Volume 63 — Mississippi Reports

Hon. Ralph North, Judge. ‘ On the 27th of June, 1881, Forbes & Beck sued out before a justice of the peace an attachment against John H. Brereton, returnable to the circuit court. The writ was levied by a constable upon two hundred and eighty-six tiers of cypress timber, valued at three dollars per tier, and was then delivered by him with his return thereon and also the property seized to the sheriff of the county, R. F. Beck, who was one of the plaintiffs in the suit.

Hon. T. J. Wharton, Judge. On the 9th of February, 1884, A. W. Porter executed a deed of trust to J. H. Williams, as trustee, for the benefit of Williams & Williams, upon the crops to be grown by the grantor during that year, and, as the deed recited, “the following described property now in my [the grantor’s] possession, viz.: one black horse, ten years old ; * * * and any increase of property, real or personal, that may be hereafter acquired by purchase or otherwise.” Some…

Hon. T. J. Wharton, Judge. This action was brought in September, 1884, by S. S. Walker to recover of the Illinois Central Railroad Company damages for the killing of two mules, alleged to have resulted from the negligent running of a train on the defendant’s road in August of that year.

Hon. C. H. Campbell, Judge. A statement of the case will be found in the opinion of the court. 1. The written contract signed by both parties is conclusive as to every material matter entering into the agreement. 2. Clark & McCoy, agents for appellees, accepted the goods in controversy at the Kosciusko depot from the express company, delivered them in the store of appellees, and the box containing the goods was opened by one of appellees’ clerks. 3.

Hon. Ralph North, Judge. M. Wolf, having sued out an attachment against George M. and John A. Klein, at the return term thereof, recovered judgment for the amount of his demand, about nine thousand dollars, against the defendants and also against George W. Faison as garnishee.

Appear from the Chancery Court of Hinds County. Marye Dabney, Esq., Special' Chancellor, presiding in the place of Hon. E. G. Peyton. In 1884 the estate of George W. Prince, deceased, and of which C. S. North was the administrator, was declared insolvent by a decree of the chancery court. On petition of the administrator a day was appointed for the examination and allowance of claims against the estate.

Hon. T. J. Whakton, Judge. This is an action of trespass on the case against the Illinois Central Railroad Company for damages for the killing of a child of seven years of age while walking on the company’s railroad track in the city of Jackson. The action is brought by Robert Jamison, the father of the child. The judge in the court below instructed the jury to find for the defendant. The plaintiff appealed. 1.

Hon. T. J. Wharton, Judge. James Crawford, aged seventeen and a half years, was in the' employ of the Natchez, Jackson and Columbus Eailroad Company as a brakeman, and while in the performance of his duty on a train running on the company’s road, the bridge across a certain bayou gave way, several cars were thrown from the track, and he received bruises and injuries which produced his death three days afterward.

<p>Appeal from the Circuit Court of Madison County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>This action was brought by Susan Montgomery against Horace Handy, under § 984 of the Code of 1880, to recover damages for an alleged injury done the plaintiff by the defendant’s cattle running at large in a common inclosure where these parties and other persons had crops growing or ungarnered. The defendant resisted the action, and the first trial of the case resulted in a verdict for the defendant. The plaintiff appealed to this court, and the judgment of the circuit court was reversed and a new trial granted. See 62 Miss. 16.</p> <p>On the second trial the plaintiff offered as the testimony of Charles Montgomery, a witness then deceased, that part of the bill of exceptions taken at the first trial which contained his testimony delivered at that time. Upon the objection of the defendant the court refused to admit the same as evidence.</p> <p>The plaintiff’s evidence showed that he had assigned the claim sued on and then “ had no interest in it except responsibility for the costs, and that said assignment was made after this suit had been instituted.”</p> <p>The defendant adduced evidence tending to show that the fence constituting the common inclosure around plaintiff’s and defendant’s crops was not such as to afford any protection against stock on the outside of the inclosure.</p> <p>The court gave for the defendant an instruction, as follows :</p> <p>“ 2. To constitute a common inclosure, there must be a protective fence around all, capable of affording protection against stock, existing in fact.”</p> <p>The verdict and judgment were in favor of the defendant, and the plaintiff appealed.</p> <p>1. The appellant should have had the benefit of Charles Montgomery’s testimony as written down and agreed upon in the bill of exceptions on the previous appeal of the cause to this court. It is true that parties could have been and were introduced to prove Montgomery’s statements; yet we contend that the written testimony as taken down at the trial w'as more accurate than the memory of an observer, and that the appellant was entitled to the best evidence of what Montgomery did testify to, as he was dead. We admit that the current of decisions is against the introduction of bills of exception to prove up the plaintiff’s cause, yet, in our opinion, these decisions were rendered upon a different state of facts, viz.: when the witnesses were alive and could have been produced. In this case death has sealed the lips of the witness, and it would appear that as a witness can be introduced to prove what the dead witness did say on a former trial, a more reliable source of information should not be excluded from the jury. See, as to our position, the 23 Miss. 160; 14 S. & M. 170; 54 Miss. 450.</p> <p>2. The second instruction for the appellee is not the law as declared in § 984 of the Code of 1880. These three parties may have commenced farming in 1883 with only a common inelosure of brush laid the one on the other—not a lawful fence or one capable of protecting against stock. Yet if one inside this common inclosure had garnered his crop first and then, without the consent of his joint holders, turned in his stock into his own land and they depredated on the others, the trespass would have been complete under the section referred to.</p> <p>3. As to the assignment of plaintiff’s interest in the case and the effect upon the action, see § 1507, Code 1880.</p> <p>1. This case, we submit, must be affirmed, because the record shows that the plaintiff has no interest in it, having assigned all of it to others.</p> <p>2. The record nowhere shows that she ever did have any interest in the loous in quo as tenant or otherwise. In fact, it appears that her husband, Charles Montgomery, was the tenant. Cameron’s testimony alone touches this matter, and he leased to Charles, not Susan, as he testifies.</p> <p>3. There was no error in refusing to let the bill of exceptions in a former trial in to show what the evidence of Charles Montgomery then was. It would work out curious results to let such bills be evidence of what a witness actually said. Besides, evidence was offered and admitted of what the witness did testify to. Defendant had, in fact, the benefit of what the witness did swear to on the former trial.</p> <p>4. There was no error in the instruction (2d) for defendant. A common inclosure must be protective, though it need not be a lawful fence. If it need not be protective, then one rail laid around or a mere furrow plowed around, would be enough, which would be an absurdity.</p> <p>There cannot be a common inclosure without involving the idea of some protection furnished by it.</p>

Hon. T. J. Wi-iarton, Judge. In 1870 and 1871 Louisa J. Gibbs owned a plantation called “Woodbine,” tad was the lessee of another plantation called “Bose Hill,” both of which she cultivated. Her husband, W. D. Gibbs, employed T. C. Bunch to manage these plantations, and on a final settlement early in 1872 it was found that there was due to Bunch about two hundred and fifty dollars.' Thereupon W. D. Gibbs gave Bunch his note for that amount.

Hon. W. M. Rogers, Judge. The case is stated in the opinion of the court. Tyson’s possession was of such a character that he could not purchase the tax-title and set it up against the right under which he held. The court should not have permitted Tyson’s alienee to have done what, clearly, he could not. Hule v. Broach, 58 Miss. 552. Holmes knew at the time of his purchase that it was rumored that plaintiff claimed the land.

Hon. T. J. Wharton, Judge. On the 11th of February, 1885, the grand jury for the second district of Hinds County found an indictment against Ben. Pope and Alf.

<p>Appeal from the Circuit Court of Lauderdale County.</p> <p>Hon. S. H. Terral, Judge.</p> <p>John Williams was indicted for the larceny of a hog. He plead “ not guilty.” The evidence adduced at the trial developed these facts: On a certain morning Williams shot and killed the hog, went to it, turned it on its back, and stabbed it with a knife to bleed it. He did not remove the hog, but went away and did not return to where he left it till late in the evening of that.day, when he found Lewis Pringle there. He asked Pringle .if the hog was his, and, upon receiving an affirmative answer, offered to carry it to Pringle’s house, and did so.</p> <p>The defendant’s testimony in explanation of his conduct in relation to the hog was “that he had a 'bunch ’ of unmarked 'shoats’ that were in good order and had become a little ' skittish.’ On the morning of the killing of the hog in question he went to the woods where said hogs usually ranged, with his gun and dogs. The dogs soon bayed some shoats which he took to be his, and he shot into the bunch and killed one. He shot the same the second time and then went up to the hog and turned it upon its back and cut its throat (bled it), and then, for the first time, discovered that it was not his hog. Upon discovering his mistake he started his dogs on the trail of his own hogs that had run off and went by the house and sent his daughter to a neighbor’s to inquire if it was his hog, and he then pursued on after the other hogs. On his return home in the evening from his pursuit he went to the hog that he had killed in the morning, and when near the spot he. saw Lewis Pringle. He went to him and informed him that lib had killed the hog, and had done so supposing it was his own. He told Pringle he was willing to pay for the hog and to pack it .to his house.”</p> <p>The defendant’s testimony was partially corroborated by other witnesses.</p> <p>The instructions given by the court left the jury at liberty to find the defendant guilty of larceny or an attempt at larceny. They found him guilty of larceny, and from the judgment on such verdict the defendant appealed.</p> <p>It was the duty of the court to say whether the facts proven amount to an asportation of the hog. A removal of every part of the thing from its place with intent to steal it will constitute larceny. 2 Bish. C. L., §§ 794 to 798. But such is not the testimony. The court assumes that the hog was turned over, and tells the jury, in substance, that if they believe every part was removed from its place in such turn over, it amounted to a carrying away. This was au assumption and was calculated to mislead—therefore error. Hogan v. State, 46 Miss. 274; Joyv. Wallcer, 58 Miss. 253; Bowman v. Roberts, 58 Miss. 127.</p> <p>The evidence was insufficient to support the verdict.</p> <p>The words “ take and carry away ” seem to mean no more than the word “ take ” alone. Roscoe Crim. Ev. 623. If the prisoner’s control over the thing stolen were for one instant perfect it was sufficient. Bishop on Crim. Law, § 795. Although the whole of the article taken be not removed from the whole space which the article occupied before it was so taken, yet if every part thereof be removed from the space which that particular part occupied just before it was so taken, such removal is a sufficient asportation. 46 Am. Rep. 565, and cases cited. 2 Russell on Crimes 153 ; 50 N. Y. 518. Appellant asserted that he killed the animal by mistake, supposing that it was his own property, and really after the testimony of the defendant was introduced this was the sole question which the jury had to determine. The verdict of the jury was right under the evidence.</p>

A. G. Mayers, Judge. The firm of Fulton & Hughes, a mercantile firm composed of N. J. FultoD and W. M. Hughes, was dissolved by mutual consent of the partners on the 17th of May, 1884, and Fulton sold to Hughes his interest in the firm assets except certain accounts and other property valued at five hundred dollars, which were received by the former and to be appropriated to his individual use.

Hon. S. H. Terral, Judge. ' About nine o’clock P. M., on September 20, 1884, S. P. Forsee went to the ticket office of the Alabama Great Southern R. R. Co. at Toomsuba, for the purpose of buying a ticket and taking passage for Meridian on that company’s train, which was due at Toomsuba at about half-past nine o’clock p. m. The depot was dark, no ticket agent could be seen or found, and as it was raining slightly Forsee and his companion, one Poole, left the depot, where, as…

Hon. T. J. Wharton, Judge. The appellant sued the appellee to recover a balance alleged to be due on an open account. The various items of the account were admitted to be correct, but the appellee claimed that' the account had been paid by cash sent by him to the appellant at a specified time, which appellant received, but failed to credit on the account. The contest in the lower court was upon the question whether this payment had been made or not.

<p>Appeal from the Circuit Court of Attala County.</p> <p>Hon. C. H. Campbell, Judge.</p> <p>In January, 1880, J. L. Davis and I. T. Davis executed a deed of trust upon two mules, the crops to be grown by them during that year, and a quarter section of land to T. O. Conner, as trustee, to secure the payment of an indebtedness which they owed to S. P. Dimmer & Son, and which was evidenced by the two promissory notes of the grantors in the trust-deed. The indebtedness was made due and payable on the 1st of October, 1880, and the trustee was authorized to take possession of and sell the property deeded upon default in the payment of the notes.</p> <p>The deed of trust contained a provision in these words : “And said S. P. Dimmer & Son, or their legal representatives, can, at any time they may desire, appoint a trustee in place of said T. O. Conner or any succeeding trustee.”</p> <p>The notes and deed of trust were assigned to M. J. Dimmer, and on the 29th of August, 1884, the notes being partly unpaid, he appointed C. M. Fuller trustee in the deed in place of T. O. Conner. Thereupon Fuller, as such trustee, took possession of one of the mules bound by the deed.</p> <p>This action of replevin was brought in September, 1884, by J. L. Davis, before a justice of the peace, to recover the mule taken possession of by Fuller. The judgment in the justice’s court was against the plaintiff, who appealed to the circuit court. At the trial in the latter court the plaintiff proved his ownership of the mule, and the defendant proposed to show that he had taken the mule as substituted trustee in the deed of trust, but the court excluded the deed from the evidence, on the objection of the plaintiff that it “conferred no power upon M. J. Rimmer as the assignee of S. P. Rimmer & Son to appoint a trustee in place of the trustee named ” therein. The verdict and judgment were for the plaintiff, and the defendant appealed to this court.</p> <p>The deed of trust clearly confers authority on the said M. J. Rimmer, as assignee, to appoint a substituted trustee to execute the provisions of the same, and that the said trustee, C. M. Fuller, so appointed, had full power and authority to act in that capacity. The decision mainly relied on by the appellee to support his case, in 53 Miss. 119, is not analogous to the one at bar, for the manifest reason that the language of the instrument construed in that decision is differently -worded than the deed of trust given by Davis to S. P. Rimmer & Son, and we call especial attention to the phraseology of the instruments. No definite rule can be formulated in contracts of this sort. The powers conferred in each deed of trust must govern. The appointment of C. M. Fuller was valid, and conferred authority to take possession of the property and execute the terms of the said trust.</p> <p>In this deed of trust there is an interposed auxiliary sentence, to wit: “ Or their legal representatives,” not mentioned in the deed of trust construed in case of Clark v. Wilson, 53 Miss., which conveys a synonymous meaning with the technical term “ assignee,” and they are in the two cases convertible expressions—meaning the same thing.</p> <p>The court will observe that the deed of trust expressly stipulates that “ said S. P. Rimmer & Son or their legal representatives ” only had the power given them to appoint a trustee in place of T. O. Conner, chosen in the instrument.</p> <p>And as Mrs. Rimmer is at most only the assignee .of S. P. Rimmer & Son, and not “ their legal representative,” could she lawfully make the appointment over appellee’s objection ?</p> <p>The case of Clark v. Wilson et al., 53 Miss. 127-128, is decisive of the question, to which we invite the attention of the court.</p> <p>“The deed is the source of power and limit of duties and rights of the trustee and eestuis que trust.” Again says Mr. Justice Simrall, in delivering the opinion of the court: “ There is no inherent right in the creditor, who is secured by a deed in trust, to appoint a trustee in the event of death, refusal to act, or resignation. That such power can be exerted by reason only of express authority conferred on the cestui que trust, to name another trustee.” “ The deed is the measure and extent of 'the grantor’s will.” “ Nor can those who take by succession from him, as the executor or administrator, make an appointment unless they are expressly authorized hy the grantor to do so” Hill on Trustees 183; 7 Sugden on Powers 145; Bradford v. Belfield, 2 Sim. 264.</p>

Hon. T. J. Wharton, Judge. A. A. Folkes was indicted in July, 1885, on the charge that he “ did, on the first day of January, and on divers other days, between that date and the finding of the indictment, willfully and unlawfully exercise the privilege of a merchant and keep a store, where the stock never exceeds in value two thousand dollars, without first having paid the price and obtained the license so to do.” He plead “not guilty.” And the case was tried upon the…

Hon. S. H. Terral, Judge. On the 30th day of May, A. D. 1885, Cornelius Corbett presented to the Board of Mayor and Aldermen of the City of Meridian a petition, as follows, to wit: “ The undersigned citizens and legal voters of the city of Meridian respectfully recommend Cornelius Corbett as a suitable and sober person to retail vinous and spirituous liquors, at his place of business on the northwest corner of Johnson and Sidney Streets.

Hon. S. H. Terral, Judge. A. Loeb & Co. filed a petition for license to retail vinous and spirituous liquors within the limits of the city of Meridian. The petition recommended “A. Loeb & Co. to be of good reputation and sober and suitable persons to retail vinous and spirituous liquors.” To this L. A. Duncan and twelve others, citizens and legal voters of Meridian, filed a counter petition.

Hon. C. H. Campbell, Judge. At the October term, 1882, of the Circuit Court of Attala County, E. Dicken obtained judgment by default against W. B. Roberts. The suit was instituted at the March term, 1882.

Hon. S. H. Terral, Judge. On December 2, 1882, J. M. Buntyn filed in the Circuit Court of Lauderdale County a petition against the “ Shippers’ Compress Company” to subject their “compress works” to his mechanic’s lien for materials furnished for the construction thereof and work done thereon during the months of September, October, and November, 1882.

JSon.. E. .Cr. Peyton, Chancellor. Under executions issued upon a judgment in favor of J. R. Powell, against James Y. McNeill, certain lands belonging to the defendant, and lying in Le Flore County, were sold, in the year 1882, by the sheriff of that county, and bought by the plaintiff in execution.

Hon. A. G. Mayers, Judge. In May, 1882, Isaac Landrum was indicted upon the charge of having assaulted H. L. Tucker, on the 1st of April, 1882, with a knife, a deadly weapon, intending to kill and murder him. • At the November, 1883, term of the court, Landrum was put upon his trial.

Hon. C. H. Campbell, Judge. Henry seized, under an attachment, six bales of cotton that had been raised by Davis on land leased by the latter from the former. Davis replevied the cotton. Henry justified the seizure by virtue of his claim for rent and advances for supplies, as set forth in his avowry.

Hon. J. G. Hall, Chancellor. In 1882 J. E. Hughes, as the guardian of several minor children, obtained judgment in the Circuit Court of Grenada County against the mercantile firm of Jones & Winter. Early in 1883 it was entered by the clerk on the judgment roll of this county under the letter “ J and he there also set out the individual names of the firm, but no other entry of it was ever made on the roll.

Hon. P. W. Williamson, Chancellor. T. H. Anderson filed a bill at the October term, 1885, of the Chan.cery Court of Montgomery County against J. S. Cameron, fidministrator of the estate of J. M. Doyle, deceased, which set out substantially as follows: That some time in 1884 complainant probated an account against the estate of Doyle, and defendant, as administrator, contested the same, and the matter was duly submitted to auditors under § 2029, Code of 1880; that two items…

Hon. R. W. Williamson, Chancellor. In March, 1885, W. H. Witty died, leaving a will, one of the provisions of which was as follows, to wit: “ I am now engaged in a mercantile business, and may be so engaged at the time of my decease.

<p>Jurisdiction. Circuit e^rt. Amount in controversy. Case in judgment.</p> <p>G., having in his possession a promissory note for one hundred and sixty-three dollars and fifty-five cents belonging to W., as guardian of M., obligated himself in writing to pay the proceeds of the note to the sureties on W.’s guardianship bond in the event they should have to pay off any part of W.’s indebtedness to his ward, which indebtedness was to be ascertained by the decree of the chancery court. That court fixed the amount of such indebtedness at four hundred and fifty dollars, all of which was paid off by W. except one hundred and thirty-four dollars, which was paid by the sureties, who thereupon brought suit in the circuit court on G.’s obligation, above referred to, declaring the amount of their demand to be one hundred and sixty-three dollars and fifty-five cents, but laying their damages at one hundred and sixty dollars. JBeld, that, upon the evidence, there being no uncertainty as to the amount in controversy, to wit, one hundred and thirty-four dollars, and that being insufficient to give the circuit court jurisdiction, the plaintiffs cannot confer jurisdiction by laying the ad damnum at a sufficient amount.</p>

Hon. J. W. Buchanan, Judge. The case is stated in the opinion of the court. 1. It is settled, as a general rule, that no final judgment can be amended after the term at which it was rendered. The authorities do not sanction the doctrine that it is lawful to correct judicial errors under the false pretense of correcting clerical mistakes.

Hon. J. W. Buchanan, Judge. A statement of the case will be found in the opinion of the court. 1. We admit that if a druggist who obtains license to retail keeps his liquors in the same department with his drugs and sells the same there, and keeps this room open on Sunday, he may be amenable to § 1113, although protected by § 2950.

Hon. A. T. Boane, Judge. This is an action of ejectment, instituted on the 9th of September, 1884, by A. F. Bonner and others, to recover of W. P. Holman a certain tract of land in his possession.

Hon. J. W.-Buchanan, Judge. J. L. Finley, as district attorney, filed a petition in the Circuit Court of Monroe County, which set out that by virtue of an act of the legislature approved March 8, 1884, entitled “An Act to amend the road laws as applicable to Monroe County,” it was made the duty of the board of supervisors to furnish the road overseers with such implements as might be necessary to work the roads in said county; that the overseer of a certain road in the…

Hon. Baxter McFarland, Chancellor. John S. Topp, Sr., died in 1862, leaving a last will and testament, which, after providing for the payment of his debts, devised and bequeathed certain lands, slaves, and other personalty to his widow during her lifetime, and then, contained the following articles: u Thirdly. I have given to my son, William A., and to my daughter, Jane C. McCain, as much property as I am probably able to give to my other children.

Hon. E. W. Williamson, Chancellor. In 1877, W. E. Barksdale died, leaving a widow, Fannie G. Barksdale, and two minor children, Mary G. and Bettie J. Barks-dale.

A. T. Boane, Judge. ■ Some time in June, 1885, an old Italian, who could not- speak a word of English, was on a train of the Illinois Central Bail road, on his way to Vicksburg. Just as the train was leaving Grenada a man named Ackerman approached him and demanded his ticket.

Hon. W. S. Feathebston, Judge. A statement of the case will be found in the opinion of the court. 1. There can be no estoppel in this case. There was no false representation or concealment of any material fact. Cole had as full knowledge of the material facts, if any, upon which an attachment could be predicated, as Dogan had. He had told him what he intended to do, and upon this (the contemplated assignment) the affidavit for the attachment was founded. 2.

Hon. W. S. Featherston, Judge. On the 1st of April, 1885, Rose Lynn filed a declaration against the Illinois Central Railroad Company, containing the following substantial allegations: “And the said defendant, * * * on the 8th of October, 1884, in said county of Marshall, employed Lee Lynn, a minor son of said plaintiff, as a laborer on its railroad and on one of its construction trains thereon, and, by virtue of said employment, the said Lee Lynn was, on the 8th day of…

Hon. A. T. Roane, Judge. In May, 1885, John Morgan'was indicted upon the charge that, on the 8th of November, 1884, he “did willfully, corruptly, feloniously, and falsely testify before ” a grand jury of Panola County, in respect to “ a matter material for said grand jury to know;” * * * “ that he, the said John Morgan, did, in said county, some time in July, 1884, see Sam. Houston play at a game of five-up, for twenty-five cents, and that Sam.

Hon. E. Gr. Peyton, Chancellor. Robert Bowman and Elizabeth King, executor and executrix of the estate of Robert Wilson, deceased, exhibited a bill against J. M. Bonney and C. Wildy Bonney, a minor, which set out in substance that in 1877 Robert Wilson obtained judgment against J..

<p>Appeal from the Chancery Court of Prentiss County.</p> <p>Hon. Baxter McFarland, Chancellor.</p> <p>In December, 1884, Jno. N. McGee, guardian of Lucinda M. McGee, a minor, heir of his deceased wife, M. M. McGee, exhibited his bill against Geo. S. Ellis and J. Q. Eobins, the latter being administrator of the estate of J. B. Ellis, deceased, which set out, in substance, that in 1857 J. B. Ellis was appointed administrator of the estate of one George Burton ; that in 1874 a decree was rendered against J. B. Ellis, as such administrator, for four thousand four hundred and eighty-three dollars and thirty-three cents in favor of the heirs of George Burton, and nine hundred and forty-one dollars and sixty-six cents of this amount was ordered to be paid to Jno. N. McGee, as guardian of the minor heirs of M. M. McGee, she having been one of the heirs of George Burton; that this decree was duly recorded in Prentiss County; that Jno. B. Ellis died in 1878 intestate, and no administrator of his estate qualified until November, 1883, when J. Q,. Eobins was appointed; that after the appointment of Eobins as such administrator, the decree against J. B. Ellis was duly revived against the estate; that George S. Ellis came into possession and converted to his own use a large quantity of property belonging to the estate of his father, J. B. Ellis; and that J. B. Ellis, before his death, fraudulently conveyed a large lot of property to George S. Ellis in order to avoid paying the above decree; that at the time of the filing of the present bill Lucinda M. McGee was still a minor, but that the other heirs of M. M. McGee were then of age. The bill prayed that Eobins, the administrator, be required to account, and if sufficient assets were not in his hands to pay the above claim against the estate of J. B. Ellis that a decree be rendered against said George S. Ellis for the balance so due, or for such amount as said George S. Ellis had received from the estate of J. B. Ellis. The defendant, George S. Ellis, demurred to the bill, which demurrer was overruled, and he appealed.</p> <p>1. Where a fraudulent conveyance is recorded, and the circumstances are public, so that the judgment creditor has the means of finding out the character of the transaction, the doctrine of concealed fraud does not apply so as to prevent the running of the statute of limitations.</p> <p>After the creditor has lost his judgment lien after a lapse of seven years, as prescribed by statute, the court of equity will decline to aid him to set aside a fraudulent conveyance of his debtor’s lands. Porter v. Mathews, 53 Miss. 140; affirmed in Fleming v. Grafton, 54 Miss. 79.</p> <p>2. Section 2683 of the code provides that if any person entitled to bring any of the foregoing actions hereinbefore mentioned, or liable to any such action, shall die before the expiration of the time herein limited therefor, such action may be commenced by or against the executor or administrator of such person after the expiration of said time, and within one year after the death of said person.</p> <p>This suit was not brought within the time provided in this statute.</p> <p>1. The first cause of demurrer is “ want of equity.”</p> <p>The bill contains a statement of facts which gives a court of equity jurisdiction, and requires relief. There is no want of equity. The courts of chancery are given jurisdiction in “all matters of equity.” Code 1880, § 1829, in matters of administration ; lb., §§ 1829 and 1834.</p> <p>2. The decree was rendered in 1874. Ellis died in 1878. There was no administration till November, 1883. The original bill was filed December, 1884.</p> <p>The bar was certainly not complete at Ellis’ death. Section 2162 of Code of 1871 gives one year after date of letters within which to bring suit, and the first six months after date of letters is not to be computed as part of said year. This gives eighteen months after grant of letters in which to bring suit against the administrator. Suit was brought in the case at bar within thirteen months after date of letters. See Code of 1871, §§ 1184, 2162, and 2170 ; Adams v. Williams, 57 Miss. 38 ; Jennings v. Love, 24 Miss. 249 ; Lowell v. Wilber, 2 S. & M. 452 ; Sledge v. Jacobs, 58 Miss. 243; Rembert v. Key, 58 Miss. 533 ; Coohe v. Reynolds, 58 Miss. 243 ; Boyce v. Francis, 56 Miss. 573, and cases there cited. Sivley v. Summers, 57 Miss. 712.</p> <p>The right accrued under Code of 1871, and hence must be determined by the laws then existing. Code of 1880, § 2692; 41 Miss. 71.</p>

Appeal and Cross-appeal from the Circuit Court of Monroe County. Hon. J. W. Buchanan, Judge. B. A. Honea, as treasurer of Monroe County, received in his settlement with the sheriff certain warrants which had never been registered under an act of the legislature, passed in 1876 (Acts of 1876, p. 31), which provided that no warrants, then outstanding, should thereafter be received for public dues, unless registered .within a limited time.

Hon. B. T. Kimbrough, Chancellor. In 1869 R. A. Roberts was made the guardian of Belle T. Means and her two sisters, minors, and executed the required bond. In 1872 Roberts and Anderson entered into a partnership for the purpose of carrying on a general merchandise business.

Hon. J. W. Buchanan, Judge. The town of Chesterville, as incorporated under a special act of the legislature, lies partly in the County of Lee and partly in the County of Pontotoc.

<p>Appeal from the Circuit Court of Coahoma County.</p> <p>Hon. B. F. Trimble, Judge.</p> <p>Martin C. Boss was the illegitimate son of Mildred Crabtree, and he had an illegitimate brother, G. W. Crabtree, also a son of Mildred. He also had two half-sisters, Elinor Crabtree and Mary Friar, both of whom were legitimate children of Mildred Crab-tree. Boss died in 1850 without issue, having made a will in which he left all of his property to his wife, Mahala S. Boss, during her life. The second and third clauses of the will were as follows:</p> <p>“ 2. After the death of my wife, Mahala S. Boss, it is my will and bequest that one-third of my estate, real and personal, be given unto the heirs of Mary Friar, now living in Coahoma County.</p> <p>“3. Also, I give and bequeath unto the heirs of Elinor Crab-tree one-third of my estate, real and personal.” .</p> <p>After the death of Boss his wife took possession of his estate, which consisted of a piece of land, and leased the same to James Irvine for the term of his life. James Irvine died before the lease expired, and his heirs took charge of the lease, paying the rent regularly until the death of Mrs. Boss. After her death they continued in possession, but paid no rent. While the heirs of James Irvine were in possession one of them, W. J. Irvine, bought the land at a tax sale.</p> <p>Elinor Crabtree, named in the third clause of the will of Boss, at the death of Mrs. Boss, had nine children, and she herself was living when this suit was instituted. Two of her nine children, Ann Winfrey and Thomas H. Crabtree, transferred their interests in this land, under the will, to James Newlin, the plaintiff in this suit. Elinor Crabtree, now Mrs. Bay, joined in the conveyance. Newlin brought this action of ejectment against S. P. Irvine for possession of the land. W. J. Irvine, of his own motion, was admitted to defend the suit. The court below rendered judgment for the plaintiff for two twenty-sevenths of the land. The defendant, W. J. Irvine, appealed.</p> <p>1. The word heirs in the third clause of the will has its legal meaning. Said clause gave a contingent remainder to the heirs of Elinor Crabtree. The remainder was contingent because it could not vest until the death of Elinor Crabtree, when her heirs would be known, which might not happen until after the death of Mahala S. Ross, whose death before that of Elinor Crabtree would put an end to the particular estate before the vesting of the remainder, and thereby wholly defeat it. .</p> <p>2. The word heirs in clause three of the will is to be construed in its strict legal sense.</p> <p>There is no qualification annexed to the word nor anything else in the will to show an intention to use the word in a sense different from its legal sense, which is the sense in which the word is presumed to be used, unless the context clearly indicates the contrary, or, as it has been differently expressed, unless there is a plain demonstration in ..the will that the testator used it in a differeht sense. 2 Red. on Wills 427 (R. xvii of Jarman); Broom’s Legal Max. 523; Love v. Buchanan, 40 Miss. 758; Vamierson v. Culbertson, 10 S. & M. 150; Sims v. Conger, 10 Geo. 231; Rand v. Butler, 13 Rep. 653 (48 Conn.); Dodge’s Appeal (Sup. Ct. Pa.), 18 Rep: 764.</p> <p>3. The fact that a qualification was annexed to the word heirs in clause two of the will does not change the construction of the word in clause three. There is no connection, grammatical or by reference, express or implied, between clauses two and three of the will. The meaning of clause three is perfect in itself, and does not militate against any other provision of the will; nor is there anything in the will, declarative of a common purpose, whence it may be inferred that the testator meant to use the word in clause three in the sense he used it in clause two. Broom’s Legal Max. 590-1; 1 Red. on Wills 428 (R. xxii of Jarman).</p> <p>4. Martin C. Ross was a bastard, and his sister, Elinor Crab-tree, could not inherit from him at common law. A fortiori her children could not have inherited from him if she had not been living at his death. 4 Kent 413 (marg. page). Our statute then in force only changed the common law rule so far as to allow illegitimates to inherit from “ each other,” and did not permit a legitimate to inherit from a bastard or vice versa. Hutch. Code 501.</p> <p>1. The will gave the one-third to either the children of Elinor Crabtree living at the date of the will, or living at the death of the testator, or living at the date of the death of- Mahala S. Ross. In either case plaintiff’s title is perfect. Thomas H. Crabtree, who made the deed, must be presumed to have continued living until his death is shown.</p> <p>Mrs. Crabtree joined in the deed, and that makes the plaintiff’s title good, as she is sister to testator by the same mother, and therefore one of his heirs, even if the objections to the devise of her children were valid.</p> <p>Mr. Jarmin, 2d on Wills 597, speaking of the great struggle to determine whether the testator used the word “ heir ” technically or as meaning heir apparent or heir presumptive in his notes—see notes 7 and 12—proceeds to collate the authorities pro and con in note 12.</p> <p>2. It is fairly presumable the testator knew his sister Elinor was living at the date of the will. In three clauses of the will he uses the word heirs—the second, third, and fourth—and it is hardly possible to resist the conclusion that, in each instance, he uses it, not technically, but in the sense of heirs apparent, that is, living children.</p> <p>In the second clause he refers to the heirs of his sister Mary, and takes notice that that sister was then living. This settles the construction that he meant, in that clause, her heirs apparent. Powell on Devises 248-251, and the numerous authorities cited in Jarman’s note 12,above referred to, holding that the word “ heir” means heir apparent where the ancestor was living at the date of the making of the will, although this fact is not noted in the will.</p> <p>A fair resume of all the decisions will classify them thus :</p> <p>A vast majority hold that a devise to the “heirs” of a living person means a devise to his children, one class of these holding it to mean the children living at the date of the will; another class holding it to mean the children living at the testator’s death; a third, and far the smallest class, holding it to 'mean the children living at the death of the person indicated as ancestor, and not permitting a lapse; a fourth class holding that it will lapse unless the will shows somewhere that the testator knew the person he indicated as ancestor was living when he published the will, in which case it would go to children then living; a fifth class holding that it would lapse unless the person indicated as ancestor was in fact alive at the date of the will, in which case it would go to the children then living; a sixth class holding that it would lapse unless the context shows that the testator designed the word heirs not technically, but to refer to persons as a class.</p> <p>The case of Heard v. Horton, 1 Denio 168, while holding erroneously, as we submit, that a devise “to the heirs of” a person living at the date of the will is void, on the maxim nemo est hceres viventis, still holds that a devise to the heirs of A., who is stated in the will to be now living, would plainly refer to such persons as were at the time heirs apparent to A., those who would be his heirs if he should then die; and this conclusion is the same with many authorities cited in note 12, p. 597, of Jarman on Wills.</p> <p>In Quick v. Quick, 21 N. J. Eq. 13, Chancellor Zabriskie held that such a devise meant such persons as would have been the heirs of the persons named as ancestor at the date of the execution of the will.</p> <p>But we rely on the cases cited in note 12 supra, and so will not further cumber this brief by special citations of the cases.</p> <p>The simple rule is that the children of Ellen Crabtree took as purchasers, that is, her children living at the testator’s death, or at the making of the will.</p>

Hon. F. A. Critz, Chancellor. The case is stated in the opinion of the court. 1. The amendment changed the whole character of the suit and the litigation. The first bill was a proceeding in rem—to establish appellee’s right to one-fourth of theland of her father’s estate, andforsix thousand dollars legacy and twenty-six years’ interest.

Hon. W. M. Rogers, Judge. In February, 1885, T. O’Flinn presented a petition to the Board of Mayor and Aldermen of the City of West Point for a license to retail vinous and spirituous liquors within the corporate limits of that city, and thereupon license for that purpose was issued to him.

Hon. T. J. Wharton, Judge. Ann Handy was indicted for keeping a bawdy house. The indictment only set out that the offense was committed in Copiah County, without specifying anything further as to the place where the house was kept.

Hon. S. H. Terral, Judge. M. P. Ferrill brought this action in March, 1884, to recover of James Dickerson a certain tract of land which the former claimed through a tax-title acquired… Held: “The failure of the collector to make and file with the clerk of the chancery court separate lists of the land sold to individuals on or before the first Monday of April succeeding the sale, as directed by § 40 of the act of 1878, does not at all affect the title of the purchaser.

Hon. Ralph North, Judge. In 1885 L. & A. Scharff brought an action of assumpsit against Jules A. Lisso in the Circuit Court of Adams County. The declaration set out that Lisso & Sehrew, a firm doing business in Louisiana, and of which Jules A. Lisso was a member, accepted a draft drawn on them by L. & A. Scharff, payable in New Orleans four months after date, but that this draft was not paid. To this the defendant Lisso interposed the plea of the statute of limitations.

Hon. W. S. Featherston, Judge. A. H. Romberger and others, citizens of the town of Water Yalley, presented a petition to the Hon. T. E. Cooper, chief justice of the supreme court, praying for a writ of prohibition against the board of mayor and aldermen of the said town, which writ was by him granted.

Hon. W. Gr. Phelps, Chancellor. In 1858 Cobb & Ligón, partners in the business of planting, bought a tract of land. In 1860 they borrowed money from Thomas Skidmore to pay for this land. In 1866 the firm was dissolved, and in order to settle up the firm business the land was sold to one Anderson, and Anderson’s note for the purchase-money was, by agreement between Cobb and Ligón, made payable to Skidmore.

Hon. R. W. Williamson, Chancellor. Nancy Harrison filed a bill for partition which set out in substance that Nicy Dyer, the mother of the petitioner, died seized in fee of two tracts of land in Webster County; that she died intestate, leaving three heirs, the petitioner herself, and Mary and Sallie Porter; that Sallie Porter sold her interest in one of the tracts to the petitioner and her interest in the other tract to James Parker; that Samuel Parker claimed some sort of…

Appeal froiu the Circuit Court of Tippah County. Hon. W. S. Featherston, Judge. Some time in December, 1884, Robert Jackson went to the appellant, A. Z. T. Johnson, to buy some whisky. Johnson had been selling whisky by the gallon. Johnson said he was out of whisky, but wanted some himself, and would go in with Jackson and they would buy a gallon jointly.

Appeal and gross-appeal from the Chancery Court of Grenada County. Hon. J. G. Hall, Chancellor. Held: and appointed a commissioner to purge the account of usury, directing him as follows : “Said commissioner will charge the defendants with the sum of money actually advanced to them by said N. C. Snider, and will credit them with all sums of usury paid upon said note and other notes and transactions out of which the same arose, and…

Hon. A. T. Roane, Judge. VV. N. Pass obtained judgment against Milton Payne for seventy-four dollars and twenty-eight cents in the justice of the peace’s court of the first district of Grenada County. Payne appealed to the circuit court, and gave an appeal-bond with Jonathan Payne as surety. In the circuit court the defendant, Payne, asked the court to dismiss his appeal, which was done.

<p>Appeal from the Chancery Court of Chickasaw County.</p> <p>Hon. Baxter McFarland, Chancellor.</p> <p>Simon Myers died in 1S78, leaving a will, the fourth clause of which is as follows :</p> <p>“It is my will, desire, and direction that all of my estate * * * after paying my just debts, funeral expenses, and expenses of erecting a proper tomb at my grave, shall be equally divided among my several children, namely, Alice Foster, wife of H. P. Foster; Zelda L. Bean, wife of G. W. Bean; Lula Ligón, wife of Greenwood Ligón; Kate Myers, and Lizzie Myers, to be appropriated and applied to the use and benefit of each of them, under the limitations and restrictions, and in the manner hereinafter specified and provided for : that is to say, It is my will, desire, and I hereby so ordain and direct, that H. P. Foster, husband of my daughter, Alice Foster, shall have no interest in, management of, or control over any of the money, property, or effects which I have herein willed and bequeathed to the use and benefit of his said wife, Alice Foster, nor shall my said daughter, Alice Foster, have the right to sell, convey, or otherwise to dispose of any of the property or effects herein willed to her use except such as is necessarily consumed in the proper use thereof. And in order to secure to the proper use and benefit of my said daughter, Alice Foster, during her natural life, and after 'her death to the use and benefit of her children, heirs of her body, I do hereby and herein appoint and constitute my son-in-law, Greenwood Ligón, executor of my last will and testament, and trustee of my said daughter during her lifetime, and for her said several children after her death, to whom as trustee the whole of the property * * * intended to be appropriated and applied to the use and benefit of my said daughter, Alice Foster, and her said children after her death, is herein and hereby bequeathed in trust for the use and benefit of my said daughter, Alice, and her children as aforesaid; and it is my will and intention, and I do herein direct, that the said Greenwood Ligón, as trustee for the use and benefit aforesaid for and during her life, shall have and exercise full and complete control of the whole of said trust estate, and shall direct, control, appropriate, and apply the said trust property and estate to the use and benefit of my said daughter, Alice Foster, as long as she shall live, and after her death in like manner to the use and benefit of all the children born of her body, in equal amounts or proportions, it being my intention, will, and desire hereby to vest in the said trustee the legal and equitable title to all the said property and estate for the purpose of fulfilling the said trust.”</p> <p>Alice Foster filed a bill in the chancery court asking that Ligón be removed as trustee for her interest and that of her children, and that a new trustee be appointed. Ligón answered, and stated his willingness and readiness to surrender his trusteeship, and asked that his discharge might be full and final.</p> <p>The court ordered a final settlement of Ligon’s trusteeship, and in addition decreed as follows : “ And it appearing to the satisfaction of the court that the said Greenwood Ligón should be relieved as trustee for the said Alice Foster, it is further ordered, adjudged, and decreed that the title to the share or interest of Alice Foster and her children be, and the same is hereby, invested in her, the said Alice Foster, as a trustee for the use of herself and her children, as contemplated by the will of Simon Myers, deceased.” The defendant, Ligón, appealed.</p> <p>This appeal is prosecuted for the purpose of having this court pass upon the validity of the decree so far as it removes Ligón as trustee, and substitutes Mrs. Alice Foster as trustee for herself and children. We do not desire that the decree should be reversed, but submit the matter to the court.</p> <p>By the terms of the decree the title to Mrs. Foster’s share or interest is vested in her as trustee for the use and benefit of herself and children; hence, it will be impossible for her to expend more than the income of the estate. She cannot dispose of the corpus, except by a decree of the chancery court, but she can get and have the enjoyment of the income. Hence, the spirit and purpose of the will of the testator is subserved.</p>

Hon. J. W. Buchanan, Judge. Mrs. M. A. Pollard brought au action of assumpsit against the Phoenix Insurance Company.

Hon. A. T. Roane, Judge. One Atkinson killed McPherson. Joseph Wynn was present at the killing, and loaned .Atkinson the pistol with which the homicide was committed. Atkinson and Wynn were jointly indicted for murder, but there was a severance of their cases. Wynn was put upon trial, and the evidence adduced was voluminous and somewhat contradictory.

Hon. W. S. Featherston, Judge. In 1884 Robert Lamar was indicted for the murder of William Harmon. It appears that Robert Lamar and Dock and James Bishop had been drinking and carousing together in the little town of Dallas, in Lafayette County; that Lamar had already that day had a difficulty in which he shot a man, and that they had annoyed considerably some of the citizens of the town, among whom were the Harmons, merchants in the town.

<p>1. Biel of Exceptions. Approval within ten days after term. Certificate of judge.</p> <p>This court will not strike from the record in a case a bill of exceptions because filed with the clerk more than ten days after the expiration of the term of court, when such bill is signed by the judge, and purports on its face to have been so signed within ten days after the expiration of the term of court, as required by law.</p> <p>2. Same. Under special act of February 25, 1882, providing for stenographers. Time of filing.</p> <p>Under a special act of the legislature, which provides that in certain counties stenographers may be employed to take down testimony in the trial of causes in the circuit court, and makes it the duty of such stenographers to write out such proceedings and file a copy with the clerk of the court, and further provides that this copy “ shall be made a part of the record, and when filed and approved by the judge, shall constitute the bill of exceptions pro tanto, without further forms,” there being no intention expressed in the act to extend the usual time for perfecting such bills of exception, they must be filed with the clerk as required by the above act within ten days after the expiration of the term of court, in accordance with the provisions of the general law on the subject of bills of exception.</p>

Appeal and Cross-Appeal from the Chancery Court of Monroe County. Hon. Baxter McFarland, Chancellor. In December, 1884, H. C. Buchanan was doing business in Okolona, under the firm name of “ H. C. Buchanan & Co.,” a firm composed of himself alone; he was also doing business in Aberdeen under the firm name of “H. C. Buchanan & Co.,” a firm composed of H. C. Buchanan and C. C. Bruckner.

Hon. Sylvanus Evans, Chancellor. The Board of Supervisors of Chickasaw County exhibited a bill against the Board of Supervisors of Clay County to compel them to pay a certain part of the indebtedness of Chickasaw County. The defendant answered and the complainant filed twenty exceptions to this answer for insufficiency and impertinence, all of which but one were sustained.

Hon. C. H. Campbell, Judge. The case is stated in the opinion of the court. 1. The motion in arrest of judgment should have been sustained. The want of a right of action in the given case is matter of substance not cured by the Code of 1880. The action is not brought for the use of any person. It could not be brought for the use of the mother and brothers and sisters, here or in Tennessee.

<p>1. Sale of Liquor. Minor as agent for undisclosed principal. Evidence.</p> <p>It. was indicted for selling liquor to a minor. On the trial, the sale having been shown, It. offered to prove by the minor that the purchase was made for the minor’s uncle, who received the liquor and furnished the money which was paid for it; but there was no offer to prove that such agency was known to the defendant when the sale was made. This testimony was excluded. Meld, that it was properly excluded. For if the rtlinor was acting as agent it was an agency for an undisclosed principal, and as in such case either might be treated as the buyer of the liquor, K. is guilty of the charge of selling . to the minor.</p> <p>2. Same. To a minor. Punishment therefor. Sections 1115 and 1112, Code of 1880, construed.</p> <p>Under $ 1115, Code of 1880, which declares that any one convicted of selling liquor to a minor shall be fined not less than one hundred nor more than one thousand dollars, it is error to sentence a defendant so convicted to imprisonment. Section 1112, Code of 1880, does not apply to such offense, but provides punishment for other violations of the liquor laws.</p>

Hon. W. M. Rogers, Judge. B. F. McCreary and others, legal voters and citizens of the city of West Point, filed a petition before the circuit judge, in vacation, praying that a writ of certiorari be issued against Rhodes & Silk and the municipal authorities of West Point, to have the records whereby license to retail liquors was granted by the municipal authorities of West Point to the firm of Rhodes & Silk sent up for review.

Hon. Ealph North, Judge. Henry Johnson was indicted for the murder of his step-child, a boy aged six years, and was convicted and sentenced to be hanged. The evidence showed that he gave the child a severe beating, and that five days afterward the child died. The beating was given on Sunday. On Monday next following the child went to the house of one Amy Bradley.

Hon. T. J. Whabton, Judge. Amos Yirgil was indicted for tbe murder of Prince Williams, ¡an infant, who was burned to death on the 15th of October, 1885, in a house which was consumed by fire. The defendant plead “ not guilty.” The question controverted in the evidence adduced at the trial was whether the accused fired the house the burning of which ■caused the death of the infant.

Hon. T. J. Wharton, Judge. In April,-1882, Thomas B. Cato, claiming a certain tract of land by virtue of a tax-title derived from the State in 1877, brought an action of ejectment against Dennis Gordon for the same. In the circuit court the judgment was for the defendant, but on appeal to this court it was reversed and the case remanded for a new trial. On this, the new trial, Gordon set up a tax-title obtained by him through one Barlow.

Hon. Warren Cowan, Chancellor. In 1866 one James Gregory died, leaving a will by which he constituted James Orr his executor without bond, and guardian of his two minor children, James and Hiram Gregory, who were the sole devisees.

Hon. T. B. Graham, Chancellor. The case is stated in the opinion of the court. The Chancellor erred in fixing the character of trustee on ■defendants and in compelling Gaston, Son & Co. to give up their title.

Hon. S. H. Terral, Judge. Samuel Fairly was indicted for selling liquor in a less quantity than one gallon without a license. It was shown that he had sold “ Hickory ” and “ Garrie Owen ” bitters.

<p>Appeal from the Circuit Court of Copiah County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>V. R. Wilcox was in Hazlehurst establishing an agency for the sale of sewing-machines. The marshal of the town, under instructions from the mayor, demanded that he pay a privilege tax. He refused to pay it, and was told by the marshal to go up to the mayor’s office and see him about it. He did go, and the mayor insisted that Wilcox was liable under a town ordinance and must pay the tax. Wilcox still refused, and said to Williamson, the mayor, that he wanted the matter settled at once. The mayor replied that the marshal was not present to make out an affidavit against him. Wilcox still insisted on a settlement of the matter at once. The mayor said, “ Well, I’ll fine you ten dollars and costs,” and instructed the marshal to take charge of Wilcox and turn him over to the street contractors to work out his fine, if it was not paid. Wilcox paid the fine under protest and brought an action for damages against Williamson, the mayor, for false imprisonment. On the trial Williamson swore that Wilcox said that he was in a hurry, and would waive the necessity of an affidavit and warrant for his arrest. Wilcox denied this, but swore that he simply urged that the matter be settled immediately. The first, second, and eighth instructions offered by defendant were to the effect that if the jury believed that Wilcox waived the making of an affidavit and issuance of a warrant, they must find for the defendant. The court below refused to give these instructions. The jury found for the plaintiff, and assessed the damages at eight hundred and thirty-three dollars and thirty-three and one-third cents. The defendant, Williamson, appealed.</p> <p>The first, second, and eighth instructions asked for by the defendant and refused should have been given. They announced the familiar principle of contributory negligence, and were clearly applicable to Williamson’s testimony. Wilcox urged Williamson to act, saying, “ Dispose of me now—I’m in a hurry. I waive the necessity of an affidavit.” He is, then, surely estopped to claim damages on this account, and the jury should have so been instructed.</p> <p>The law of this case is settled by the decision in Bell et al. v. MoKinly, decided at the present term of this court.</p> <p>As to the instructions asked by the defendant and refused by the court, this court can see at a glance that they were properly refused. There was no view of the case from the admitted facts in which the jury would have been warranted in finding a verdict for the defendant, and any instruction telling the jury that the plaintiff was not entitled to recover under any view of the case proven would have been erroneous. These instructions are covered by Bigham v. The State, 59 Miss., and Wiloox v. Williamson, <31 Miss. The third instruction refused was properly refused because it is too narrow in attempting to fix the actual damage at the fine and cost paid upon the judgment rendered by Williamson.</p> <p>The counsel for appellants have taken a mistaken view of the whole ease, as is shown by their citing Bell v. MoKinly as conclusive authority for them. Under the facts of the case at bar the defendant was a trespasser and must be treated as such.' He was wholly without jurisdiction. The proceeding was coram non judioe. Williamson knew he was wrong. He knew an affidavit was necessary, as the testimony shows. He was acting upon no mistake of fact. The jury were left to judge as to his motive, and they found the fact to be that he acted maliciously.</p>

Hon. Sylvanus Evans, Chancellor. A. C. Danner & Co. entered into a certain agreement in writing with Mead Bros., and afterward Danner & Co. sold all their interests, including their rights under this agreement with Mead Bros., to the “ Danner Land and Lumber Company.” A. C. Danner & Co. had exhibited a bill against Mead Bros. The Danner Land and Lumber Company having failed, J. C. Strong, the assignee of the same, was made complainant in place of Danner & Co. The bill set…

Hon. A. G. Mayers, Judge. J. M. Buckley & Son were accustomed to buy cotton for the Stonewall Manufacturing Company, receiving therefor a commission of twenty-five cents per bale. On the 10th of March, 1884, this firm of Buckley & Son made a verbal contract with G. F. Peek for forty bales of cotton at ten cents per pound. On the 14th of March, Peek approached Buckley and said: “ I have eight bales of that cotton,” and delivered it and was paid for it.

Hon. J. B. Chrisman, Judge. A statement of the case will be found in the opinion of the court. There is but one question in this case, and that is, is the action of the court in refusing to render judgment against the sureties on the replevin bond correct ? We claim that the action of the court in this behalf was error, and that judgment should have been rendered on the bond against the sureties.

Hon. J. B. Chbisman, Judge. This action was brought by B. R. Inman, L. A. Inman, and Emily J. King against Mrs. F. J. Morris, before a justice of the peace, upon a demand of one hundred and twenty dollars for the use and occupation of a certain tract of land for the year 1884. The justice of the peace found for the plaintiffs, and the defendant appealed to the circuit court.

Hon. Baxter McFarland, Chancellor. Mrs. Emma Ellis brought this bill in the Chancery Court of Chickasaw County against J. T. Griffin, to have cancelled a tax-deed held by the latter to certain land which is the subject of dispute. The land, which belonged to Mrs. Ellis, was sold for the unpaid taxes of 1881, under the assessment of. 1879. The tract consisted of one hundred acres.

Hon. S. H. Terral, Judge. In June, 1884, Frank Wilson bought an excursion ticket from the New Orleans and Northeastern Eailroad Company, which entitled him to ride on their train from Enterprise to Barnett and return. The ticket was sold to Wilson at a reduction, and read as follows: “ Sunday excursion ticket.

Hon. A. T. Roane, Judge. In January, 1876, a certain tract of land belonging to one Gann was forfeited to the State for taxes due for 1875, and remained on the forfeited land roll of the State till 1883, when it was purchased from the State by Still & Still. .■ They then brought this action of ejectment against one Anderson, whom they found in possession. Anderson claimed under a warranty deed from Porter, Taylor & Co., who were admitted to defend the suit.

Hon. Lauch McLaurin, Chancellor. A statement of the case -will be found in the opinion of the court. 1. Even if there had been collusion in suing out the attachment no harm came of that to appellees. The only thing that came of the attachment was that it resulted in the conversion of the property into money, and the property was in the marshal’s hands in that shape instead of in kind.

<p>Appeal from the Chancery Court of Jefferson County.</p> <p>Hon. Laugh McLaurin, Chancellor.</p> <p>Dunbar Hunt, J. F. Gilliam, D. P. Mullins, J. D. Frasier, William George, Miss Mildred Scott, Mrs. Julia Eobb, and Miss Mary Heckler brought this bill in equity against E. F. Learned, M. Holmes, F. Fisher, Henry Wilson, and Jacob Wagner. The prayer of the bill is that the defendants be perpetually enjoined from obstructing, by locks or dams, the natural flow of water through what is known as “ Isenhood Bayou.”</p> <p>It appears that the complainants own plantations in a certain bend of the Mississippi River, and that this river frequently overflows and inundates their lands. It is alleged in the bill that “ Isenhood Bayou ” is a natural outlet or drain by which such overflowing waters of the Mississippi return to that river at a point below, and that if this bayou be closed or obstructed in any way the waters stand upon the plantations for a long while and greatly injure them.</p> <p>The defendants- deny that they obstruct in any way the flow of the waters through “Isenhood Bayou,” but admit that they have placed locks and dams in a certain artificial drain or canal near by which is their own property, built by them, and used to float down logs, and is not a natural outlet or drain. The evidence as to the identity of the canal with bayou was conflicting.</p> <p>The Chancellor found “ that Isenhood Bayou as set forth in the bill of complaint, and the canal or float-ditch set forth in the defendants’ answer is one and the same stream or outlet; and that said stream or outlet is a natural outlet and not an artificial one, and that the damming up of said Isenhood Bayou is a private and public nuisance, and causes damage to complainants as set forth in their bill. It is therefore ordered, adjudged, and decreed that the injunction issued on the 25th day of August, 1883, restraining the said defendants from obstructing or damming or otherwise interfering with a certain water-course or outlet from the Mississippi River known as Isenhood Bayou, so far as to cause injury to the complainants specially, as set forth in their bill of complaint, be and the same is hereby made perpetual.” From this decree the defendants appealed.</p> <p>1. The case presented for the consideration of the court was too doubtful to justify interference with the enjoyment "by appellants of their property which has been fairly acquired. In Green v. Lahe, 54 Miss. 544, the court said : “ Generally a court of equity will not entertain a bill until the right of the complainant has been established at law. If the right is not controverted or not clear it will refuse relief until the fact that a nuisance exists has been established at law.” And again: “ Irreparable injury lies at the foundation of relief in equity; injury so great as to be incapable of compensation in damages. Equity will not relieve if the injury be doubtful, eventual, or contingent. Nor ought so peremptory an mterdict be laid on the defendant’s use of his property if the evils which are said to exist may be obviated by proper precautions.” * * * *</p> <p>“A Chancellor ought to be well satisfied that the grievance is serious and well founded, and that there is no remedy short of the cessation of the lawful use of property before he will abate it by injunction. * * * If the grievances can be removed by the aid of science and skill, a court of equity will go no further than to require those things to be done.”</p> <p>The Chancellor ought to have proceeded very cautiously in this case. It cannot be said that it is not doubtful. The facts are not definitely ascertained, the right of the appellees is not clearly established, and equity can only grant relief when the facts are clearly made out by determinate and satisfactory evidence. Story’s Eq. Ju., §§ 924 a, 925, 925 f; Burnham v. Kempton, 44 N. H. 92, 101.</p> <p>2. The final decree in this case enjoins the appellants from obstructing or damming or otherwise interfering with a certain watercourse or outlet from the Mississippi River, in Jefferson County, known as Isenhood Bayou, so far as to cause injury to complainants specially. The decree also adjudges that Isenhood Bayou and the float ditch are one and the same; but the question as to the extent to which the appellants may dam or obstruct the float ditch in the furtherance of their own enterprises is left entirely in doubt. They are commanded not to obstruct so far as to cause special injury, and it is utterly impossible for them to know how this decree is to 'be observed and respected. That they have the right to dam and obstruct the ditch in order to accumulate a head of water for the floating of logs is unquestionable. The court says that they may do this, but not so as to injure the complainants. We respectfully submit that the decree decides nothing, and that the case stands now exactly as it did when the complainants’ bill was filed.</p> <p>We refer on points discussed to the following additional authorities : Barhley v. Wilcox, 40 Am. Rep. 519; Hughes v. Anderson, 44 Am. Rep. 147; Proctor v. Jennings, 3 Am. Rep. 240; Swett v. Cwtts, 9 Am. Rep. 276; Dumont v. Kellogg, 18 Am. Rep. 102; O’Connor v. B. B. Co., 38 Am. Rep. 753; B. B. Co. v. Stevens, lb. 139, 144.</p> <p>1. Have complainants made such a case as would entitle them to the interposition of a court of chancery ? Or are they relegated to a court of law, to a suit or suits annually for damages ? The principle of injunctive relief against a tort is that whenever damage is caused or threatened to property admitted or legally adjudged to be the plaintiffs, by an act of the defendant, admitted or legally adjudged to be a civil wrong, and such damage is not adequately remediable at law, the inadequacy of the remedy at law is a sufficient equity, and will warrant an injunction against the commission or continuance of the wrong. Adams’ Eq., 3d Am. ed., p. 456, and note 1, p. 459.</p> <p>Every trespass is not a foundation for an injunction when it is contingent and temporary. But if it continues so long as to become a nuisance the court of chancery will interfere. Drury on Injunctions 237; 43 Miss. 748 at bottom and 749 at top.</p> <p>So an irreparable injury may be restrained by injunction.</p> <p>By irreparable injury is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand, or inflicted on the other, and which, because it is so large on the one hand or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law. Wood’s Law of Nuisances, §§ 778, 785, 786, 787, and notes and authorities cited.</p> <p>The authorities, and they are legion, all go to show that when the damages are irreparable, or the nuisance complained of is a continuous or constantly recurring grievance, then equity will interfere by injunction. If the allegations of the bill of complaintin this cause are not denied by the answer, and the proofs do not show that the injury complained of is irreparable, or that it is continuous, and a constantly recurring grievance, then it would be impossible to make a case that could be brought within equity jurisdiction before the issue was settled at law.</p> <p>“ The cases when an injunction will not be granted are where the parties are in dispute concerning their legal rights until the right is established at law.” 3 Wait’s Actions and Defenses 685, § 9, and numerous cases there cited.</p> <p>2. Appellants complain of the decree rendered against them. How would they have it ? There are but two ways in which the decree could be made, one would be to enjoin them from interfering or in any manner obstructing this water-course, the other in the manner in which it was rendered. The first would not be proper, for the reason that they have a right to use this water-course for any purpose they choose so long as they do not damage their neighbors. And if the decree had gone to this extent, they would then have a right to complain and appeal to this court to modify it, and it would have been modified to the extent of the present decree.</p> <p>The law of the case presents no questions of difficulty.</p> <p>Assuming the facts are proven according to the conclusions reached by the Chancellor, the jurisdiction of the court of equity, and the special relief granted in this particular case rests upon the following well-established principles of law:</p> <p>1. Where an injury as such from its nature is not susceptible of being adequately compensated by damages at law, a court of equity will always entertain jurisdiction. Whitefield v. Rogers, 26 Miss. 85.</p> <p>2. Where the injury from its continuance or constant repetition must occasion a constantly occurring grievance. Ib.</p> <p>3. These two propositions are propositions technically independent of the question springing out of the doctrine of nuisance, and apply to the class of injuries indicated. Bishop v. Rosenbaum, 58 Miss. 84; 2 Story’s Eq. Juris. 928.</p> <p>4. Without a remedy in equity, the complainants’ only relief would be constantly repeated actions at law for the repeated trespasses and injuries, and this ground itself is essentially distinct from the •question of a remedy at law. Coit v. Horn, 1 Sandf. Ch. 1; High on Injunctions, §§ 12 and 53.</p> <p>5. So that, aside from the question of a public nuisance, the jurisdiction in equity is clear.</p> <p>But where the nuisance is public, and the complainants suffer some special injury, or where the nuisance is private, with special injury, and this of a recurring kind, equity is the peculiar forum for relief. Wood on Law of Nuisances 769 et seq.</p> <p>The jurisdiction, says the author just quoted, is predicated on the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of actions, and the protection of rights. Ib., par. 769,</p> <p>See the views of Lord Eldon in note 1 to par. 769, Wood’s Law of Nuisances, and authorities quoted in the note.</p> <p>6. It is urged for the appellants that the complainants are es-topped by aquiescence.</p> <p>There is nothing in the testimony that warrants the idea of either a license or an acquiescence, and it would be idle to argue that mere delay in filing the bill is an acquiescence.</p> <p>7. The rule in respect to acquiescence stated favorably for appellees must really come up to all the essentials of an estoppel.</p>

Appeals from the Chancery Courts of Wilkinson and Amite Counties. Hon. Lauch McLaurin, Chancellor. The appellant in the three several cases- here considered together entered on the land of the respective appellees, and proceeded to construct its railroad thereon without having acquired any right of way therefor.

Hon. J. W. Buchanan, Judge. E. P. Sale sued out a writ of attachment against A. H. French, and levied on certain property found in his possession. J. W. French, brother of A. H. French, claimed the property, and filed the necessary claimant’s affidavit. Issue having been joined between the plaintiff and the claimant, a trial was had to test the right of property.

<p>Appeal from the Chancery Court of Lincoln County.</p> <p>Hon. Lauch MoLaurin, Chancellor.</p> <p>In May, 1885, Mrs. J. H. Criswell exhibited her bill against M. Nalty and wife, Britton & Mayson, W. B. Spencer, county superintendent of education, and one J. C. Hardy. The bill sets out that complainant in 1877 or 1878 loaned M. Nalty fifteen hundred dollars, and that she took his note for the same secured by a mortgage on certain property; that at the end of each year the note and mortgage were renewed until 1884, when the note and mortgage exhibited with the bill were given; that in their several renewals there was no intention to relinquish previous liens, but the desire was to continue the debt and security in full force, and that these several mortgages were duly recorded within a week after their respective dates, but that the record thereof has been destroyed by fire. The bill further charges that in June, 1881, Nalty, who was about to fail, executed a deed of trust to one Williams, as trustee, to secure a pretended debt to Britton & May-son, which deed of trust contained the following statements and provisions, among others : “Witnesseth that the party of the first part, being indebted to the parties of the third part in the sum of three thousand two hundred and seventy-five dollars and twenty-nine cents, with interest at eight per cent, per annum, and whereas the said party of the first part hath executed and delivered to the parties of the third part his promissory note of even date, payable to their order, at their office, in the city of New Orleans, on the first day of January next, 1882, for five thousand dollars, and bearing interest from maturity to cover said indebtedness and further advances, which note is to be held as collateral for use in the purchase of supplies and merchandise for the family and plantation of the party of the first part. Now, therefore, in consideration of the premises, and in order to secure the payment of said sums advanced, or to be advanced, as aforesaid, the said party of the first part does hereby bargain, sell, and convey to said party of the second part the following-described property, to wit, a two-story brick building described as follows; * * * also stock of goods now or hereafter on hand in brick building, situated on lot No. 8, Block C, all in the town of Brookhaven, State of Mississippi. * * * And should the said trustee believe the said property, or any part thereof, endangered, as a security for said payments, he shall take the same into possession and hold it until said payments are made, or until said property is sold as aforesaid. But until demanded by the trustee for either of the purposes aforesaid said party of the first part can hold the same.” * * * The bill charges that this deed of trust was executed to defraud creditors; that the property embraced in the deed was sold by the trustee and purchased by Britton & Mayson, who sold the same to one J. C. Hardy; that this deed of trust, under which the property was sold, was not only given after the lien of complainant had attached, but that it is also fraudulent. The bill shows that Spencer claims a lien on the property of Nalty by virtue of a judgment rendered in favor of one Cummings, the predecessor of Spencer in the office of county superintendent of education in the year 1883, and based upon a promissory note given for the sale or lease of section No. 16, and belonged to the school board of the township. The bill prays that the property of Nalty, most, but not all, of which is embraced in Mrs. Criswell’s deed of trust, be sold to satisfy her claim. The defendants, Britton & Mayson and Hardy, deny knowledge of Mrs. Criswell’s debt or lien, deny that her mortgage was ever recorded until 1884, long after their mortgage in the year 1881 was given, and deny all fraud. Spencer admits all the allegations except notice of Mrs. Criswell’s mortgage, and makes his answer a cross-bill against complainant and his co-defendants, setting up a judgment against Nalty in favor of one Cummings, his predecessor in the office of county superintendent of education. The Chancellor found all the material facts in favor of Mrs. flriswell, the complainant, and decreed that all the property of Nalty mentioned in the bill be sold, and that her claim be satisfied first. The defendants, Britton & Mayson and Hardy, appealed. It was conclusively shown by the evidence before the Chancellor that Nalty continued to sell the goods embraced in the deed of trust to Britton & Mayson, and carry on the mercantile business precisely as he had done before the execution of the mortgage, and that this was done with the full knowledge and consent of Britton & Mayson, the mortgagees.</p> <p>The evidence as to the recording of the mortgages of the complainant was conflicting. Nalty, the mortgagor, testified that the deeds in 1879 and 1880 to the complainant were recorded immediately after they were executed. Williams, the trustee in the deed to Britton & Mayson, testified that when he had recorded the said deed he examined the records and did not find Mrs. Criswell’s mortgage, but about a year afterward he examined the records again and found the mortgage executed in 1882 recorded, but he testified that he was not familiar with the records, and spent about fifteen or twenty minutes in examining the same. One A. O. Cox testified that it was his impression that the mortgages in favor of Mrs. Criswell were recorded. The chancery clerk testified that he examined the index to deeds in July, 1881, but did not find Mrs. Criswell’s deed of that year recorded.</p> <p>Mrs. Criswell demurred separately to Spencer’s cross-bill, and Britton & Mayson and Hardy filed a joint demurrer thereto. Both demurrers were sustained, and Spencer appealed.</p> <p>1. As to the deed in trust of Britton & Mayson, it is not nor can it be claimed to be fraudulent upon its face, for it does not come within the rule of either Hoskins v. Hannan nor of Joseph v. Levy. The proof taken to show the sale of the stock and the facts elicited from which the inference is sought to be drawn that Britton & Mayson consented to a sale is a virtual admission that the deed is good on its face, and must be assailed by evidence alkmde.</p> <p>The deed of Britton & Mayson is not void even as to creditors by reason of any provision contained in it, but is sought to be avoided by evidence “ alkmde ”—this evidence is offered for the purpose of showing that at the making of the deed there was an agreement between Nalty and Britton & Mayson that he (Nalty) should continue to sell the goods embraced in the mortgages in the usual course of trade.</p> <p>The deed of Britton & Mayson is not fraudulent on its face. The vice in all mortgages of a stock of goods consists in the agreement that the mortgaged goods shall be or may be sold in the usual course of business. Such was the express provision in the deed in the case of Harman v. Hoslcins, 56 Miss., and the vice in the deed passed upon in Joseph et al. v. Levy, 58 Miss., was in the provision that the business was to be continued and the money realized from a sale of the goods, instead of being applied to the payment of the secured debt, was to be used in replenishing the stock, thus continuing indefinitely the mercantile business, and “ex vi termini” operating to hinder and delay other creditors without affording any substantial security to the holder of the mortgage.</p> <p>2. On the question of fact as to the record of the various deeds of Mrs. Criswell, prior to the one of March, 1881, not recorded until July of that year, the decided preponderance of evidence is that they were not recorded.</p> <p>It is urged that the judgment under which Spencer, the county superintendent of education, claims is void, because it was rendered in the name of Cummings after he had ceased to hold the office and Spencer was appointed his successor. The most that can be said of the judgment is that it may be as to Nalty. However that may be, it is not void. IF did not abate, and cannot be attacked collaterally. Section 1521, Code 1880; Parisot v. Ch'een, 46 Miss. 747; Hooher v. Tale, 56 Miss. 197, 202.</p> <p>Nothing is said affirmatively in the deed about Nalty’s being permitted to sell the goods in the usual course of his business as a merchant; but I insist that the clear inference from the face of the deed itself is that it was the understanding between the parties that he should do so.</p> <p>But whether this is apparent from the face of the instrument or not, nothing could be better established in evidence. In fact, it is not denied in the pleadings. The answers undertake to evade the matter.</p> <p>I shall not go into the arguments which have been adduced upon the subject in the controversy between American lawyers and judges upon the question thus presented. I assume that this court, having already arrayed itself with the majority of the courts.of the Union, will stand by its decisions pronouncing such mortgages fraudulent. Harman v. Hosldns, 56 Miss. 142 ; Joseph v. Levy, 58 Miss. 843.</p> <p>It only remains, therefore, on this branch of the argument to inquire whether the fact that the power to sell does not appear affirmatively upon the face of the deed (conceding for argument that it is not clearly inferential from the recitals) can make any difference. That it does not is at once apparent to the legal mind which has ever drawn the distinction between substantive law and mere procedure. Whenever a certain state of facts is presented the legal conclusion, the matter of substantive law, is the same, without reference to how these facts were established. What is the legal conclusion from any given state of facts is independent of, whether the facts are admitted, were established by the verdict of a jury, or whether they are evidenced by writing or by parol. How facts are, or are to be proven, is a matter of adjective, as contra-distinguished from substantive, law, is a mere matter of legal procedure.</p> <p>Mr. Pierce, in 17 American Law Review 361, says: “It will be immaterial, then, to the question of law, whether the fraudulent agreement appear upon the face of the instrument, or be proven by other sufficient evidence. Such has in general been the view entertained by those courts in which the subject has been discussed. It is true that the leading cases in Virginia, West Virginia, Colorado, and Mississippi, in which the doctrine has been applied, exhibited the fact of such an agreement on the face of the instrument, while in the leading cases in Ohio and Oregon the agreement was'proven aliwnde. But in New York, New Hampshire, Illinois, Tennessee, Wisconsin, Minnesota, and Indiana, and in the courts of the United States cases of both classes have arisen, and the adjudication of fraud, as a rule of substantive law, has been made indifferently in both. Frequently the agreement has been found on the face of the deed by implication.” The writer cites : Collins v. Myers, 16 Ohio 547 ; Orton v. Orton, 7 Oregon 478 ; Edgell v. Hart, 9 N. Y. 213; Southard v. Benner, 72 N. Y. 424; Baulett v. Blodgett, 17 N. PI. 298; Putnam v. Osgood, 51 N. H. 192, and 52 N. H. 148; Davis v. Ransom, 18 111. 396; Barnett v. Fergus, 51 111. 352; Bank v. Ebbett, 9 Heisk. 153 ; Nailer v. Young, 7 Lea 735 ; Place v. Langworthy, 13 Wis. 629 ; Stein-art v. Deuster, 23 Wis. 136; Stein v. Mv/nch, 24 Minn. 390 ; Horton v. Williams, 21 Minn. 187 ; Insurance Oo. v. Wilcoxson, 21 Ind. 355; Mobley v. Letts, 61 Ind. 11; Smith v. McLean, 10 N. B. R. 260; Re Forbes, 5 Biss. 510; Re Kahley, 2 Biss. 383 ; Re Morrell, 2 Sawyer 355 ; Catlin v. Ourrier, 1 Sawyer 7.</p> <p>If Cummings had, when he recovered the judgment, held a note on the fund, he would not have been authorized to collect it, and if Spencer had possessed himself of such a note he would have had no authority to sue on it or collect it, but would have been under obligation to turn it over to the trustees.</p> <p>How can he collect or sue upon a judgment if he could not do so-with the note on which the judgment was rendered ? Ought he not to allow the trustees to manage this matter ? Is he not, in attempting to sue upon or to collect the judgment, interfering with the business of other officials ?</p>

Hon. Sylvanus Evans, Chancellor. On the 2d of May, 1872, one W. C. Diggs executed a deed of trust on his undivided one-third interest in a certain piece of land and saw-mill and fixtures thereon, to one J. M. McGinnis, as trustee for J. W. Black, to secure a debt of twelve thousand dollars, due thirty days from the date of the deed to Black from Diggs.

Hon. Ralph North, Judge. This is an action by J. W. Peyton against the “ Planters’ Compress Storage and Transfer Company ” on a certain promissory note. The note was for one thousand and eighty-three dollars and thirty-three cents, and was executed by the defendant company in favor of John A. Klein, who assigned it to the plaintiff.

Hon. A. Gt. Mayers, Judge. In July, 1885, T. M. Scanlan and family purchased tickets and took passage on a freight train'of the Vicksburg and Meridian E. E. Co. to go from., Armistead station to Lawrence station. The train for some reason failed to stop at Lawrence station, and Scanlan and family were carried on to Newton, five miles beyond. Scanlan brought this action for damages against the railroad company.

ITon. C. H. Campbell, Judge. W. R. Moore & Co. having sued out an attachment against Black & Sudduth, on the 27th of November, 1885, caused the Crescent Insurance Company, of New Orleans, La., to be summoned as the debtor of Black & Sudduth.

Hon. W. G. Phelps, Chancellor. Thomas H. Allen & Co. filed a petition in the matter of the estate of W. G. Myers, deceased, against Green Clay, executor of the last will and testament of the deceased, for the allowance of a claim for one thousand five hundred and ten dollars and sixty-nine cents alleged to be due by Myers to them.

Hon. Ralph North, Judge. This action on a contract of insurance was brought by Van Os & Shuster against the London and Liverpool and Globe Insurance Company. The verdict and judgment were for the plaintiffs in the court below, and the defendant company appealed.- It appears that early in 1882 plaintiffs were merchants doing business in Delta, Louisiana. Desiring to insure their stock of goods, they wrote to Messrs.

Hon. T. J. Wharton, Judge. George S. Dodds brought this action of ejectment against Phillip Marx to recover possession of the following land, to wit.: “ Lot two, and thirteen feet north side of lot three, square three, Haley plat, in the town of Hazlehurst.” It appears that the land in controversy was sold on March 8, 1884, to the State for the delinquent taxes of the year 1883, and purchased by the plaintiff from the State.

Hon. W. M. Rogers, Judge. D. R. Dunlap recovered a judgment in attachment against W. M. Connor. The writ of attachment was levied on a stock of goods, which John P. Richardson claimed by an affidavit filed as prescribed by the statute.

Hon. Kalph North, Judge. Walter Owens was indicted for the murder of one David Martin, in Warren County. He was tried and convicted, and then prosecuted this appeal to this court. On the trial the defendant offered to introduce proof of the substance of the testimony which one Swartz had.delivered on a previous trial of this .cause on a writ of habeas corpus. It was shown that writs of subpoena had been issued for Swartz, but that he was out of the State.

Hon. C. H. Campbell, Judge. H. B. Jones and others filed a petition before the Board of Supervisors of Holmes County praying to be allowed to retail vinous and spirituous liquors in said county. H. B. McGee and others filed a counter-petition thereto. The board granted the license. The counter-petitioners presented a bill of exceptions to the president of the board on the day the license was granted, but the president did not sign it until several months afterward.

Hon. C. H. Campbell, Judge. D. W. Beall presented a petition to the Board of Supervisors of Holmes County to obtain license to retail vinous and spirituous liquors at… Held: as the bill of exceptions and their order shows, that the petition is in legal form, although it does not state that Beall, the applicant, is a resident of Holmes County, nor does that appear from the bill of exceptions. It should have been affirmatively shown in the petition that he was a resident.

<p>1. Railroad. Injury done whilst running more than six miles per hour. Male of speed, at instant of accident. Section 1047, Code of 1880.</p> <p>Under § 1047, Code of 1880, which provides a right of action in favor of anyone injured by the locomotives or cars of a railroad company “whilst running at a greater rate of speed than six miles an hour, through any city, town, or village,” it is no defense in a suit for damages for the killing of a horse within the corporate limits of a town that the train had been checked up to a rate of speed less than six miles per hout at the very instant of the killing, though just previously running at a greater rate of speed than six miles per hour.</p> <p>2. Same. Section 1047, Code of 1880, construed. “City, town, or milage”—meaning of.</p> <p>The words “city, town, or village,” as used in the above quotation from $ 1047 of the Code of 1880, must be construed as referring to an incorporated city, town, or village, and the statute applies to all violations of its terms within the legal or corporate limits of such city, town, or village, without regard to the irregular and variable lines of settlement and improvement.</p> <p>3. Same. Action against, under $ 1047, Code of 18S0. JEoidence of nonAnhahitation of part of town where injury occurred.</p> <p>In an action based upon a violation of the statute referred to, if it be not shown that the corporate limits of the city, town, or village in which the injury is alleged to have occurred is disproportionate to the needs of its citizens, and seriously affects the interests of commerce passing through it from delays occasioned by observing the requirements of the statute, evidence that such violation occurred in an uninhabited part of the town is inadmissible.</p>

Hon. Balph North, Judge. This is an action of assumpsit brought by E. S. Butts against the Vicksburg and Meridian Eailroad Company, formerly the Southern Eailroad Company, to recover on certain promissory notes, a type of which is as follows : “ Authorized by act of the legislature. • “ Bedeemable at their office in Vicksburg in current bank and Confederate notes. “ The Southern Railroad Company promise to pay on demand five dollars. “ Vicksburg, Mississippi, January 27th,…

Hon. W. M. Rogers, Judge. The case is stated in the opinion of the court. The jury was misled by the action of the court in modifying the first charge asked in behalf of defendant. That charge, as asked, tvas a correct enunciation of law applicable to the case, and the court erred to the prejudice of appellant in refusing it as asked, and in the modification of it.

Hon. E. G. Peyton, Chancellor. The case is stated in the opinion of the court. ■ 1. What title did Howard acquire? The delivery of the deed from Austin, assignee in bankruptcy of Baldwin, to Howard, was indispensable to its validity. The sale to Howard was a nullity. The most essential and effective act in making a deed is the delivery. Armstrong v. Stovall, 4 Cush. 275 ; Stone v. Montgomery, 6 George 83; Oliver v. Stone, 24 Ga. 63.

<p>1. Evidence. Damage from delay of train. Declaration of conductor on another. train. Competency of.</p> <p>H. shipped a carload of cattle by the I. C. R. R. Co. from Kosciusko to New Orleans. The train was delayed by being overloaded aud having a broken engine, and during such delay W., who had cattle on the same train, applied to a conductor of another train on the same road, which was about to pass them at Durant, to take the oars containing his and H.’s cattle on to New Orleans. The conductor responded, “Damn you and your cattle; I am not going to take either.” In an action brought by H. against the railroad company for damages occasioned by the delay of the train transporting his cattle, W. was introduced as a witness for the plaintiff to prove the response above quoted. Held, that such testimony was irrelevant and inadmissible.</p> <p>2. Railroad Comp ant. Carrying live stack. Character of, ears required.</p> <p>A railroad company in the carriage of live stock is not required to use the safest and best motive power, with the best appliances in use, but is only required to use such cars and motive power and appliances as are suitable, safe, and sufficient.</p>

Appeal and Cross-Appeal from the Chancery Court of Yazoo County. Hon. E. C. Peyton, Chancellor. On the 22d of January, 18.72, Bichard Boyd loaned J. B. Tucker two thousand dollars, and th» latter executed his note therefor in favor of the former for two thousand three hundred and fifty dollars, payable twelve months after date, the interest being included in the face of the note.

Hon. Baxter McFarland, Chancellor. This bill in equity was filed by Elizabeth C. Crum and husband against W. M. Inge, G. S. Inge, B. W, Brown, and Hiram Kennedy. The bill was dismissed on final hearing in the court below, and the complainant appealed.

Hon. A. T. Roane, Judge. This suit was instituted before a justice of the peace by Calvin Goings against Alexander Pattison and Jerry Robinson for one hundred and fifty dollars as “ Damages for taking forcible possession of plaintiff’s wagon and team and three bales of cotton .and throwing same off the wagon into warehouse of the defendants.” Judgment by default for one hundred and fifty dollars was rendered against the defendants, who thereupon appealed to the circuit court.

Hon. T. J. Wharton, Judge. John B. Martin was indicted for an attempt to murder one A. H. Heath, by administering, or causing to be administered to him, a dose of strychnine. He was tried and convicted. The evidence was purely circumstantial. Martin was engaged in the butcher business in Yazoo City. No evidence was offered as to the character of the prisoner.

Hon. S. H. Terral, Judge. In September, 1883, Miranda Amos instituted this suit for damages against the Mobile and Ohio Railroad Company for the killing of her minor son sometime during that year.

T. J. Wharton, Judge of the Ninth Judicial District, on habeas corpus.

Hon. W. G. Phelps, Chancellor. In March, 1880, Mrs. E. D. Rozelle and her husband, A. B. Rozelle, executed their promissory note for seven thousand and eighty dollars, with interest at ten per cent, per annum, payable twelve months after date, in favor of P. C. Dickerson & Son. This note was secured by a mortgage on certain lands, the property of Mrs. Rozelle.

Hon. A. T. Roane, Judge. The appellees in this case filed here the following plea in bar to this appeal: “And the said appellees, D. T. Porter and W. F. Taylor, by attorneys, come, and for plea to the appeal prosecuted in this case say: Appellants were plaintiffs in an action of ejectment in the Circuit Court of Tate County against appellees, and recovered judgment for the land in controversy, from which judgment the said appellees appealed to this court, to its October…

<p>Appeal from the Circuit Court of Yazoo County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>E. T. Clarke sued out an attachment against one B. F. McGee, and caused it to be levied on forty-four bales of cotton. G. W. Parker filed a claimant’s affidavit as to twenty bales of this cotton. On the trial the jury found that the attachment was rightfully sued out. On the trial of the issue joined on the claim of Parker the jury rendered the following verdict: “We, the jury, find for the claimant, Parker, for his claim of rent, and fix the same at four thousand seven hundred and forty-five pounds of lint cotton, and for the sum of twenty-seven dollars and ninety-six cents on his account for advances.” Whereupon the court adjudged that Parker have sufficient from the twenty bales of cotton to satisfy the above claim, so found by the jury, and that the remainder be paid over to Clarke, and that the costs of suit be charged against the plaintiff, Clarke. • And to this judgment the plaintiff excepted. The jury, in their verdict, failed to assess the value of the cotton. The sheriff, in his return upon the writ of attachment, estimated the value of the cotton to be thirty-two dollars per bale, but made no estimate of its value per pound. No writ of inquiry was asked for in the court below. The plaintiff appealed.</p> <p>Was the cotton, or a part of it, the property of McGee, and thus subject to the attachment? Clarke assumed the burden of proof, and proved, as was found by the jury, that four thousand one hundred and seventeen pounds of the cotton was McGee’s, and subject to the attachment. The judgment should have been for Clarke, and the judgment should have carried his costs. If a party sues for one thousand dollars and recovers five hundred dollars, he is surely the successful party. If a party sues for twenty bales of cotton and receives ten, he is just as clearly the successful party. This is true in reason and on principle, and is in strict accoi’dance with the language and the spirit of the statute. And hence we insist that the judgment below should be reversed.</p> <p>The direction of the judgment in this case, that Clarke pay the costs, was right, and .was a matter in the discretion of the court which will not be inquired into. Code 1880, §§ 2375, 2386.</p> <p>It was the right of Clarke to accept the valuation put upon the property by the sheriff or have a writ of inquiry to assess the value, under § 1777 of Code of 1880, but he failed and declined to pursue that remedy, and we think he should not be now heard to complain.</p>

Hon. A. T. Eoane, Judge. In 1882 Lake Brothers, a firm composed of W. S. and E. P. Lake, were doing a general banking business in the city of Grenada. In July or August, 1882, W. S. Lake drew several irregular and unauthorized drafts on the correspondents of this bank, which drafts were cashed and invested by him in cotton futures for his individual benefit.

Hon. J. W. Buchanan, Judge. G. W. Boone, the trustee in a deed of trust given by A. D. McJunkin in favor of one G. W. Cole, a merchant, took possession of certain property belonging to McJunkin ; thereupon McJunkin sued out a writ of replevin to recover the property.

Hon. Ralph North, Judge. This is an action for damages brought by Patrick Conroy against the Louisville, New Orleans and Texas R. R. Co. for a personal injury alleged to have been occasioned by the negligent manner in which defendant’s servant, an engineer, ran its train. The jury found for the plaintiff and assessed the damages at one hundred dollars. From the verdict on such judgment the defendant appealed.

Hon. W. M. Rogers, Judge. James A. Bardwell brought this action against the Mobile and Ohio Eailroad Company to recover damages for personal injuries suffered by him. It appears that in June, 1883, the plaintiff took passage on the defendant’s train at Artesia, and paid his fare to the A, & M. College.

Hon. J. B. Cheisman, Judge. On the 20th of November, 1885, Philip J. Hahn filed a petition for license to retail vinous and spirituous liquors in the town of Woodville. On the 21st of December following the board of mayor and aldermen met and proceeded to consider the petition. G. B. Eogers- and others, signers of a counter-petition, were present and raised various objections to the granting of the license.

Hon. W. S. Featherston, Judge. Mrs. Annie E. Weathersby instituted -this suit against the Illinois Central Railroad Co. for the killing of her mare.

Hon. Ralph North, Judge. .John Smith, being the owner of a tract of land, on the 2d of April, 1873, executed a deed of trust thereon to S. H. Moore, as trustee, to secure payment of a promissory note given by the grantor to McCutchen & Co., merchants, for money and supplies furnished and to be furnished to him to enable him to cultivate his land.

<p>Appeal from the Chancery Court of Wilkinson County.</p> <p>Hon. Lauch McLaurin, Chancellor.</p> <p>This bill in equity was filed on the 20th of September, 1883, by Isaac Kaiser, assignee of Samuel Kaiser, against J. L. Harris, to fix a lien on certain lands for money paid by Samuel Kaiser in purchasing the lands, which had been forfeited to the State for taxes, and for two years’ taxes paid subsequent to his purchase.</p> <p>The assessment of the lands in question in 1875 was valid. The assessment in 1876, which was a special assessment, was invalid. On the 4th of March, 1878, the lands were sold to the State for the delinquent taxes of 1877. The sale seems to have been based upon the assessment made in 1876. On the 19th of April, 1879, Samuel Kaiser purchased these lands from the State by paying the taxes, costs, etc., for which the same were held, and thereafter paid the táxes thereon for the years 1879 and 1880. In 1881 J. L. Harris bought the land at a sale under a trust-deed. The Chancellor in the court below held that, since the assessment of 1876 was invalid, no taxes for 1877 were due, and hence complainant was not entitled to any relief under § 536, Code of 1880, which is as follows: “The amount paid by a purchaser of land at any sale thereof for taxes, and twenty-five per cent, on said amount, and interest on the sum paid at the rate of ten per cent, per annum, and all expenses of the conveyancé and registration, and all sums paid for taxes on said land after its sale and purchase as aforesaid, and ten per cent, per annum interest, shall be a lien on said land in favor of the purchaser and the holder of the legal title under him by descent or purchase, if the taxes for which such lands were sold were due, although said sale was illegal on some other ground) and the purchaser and the holder of the legal title under him by descent or purchase may enforce said lien by bill in chancery.” The complainant appealed to this court.</p> <p>This land was not exempt from, but was liable to, taxation, and there is no pretense that the taxes were paid before sale, and we claim a lien upon it for all the taxes, damages, and costs, with interest, paid out by the purchaser, Samuel Kaiser, which right is given us by § 1718, Code of 1871, as well as by § 536, Code 1880. In Gogburn v. Hunt, 56 Miss. 724, the court say that where the -land sold for taxes was exempt, or the taxes had been paid before sale, the purchaser should receive his money back from the State or county treasury; “and by § 1718 (Code 1871) it was in effect declared that in all other cases, where from any cause he failed to receive a good title to the land sold, he should be allowed to fasten a lien, etc.” And in Gogburn v. Hunt, 57 Miss. 683, in the same case and upon the same subject, this court enunciates this as the law: “If land is liable to taxation, and an attempt is made to tax it and the taxes are not paid, and it is sold for taxes and the purchaser from any cause fails to get title, § 1718 of the Code (1871) applies.”</p> <p>These authorities seem to me to be conclusive of the case. But if mistaken in this view, the appellant is entitled to his lien for the taxes paid out in 1879 and 1880. The lands had been listed to the State, and when purchased by Samuel Kaiser, under the law they were assessed to him and he paid the taxes. It was not an erroneous assessment of the lands, but an assessment by authority and direction of the law, for he then had a title prima facie valid and claimed the lands, and the assessment to him not only bound these lands, but all other property of his for the payment of the taxes, which he was bound to and did pay. See Ingersoll v. Jeffords, 55 Miss. 37.</p> <p>There was no tax due when the land was sold to the State. It' was decided in Harris v. Stocked, 58 Miss. 825, that the assessment was illegal. Upon this illegal assessment the levy was made for 1877, for which the land was sold. "We submit there could be no legal levy based on an illegal or no assessment. There could be no taxes due on the land without an assessment and levy. In this case there was neither. Counsel concludes that as this land was not exempt, therefore taxes were due on it—this is a nonsequitur. The land was not exempt from taxation; it was subject to taxation; but it had not been subjected to taxation, and hence no taxes were due.</p> <p>The assessment of 1875 does not help appellant’s cause—it was no longer in existence—it had been abandoned. No levy was based on it; no claim is made on it. The claim is on the levy of 1877, based on the assessment of 1876. The case of Stoval v. Connor, 58 Miss. 138, is, I think, conclusive.</p> <p>Appellant bases his right to recover on § 536 of Code of 1880 and § 1718 of Code of 1871. All the transactions in this cause were prior to the Code of 1880 going into effect, and it cannot be applied—it is ex post facto. Section 1718, Code of 1871, is part of article 11, chapter 22. All of chapter 22 except articles 15,19, 20, 21, and 22, is repealed by § 80, of chapter 104, Acts of 1876.</p> <p>See Pamphlet Acts 1876, p. 165. The substance of § 1718 is, however, contained in § 56 of said chapter 104 (lb., p. 157), but this is repealed by § 2 of chapter 2, Acts of 1877, p. 2. This was approved February 1, 1877. All of the matters in complainant’s bill occurred subsequent to February, 1877, and prior to November, 1880. In the absence of statutory provision it will not be contended appellant could recover.</p>

Hon. J. B. Cheisman, Judge. This is an action of ejectment brought by W. A. Fitts against Mrs. C. P. Huff and Holloway Huff to ■ recover possession of ■ certain lands. On the 1st of March, 1880, the lands in question were sold to the State for the unpaid taxes of 1879. In August, 1880, the former owner, Mrs. C. P. Huff, applied to the auditor to know the amount necessary to redeem the land.

Hon. E. W. Williamson, Chancellor. J. A. Lundy filed this bill against W. E. Prophet to have his tax-title confirmed to a certain tract of land claimed by the latter. The land in question is part of a large tract situated on either side of the line between Carroll and Holmes Counties. W. E. Prophet, the occupant of the whole tract, lived on that part situated in Carroll County, while the part now in litigation is situated in Holmes.

Hon. T. J. Wharton, Judge. The case is stated in the opinion of the court. The court tells the jury that if the money was taken by a party who was accustomed to hang around the car, and was permitted by the porter to go on the car after the passengers had left, then the company is liable. We find it difficult to reconcile this instruction with either common sense or good law.

Appeal and Cross-appeals from the Chancery Court of Montgomery County. Hon. R. W. Williamson, Chancellor.

E. G. Peyton, Chancellor. On the 30th of August, 1380, Mrs. Lazinka A. Kellogg and her husband, Seth H. Kellogg, gave their promissory note for four thousand two hundred and seventy-one dollars and two cents t® Robert O. Kellogg, and to seeure payment of the same executed jointly a deed of trust to Edward Drenning, as trastee, upon a tract ■of land belonging to Mrs. Kellogg, and known as “ Choctaw Plantation/’ On the 25th of September, 1881, Mrs. Kellogg died intestate,…

County. Hon. J. W. Buchanan, Judge. This is a suit on a contract of insurance for three thousand dollars by Mrs. M. A. Pollard against the… Held: in accordance with reason and the weight of authority, that where the right to recover on a valid contract has become barred by the statute of limitations, a repeal of the statute would not revive the liability; and it would seem to be equally clear that the legislature cannot revive it by express declaration, and so it appears.