 1883 upon a tract of land in the county named, belonging to the complainant.

<p>Appeal. Amount in controversy. Statutory damages.</p> <p>Tlie statutory damages allowed where the plaintiff recovers a judgment in the circuit court upon the defendant’s appeal from a justice of the peace’s court cannot he reckoned so as to make the amount in controversy sufficient to give this court jurisdiction of an appeal.</p>

Hon. B. F. Trimble, Judge. The case is sufficiently stated in the opinion of the court. 1st. We submit that the deed of trust ought to have been excluded from evidence, because it was imperfectly attested and improperly admitted to the record. In Wilkins v. Wells, 9 S. & M. 325, the court first decided that a deed attested and proved by only one witness was improperly admitted to record. Upon re-argument, it was decided the other way by a divided court.

Hon. W. G. Phelps, Chancellor. In May, 1873, J. H. Wright and Jennie E. Brander, being the joint owners of two plantations known as the Boykin Place and the Goff Place, bought of Godfrey Frank another tract of land, which, being contiguous to the former place, was added to it.

Hon. S. H. Terral, Judge, J. B. Mortimore, a merchant in the city of Meridian, brought this suit against L. A. Eagsdale, the proprietor of a warehouse there, to recover the value of thirty-nine bales of cotton which the plaintiff claimed as the holder and owner of certain warehouse receipts given by the defendant.

Hon. C. H. Campbell, Judge. Albert Murphy was indicted under § 2917 of the Code of 1880 for cutting and wounding two oxen belonging to John Stephens. The evidence at the trial tended to show these facts : Murphy, who was in the employ of a man named Carlisle, was sent by the hitter to drive cattle out of the latter’s cornfield, and while driving out the cattle he cut and wounded Stephens’ oxen.

Hon. T. J. 'Whaeton, Judge. The appellant was tried and convicted on a charge of larceny. The substance of the evidence adduced at the trial is stated in the opinion of the court. For the State the court gave the following instruction, and the defendant excepted : “ 4.

Hon. T. J. Wharton, Judge. The Vicksburg and Meridian Railroad Company was indicted for keeping and running a “ trading car ” on its road without having paid the privilege tax imposed upon such business by § 585 of the Code of 1880, and having obtained the license required. The defendant plead not guilty.

Hon. T. J. Wharton, Judge. Oscar Chambers was indicted for the larceny of an ox. The State proved that the ox was the property of E. S. Cobb, was taken away without his consent or knowledge, and was found in the possession of the defendant, who, under an assumed name, was trying to sell the ox as his own.

Hon. S. H. Teeral, Judge. In an action before a justice of the peace, J.M. Buntyn recovered a judgment against Joseph Baum, for one hundred and forty-four dollars and twenty cents.

<p>Appeal from the Circuit Court of Lauderdale County.</p> <p>Hon. S. H. Terral, Judge.</p> <p>The nature of this action, the effect of the evidence adduced, and the result of the trial are sufficiently indicated in the opinion of the court.</p> <p>The instructions given for the plaintiff, excepted to by the defendants, assigned for error here and passed upon by this court, are as follows:</p> <p>“1. The court instructs the jury in behalf of the plaintiff, that if they believe from the evidence that the plaintiff, under contract for that purpose, furnished the material and did the work for which he sues at the request of the defendant or under the instruction of the architect, then they will find for the plaintiff the amount of the value of such work and material estimated at reasonable prices under the proof.</p> <p>“ 2. If it appears from the contract that Baum & Co. have reeeived the work, material, and labor of plaintiff under a contract for the same, the defendants are bound by law to pay a reasonable price therefor.</p> <p>“ 3. The defendant having pleaded and proved that Zucker (the architect) was to superintend the erection of the building and see that the contract and plans were complied with, and that no payment was to be made by the defendants except upon the certificate of said Zucker, and the defendant having introduced in evidence the certificate of Zucker as to this extra work, the defendants are bound by such certificate so far as the same is authorized by and in conformity to the building contract.</p> <p>•'* 4. If plaintiff agreed to build a house of certain dimensions at a certain price, on a certain old foundation, and it turnecl out that the foundations were larger than the house agreed to be built, and that the plaintiff at the request of the defendants or their architect built a house larger than that contracted for, so as to make the same conform to the old foundation, then plaintiff was and is entitled to pay for such additional work pro rata.</p> <p>“7. If the defendants employed Zucker as the architect and superintendent of the building, and Zucker had control of the work and authority to order how it should be done, the defendants are bound by the actions of said Zucker in respect to said work, so far as Zucker was authorized to bind them in the building contract.</p> <p>“ 8. The defendants having introduced the certificate of Zucker, it is to be considered as testimony adduced by them, and by the introduction of the same they are to be considered as indorsing the same as worthy of credit.”</p> <p>Neither the gas fixtures nor the tables come within the meaning of the statute touching the enforcement of the mechanic’s lien. Code 1880, § 1378.</p> <p>The first instruction given for Covert, the plaintiff below, was clearly erroneous.</p> <p>The court gives the jury to understand by the first of this instruction that it was immaterial whether the work was done and materials furnished under a written or verhal contract, whilst the written building contract provided that it should be in writing, and the price therefor agreed to before the work was commenced.</p> <p>Further, the court informs the jury by this first instruction that Zueker, the architect, had the authority to bind Baum & Co. by simply instructing Covert, the contractor, to do the extra work. All the authority Zueker had in the premises was derived from the written building contract, and no such authority by that contract is conferred.</p> <p>Counsel for defendant in error seems to rely on that clause of the building contract which reads thus :</p> <p>“ Any deviation in this contract in the form, or an extra, or deduction of the Avork by the written order of the architect, or owners of the buildings and countersigned by the architect, shall not make void the other parts of this contract, but they shall have their full value.”</p> <p>No such authority is conferred by this clause, and is it not inconsistent with that clause of the contract where it provides that, “ The price of extra work will have to be agreed upon before stax’ting with the same ” ?</p> <p>Neither is that clause of the contract x*elied upon by opposite counsel inconsistent with that clause of the contract under the head of “ (3-eneral Stipulations,” where it says: “-No'extra work will be allowed unless px-evieusly agreed upon, and such agreement entered into in writing.”</p> <p>We think second instruction given plaintiff below also erroneous for the reason that it was calculated to mislead the jury, and because it was not applicable to the evidence.</p> <p>1 It nowhere appears from the contract that Baum & Co. had received the work, hence the instruction was inapplicable and not pertinent — besides, it leaves construction of contract to jury. 2 S. & M. 388; 10 S. & M. 507 ; 13 S. & M. 532; 39 Miss. 147; 4 Cush. 468; 34 Miss. 116; 39 Miss. 335; 30 Miss. 606; 38 Miss. 280 ; 42 Miss. 607 ; 46 “Miss. 274; 48 Miss. 451; 55 Miss. 414; 55 Miss. 403; 55 Miss. 623; 52 Miss. 499-500; 52 Miss. 149, and 50 Miss. 360.</p> <p>Further, the court assumed it to be a fact that it did so appear from the contract. This was error. Dunlap v. Hearne, 37 Miss. 471; 35 Miss. 165; Barker v. Justice, 41 Miss. 240.</p> <p>The third and seventh instructions for plaintiff below, Covert, are in our opinion manifestly erroneous in this, that they refer the construction of the written building contract to the jury to be settled by them.</p> <p>It is the court that determines the construction of a contract. Ala. Life Ins. Co. v. Herron, 56 Miss. 643-648 ; Fairly v. Fairly, 38 Miss. 280; Beasley v. Evans, 35 Miss, (opinion) 196; 2 Parsons Cont. (3d ed.) p. 4, note 6 ; 1 Greenleaf on Evidence (8th ed.), p. 366, § 277.</p> <p>The fourth instruction for plaintiff below is objectionable and erroneous.</p> <p>1. Because the court assumes it to be a fact that the plaintiff below agreed to build a house of certain dimensions for a certain price on certain old foundations, and that it.turned out that the foundations were larger than the house to be built, etc. The court should have submitted the matter to the jury, as it was a matter in regard to making the building larger to conform to the old foundations. 37 Miss. 471; 35-Miss. 165; 41 Miss. 240.</p> <p>2. Because by said instruction the court informs the jury that if Zucker ordered the house to be enlarged it would bind Baum & Go. The proper construction of the contract is, that Zucker had no such authority, and if Zucker possessed any authority in that particular at all, it could only have been exercised by a written order, and Covert testifies there was no written order.</p> <p>As to the eighth instruction for plaintiff below we say:</p> <p>The party calling a witness, even if he is sworn and examined, does not thereby indorse his credibility. Jarnigan v. Fleming, 43 Miss, (opinion) 724; 1 Starkie on Evidence 159.</p> <p>By the first instruction for Covert the court informs the jury that if the extra work was done under the instructions of Zucker, they would find for Covert (the plaintiff below), whilst in other instructions the court referred the matter of the construction of the contract to the jury, for them to ascertain what Zucker’s authority was. This was improper, and left the jury without any safe guide. 40 Miss. 45; lb. 374; 41 Miss. 584; 13 S. & M. 39; 55 Miss. 476; 56 Miss. 269. .</p>

Hon. R. W. Williamson, Chancellor. The bill in this cause, filed by J. N. McLean against G. C. Phillips and J. E. Gwin, shows that Gwin holds the promissory notes of Phillips, given for the purchase-money of a piece of land bought of McLean, as collateral security for debts due him by the complainant individually and as a member of the firm of G. A. McLean & Co. It seeks to ascertain the amount due Gwin by the complainant and G. A. McLean & Co., to collect the notes of G. C.…

Hon. B. F. Trimble, Judge. O. B. Crittenden brought this action of ejectment to recover of W. H. Corburn the possession of “ Lot 11 in Block 20 of the Huntington and Leavally addition to the town of Greenville.” At the trial the plaintiff in support of his title first introduced in evidence the list of lands sold by the sheriff and tax collector to the State on the 6th day of March, 1882, for the taxes due thereon for the year 1881, which list embraced the lot in controversy.

Hon. A. G. Mayers, Judge. The case is stated in the opinion of the court. 1.

Hon. S. H. Terral, Judge. Calvin Ingram was indicted for the murder of Jack Ingram. The killing was not denied by the accused. It was witnessed by the wife and little son of deceased and the wife of the accused. The first two named testified for the State and the latter for the defendant, who also testified. The evidence as to the circumstances attending the killing was broadly conflicting. For the State the court gave, among others, the following instructions : “ 3.

Hon. F. A. Critz, Chancellor. Frances A. Jeffries, a married woman, and Walter J. Tate, an infant, who was non compos mentis, were tenants in common of a certain tract of land, and upon a bill in chancery filed for the latter by his next friend, a decree was rendered in the year 1859 ordering, in accordance with the prayer of the bill, a sale of the land on credit for partition. In the same year the sale was made and in 1860 it was confirmed.

Hon, Sylvancs Evans, Chancellor. On the 9th of April, 1884, the Excelsior Manufacturing Company brought an action in the circuit court to recover of Robert Keyser the price and value of goods sold him by the plaintiff during the year 1883; and on the next day the plaintiff’s agent made and filed an affidavit stating that the defendant had in his possession certain described goods which were a part of the goods sold by the plaintiff to the defendant, and for th'e price and…

<p>Appeal from the decision of Hon. Sylvanus Evans, Chancellor of the Seventh Judicial District, on habeas corpus.</p> <p>The case is stated in the opinion of the court.</p>

Hon, B. F. Trimble, Judge. The case is stated in the opinion of the court. The law never contemplated that rents of school sections should be collected by distress. See Code of 1880, §§ 732 and 737 inclusive, where the manner of leasing school lands, the nature of the security to be taken, and the persons to whom it is to be given, and the remedy for the collection of the rents are clearly stated.

Hon. Ralph North, Judge. This is an action by J. M. Ryan and others against the Mississippi Yalley and Ship Island Railroad Company to recover damages for the appropriation by the defendant for a right of way of a strip of land belonging to the plaintiffs. The pleas of the defendant set up the six years’ statute of limitations as a bar to the action, and also claimed a right of way by adverse possession for the period of ten years.

Hon. S. H. Terral, Judge. John Grissom, who was convicted of murder and sentenced to be hanged, upon a state of facts sufficiently indicated in the opinion of-the court, appealed from the judgment against him, and assigned for error, among other grounds, the giving of the second and sixth instructions for the State, which are in the following language : 2. “ If the act producing death be such as-is ordinarily attended with dangerous consequences, as by the use of a deadly…

Hon. J. M. Arnold, Judge. The case is sufficiently stated in the opinion of the court. The judgment in this case should be reversed, because the verdict is unwarranted in view of the evidence.

W. S. Eeatherston, Judge of the second judicial district, on habeas corpus.

Hon. S. H. Terral, Judge. The case is sufficiently stated in the opinion of the court. 1. The appellee is liable in this action under § 989 of the Code of 1880. The language of the statute is plain and unambiguous, and the trespass of appellee comes fairly within its provisions.

Hon. A. T. Roane, Judge. This action of replevin was instituted on the 11th day of February, 1884, by J. H. Bernard, as trustee in a deed of trust, against John Armistead, to recover the possession of two mules.

Motion in supreme court. The appellee made a motion to strike out of the record in this case the bill of exceptions therein contained, on the ground that it was not presented to and signed by the judge within the time prescribed by statute for the presentation and signing of such bills. The bill appears to have been signed by the judge on the 3d day of July, 1884.

<p>Appeal from the Circuit Court of Chickasaw County.</p> <p>Hon. J. W. Buchanan, Judge.</p> <p>Henry Thomas, being in custody under indictment for larceny, gave a bond for his appearance at the next term of the circuit court, with E. W. Jones as his surety, and was released. He failed to appear as required by his bond, and a jugment nisi was rendered against him and his surety. Upon this judgment a scire facias was issued, commanding the sheriff to summon the defendant to •■show cause why the same should not be made final. This writ was returned with the following indorsement as to service: “ Executed on Henry Thomas and E. W. Jones by reading this writ to each of them.” The return was dated and signed by the sheriff. Thomas .and Jones failed to appear as commanded by the scire facias, and ■thereupon a judgment was entered against them making the judgment nisi a final judgment. . They then appealed to this court.</p> <p>. Section 1535 of the Code of 1880 provides that writs of scire facias shall be executed and returned in the same manner as a summons.</p> <p>In the case of French v. The State, 53 Miss. 651, it is held that the return on a summons, “executed personally on E. by exhibiting .and reading to him the contents of this writ,” would not support a judgment by default, because it not only fails to show but impliedly negatives delivery of a copy of the writ.</p> <p>The rigorous rule prescribed by 'the Code of 1871 for the service of process has been relaxed by the salutary provision in the Code of 1880 that it shall not be necessary for the officer in any case to state the particulars of the service, but a general return of “ executed” shall be sufficient. Code of 1880, § 1528.</p> <p>Under the Code of 1871 it would have been necessary for the officer, in a case of this kind, to state with great particularity, “ Executed the within process this day upon the defendant in person, by handing to him a true copy thereof,” and no other return would have supported a judgment by default.</p>

Hon. Baxter McFarland, Chancellor. Upon a bill filed by Sarah E. Rice and others, legatees under the will of S. S. Ewing, deceased, against W. W. Troup, the executor,, to compel a final settlement of the testator’s, estate, a decree was rendered on the 2d of September, 1878, in the Chancery Court of Monroe County.

Hon. J. G. Hall, Chancellor. From an order of the court below' setting aside a pro confesso• order and allowing the defendants, Henry Rosenbaum and others, to file their answer, the complainants, John Bryant and others,, appealed to this court. No bill of exceptions appears in the record, but it contains several affidavits, filed in support of the motion upon which the order appealed from was based.

Hon. J. W. Buchanan, Judge. The case is stated in the opinion of the court. Before any one can rightfully claim the reward given by § 3035, B. C. 1880, it must be shown that claimant arrested 'the slayer before any other arrest, and that the slayer was fleeing, or attempting to flee, when the arrest was made.

Hon. J. W. Buchanan, Judge. On the 2d of March, 1881, J. B. Busby executed a deed of trust on eighty acres of land to Newman Cayce, as trustee, to secure the payment of a debt which the grantor owed M. C. Cummings. Busby was then a married man, and residing with his family upon the land embraced in the deed of trust as his homestead. His wife did not join in the conveyance. In January, 1882, he moved with his family away from the land referred to.

Hon. A. T. Roane, Judge. On tbe 1st of January, 1883, an attachment, returnable to the Circuit Court of Tate County, was issued at the suit of Hillard, Armistead & Lundee against N. W. Ward, as the sole member of the firm of N. W. Ward & Co. This writ was on the next day levied upon a certain described tract of land as well as other property. Upon an affidavit, styled a “ supplemental affidavit,” stating that they had discovered that W. T1.

Hon. C. H. Campbell, Judge. The case is stated in the opinion of the court. Suppose the gin did not come up to representations, did defendant have the right to keep it through an entire ginning season and then decline to pay anything for it ? Say that he did notify the plaintiffs that it was subject to their order, was the offer in good faith ? If so, why did he still keep and use it during the balance of the ginning season and never stop using it at any time.

Hon. W. S. Featheeston, Judge. On the 2d of December, 1881, W. F. Fryar executed a deed of trust upon a certain tract of land to E. E. Fryar as trustee, with the recital that it was if to secure the payment of five hundred dollars, which I [the grantor] 'owe to A. S. Fryar, which is evidenced by my notes of this date, due and payable as follows : one note for one hundred and sixty-six dollars, due on the 1st of December, 1882; one note, dueon the 1st of December, 1883, for…

<p>1. Estoppel. Declaration as to title by owner of land. Case in judgment.</p> <p>C. sold and conveyed a tract of land to S., but reserved an express lien for the unpaid part of the purchase-money. S. procured R. to buy the land, and stated to him that the legal title was in C., whom he got to make a conveyance of the land to R. Held, that by his conduct S. is estopped to set up his title against that acquired by R.</p> <p>2. Same. 4s to statute of frauds. Owner of lf¡gal title. Purchaser.</p> <p>And though there be no written memorandum of such transaction as between S. and R., the former cannot invoke the statute of frauds to defeat the latter’s title; nor can a purchaser of the land under a judgment against S., having notice of R.’s claim, do so.</p> <p>3. Possession oe Land. Notice of claim.</p> <p>Possession of land, with claim of title, is notice to the world of the possessor’s claim.</p> <p>4. Promissory Note. Indorsed after maturity. Pre-existing equities.</p> <p>Where the payee of a promissory note indorses it after its maturity, the indorsee takes it subject to all defenses which might have been made against it in the hands of the payee.</p>

Hon. C. H. Campbell, Judge. In August, 1884, V. C. Butt presented to the Board of Supervisors of Montgomery County, a claim for one hundred and thirteen dollars and sixty-two cents, which he alleged was due him as commissions on the poll-taxes of the years 1880, 1881, and 1882, collected by him as sheriff and tax collector of the county, and had been through a mistake of law paid into the county treasury.

Hon. R. W. Williamson, Chancellor. J. D. Butler, having bought a tract of land which he was unable to pay for, procured Jackson Martin to pay the purchase-money thereof, and on the 18th of November, 1871, caused the legal title to the same to be conveyed to Martin by an absolute deed in order to secure the repayment of the money thus advanced with interest, it being verbally agreed between Martin and Butler that upon such repayment the former should convey the land to the…

Hon. C. H. Campbell, Judge. Reuben Wood, being under indictment for carrying a concealed weapon, his case was called for trial, and the jury having been accepted by the State’s attorney, “ the defendant was asked to pass upon the jury.

<p>1. Habeas Corpus. Fkamination of charge against relator. Presumption in absence of evidence.</p> <p>Wliere, upon an appeal from the decision of a judge refusing to discharge the appellant on a writ of habeas corpus, the record fails to show that the justice of the peace upon whose mittimus the relator was held in custody made any examination of the charge against the relator, this court will presume, in the absence of evidence upon the point, that such examination was waived by the accused.</p> <p>2: Same. Application of one accused of crime. Failure of grand jury to indict. Showing required.</p> <p>Where one who has been committed to jail by a justice of the peace on a criminal charge seeks to be discharged from custody by a habeas corpus proceeding on the ground that since his commitment a regular term of the circuit court having jurisdiction of his case has been held and no indictment has been found against him, he must show in addition that the charge against him was fully investigated by the grand jury.</p> <p>The guaranty of a “ speedy trial,” provided by l 7 of article 1 of the constitution, in favor of the accused in a criminal prosecution does not preclude the State from a reasonable opportunity to examine and prosecute the charge.</p> <p>3. Criminal Prosecution. Reasonable time therefor. “Speedy trial.”</p>

Hon. J. M. Arnold, Judge. On the 8th.of March, 1883, a judgment was rendered by a justice of the peace in favor of W. H. Newlon against Annie F. Smith for the sum of one hundred and eight dollars. Upon this judgment an execution was issued on the 19th of March, 1883, and returned the next, day with the indorsement of the constable that after a diligent search he could not find in his county any property of the defendant subject thereto.

Hon. F. A. Critz, Chancellor. On the 9th of November, 1881, James Ballard and A. W. Ballard executed a deed of trust upon a certain tract of land to C. Bridges as trustee, to secure to T. M. Bridges the payment of three promissory notes of the same date, each for two hundred dollars, and due, one on the 1st of January, 1883, one on the 1st of January, 1884, and the other on the 1st of January, 1885.

<p>Appeal from the Circuit Court of Yalobusha County.</p> <p>Hon. W. S. Feathekston, Judge.</p> <p>Alien Dawson, having been convicted, of arson, appealed to this court and assigned for error, together with other assignments not noticed by this court, the action of the court below in giving the third instruction for the State. That instruction.is set forth in the opinion of the court.</p> <p>Instruction No. 3 for the State is a charge upon the weight of evidence and is erroneous. Thomas v. The State, 61 Miss. 65; Simmons v. The State, lb. 244; Allen v. The State, 63 Ind. 589. If the defense of an alibi is good when proved, it is extremely wrong to tell the jury that it is good when proved, but to handicap it with the qualification “ that such testimony should be weighed and considered with great caution,” etc. The circuit court by this instruction virtually said to the jury, “ An alibi is good, but we don’t think one has been proved in this case, and you must bestow more care in determining this than any other fact. It requires extra scrutiny from, you.” In Simmons v. The State, 61 Miss. 259, speaking of the defense of an alibi, the court say, “ This defense is like any other, and should be left to the jury uninfluenced by instruction calculated to excite prejudice against it or throw discredit upon it.”</p> <p>We respectfully submit that this instruction is much calculated to raise a great, distrust in the minds of the jury and to cast great suspicion upon the defense of the alibi. We know of no rule of law which attaches a suspicion to evidence tending to prove an alibi any more than it does to evidence tending to prove any other fact. It was a criticism upon the particular evidence wrong in principle and naturally operating to its prejudice and hurt. The poison was instilled by the criticism, and the antidote administered in the conclusion of the instruction was not sufficient to counteract its effects.</p> <p>The instruction complained of is an exact transcript of the one given in Nelms v. The State, 58 Miss. 362, with the addition which, in that case, the court said would make it a good charge.</p> <p>It is different from the charge held bad in Simmons v. The State, 61 Miss. 243. There the defense was “to be viewed with peculiar suspicion and distrust,” because of “ the ease with which it may be fabricated and sustained by false testimony and the difficulty with which such fraud and perjury are detected.”</p> <p>In the case at bar the jury are merely cautioned to consider the defense with great care, because, etc., and no especial distinction is made between it and any other defense.</p>

Hon. W. G. Phelps, Chancellor. On the 16th of November, 1880, T. J. Beal, as guardian of James and Susan E. Gates, minors, filed a petition in the chancery court stating that his wards were the only heirs of Sarah E. Gates, who died intestate; that as such heirs they own an undivided two-fourths interest in certain described lands, the other two-fourths belonging to C. L. Jones, L. A. Fitzpatrick, and A. S. Dickson ; and “ that an equal division of the aforesaid real estate…

Hon. Baxter McFarland, Chancellor. During the years 1878, 1879, 1880, and 1881, J. R. McIntosh borrowed from the Tishomingo Savings Institution, through its president, A. PI.

Hon. J. M. Arnold, Judge. A sufficient statement of the case will bo found in the opinion of the court. The first error complained of in this cause is that the court below permitted testimony to go to the jury as to the character of the claimant, J. B. Brinker, over the objection of the plaintiffs. We think this was undoubtedly error.

Appear from the Chancery Court of Monroe County. Hon. Baxter McFarland, Chancellor.

Hon. W. S. Featherston, Judge. This is an action of ejectment brought by Henderson Abies against W. E. Moring to recover the possession of certain lots of land in the town of Coffeeville. The facts developed by the evidence are sufficiently stated in the opinion of the court. A jury was waived and the case tried by the judge of the court below, who rendered a judgment in favor of the plaintiff, from which the defendant appealed to this court.

Hon. F. A. Critz, Chancellor. • The Mobile and Ohio Eailroad Company having failed to pay the interest on its mortgage bonds in 1874, the mortgagees filed in the United States Circuit Court for the Southern District of Alabama a bill in equity for the foreclosure of their mortgage.

.Appeal from the Chancery Court, of Marshall County. Hon. A. B. Fly, Chancellor. On the 25th of July, 1883, Miss Martha Bonner and Addison Craft filed a petition for letters of guardianship of Lilian K. McDowell, a minor, twelve years of age.

Hon. W. Gr. Phelps, Chancellor. In 1871 the complainant,-Bratton, obtainedadecreeagainstthethen owners of the lands in controversy in this suit. He was indebted to his attorneys for their fee and for taxes paid by them to prevent a sale of the lands against which the decree had been rendered.

<p>3. Venue. Change of. Refusal to grant in murder case. Supreme court practice.</p> <p>This court will not reverse a judgment upon a conviction of murder because of the refusal of the circuit court to grant a change of venue, unless it be apparent by the record that there was an abuse of the court’s discretion.</p> <p>2. Murder. Presumption of malice. Sow overcome. Evidence “ to satisfaction of jury.” Instruction.</p> <p>In the trial of an indictment for murder an instruction was given for the State in these words: “Every killing with a deadly weapon is presumed to be malicious and amounts to murder until the ■ contrary appears from circumstances of alleviation, excuse, or justification, and it is incumbent on the defendant to make out such circumstances to the satisfaction of the jury unless they arise out of the evidence in the case; and if the jury believe from the evidence that defendant cut ancL killed deceased with a knife, and that said knife was a deadly weapon, and that at the time defendant so cut and killed deceased he had no reasonable ground to apprehend, from some overt act of deceased, that deceased designed immediately to kill him or do him some great bodily harm, in such case defendant is guilty of murder and the jury should so find.” The first clause of this instruction, which requires the defendant to rebut the presumption arising from the use of a deadly weapon “to the satisfaction of the jury,” would be condemned if viewed alone; but when considered with the latter clause interpreting and applying it, and in connection with proper charges for the defendant as to the burden ■of proof, quantity of proof required of the State, reasonable doubt, and the other phases of the defense, it is not fatally erroneous.</p> <p>3. Same. Use of deadly weapon. Presumption — how rebutted. Evidence “to satisfaction of jury.” Instruction.</p> <p>In the trial of a charge of murder the following instruction was given for the State: “ If the defendant killed the deceased with a deadly weapon, the use of such a weapon is primd facie evidence of malice and an intention to murder; and before this presumption is overcome it must be shown by the evidence, to the satisfaction of the jury, that at the time of the use of such weapon the defendant was in present, urgent, and immediate danger, real or apparent, of losing his life or suffering some great bodily harm from the deceased.” The requirement in this instruction that the defendant shall overcome the presumption arising from the use of a deadly weapon by •evidence “to the satisfaction of the jury,” though improper, is not a fatal .error where the instructions for the defendant liberally declare the law as to reasonable doubt, the burden of proof, the measure of proof required of the .State, and every other phase of the defense.</p> <p>4. Criminar Practice. Instruction requiring evidence “ to satisfaction of jury!’ Criticism.</p> <p>It is a dangerous error for a circuit court to instruct a jury in any criminal case that it is necessary for the defendant to overcome any presumption or establish any defense “to the satisfaction of the jury,” because it tends to impose a greater burden upon the defendant than is sanctioned by law, and to deny him the benefit of any reasonable doubt which may arise from the evidence.</p>

Hon. J. W. Buchanan, Judge. S. H. Buckingham and T. G. Elliott severally own and reside upon adjoining lots in the city of Aberdeen. Held: that no cause of action was in plaintiff.” BaUard v. Tomlinson, Engl. Chancery Division Deports, July 9, 1884; cited in American Law Deview of September-October, 1884, p. 923.

T. W. White, Esq., Special Chancellor, presiding in the place of Hon. J. G. Hall, disqualified because of counsel in the case. A statement of the case will be found in the opinion of. the court. We presume that no one at this late day will contend that the law does not grant the absolute right to dispose of property according to the judgment, free will, and desire of the owner. If, then, such a gift will be upheld by law, how is it to be established ?

<p>1. Criminal Practice. Limitation of argument. Lights of accused. Gase xn judgment.</p> <p>Where in the trial of an indictment for arson twelve witnesses are examined, seven for the State and five for the accused, and the evidence is circumstantial and conflicting, it is error for the court to limit the argument for the defendant, he being represented by two counsel, to one hour, because such limitation may operate as an abridgment of the right of the accused, guaranteed to him by the seventh section of the Bill of Bights of the constitution, “to be heard by himself or counsel or both;” and it is a good ground for reversal of a judgment of conviction in such case.</p> <p>2. Same. Light of accused to make full defense. Power of court to limit argument.</p> <p>The accused in a criminal trial has the right to the time necessary for making his defense fully and fairly, and the trial-court has the power to prevent the abuse of such right of defense by limiting the argument within reasonable bounds, but it should be exercised with prudence and caution, and the court should be too liberal, rather than unjust, to the accused.</p>

Hon. F. A. Critz, Chancellor. On the 27th of February, 1867, R. S. Adams, as administrator of the estate of Wyatt Moye, deceased, obtained a decree against C. A. Oliver for eighteen thousand seven… Held: unless upon notice or repudiation of the trust no statute could apply.

Hon. F. A. Ckitz, Chancellor. The bill in this cause, filed by the Board of Supervisors of Chickasaw County against the Board of Supervisors of Clay County, states substantially the following facts: Pursuant to an act of the legislature, approved February 10, 1860, and to a vote of the people of Chickasaw County at an election held on the 4th of October, 1869, the board of police of that county on the 18th of October, 1869, subscribed one hundred thousand dollars to the…

Eugene Johnson, Esq., Special Chancellor, by agreement of the parties, Hon. J. G. Hall being of counsel in the case. On the 18th of May, 1874, John Bishop bought at a tax-sale, for one hundred and forty-eight dollars and eighty-seven cents, a certain tract of land previously belonging to his sister-in-law, Chloe M. Wilbourn.

<p>Appeal from the Circuit Court of Jones County.</p> <p>Hon. A. G. Mayees, Judge.</p> <p>A statement of the case will be found in the opinion of the court.</p> <p>1. The judgment by default was erroneous because the summons was not served five days before the return day.</p> <p>2. The writ was executed by personal service on E. A. Nesbit, who is not named as one of the defendants and who is nowhere mentioned as a member of the firm except in the return of the officer. There was no legal service as to the firm or any of the partners, and the judgment was void.</p> <p>3. The record not only fails to show that Nesbit was a partner in the firm of Crudup, Tabler & Co., but it is nowhere alleged or shown that the other partners were non-residents of the State or could not be found. Hence the service was not good under § 1519 of the Code 1880.</p>

Hon. T. J. Wharton, Judge. Daniels & Co. sued out au attachment against Samuel L. Boyd & Son and a garnishment against M. Daniel.

Hon. Sylvanus Evans, Chancellor. The bill in this cause was filed by John I. Adams & Co. against M. A. Dees and his wife, Annie S. 'Dees. The defendants answered. Evidence was adduced by both sides, and the case was heard on bill, answer, and proofs.

Hon. S. H. Terral, Judge. C. A. Brougher brought this action of unlawful detainer against Dave Conley to obtain possession, of a certain tract of land which the plaintiff claimed under a tax-title.

Hon. J. B. Chrisman, Judge. This is an action of replevin for two lots of trees which the agent and employees of the defendant had cut and were removing.

Hon. J. B. Chrisman, Judge. This is an action of ejectment brought to recover a certain tract of land, the title to which is claimed by the contending parties from John W. Reynolds, deceased, as a common source. The plaintiff claims as the sole-heir of John ~W. Reynolds ; the defendants claim through an alleged deed from him to Sarah A. Reynolds, deceased, they being her heirs.

Hon. J. B. Chrisman, Judge. This action was brought on the 19th of November, 1883, before a justice of the peace to recover the balance due upon a promissory note for three hundred and eight dollars, payable on the 1st day of January, 1882, with interest at the rate of ten per cent, per annum “ after maturity until paid.” Two payments had been made on the note, on the 3d of January, 1883, aggregating one hundred and eighty-eight dollars and eighty cents.

Hon. Lauoh MoLaurin, Chancellor. On the 11th of April, 1879, M. H. and T. O. Woodruff sold and conveyed to James Lacey a certain tract of land for five hundred dollars, and in their deed of conveyance reserved an express lien to secure the payment of the five notes given by the vendee, each in the amount of one hundred dollars, due respectively on the first days of January, 1880, 1881, 1882, 1883, and 1884, for the aggregate sum of the purchase-money.

Hon. T. J. Wharton, Judge. This is an action of ejectment brought in April, 1882, by Thomas B. Cato, to recover from Dennis Gordon a certain tract of land claimed by the plaintiff under a tax-title. The land was sold to the State on the 15th of August, 1871, for the taxes of 1870 due thereon. It was held by the State on the 10th of May, 1875? when it was sold under the “ Abatement Act,” and on that day was again struck off to the State.

Hon. Laugh McLaurin, Chancellor. The case is stated in the opinion of the court. The statute gives the debtor living in any city, town, or village as a homestead the land and building viewed and occupied as a residence. Code 1880, § 1249. Land and buildings do not become impressed with the legal character of a homestead until actual residence and occupation by a family as a home. Campbell v. Adair, 45 Miss. 170.

Hon. S. H. Terral, Judge. The case is sufficiently stated in the opinion of the court. The mere fact that a fire in question had been kindled by sparks from a passing engine does not of itself raise a presumption of negligence without further evidence to prove such negligence.

Hon. J. B. Chrisman, Judge. Meyer Brothers sued T. J. Whitehead in assumpsit, and at the March term, 1883, of the court recovered a judgment by default against the defendant. ■ An execution' was issued upon this judgment on the 14th of November, 1883, returnable to the March term, 1884, of the court.

<p>1. Administrator. Of deviseds estate. Inability for debts of devisor.</p> <p>Debts of a devisor, though chargeable on the land devised, do not become the personal debts of the devisee, and no decree therefor can be rendered against the administrator of the devisee’s estate, even if it be made a charge upon the devised land.</p> <p>2. Same. Liability on warranty of title to land partitioned.</p> <p>The administrator of an estate of a decedent whose land has been partitioned between the heir thereof and a co-tenant is not liable for a breach of the heir’s imjjlied warranty of the title of the land allotted to his co-tenant.</p> <p>3. Same. Liability for money not belonging to intestate.</p> <p>An administrator who receives money not belonging to the estate of the intestate is not liable therefor to the owner thereof, in his representative capacity, unless the money be appropriated to the use of the estate.</p> <p>4. Heir. Effort to charge his land. Money received by administrator.</p> <p>Land descended to an heir is not chargeable with money received by the administrator and not belonging to the decedent, there being no privity between the heir and the administrator, and the only liability being upon the latter as an individual.</p> <p>5. Partition. Embraeinq land of third person. Eight of tenant to reimbursement.</p> <p>Where, after the partition of lands between tenants in common, it is discovered that a part of that allotted to one of the tenants belonged to a third person, and a part allotted to the other tenant had been previously sold for half its value as fixed in the partition proceedings, which had to be taken in payment therefor, the first-named tenant is entitled to reimbursement for one-half the value of the land allotted to him and owned by a third person, and the other-tenant is entitled to reimbursement for one-half of the loss sustained on the land allotted to him and which had been previously sold.</p> <p>6. Same. Whether res adjudicata as to title. Viewed as to party and as to third person.</p> <p>A decree of partition is not res adjudicata that the title to the land divided was in the co-tenants (where it was, in fact, in a third person), but only that it was so recognized by them in that suit.</p> <p>Whether» such decree would be res adjudicata where the title was in a party to the partition, Quaere.</p> <p>7. Account. Between parties to partition of lands. After lapse of many years. Showing required.</p> <p>Where, many years after a partition of lands between co-tenants, one seeks an account as to the money received by the other during the co-tenancy, and by reason of the lapse of time and the death of witnesses the evidence of the transactions has become obscure and doubtful, the court should not direct such account to be taken unless the complainant can make it appear that a fair and full statement may be made.</p>

Hon. J. B. Chrisman, Judge. John Fahey and John McNamee were jointly indicted for selling vinous and spirituous liquor to William- Lenoir, a minor. The evidence at the trial showed that Fahey was the licensed owner of a saloon, and McNamee, his clerk, when the latter in his capacity of elerlc in such saloon sold a drink of whisky to the minor, Lenoir.

Hon. S. H. Terral, Judge. Irvin Reed was indicted for an assault upon IT. Clay Davenport with intent to kill and murder him. At the trial it was proven that the defendant approached Davenport while engaged at his work, and without making any remark shot him with a rifle, the ball taking effect in his shoulder.

Hon. T. J. Wharton, Judge. Samuel M. Sistrunk died in. 1860, leaving a last will and testament, which, among other articles, contained the following: “ To my beloved wife, Sarah, I give the sum of twenty dollars, also one-third part of the net proceeds arising from the sale of all my real estate, on the condition of her relinquishing her right of dower to said real estate, it to be sold at public sale to the highest bidder by my executor hereinafter named on such credits as…

<p>Appeal from the Circuit Court of Wilkinson County.</p> <p>Hon. J. B. Chrisman, Judge.</p> <p>This is an action for damages brought on the 3d of September, 1884, by J. A. ~V. Feltus and others against D. D. Withers and B. P. Swan. The declaration avers that the plaintiffs own a plantation known as Deer Park, and that defendant Withers owns an adjoining plantation known as Lochdale, “ which is and has been for more than ten years past under the charge and control of defendant Withers, as the owner thereof, and defendant B. P. Swan as the manager and agent thereof, and that more than ten years ago a levee was built by the respective owners of said plantations, and from thence until now has remained for the joint protection thereof against high waters, and it has always been the custom, and plaintiffs were entitled to have the waters from time to time collecting behind and back of said levee and being in and upon their said land, from rain, sipage, and overflow, drained and carried away from the same through a certain drain, cut and run around, in, and through said Lochdale plantation, and thence off of plaintiffs’ said land, and that it was the duty of defendants, owning and occupying the adjoining close and plantation aforesaid, to open the said drain, that the water might be drained off of plaintiffs’ land aforesaid, and plaintiffs’ land could only be drained through defendants’ said close and plantation; that during the year 1884, from the 1st of January to the 1st of September, large quantities of water, from rain, sipage, and overflow, collected in and driven back upon plaintiffs’ land, were obstructed and prevented from running off and away from the land by defendants neglecting and refusing to open the drain aforesaid, which it was their duty to do, and by reason of such neglect and refusal the aforesaid land of plaintiffs for the time aforesaid was rendered unfit to cultivate and greatly damaged, etc.”</p> <p>Swan demurred to the declaration on the ground that, as the agent of Withers, he was not liable for the acts of omission and neglect averred in the declaration. The court sustained the demurrer, and the plaintiffs asked leave to amend their declaration by inserting words therein charging that the neglect and refusal which it was declared produced the damage to the plaintiffs “ was malicious and with the intention of injuring the plaintiffs’ aforesaid lands.” The court refused to grant such leave and dismissed the action as to Swan. The plaintiffs dismissed as to Withers and appealed against Swan.</p> <p>It is not clear that the injury complained of is a mere nonfeasance of the agent — in fact, it occurs to us that we charge a positive wrong. This must be apparent to any one acquainted in theory or fact with the levee system of the Mississippi River. In times of high water, back of all or nearly all levees large quantities of water collect to the height of the river water in front, and this back water must be drained off as the river recedes, otherwise it is more damaging than to have welcomed the overflow. And it is also true that there are natural drains in many sections through which only the water from a large area of land may be carried off. 'But whether the wrong charged is a misfeasance or nonfeasance, we contend that it is an exception to the general rule which exempts a servant from personal liability to a third person for injuries done by negligence in the discharge of his duties. Here is a most flagrant outrage done, causing great damage, which was alone in the power of appellee and Withers to avert, and they are equally liable under the declaration here and were properly joined. See 1 Wait’s Actions and Defenses 264-5; Addison on Torts, 3d ed., 933. It was error in the court below to deny our application to amend our declaration.</p> <p>With regard to the liability of agents to third persons for torts, there is a distinction between acts of misfeasance, or positive wrongs, and nonfeasance, or mere omissions of duty. Story on Agency 311. In the former case (misfeasance), the agent is personally liable to third persons, although authorized by his principal, while in the latter (nonfeasance) he is in general solely liable to his principal. See Story on Agency, §§ 308, 309; see also Story on Bailments, § 404 ; Denny v. Manhatton Bank, 2 Denio 115 ; Sherman & Red field on Negligence, § 111; 1 Chitty Pleadings 75, 77.</p> <p>We hold that the allowance of amendments to declarations is within the discretion of the court, and we think the court did not err in disallowing the amendment in this case, for it is evident that it made an entirely new and different action.</p>

Hon. T. J. Wharton, Judge. The case is stated in the opinion of the court. 'My theory of defense in this case was, as is indicated by the instruction asked by defense, that while it is true that the discharge of plaintiff by defendant (if it actually occurred, and without cause) ended the then existing contract, yet, it being the duty of the plaintiff to use reasonable diligence to prevent the damage sued for — viz.: loss of wages for want of employment for the term, then…

Hon. Lauch McLaurin, Chancellor. The bill in this cause, filed on the 1st day of April, 1884, by D. Babers against James Desearn, alleges in substance the following facts: The complainant was a merchant and the defendant a planter, and the latter bought plantation supplies and merchandise from the former during the years 1877-8-9, and in May, 1880 gave his note to the complainant for one thousánd six hundred and twenty-one dollars and thirty-seven cents in settlement of his…

Hon. E. G. Peyton, Chancellor. In October, 1883, B,. D. Osburn, who was childless, but having a wife living, died, leaving a last will and testament by which he devised to his infant nieces, Kate and Daisy Osburn, the house and lot occupied and used by him as a homestead at the time of his death. The testator owned no other property except his household furniture, which was not disposed of by his will.

IIon. A. G. Mayers, Judge, presiding by interchange with Hon. J. B. Chrisman. On the 23d of January, 1884, P. J. Nevin brought this action of ejectment to recover of W. H. Bailey and others certain lands claimed by the defendants under tax sales made in the years 1871 and 1872.

. Appeal from the Circuit Court of Hancock County. Hon. S. H. Terral, Judge.

Hon. J. G. Hall, Chancellor. Prom the 23d of March, 1872, to the 20th of October of that year, W. E. Jolliff was an inmate of the State lunatic asylum, and during that period was, unquestionably, insane. On the last-named day he escaped from the asylum and returned to his home, where he was permitted to go at large till the 18th of May, 1881, when he was again returned to and confined in the State lunatic asylum.

Hon. T. J. Wharton, Judge. Robert G. Penn and H. 33. Penn were jointly indicted upon the charge of having murdered Robert B. Rials on the 8th day of April, 1884.

<p>Appeal from the Chancery Court of Lauderdale County.</p> <p>Hon. T. B. Graham, Chancellor.</p> <p>On the 5th of March, 1858, L. A. Ragsdale conveyed to the Southern Railroad Company, whose road was then being constructed, twenty-two acres of land situated in the town of Meridian, with the condition subjoined that “It is expressly understood that the above conveyance is made for a location' of the Southern Railroad at the crossing with the Mobile and Ohio Railroad, not differing at right angles from the location made by William Haupt more than one hundred and twenty-five feet.”</p> <p>Subsequently, in 1858 or 1859, a verbal agreement was made between Ragsdale and W. C. Smedes, president of the Southern (now Vicksburg and Meridian) Railroad Company, to the effect that the railroad company should convey back to Ragsdale sixteen of the twenty-two acres of land which he had conveyed to the company, and that upon the remaining six acres, or contiguous thereto, a passenger depot should be built by the railroad company.</p> <p>On the 20th of March,'1866, M. Emanuel, president of the Southern Railroad Company (and successor to Smedes), "W. C. Hardee, president of the Selma and Meridian Railroad Company, and L. J. Fleming, general superintendent of the Mobile and Ohio Railroad Company, sent a written communication to Ragsdale, stating in substance that they had agreed to erect a joint passenger depot, at a place designated, upon land belonging to the Mobile and Ohio Railroad Company, provided that within ten days thereafter Ragsdale should convey to the Selma and Meridian Railroad Company a certain described piece of land and should make an “ unconditional deed ” to the Mobile and Ohio Railroad Company for five acres of land previously “ donated to that company.” Ragsdale accepted this proposition and performed the condition imposed upon him.</p> <p>The Southern Railroad was completed to Meridian in the year 1861, but no passenger depot had been built or commenced by the Southern (or Vicksburg and Meridian) Railroad Company on or contiguous to the six acres of land mentioned in the agreement between Ragsdale and Smedes, and no steps had been taken to erect the joint passenger depot in pursuance of the agreement of the 20th of March, 1866, when, on the 8th of September, 1867, •Ragsdale filed a bill in the Chancery Court of Hinds County against the Vicksburg and Meridian Railroad Company, alleging that the defendant had forfeited its right to the entire twenty-two acres of land conveyed to it by the complainant on the 5th of March, 1858, and asking that the deed therefor be cancelled and the complainant re-invested with the title thereto. The defendant opposed the relief sought in that bill on the ground that it had performed the condition upon which the grant of the twenty acres was based and its title to the land had become absolute. That case was brought to the supreme court on appeal, and this court held that the railroad company, by the agreement made in 1858 or 1859 between Smedes and Ragsdale, had abandoned its claim to the sixteen acres of land which Smedes promised should be conveyed back to Ragsdale, and that though that agreement was obnoxious to the statute of frauds because not in writing, yet the defendant was estopped to deny such abandonment because “it stood by, year after year, and saw Ragsdale asserting ownership over said sixteen acres and his vendees erecting costly structures thereon and enjoying their several premises, yet never once protested that he was a usurper and his vendees were improving property not rightfully theirs.” No part of the six acres had been sold off, improved, or occupied by Ragsdale. It was said in the opinion that, “ for the very reasons which should preclude the defendant from holding title to sixteen of the twenty-two acres, the complainant should be denied relief as to the six acres.” A decree was entered in this eourt in November, 1876, cancelling Ragsdale’s deed as to the sixteen acres referred to, but dismissing the bill as to the six acres; but upon a petition for re-argument, filed by Ragsdale’s counsel, the court on the 8th of January, 1877, caused the decree to be modified so that the dismissal should be “ without prejudice as to any right of [or] title which the said Ragsdale may hereafter assert, either- in law or equity, to said six acres.” That case is reported in 54 Miss. 200.</p> <p>After the termination of that suit Ragsdale took formal possession of the six acres of land, and then the Vicksburg and Meridian Railroad Company brought an action of ejectment to recover the same. Thereupon he, on the 17th of June, 1882, filed the bill in this case, charging that the defendant had failed to perform the condition imposed by his deed of the 5th of March, 1858, as to the location of its railroad and the crossing with the Mobile and Ohio Railroad, that no passenger depot had been erected on or contiguous to the six acres, in pursuance of complainant’s agreement with Smedes, and that the joint passenger depot which the defendant on the 20th of March, 1866, in connection with the two other railroad companies above mentioned, bound itself to construct had not been built, and asking that the defendant be enjoined from prosecuting its action of ejectment, and that the complainant’s deed conveying to the defendant the six acres of land in controversy be cancelled as being a cloud upon his title. The defendant’s answer avers that the complainant waived the condition in his deed by the agreement with Smedes; that this agreement would have been fulfilled by the defendant but for the intervention of the war, which crippled its resources and deprived it of the means for the erection of the depot promised, and that the failure to erect the joint passenger depot was the result of the complainant’s “ litigious disposition and opposition.” The defendant also set up in its answer the adjudication in the former suit with the complainant as covering the subject-matter of this suit and as an estoppel to any further litigation in respect thereto.</p> <p>Upon final hearing the bill herein was dismissed, and from the decree of dismissal the complainant appealed to this court.</p> <p>1. It is gravely contended in the answer to this bill that the whole matter involved in the present suit has been adjudicated by the decree of the supreme court in Ragsdale v. V. & M. R. R. Go., 54 Miss. 200, and by the amended decree as to the six acres of land in controversy here.</p> <p>Tlie capital error into which the defendant’s answer, as well as the argument of defendant’s counsel, on this point falls consists in the singular confounding of the reasoning of Chief Justice Simrall, by which he reached a certain opinion, with the decree of the court. The opinion of the court is one thing, and the deoree of the court is quite another thing. The opinion is formed with the distinct-object in view of presenting reasons for a decree which is to follow. In this case the opinion of Chief Justice Simrall (unsatisfactory and unsupported as it is in some important particulars by the proofs in that case) was only the vehicle through which the court produced the reasons which led to the decree dismissing Ragsdale’s bill unqualifiedly and absolutely as to the six acres. But surely the opinion which was designed to give the reasons of the court for arriving at a certain conclusion becomes wholly' worthless when that conclusion itself is subsequently abandoned by the court, and the decree dismissing absolutely is revoked and set aside and an amended decree entered dismissing without prejudice to any right in Ragsdale. But the opinion was never any part of the judgment and was never res adjudicata. Buchner v. Calcóte, 6 Cush. 432.</p> <p>Our own high court of errors and appeals, in Nehitt v. Bacon,' 3 George 228, says: “ The purport of such an order (i. e., an order dismissing a bill without prejudice) is that the dismissal shall not operate as a bar to a new suit which the party might institute.” See also 25 Ala. 625, which is identical in spirit with this. See, too, Story’s Equity Pleadings, § 456 and § 793, cited as authority for this view in both the Mississippi and Alabama cases cited; Patton v. Mott, 34 Am. Dec. 679 ; 2 Daniell’s Ch. PI. and Prac. 993, 994 — last three lines of 993 and first four lines on 994; 1 Daniell’s Ch. PL and Prac. 659, and note 1 at foot of page; Hughes v. TJ. 8., 4 Wall. 232, 233, 234, and 235, last paragraph in opinion.</p> <p>2. The conditions, coupled with the grant of the twenty-two acres of land (in which is embraced the six acres now claimed), it is now distinctly admitted have not been complied with, and performance of those conditions is with equal distinctness abandoned. There is no controversy about this in this suit.</p> <p>The land is therefore clearly Ragsdale’s unless the railroad company meet the case thus made. It attempts to meet it by setting up the parol agreement as to the six acres between Ragsdale and Smedes. The answer says, with reference to this parol agreement, “ all precedent agreements and understandings were ignored and a new agreement made,” etc. Here, then, is the new ground on which defendant relies for success.</p> <p>But the railroad company has wholly failed to comply with the terms of the parol agreement, and has abandoned this agreement also.</p> <p>The miserable pretext .that the company has not built a depot on the six acres because of want of funds is unworthy even of this corporation. The road was completed to Meridian in 1861 — more than twenty years before the present bill was filed by complainant. That this railroad company has never had the few hundred dollars necessary to erect a depot on the six acres is a statement which cannot be credited. In the nature of things it is bound to be untrue-</p> <p>But the defendant seems finally to abandon its position as to the six acres agreement — now at length reluctantly admitted at all by it — and makes its last stand on the dictation contract of March, 1866, alleging that this was and is a substitute for the six acres agreement. But the company confesses non-compliance with this, too, and presents by way of excuse the same matters which it offered for non-compliance with the six acres agreement.</p> <p>The answer made to those excuses will be our sufficient answer here now.</p> <p>We unhesitatingly assert that the decision in the case of Rags-dale v. V. & M. R. R. Co., 54 Miss. 200, based upon a bill identical with the present and between the same parties, is a conclusive adjudication, and ought certainly to be so treated and considered. This is not a case calling for the relaxation of any rule. The court will discover that every point made in the case was carefully considered by the court and fully determined.</p> <p>If there ever was a cause fully litigated, obstinately contended, ably prosecuted, and diligently considered by the courts of the country, this cause furnishes an illustration. The bill presented the same grounds for relief as are now advanced, the parties were the same, and conclusions on the merits were reached. The result would, therefore, be an adjudication but for the order made on the petition for reargument. Mitchell v. St. Maxent’s Lessee, 4 Wall. 237; Walden v. Rodly, 14 Peters 161; Durant v. Essex Co., 7 Wall. 107; Black v. Black, 27 Ga. 40; Holmes v. Remsen, 7 Johns. Ch. 286 ; Nevitt v. Bacon, 32 Miss. 228; Bigelow v. Wilson, 1 Gray 30; Story’s Eq. PI., § 793.</p> <p>A plea in bar stating a dismissal of a former bill is conclusive against a new bill if the dismissal was upon hearing, and if that dismissal be not in direct terms “without prejudice.” It is a fundamental rule in the administration of justice that a question once litigated and determined between the parties in a court of competent jurisdiction. is to be considered at rest. Not to have this effect the dismissal'must be for some cause not embracing an adjudication on the merits. Foote v. Gibbs, 1 Gray 413; Bigelow v. Wilson, lb. 299.</p> <p>The contention of counsel is that the former decree of this court only had the effect to bow Ragsdale out with a respectful invitation to him to reassert his claim at a more convenient time. Courts are not usually given to mature consideration of any question only not to decide it. But the dismissal was not in terms “ without prejudice” within the rule; it was “without prejudice as to any right of title which the said Ragsdale may hereafter assert, either in law or equity to said six acres.” To assert a right of title implies that the right has arisen, and to assert hereafter, that it has arisen after the entry of the judgment.</p> <p>The bill is a bald attempt, without provocation, extenuation, or excuse, to renew a controversy begun by Ragsdale in 1867 and persistently kept up. This cannot and ought not to be tolerated. Nor does -the law sanction it, with all due deference to counsel. Reason and precedent are against the pretense, and common sense does not sustain it, unless courts are arenas, not to settle controversies, but purely for the gladiatorial contests of contending advocates. Lang’s Heirs v. Waring, 25 Ala. 639, illustrates the correct doctrine. That case had been before the Supreme Court of Alabama and the bill was dismissed, “ but without prejudice as to any supposed right which the complainant might have acquired in virtue of his purchase from Messrs. Gayle & Phillips.” The court say : “ The effect of such reservation in the decree of dismissal is to prevent such decree from constituting a bar to another bill brought upon the same title; but it by no means compromits the court as a judicial determination in favor of such title. In so far as the former decisions leave the questions for discussion open, we must address ourselves to them as though they were for the first time before us.” The whole range of inquiry is, therefore, as to what questions were left open for discussion, and as to that it may be boldly stated that there were no existing questions left open for discussion.</p> <p>In Innis v. Roane, 4 Call (Va.) 379 et seq., the judgment of the court of appeals contained the following clause at its end: “But this judgment is not to bar or prejudice any future claim of the appellee made on further proof to the auditor.” It was insisted, in the second suit on appeal, that the former judgment did not preclude the appellees because it was, by the terms of it, to be without prejudice, and there were other facts before the court. 384, 388. Besponding to this contention, Boane, J., said: “ The’question is whether the present cause differs materially from the former ; forj if not, the decision in that must govern this.” And in concluding his opinion he said: “ I can only say that the ease is the same now that it was before, and that the former judgment concludes the case.” 395, 399.</p>

Hon. F. A. Critz, Chancellor. On the 26th of July, 1883, H. H. Brooks filed the bill in this cause to obtain an injunction against the execution of a judgment recovered against him on the 8th of September, 1876, by Jennie B. Foster, now Jennie B. Stewart, and E. L. S. P. E. Kirksey, on the ground that complainant had no notice, actual or constructive, of the pendency of the suit before rendition of the judgment therein against him.

Hon. C. H. Campbell, Judge. J. B.. Moore, having a judgment in a justice of the peace’s court against W. H. Gordin, on the 6th of February, 1884, caused a writ of garnishment to be issued thereon against W. I). Brock. The garnishee answered, and the plaintiff replied, controverting the answer, and averring that the garnishee had money in his hands belonging to the defendant, and for which he had given his promissory note, payable to the defendant’s wife, E. L. Gordin.

Hon. T. J. Wharton, Judge. A locomotive and train of cars belonging to the Yicksburg and Meridian Railroad Company and being used upon its… Held: in crossing public highways and thoroughfares, to so regulate the speed of their trains and to give such signals to persons passing that all may be apprised of the danger of crossing the railroad track; and they should also keep a lookout so as to see and as far as possible prevent injury to others exercising their legal rights.

'Appeal from the Circuit Court of Lauderdale County. Hon. S. H. Tebbal, Judge. W. B. Taylor, a merchant doing business in the city of Meridian, being unable to meet his liabilities, on the 12th of January, 1884, sold his stock of goods, notes, and accounts to John Williams.

Hon. T. J. Whabton, Judge. In July, 1884, W. S. Hamilton brought this action against the Vicksburg and Meridian Railroad Company to recover the value The character and effect of the evidence adduced at the trial are stated in the opinion of the court.

Hon. T. J. Wharton, Judge. This is an action of trespass brought by Jane E. Currie against the Natchez, Jackson and Columbus Railroad Company to recover damages for an entry upon and excavation of a certain piece of plaintiff’s land and the construction and use of a railroad through the same by the defendant.

Hon. Warren Cowan, Chancellor. The Louisville, New Orleans and Texas Railroad Company filed a petition to have a strip of land one hundred feet wide through a tract of about ten acres belonging to Mrs. E. H. Balfour condemned for its right of way. The jury appointed to' assess Mrs. Balfour’s damage awarded her one thousand dollars, to be paid by the railroad company. She made a motion for a new trial, which was overruled, and she appealed to this court.

<p>Navigation. Obstruction thereof. Subsequent legislative authority. Action for damages. Plea.</p> <p>S. was the owner of a steamboat engaged in the navigation of an internal river of this State, when, on the 1st of January, 1884, a railroad company, by the erection of a bridge across the river, obstructed the navigation thereof. On the 12th of March, 1884, the railroad company was authorized by an act of the legislature to erect a birdge similar to that already erected. Subsequently S. sued for the damages resulting to her from such obstruction of the navigation of the river. The railroad company plead the legislative act referred to. jS'eld, that the plea is no defense to the demand for damages which accrued between the 1st of January and the 12th of March, 1884</p>

Hon. Ralph North, Judge. This is an action of ejectment brought by the appellees to recover a tract of land of which it is admitted they were the owners prior -to the first Monday in March, 1879, when it was sold to the State for the taxes of 1878.

Hon. T. J. Wharton, Judge. This action was brought on the 1st of October, 1883, in the name of the State, upon the information of K. D. Chandler against J. W. A^recht and his sureties, upon his bond… Held: beginning with the first construction of the statute of Westminster, that the note of. the objection must be written out, settled, and allowed by the court at the instant the ruling is made and before any other step is taken in the trial. 2 Bac. Abr. 116.

Hon. T. B. Graham, Chancellor. On the 1st of March, 1880, a certain tract of land belonging to J. P. Mills and F. L. Edwards was sold to the State for the taxes of 1879, and on the 23d of July, 1881, the State’s title thereto was bought by Cary Scott and Jerry Phillips.

Hon. J. B. Chrisman, Judge, specially presiding, by interchange with Hon. B. F. Trimble. The Mechanics’ Bank, of St. Louis, Mo., brought this action against A. Yager as the acceptor of a bill of exchange drawn by J. W. Eicks & Co., on the defendant, in favor of the plaintiff.

Hon. R. W. Williamson, Chancellor. The case is stated in the opinion of the court. Where it was agreed verbally that one of three persons should buy in and hold for the others, and one bought and paid the purchase-money, it ivas held that there was no resulting trust. Farnham v. Clements, 51 Me. 426; Sheldon v. Sheldon, 3 Wis. 699; Morey v. Herrick, 18 Pa. St. 129; Measonv. Maine, 63-Pa. St. 335.

Hon. Ralph North, Judge. Charles J. Edwards sued the Mississippi and Yazoo River Packet Company and George W. Faison upon an open account and acceptance aggregating two thousand nine hundred and eighty-five dollars and ninety-nine cents. The defendants set up the defense of payment.

Hon. E. G. Peyton, Chancellor. On the 22d of February, 1878, J. R. Tucker executed a deed of trust upon certain lands to W. S. Epperson, as trustee, to secure the payment of a promissory note of that date, given by Tucker to Richard Boyd, for the sum of eight thousand eight hundred and thirty-eight dollars, and to become due on the 22d of February, 1879.

<p>Fighting in Public Place. Bight of self-defense. Section 2750, Code 1880, construed.</p> <p>Section 2750 of the Code of 1880, which makes it an indictable offense, punishable by fine and imprisonment, to fight in a public place with a deadly weapon, was not intended, and does not have the effect, to abolish or impair the right of self-defense as previously recognized by law.</p>

Hon. E. Hill, Chancellor. On the 1st of January, 1873, John Coffin executed a deed of trust upon certain real estate to Michael Slattery as trustee, to secure the payment of a promissory note which the grantor owed Elizabeth Murphy. In September of that year Coffin died, and in July, 1874, Slattery died.

Hon. A. G-. Mayers, Judge. In March, 1874, T. D. Harris executed to J. M. Jayne, as trustee, a deed of trust upon a house and lot in the town of Brandon, described as a “ house and lot on the corner of Main and Jail Streets, known as the Kernaghan Lot, Section 15, Town. 5, Range 3 East,” to secure payment of a debt which the grantor owed T. S. White.

Hon. C. H. Campbell, Judge. ■ In March, 1883, Frederick Gillum was indicted, together with his brothers, Harry Gillum and Thomas Gillum, upon the charge of having murdered Holing Madison Suggs on the 27th of October, 1882.

<p>Trust. Declaration thereof. Case in judgment.</p> <p>Where M. conveys to P. a certain described tract of land, with a reservation “ excepting that portion of said land now owned and occupied by K.,” and describing the same correctly, such recital is not a declaration of a trust by M. in favor of K. as to the land thus excepted, but, on the contrary, is an indication of K7s ownership thereof and a recognition of his title.</p>

Hon. J. B. Ci-ieisman, Judge, specially presiding, in place of and by request of Hon. B. F. Trimble, and to meet the demand of the public interests.

Hon. E. G. Peyton, Chancellor. On the first Monday of March, 1881, a certain tract of land lying in the first district of Plinds County and belonging to the Wheeler & Wilson Manufacturing Company was sold at Raymond, in the second district of the county, by the tax collector to B. T. Ligón for the taxes due thereon for the year 1880. The sale was based upon an assessment made in 1879.

Hon. Ralph North, Judge. This action was brought by J. J. Norwood, before a justice of the peace, to recover of the New Orleans, Baton Rouge, Vicksburg and Memphis Railroad Company the value of a mule killed by „a locomotive and train of cars running on the defendant’s road. ,The .case was appealed to the circuit court, where,, a jury being waived, it was tried by the. judge. The plaintiff adduced evidence sufficient to establish a priraá facie case against the defendant!

Hon. Ralph North, Judge. This action was brought by Warren Cowan against Newberg & Anderson before a justice of the peace, upon a demand of one hundred and fifty dollars for the use and occupation of a landing on Big Black River and the use of a private road leading thereto through the lands of the plaintiff.

Hon. J. B. Chrisman, Judge, specially presiding, by interchange with Hon.. B. F. Trimble. On the 6th of March, 1882, “Lots 9, 10,'and 11 in Block 20 of the Huntington and Leavally addition to the town of Green-ville,” were sold to the State by the tax collector- for the taxes of 1881. The former owner having failed to'redeem them, they were, on the 7th of March, 1883, sold and conveyed by the auditor of* public accounts to O. B. Crittenden.

Hon. A. T. Bqane, Judge. On the 21st of December, 1881, Mrs. Martha L. McLendon executed to W. N. Pass a deed purporting to convey one hundred and sixty acres of land therein described. Mrs. McLendon only had a life-estate in the property, but Pass was ignorant pf that fact, although the will creating and limiting her estate was on record in the county where the land was situated. On the 1st of September, 1882, Mrs. McLendon died.

Hon. B. T. Kimbrough, Chancellor. In January, 1882, J. H. Perkins and his wife executed a deed of trust on a certain tract of land and the crops to be grown by the grantors during that year, to secure the payment of a certain indebtedness of the grantors to J. L. Eskridge, to become due on' the 15th of December next thereafter.

J. R. Powell and W. H. Powell drew a bill of exchange in favor of W. H. Powell for two hundred and fifty-three dollars and thirty-five cents upon R. E. Savage and Robert Powell, and the same was duly accepted by the drawees. W. H. Powell indorsed the bill to PI.

Hon. J. B. Chrism an, Judge, specially presiding, by interchange with Hon. B. F. Trimble. The case is stated in the opinion of the court. 1. The school-laws of the State have been revised by the present Constitution of Mississippi and Code 1880.

Hon. E. G. Peyton, Chancellor. The case is stated in the opinion of the court. The question presented for review in-this case is whether or not the clerk in the land department in the office of the auditor of public accounts can become the purchaser of lands held by the State for taxes, and we are led at the outset to the consideration of his official character and the nature and scope of his employment.

Hon. B. W. Williamson, Chancellor. The bill in this case, filed by E. Crippen and others against Nancy E. Johnson and others, alleged that in March, 1883, Mrs. Johnson, upon the consideration of love and affection, executed a deed conveying to Crippen’s wife, who was her daughter, and three other children of the grantor, as tenants in common, a certain tract of land, and delivered the same to her son, W. T. Johnson, one of the granteees therein, who retained it unrecorded…

Hon. T. J. Wharton, Judge. R. A. Armitage made an assignment for the benefit of his creditors and was afterward sued in attachment by Rector, Ratliff & Co., upon the ground that he had assigned or disposed of his property with intent to defraud his creditors, and for other causes.

Motion in Supreme Court. When the transcript in this case was filed in this court, the appellants showed in their sworn petition that exceptions were taken in writing to rulings of the lower court at the time of the occurrences and tendered to the judge, and while the jury were still in the box were embodied in a bill of exceptions which was tendered before argument began; but the judge, after six days, signed a different bill made out by appellee’s counsel, and in…

. Hon. E. G. Peyton, Chancellor. An act of the legislature of the State of Mississippi, approved February 17, 1882, entitled, “ An act incorporating the Yazoo and Mississippi Valley Railroad Company and declaring its powers,” contained the following among other sections : “ Sec. 6.

Hon. E. G. Peyton, Chancellor. The bill in this case, filed by the Natchez, Jackson and Columbus Railroad Company against J. M. Stone and others, Railroad Commissioners, like that in Yazoo and Mississippi Valley Railroad Co. v. Stone et al., Railroad Commissioners, ante 607, complains that the act of March 11,1884, entitled “ An act to provide for the regulation of freight and passenger rates on railroads in this State, and to create a commission to supervise the same, and…

Hon. T. J. Wharton, Judge. On the 30th of May, 1883, John Moriarty was indicted upon the charge of having murdered J. W. Ricketts on the 9th of' April, 1883.

Hon. Sylvanus Evans, Chancellor. On the 22d of July, 1871, L. A. Ragsdale leased to Elizabeth S. McDougal for an indefinite period a certain lot in the town of Meridian, to beheld upon payment of an annual rent, or to be forfeited in default of such payment, ivhieh should give the lessor the right to re-enter and re-let the premises.

Hon. E. G. Peyton, Chancellor. On the 2d day of February, 1883, the bill in this case was filed by E. E. Dortch against Lydia Gibbs and others to confirm complainant’s title to a certain tract of land which he bought from the State on the 2d of March, 1881, and which had been sold to the State on the 1st of March, 1880, for the taxes of 1879 due thereon.

Hon. J. W. Buchanan, Judge. This action was brought in January, 1883, in the name of the State, for the use of the Board of Supervisors of Tishomingo County upon the bond of C. C. Castlebery, as sheriff and tax collector of Tishomingo County during the years 1878 and 1879, to recover of him and his sureties eight hundred and fifty dollars declared to be due from him to that county for taxes collected by him during those years and not paid into the county treasury.

<p>Appeal from the Circuit Court of Hinds County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>On the 15th of May, 1884, Nat. McGowan, while crossing or walking along the track of the Vicksburg and Meridian Eailroad in the town of Edwards, was struck by a moving locomotive and received from the collision serious bodily injuries. On the 8th of July, 1884, he sued the railroad company for damages.</p> <p>At the trial, B. H. Payne, the engineer by whom the locomotive was being operated at the time of the accident, testified as a witness for the defendant, and on cross-examination was asked by the plaintiff's attorney : “ Did you say in the presence of William Boone and others at the depot, after the accident, ' How can a drunken man see a drunken man ?’'' in answer to which question he replied, “ I did not.” William Boone testified as a witness for the plaintiff, and, in his examination-in-chief was permitted to state, over the objection of the defendant's attorney, that Payne, talking to a “crowd” with whom the witness was standing, “about seven minutes after the accident,” said, “ Plow in the hell could a drunken man see a drunken man ?”</p> <p>The court gave for the plaintiff the following instructions :</p> <p>“ 1. The jury are instructed that if they believe from the evidence that plaintiff was walking (in defendant's railroad track in the town of Edwards, and while doing so defendant’s agent negligently, and while running defendant’s engine, in defendant’s employ, at a greater rate of speed than six miles per hour, struck and hurt plaintiff with such engine, then the jury must find for plaintiff and assess such damages as were sustained by him by the injury received, unless plaintiff’s conduct was such as contributed to the result and of which a man of ordinary prudence would not have been guilty.</p> <p>“ 2. If the jury believe from the evidence that the plaintiff was passing over defendant’s railroad track on a public or other crossing, in the town of Edwards, and while there defendant’s agent, while in its employ and while running defendant’s engine at a greater rate of speed than six miles per hour, negligently struck plaintiff with such engine, then the jury should find for plaintiff and assess his damages.</p> <p>“ 3. The jury are instructed that ‘ in all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company is primd facie evidence of the want of reasonable skill and care on the part of the servants of such company in reference to such injury.’</p> <p>“4. The jury are instructed that the law is as follows : ‘ Any railroad company having the right of way may run locomotives and cars by steam through towns, cities, and villages at the rate of six miles an hour and no more, and if, in passing through any town, city, or village, any locomotive or cars should be run aka greater rate of speed, * * * the company shall be liable for any damage or injury which may be sustained by any one from such locomotive or cars which they are running at a greater speed than six miles an hour through any city, town, or village.’ ”</p> <p>The court refused to give for the defendant two instructions asked in tlie following language :</p> <p>“ 2. A person walking on or being upon the track of a railroad at a point other than a crossing is a trespasser, and if the point be a crossing and he is there upon the track engaged in any other act than simply crossing the road, he is then also a trespasser and contributes proximately by his own negligent and unlawful act to any accident which may befall him while there. And if the jury believe from the evidence that the plaintiff was on the track of the defendant at a point other than a crossing or engaged in any other act than crossing the road, they must find for the defendant.</p> <p>“ 4. The jury are instructed that laws regulating the running of railroads, such as provide for the ringing the bell and rate of speed, etc., cannot be invoked by a person walking laterally upon the track of the road át a place other than a crossing, or upon it in the direction of the track at any point.”</p> <p>The jury rendered a verdict in favor of the plaintiff for four thousand dollars, and from the judgment thereon the defendant appealed.</p> <p>1. It was not proper in this case to allow William Boone to testify to what the company’s engineer said after the accident. This statement could in no point of view be part of the res gestee, and related only to the physical condition of the engineer at the time. The idea was to prove that this employee of the company was drunk at the time of the accident, and that as a deduction from the declaration, “ ITow in the hell could a drunken man see a drunken man ?” Of course, this scrap of testimony was sufficient for the jury. Its effect was very damaging to the company, and was not overcome by any after evidence adduced in the case.</p> <p>The general rule on this question of evidence is this: “When the act or omission of an agent would bind the principal in relation to the subject-matter in_ controversy, then his statements and admissions in reférence thereto will also bind the principal if made at the same time the act is done or omitted to be done, so as to connect itself therewith and become a part of the res gestee. To be admissible as evidence against the principal such statements and admissions must be in the nature of original ones, and must not only be made during the continuance of the agency or service, but in regard to a transaction pending or transpiring at the very time. Subsequent statements or admissions, made by way of relating the occurrence or of account for the same are not admissible in evidence against the principal.” 1 Rorer on Railroads 660, 662, 668, 669, 727, 728 ; Adams v. Hannibal and St. Jo By. Co., 7 Am. & Eng. Ry. Cases 416; Toledo and W. By. Co. v. Goddard, 28 Ind. 185 ; Chicago, etc., Ry. Co. v. Riddle, 60 III. 534 ; Kroner v. State, 61 Miss. 158; Meelc v. Berry, 7 Geo. 190.</p> <p>2. The general rule with regard to concurrent negligence is that' the party seeking redress must not only show his adversary to be in the wrong, but must also prove that no negligence of his own tended to increase or consummate the injury. To prevent a recovery the plaintiff’s negligence must proximately contribute to the injury. If the sole immediate cause of the injury were the defendant’s negligence, the plaintiff can recover, notwithstanding previous negligence of his own. Miss. Cent. Ry. Co. v. Mason, 51 Miss. 234 ; Dowell v. Ry. Co., 61 Miss. 519. The principle on which it rests is that if the plaintiff, suing for an injury, has in any manner by his own wrong, negligence, or want of ordinary and reasonable care, directly, that is proximately, contributed to the injury complained of he cannot recover. The plaintiff must show affirmatively that he used ordinary care — that degree of care which might reasonably be expected from a person in his situation. The negligence of the plaintiff to preclude him from a recovery must be such as that he could, by ordinary care, have avoided the consequences of the defendant’s negligence. One person being in fault will not dispense with another’s using ordinary care for himself. 2 Rorer on Railroads 1019, 1023.</p> <p>Now in this case there was no such proof. Indeed, the case as made showed that the plaintiff was of himself directly responsible for his own undoing. He had no right to be upon the railroad track, either walking along or otherwise, except at a crossing, and then only in crossing. The track is the private property of the corporation. It is not built to be walked on, and the fact that it may have been used to walk on, however frequently and commonly, will not change the law in this respect. 2 Rorer on Railroads 1027.</p> <p>As said in Isabel v. Railway Co., 9 Am. Ry. Rep. 265, the track is private property, and, except in the case of crossing highways, persons have no right to be upon it. The company is entitled to a clear track, and it is not to be presumed that persons will be on it when they have no right to be there. In order to make a defendant liable for an injury where the plaintiff has also been negligent or in fault, it should appear that the proximate cause of the injury was the omission of the defendant, after becoming aware of the danger to which the plaintiff was exposed, to use the proper degree of- care to avoid injuring him. 60 Mo. 475.</p> <p>The plaintiff could not recover merely upon the theory that the engine was going at a rate of speed more than six miles an hour. The omission of the railroad company to comply with the statute does not make it absolutely liable for an injury to one at a crossing when the signals are omitted, but only when the injury was caused without the contributory negligence of the person injured. In other words, when the injury results from the omission, is caused by it alone, the railroad company is liable, but not if caused by the negligence of the injured person. The effect of the statute is to super-add a duty upon the corporation the disregard of which avails the injured party no otherwise than its omitting any common-law duty in respect to care in running the train, Steoer v. Oswego, etc., R. R. Co., 18 N. Y. 422; Havens v. Erie R. R. Co., 41 lb. 296 ; Wilcox v. Rome, ete., R. R. Co., 39 lb. 358; Reynolds v. Hindman, 32 Iowa 146; Arts v. Chicago, etc., R. R. Co., 5 Am. Ry. R. 473.</p> <p>In the case of- Indianapolis, etc., R. R. Co. v. Blackman, 7 Am. Ry. Rep. 56, a similar statute was construed, and there, as here, the court instructed the jury that the mere failure to ring the bell or sound the whistle or slacken the speed was willful negligence and would entitle the plaintiff to recover. But an instruction was given also for the defendant that the mere non-performance of their duties would not make the company liable if their performance would not have prevented the injury. Commenting on this the Supreme Court of Illinois say : “.These instructions were in direct opposition. What could the jury do ? They must select between them, and they probably acted upon the first instruction. This w'as not the law, and was in violation of the statute. It provides that the corporation shall be liable for any damages sustained by reason of the neglect to perform the duty imposed, and not that it shall be liable for the mere non-performance. The injury must be the result of the omission, and this must be found by the jury.”</p> <p>In Stoneman v. The Atlantia, eta., JR. JR. Co., 9 Am. Ry. Rep, 44, an instruction like that under consideration was condemned, the Supreme Court of Missouri saying: “ The court had no right to declare, as a matter of law, that the jury had nothing to find but the killing of an animal at a crossing of a public highway and the failure of the company to have the bell' rung óf the whistle sounded. There may have been no connection whatever between the negligent omissions and the damage, and the very terms of the statute under which the suit was brought clearly indicate that the damages must be the result of the negligence.” 55 Mo. 483.</p> <p>Precisely the same view is taken by the Supreme Court of Ohio of a statute akin to ours, and the conclusion adopted that the omission of the company to ring the bell or sound the whistle near the crossing of a highway does not relieve the person who is about to cross over the highway from the obligation of employing his sense of hearing and seeing to ascertain whether a train is approaching. C. C. C. and I. Ry. Co. v. Elliott, 14 Am. Ry. Rep. 123. So also in New York. Wilaox v. Rome, eta., Ry. Co., 39-N. Y. 358.</p> <p>In B. and O. Ry. Co. v. Maryland, 4 Am. and Eng. Ry. Cases 579, the Supreme Court of Maryland use this language where the statute was relied upon to relieve the plaintiff from the consequences of his own folly: “ The uncontroverted evidence in the case proves that the deceased was improperly on the track of defendant, that he voluntarily exposed himself to the peril with full knowledge of the risk, and might, if he had used his eyes and ears, have heard and seen the approaching train long before it struck him, thus directly contributing to his own death.” See Butterfield v. R. R. Co., 10 Allen 532; Marian v. R. R. Co., 64 Mo. 480; R. R. Co. v. Mummell, 44 Pa. St. 375; Finlay son v. R. R. Co., 1 Dill. 579.</p> <p>Whilst we rely upon the statute, § 1047 of the Code of 1880, we contend that the finding of the jury should not be disturbed even though there were no such statute. Negligence is always a question for the jury, unless the facts are undisputed, and the result of those facts unquestionable as proving or disproving negligence. If the facts are conceded and the inference is doubtful, it should be a question for the jury, and not for the court. This court has announced the rule in Mississippi Central B. B. Co. v. Mason, 51 Miss. 234. The record here shows the fact to be that the appellee was, just before the accident occurred, walking over appellant’s railroad at a place used as a thoroughfare for footmen, in the town of Edwards, going from his place of business to his home. He had a right to be there, and if not then contributing by his own negligence to the injury received the appellants are liable, notwithstanding § 1047 of Code of 1880.</p> <p>If there in the commission of any other act than crossing the engineer should have seen him, for, if not a public crossing, if persons were in the habit of crossing the track here the engineer and “ servants of the company were bound to take notice of the fact and use a precaution commensurate with it.” II. and St. J. B. B. Co. v. Mary Brown, 50 Mo. 461.</p> <p>The Supreme Court of Missouri, in the case above cited, say : “ Eailroad companies are under the same obligations with other persons to use their own property so as not to hurt or injure others, and though a person be injured while unlawfully on their track, or contribute to the injury by his own carelessness or negligence, yet if the injury might have been.avoided by the use of ordinary care and caution by the railroad company they are liable in damages for that injury.” Why may we not invoke the same humane rule in Mississippi ?</p> <p>The object of the statute, § 1047 of the code, is to compel the companies to confine themselves to such speed within towns and cities that they can readily check their engines upon the sudden appearance of any obstruction. N. O. B. B. Co. v. Toulmé, 59 Miss. 288.</p> <p>It certainly was the right of plaintiff to show that the engineer in charge of the train was drunk when the accident occurred. The engineer had been asked in effect on examination if he was not so, and he answered “N®'” in effect. He was then asked if he had not said, in the language used by Boone, he was, or had at the time been, drunk, and he answered “ No.” Then was it not .legitimate and proper to prove in rebuttal that he had said as Boone testified.? Unquestionably, it was a material fact if the engineer was drunk while running the train. He testifies that he was not drunk. Evidence is then introduced in rebuttal that he made statements out of court in conflict with his testimony.</p> <p>We think, however, that the declaration would have been admissible as part of the res gestes.</p> <p>While conceding the proper force and effect of the authorities cited for appellant, we think that by them and the recognized law governing in such cases this declaration would have been admissible as original evidence.</p> <p>The court will note that the declaration does not purport "to-state faets which had transpired and passed. ' The engineer was still the engineer of the train. There had elapsed but seven minutes. If he was drunk seven minutes before, he was drunk then. He was but declaring his condition — a condition which still existed. The very statement in its nature indicated that it came from a drunken man. It was a verbal act. In other words, the character of the statement under the circumstances, whether true or false in the abstract, was evidence of his condition.</p> <p>The instructions asked and given for plaintiff for the purpose of placing the claim upon indisputable ground were much more liberal to defendant than might and probably ought .to have been asked and given.</p> <p>In plaintiff’s first instruction, the jury are required not only to believe that the engine was running over six miles an hour, but that the defendant negligently struck him, and in addition to this it provides, “ unless plaintiff’s conduct was such as contributed to the result, and of which a man of ordinary prudence would not have been guilty.”</p> <p>This instruction is given to cover the case if the jury should believe that plaintiff was walking on the track.</p> <p>The second instruction is the same as the first as to the law if the jury believe that plaintiff was going over a crossing, the proviso being omitted. Both instructions make the negligence of defendant necessary to plaintiff’s recovery in addition to the rate of speed.</p> <p>The third instruction for plaintiff is a literal copy of § 1059. Objection to that, we presume, will not receive serious consideration.</p> <p>The same is true of the fourth, it being a copy of § 1047, an immaterial portion being omitted.</p> <p>The idea was in preparing the instructions to recognize that there might be cases where a recovery could not be had, although the engine was running more than six miles per hour. We do not undertake to say what construction should be placed on the statute in. an. extreme case, though a great deal could be said in support of the liability of the company in any case.</p> <p>It appears plainly that this statute is but the exercise by the legislature of its police power, which it can do constitutionally. M. and O. R. JR. Co. v. State, 51 Miss. 137.</p> <p>The defendant’s second and fourth instructions were properly refused., as they announce in effect that § 1047 is without force and should be ignored! If the court had given these instructions or either of them it would have undertaken to repeal the statute or disregard it.</p> <p>This statute has received consideration by this court in three cases.</p> <p>In V. and M. R. R. Co. v. Hart, 61 Miss. 471, the court decided that, notwithstanding errors in the case, since it appeared that the mule was killed in the city of Jackson, and that the train was running over six miles per hour, plaintiff was entitled to recover. This was in the face of the fact that defendant otherwise was not guilty of negligence.</p> <p>In Dowell v. V. and JMJ. R. R. Co., 61 Miss. 531, this court decides that an employee of the dbmpany cannot invoke or claim the benefit of the statute. The reasons given for this decision are so forcible that no lawyer would hesitate to accept the conclusion as correct.</p> <p>The third of the cases is New Orleans R. R. Co. v. Toulmé, 59 Miss. 287. The court say: “The object of the statute is to compel the companies to confine themselves to such speed within towns and cities that they can readily check their engines upon the sudden appearance of any obstruction.” * * *</p> <p>“ Eailroad companies in running their trains through incorporated towns act at their peril in exceeding the speed prescribed.”</p>

Hon. B. T. Kimbrough, Chancellor. In 1877 Clara Z. Conkey, whose home was in this State, while sojourning in Italy was married to M. A. Jahier, and remained with him in that country up to the time of her death, on the 4th of February, 1882. At the time of her marriage, Miss Conkey was possessed of several thousand dollars, which was being managed for her by her brother-in-law, H. E. Eascoe, of Lafayette County, in this State.

Hon. S. H. Terral, Judge. In July, 1881, Pleas Buckley was indicted upon the charge of having murdered Nance Patton on the 30th of June, 1884. He, plead “not guilty,” was tried, convicted, and sentenced to be hanged. A motion made by him for a new trial having been overruled, he appealed to this court. The defendant testified at the trial in his own behalf. By the sixth instruction given for the State the court charged the jury as to the weight of the defendant’s testimony.

Hon. A. T. Roane, Judge. On the 28th of January, 1881, Mrs. Ebbie Blythe leased to W. S. Pratt a certain tract of land for a term of four years at a specified annual rent, payable on the 15th of November of each year. Pratt paid the rent for the years 1881, 1882, and 1883, but failed to pay a part of the rent for 1884, and on the 8th of December of the last-named year Mrs. Blythe sued out an attachment against him before a justice of the peace for the balance of the rent due.

Hon. E. G. Peyton, Chancellor. On thé 3d of March, 1876-, N. C. Perry lent W. N. Beauchamp one thousand five hundred dollars, and took his promissory note, due twelve months after the date thereof, for the sum of one thousand seven hundred and twenty-five dollars (being the principal of the amount of the loan with a year’s interest at the rate of fifteen per cent, per annum), payable to “ N. C. Perry.” To secure the payment of this note Beauchamp executed a deed of trust…

Appear from .the Circuit Court of Hinds County. Hon. T. J. Wharton, Judge.

Hon. T. B. Graham, Judge. On the 1st day of January, 1879, the Nankin County Savings Institution, being unable to continue business longer, made an assignment to Peter Fairly, as assignee and trustee, purporting to be for the benefit of its creditors.

Hon. T. J. Wharton, Judge. The ease is stated in the opinion of the court. 1. A grantor in a trust-deed cannot maintain replevin against the trustee in -possession, after condition broken, because he has neither the title nor any right of possession. Code 1880, § 1204; Jones on. Chattel Mortgages, §§ 434, 435, 436. He has the equity of redemption, and his remedy is a bill to redeem. Holmes v. Bell, 3 Cush. (Mass.) 322; Brown v. Bement, 8 Johns.

<p>Fire Insurance. Stipulation as to occupancy of house and increase of risk. Action for loss. Instinction. Case in judgment.</p> <p>A house belonging to D. was insured as a family residence occupied by a tenant. The policy contained the stipulation that if the house should be used or occupied so as to increase the risk, or if it should become unoccupied and so remain for thirty days, without the assent of the insurer indorsed on the policy, it should thereby become void. The house was virtually abandoned by the assured and his tenant for more than thirty days during the period of the insurance, and -was converted into a retail' liquor saloon by some one without authority, paying no rent and having no family. While being thus used and occupied the house was destroyed by fire, and the assured brought an action upon his policy to recover the amount of money which the insurer had agreed to pay in case of loss as therein provided for. Held, that the policy was rendered void by the assured permitting the house to be unoccupied by a family for more than thirty days during the period of insurance without the assent of the assured, and permitting it to be used and occupied so as to increase the risk, and upon the facts stated the court should have instructed the jury to find for the defendant,</p>

Hon. J. W. Buchanan, Judge. The case is .stated in the opinion of the court.

Hon. J. B. Ci-irisman, Judge. This action oF ejectment was brought in March, 1884, by David Day, to recover of John Havard and others a certain section of land which the plaintiff claimed through a deed from the auditor of public accounts, dated February 2, 1883, and through the list of lands sold to the State by the sheriff and tax collector of Wilkinson County, on the 5th of June, 1876, for the taxes due thereon forthe year 1875.

Hon. T. J. Wharton, Judge. The Union bank [of what place does not appear by the record herein] sued S. T. Brown, as the maker of a promissory note and the acceptor of a bill of exchange. The note was payable to the order of T. L. Catchings & Co., the bill was drawn on Brown by K. Penrose & Co., payable to their order and accepted by him, and before maturity both the note and bill were indorsed in blank by the respective payees thereof and delivered to the Union Bank.

<p>1. Attachment. Affidavit. Amendment by signature to jurat.</p> <p>The jurat of the creditor’s affidavit in attachment may be amended by permitting the officer before whom the affidavit was made to subscribe his name thereto. Green v. Boon, 57 Miss. 617, cited. -</p> <p>2. Same. Bond. Amendment in signature of sureties.</p> <p>A bond in attachment, signed by sureties in their firm-name, may be amended, under $ 2464 of the Code of 1880, by allowing them to sign their names individually.</p> <p>3. Same. Failure to file account. Leave given. Case in judgment.</p> <p>In an attachment case appealed from a justice of the peace’s court by the defendant against whom judgment was there rendered, the plaintiff should be granted leave to file an itemized account of his demand, where the amount thereof was stated in the affidavit upon which the action is based; and if the defendant might suffer from any undue advantage thus given his adversary, he should be protected by a continuance of the case.</p>

Hon. Sylvanus Evans, Chancellor. Freeman Jones, having a bond for title executed by Harriet Gux’lie to a certain tract of land for which he owed a small balance of purchase-money, on the 25th of May,… Held: upon a former appeal in this case, that the assignment was invalid. See 61 Miss. 423.

' Hon. J. B. Chbisman, Judge. This action was instituted on the 7th of April, 1884, in the name of J. H. Kennard, to the use of J. B. McGehee, agent for the heirs of Edward McGehee, deceased, against J. J. Alston, upon a judgment recovered on the 5th day of January, 1872, in the State of New York. The defendant in his second plea in bar set up the statute of limitation of seven years, and in his third set up the ten years’ statute of limitation.

Hon. S. H. Terral, Judge. F. T. Mulholland, having a contract with the New Orleans and Northeastern Railroad Company to grade a division of its road-bed, on the 29th of December, 1881, let out a section of the work to J. H. Rivers. On the 20th of May, 1882, Rivers had performed the work according to his contract with Mulholland.

Kenneth McInnis, Nsq., Special 'Judge, presiding by agreement of parties, in place of Hon. S. H. Terral, disqualified, because having been of counsel in the case. This is an action of assumpsit, brought by James A. Eaton against James A. Barnett.

Hon. J. B. Chrisman, Judge. The case is stated in the opinion of the court. It is clear that the defendant did not intend to kill and murder the person whom he is indicted for assaulting with intent to kill. The statute requires the indictment to charge the specific intent to kill and murder a specific person.

J. B. Chrisman, Judge of the Tenth Judicial District, on habeas, corpus. On the 10th of February,. 1884-, Mahala Caldwell was, by a justice of the peace of Lincoln County, convicted of petit larceny and sentenced to imprisonment in the county jail for ten days. She appealed to the June term, 1884, of the circuit court, giving a bond for her appearance and for costs, which was approved by the justice.

Hon. J. G. Hall, Chancellor. On the 28th of July, 1870, James Jenkins, as executor of the last will and testament of Thomas A. Iredell, deceased, obtained an order of'the chancery court for the sale of the lands belonging to the estate of the testator, for the purpose of distribution among the legatees.

<p>Burgiaby. Whether house or dwelling. Case in judgment. Section 2738, Code 1880.</p> <p>A house which the owner visits once or twice a year, and in which, during his visits, he sleeps and eats for about a week, hut which at all other times is unoccupied by any person, is not a “ dwelling-house,” the “ breaking and entering” of which, when no one is therein, “ with intent to commit a crime” is “burglary ” under $ 2738 of the Code of 1880.</p>

Hon. J. B. Chrisman, Judge. On the 17th of September, 1884, Isaac Kaiser filed in the Circuit Court of Wilkinson County against E. H. McNair a declaration in assumpsit, in the usual form, for five hundred dollars, On the next day a summons was issued to that county for the defendant, which was returned on the 7th of October, 1884, with the sheriff’s indorsement to the effect that the defendant could not be found in his county.

Hon. S. H. Terral, Judge. On the 27th of January, 1876, Fannie A. Blake, now Fannie A. Cox, was appointed guardian of certain minors, and gave bond with Walter Denny and S. S. Henry as her sureties.

Hon. T. J. Wharton, Judge. On the 22d of November, 1883, a writ of attachment was issued at tbe suit of T. L. Shafner against George M. Klein, returnable on the first Monday of February, 1884, to the Circuit Court of Hinds County, upon a demand for five hundred dollars.

Hon. J. B. Chrisman, Judge. On the 11th of September, 1884, A. J. Whittington was indicted for selling, on the 8th of that month, without a license, “ vinous and spirituous liquors in less quantities than one pint.” The proof showed that the defendant had, “within two months next before the finding of the indictment, sold wine, and nothing else, fully believing he had the right to sell wine by retail without a license.” The court below instructed the jury that if they…

Hon. T. J. Wharton, Judge. Mrs. E. Watkins, on the 27th of April, 1885, filed a petition against James Priestly, treasurer of Madison County, in the following language: “Your petitioner would show that she is the holder and owner of a certain bond of Madison County, of the denomination of five hundred dollars, said bond being numbered “202/ and was issued by said county in aid of the Vicksburg, Canton and Yazoo City Railroad Company, and bears seven per cent, interest from…

Hon. J. Gf. Hall, Chancellor. Under “ An act to incorporate the Board of Levee Commissioners for the Yazoo-Mississippi Delta, and for other purposes ” (Acts of 1884, 140), T. W. White, the president of the board thus created, and H. S. Harkleroads, the owner of a plantation lying within such levee district, and embracing about three sections of land, jointly applied to the Clerk of the Chancery Court of De Soto County, on the 12th of November, 1884, for the appointment of…

Hon. J. B. Chrisman, Judge. On the 15th. of January, 1885, Wolf & Marks sued out a writ of attachment against Max Kahn, and caused the same to be levied on a certain quantity of goods and merchandise. On the 26th of the same month Lewis Kahn filed an affidavit claiming the property attached as his. The plaintiffs recovered a judgment against the defendant, Max Kahn, and then joined issue with the claimant, Lewis Kahn, to test his claim to the attached property.

Hon. Watcken Cowan, Chancellor. After the bill of complaint herein had been answered and depositions *had been taken by both parties, the complainant, ~W. J. Davis, by leave of the court amended his bill in a material matter.

Hon. B. T. Kimbrough, Chancellor. On the 9th of February, 1870, Susan L. Atkinson bought a tract of land and paid for it with money borrowed of Jacob Thompson. On the same day Susan L. Atkinson and her husband, R. E. Atkinson, executed a deed of trust on this land to secure their promissory note to Thompson for the money borrowed of him, the 9th of February, 1871, being the date fixed for the maturity of the note.

Hon. S. H. Terral, Judge. Some time in the year 1883 Eugene Costanera made a verbal sale of a lot of land to Emile De Smet, but no conveyance was executed and no written memorandum of the sale taken.- No purchase-money was paid, but the vendor delivered possession of the land to the vendee, who, with the knowledge and consent of the vendor, erected valuable improvements thereon.

Hon. S. Featherston, Judge. Menken Brothers brought this action against J. L. Combs on a draft drawn upon him in their favor by F. M. Duke, and conditionally accepted by the defendant.' At the trial Combs offered to testify in his own behalf to show the circumstances of his acceptance of the draft sued on, and that the contingencies upon which he promised to pay the same had not happened.