Volume 64 — Mississippi Reports

Hon. T. J. Whaeton, Judge. The appellant, Fred. Crum, was indicted for murder, upon a charge of having killed Jesse Ford. He was convicted of manslaughter, and, from the judgment against him, appealed to this court. A supplemental statement of the case will be found in the opinion of the court. The first and third instructions given for the State do not properly announce the law. The third instruction is clearly wrong, and beyond a doubt misled the jury in this case.

Hon. A. G. Mayers, Judge. At the July term, 1885, of the Circuit Court of Newton County, the grand jury presented the following indictment: “ That the Vicksburg and Meridian Eailroad Company, an incorporation under the laws of the State of Mississippi, on the first day of July, 1885, in Newton County, aforesaid, did unlawfully obstruct a public highway, to wit: A public street and road in the town of Hickory, leading from Hickory in the direction of the town of Enterprise,…

Hon. T. B. Graham, Chancellor. On June 1, 1870, Anne J. Alford died, intestate, leaving two tracts of land, called, respectively, the “ homestead ” tract and the “ sixteenth section ” tract. She left two heirs, her husband, Cin-cinnatus Alford, and her daughter, Mary J., now Mrs. Ellis, the latter of whom was born on November 12, 1855.

<p>1. Appeal. Board of supervisors. Claim against county. Taxpayers. Section 2351, Code of 1880, construed.</p> <p>Any taxpayer of a county may appeal from an order of the board of supervisors, allowing a claim against such county, under $ 2351, Code of 1880, which provides that “ any person who may conceive himself aggrieved by any . judgment or decision of the board of supervisors may appeal to the next term of the circuit court.”</p> <p>2. Same. Board of supervisors. Party to proceedings.</p> <p>And in such case it is not necessary that the taxpayer who seeks to appeal be technically a party to the proceedings before.the board of supervisors.</p> <p>3. Rewabd. Pot arrest. Escape from private person. B.e-arrest. Section 3035, Code of 1880, construed.</p> <p>Where a prisoner is arrested by a private person and escapes, and is again arrested by, another private person, the latter is entitled to the statutory reward, under $ 3035, Code of 1880, whiáh provides that “ any person who shall arrest any one who has killed another, and is fleeing, or attempting to flee, before arrest, and shall deliver him up for trial, shall be entitled to one hundred dollars, etc.”</p>

Hon. W. M. Rosees, Judge. W. R. Bracey, circuit clerk of Noxubee County, was indicted for committing fraud in his office, under § 2790, Code of 1880, which is as follows: “ If any officer -or other person employed in any public office within this State, shall commit any fraud or embezzlement therein, he shall be imprisoned in the penitentiary.” * * * He was tried and convicted.

Host. T. J. Wharton, Judge. W. H. Collins, desiring to retail liquors in “ beat one, Yazoo County,” prepared sis petitions, the headings to which differed materially. These several petitions were circulated in different parts of the beat and signatures received to them.

Hon. E. G. Peyton, Chancellor. The case is stated in the opinion of the court. M. K. Mister was not a party to the suit, although the trust-deed under which the complainant was proceeding constituted him trustee. The trustee in whom is the legal title under a trust-deed to secure debts is a necessary party to a bill by a creditor or cestui que trust to subject the property to the payment of the debt; Hill v. Boylan, 40 Miss. 618-640; 2 Spence’s Eq.

Hon. W. M. Rogers, Judge. The grand jury of Noxubee County indicted W. Robert Bracey and Dillard J. Williams, jointly, for obtaining money by false and fraudulent pretenses from one Hezekiah Foote.

Hon. F. A. Critz, Chancellor. On September 15, 1882, Mrs. M. J. Wellborn filed this bill of complaint against W. S. Ferris.

IioN. WarreN Cowan, Cbancellor. On January 24,1881, T. E. Crutcher executed, eight promissory notes for two thousand five hundred dollars each, 'payable to the order of George M. Klein, and falling due, three in one year, three in eighteen months, and two in two years. These notes were secured by a mortgage on certain real estate in Warren County, with a condition therein that all the notes should be paid pro rafa out of the proceeds if it should be foreclosed.

HoN. A. G., Mayers, Judge. In 1883 the board of supervisors of Scott County instituted this suit before a justice of the peace of that county against J. M. Duncan, M. S. Gilmer, and Charles Gilmer on a joint and several promissory note executed by them in 1877. The action was begun by filing a copy of the note sued on with the justice of the peace and causing the issuance of a summons to the defendants.

<p>Appeal from the Chancery Court of Warren County.</p> <p>Hon. Warren Cowan, Chancellor.</p> <p>Lee Eichardson, E. A. Quinn, W. E. Otis, C. O. Willis, and the Vicksburg Bank, brought this suit in equity against Mrs. E. B. Klein. The bill avers that complainants are judgment creditors of John A. Klein, Sr., and George M. Klein, constituting the “Mississippi Valley Bank;” that on November 21, 1883, this bank failed; that complainants immediately levied an attachment on certain real estate in the city of Vicksburg which they supposed to be the property of John A. Klein, Sr., and George M. Klein, to satisfy their claims against them; that after they had made their levy they discovered for the first time that. a deed to the property attached had been filed for record at five o’clock on November 20, 1883, the day before the failure of the bank, purporting to convey this property to Mrs. E. B. Klein, wife of John A. Klein and mother of George M. Klein; and that this deed purports to have been executed on December 23, 1882, for a consideration of twenty-four thousand dollars cash paid. The bill charges that this deed was executed without any good and lawful consideration, with intent to hinder, delay, and defraud existing and subsequent creditors of the “Mississippi Valley Bank,” including complainants; that if the deed was in fact executed on the day and for the consideration named, it was purposely with-beld from record by Mrs. E. B. Klein with the intent to give the Kleins and their bank a credit to which they were not entitled, and that complainants were induced to deal with them and to extend them credit on the belief that they were still owners of this property. The bill prays that this 'deed from the Kleins to Mrs. E. B. Klein be cancelled, and that the property be Sold to satisfy the judgments of complainants, unless Mrs. Klein pay the same. Mrs. E. B. Klein answered, setting up that the deed was made and delivered on December 23, 1882, the day on which it purports to have been executed ; that she paid her husband and son twenty-four thousand dollars cash for the same, more than twenty thousand dollars of which she received from her mother’s estate, and the balance was money which she had to her credit in the bank; that the conveyance was not made to hinder, delay, or defraud creditors; that she did not have it recorded immediately because she did not know that it was necessary, and only had it recorded on November 20, 1883, because told to do so by her son, John Klein, and denying that she failed to record it in order to give credit to the Kleins and their bank.</p> <p>The evidence all tended to show that the deed was made on the day and for the consideration named, and that the money was derived from the source stated by the defendant in her answer. The opinion of the court sets out the proof on the contested points.</p> <p>The Chancellor found for the complainants and granted' the relief asked. The defendant appealed.</p> <p>Omitting entirely the purpose .of George M. Klein in making the sale, and admitting for argument sake that his purpose was to hinder, delay, or defraud his creditors, still, having shown the fact that the deed was based on a consideration valuable in law, it now devolves on appellees to show that the Kleins were then insolvent or in failing circumstances, and were making this sale for the purpose of converting their property into money and placing it beyond the reach of their creditors, and that Mrs. Klein either knew this, or was possessed of information reasonably calculated to stimulate inquiry, which, if followed up, would disclose the fact that the Kleins’ purpose was to place their property beyond the reach of ■creditors, etc. Orawford v. Kirhsey, 28 Am. Eep. 709.</p> <p>This case is entirely different from Hilliard v. Cagle, 46 Miss., in these respects. In that case there was a positive agreement to withhold the deed from record because both parties knew that to record it would destroy the merchant’s credit. In this case ¿o such fact is shown. In that case the deed covered the whole of the merchant’s property, and a reasonable man would conclusively.be presumed to know that the recording of such a deed must destroy the mortgagor’s credit. In this case the property bore but a small proportion to the large unincumbered property retained, and no person could be presumed to infer that sucji a sale would affect the vendor’s credit. In Hilliard v. Cagle the transaction was extraordinary — out of the usual course of business. In this ease it was but an every-day transaction and in the usual course of the vendor’s business. Without positive proof that there was an agreement to withhold from record because it was known that the record would affect the vendor’s credit, no such agreement,Jntention, or purpose can be inferred unless the facts were such that a reasonable person must be held to have known that a record of the deed would affect credit.</p> <p>Birehett & Gilland, on the same side.</p> <p>1. If the deed was made by the vendors with intent to defraud their creditors, did appellant participate in the fraudulent intent ? Did she know of their intent ?</p> <p>To render a conveyance fraudulent and voidable as against creditors, where the vendee has paid a valuable consideration therefor, there must have been mutuality of participation in the fraudulent intent on the part of both vendor and purchaser. Surget v. Boyd, 57 Miss. 485; Harris v. Lombard, 60 Miss. 32.</p> <p>Appellees have failed to introduce any testimony tending to prove any knowledge on the part of appellant of the insolvency of the bank or the copartners, or to show any fact within her knowledge which would -even lead her to suspect such insolvency. •</p> <p>2. Did appellant purposely withhold the deed from record to deceive appellees?</p> <p>To be entitled to any relief, appellees must prove that the deed was by appellant purposely kept from record, in order to give to J. A. & G. M. Klein false credit by the apparent ownership of this property, and that they (appellees) contracted their debts on the faith of such ownership. Hilliard v. Cagle, 46 Miss. 309; Blennerhassett v. Sherman, 105 U. S. 100. Appellees have failed to offer any proof tending to show that appellant withheld the deed from record for the purpose of giving the Kleins a false credit.</p> <p>argued the, case orally.</p> <p>A. B. Pittman, on the same side.</p> <p>Assuming, for the purpose of this argument, that the appellant was guilty of no sort of intentional deception, the proposition decided by his honor, the Chancellor, amounts to this — that if a grantee, without purpose to deceive, negligently omits to record his deed for a time, during which some one extends credit to the grantor in the usual course of business without acquiring a lien on the granted property, but in the belief that the grantor still owns it, such creditor is thereby defrauded, and can subject the property as against the grantee.</p> <p>It must be admitted that the fluent author of the opinion in Hilliard v. Cagle has given warrant for this extraordinary proposition, yet it may be safely said from the entire opinion that its author did not intend to commit himself to such an idea. It is elementary learning that no man is responsible for the accidental and remote consequences of his acts lawfully done, still less is he responsible for the accidental and remote consequences of his omission to do what no duty or law required of him.</p> <p>In the case of Hilliard et al. v. Cagle, 46 Miss. 309, the testimony showed conclusively a fraudulent and collusive arrangement between the mortgagor and mortgagee. The mortgagee held up and sustained the credit of the mortgagor for the express, purpose of enabling him to borrow money and to buy cotton and goods on a credit, in order that the mortgagees who withheld the mortgage from record by special agreement might pounce down on everything at a favorable moment and appropriate it all to themselves. There was a special agreement tbat the mortgage should be kept a profound se'cret. When it was finally sent for record the mortgagee asked the clerk of the court to keep it a secret and not to call attention to it. Judge Simrall states these facts with great force. He says also, “ There was testimony that Summers actively promoted the sale of. goods to Baggett, after the deed was executed and before it was recorded.” Yet the learned judge uses this language : “ The testimony does not convince us that the arrangement was made, with a fraudulent scheme and purpose, to defeat existing or future creditors. This was .not the primary motive. Summers and Brannin desired that Baggett should continue his business as before, but at the time they were anxious that they should be protected at all events, and in any contingency. If misfortune and calamity should fall upon him, their purpose was to be secure.”</p> <p>This extraordinary language seems to have been used more as a salve for wounded feelings, as it is at war with the facts of the case and with the rest of the opinion. The robbery of the victim is not the “ primary motive ” of the robber; it is to secure the booty. So the object of one who defrauds is not to injure his victim, but rather to secure a benefit to himself by injuring his victim. The language which I have quoted, therefore, has no tendency but to mislead, for the fraudulent collusion between the parties is not only evident and conspicuous, but is the sole foundation of the opinion.</p> <p>A. B. Pittman also made an oral argument.</p> <p>1. This deed was made on the 23d day of December,' 1882, but was withheld from record by Mrs. Klein until eleven months after, and was then, at five o’clock the evening before the failure of the bank, placed upon record, just in time to meet the financial storm which was then about to burst upon the creditors of the Valley Bank.</p> <p>"We say that the withholding of this deed from record, as the court may infer from the testimony, from the date of its execution to the time when it went upon the.records of the county, and, as we think the proof will show, with the connivance of the grantors in. the deed, and the grantee’s acquiescence, operated as a fraud upon these complainants, which a court of equity will refuse to sanction, but will hold Mrs. Klein estopped by the peculiar circumstances of the ease, at least so far as these complainants are concerned, from retaining any advantage that might result to her if the transaction had been perfectly fair in all of its particulars; and even if we should fail to show collusion on the part of Mrs. Klein and her son, the facts as proved show, we think, conclusively that, so far as these complainants are concerned, they had as much that effect as if it was intended upon the part of Mrs. Klein and her son.</p> <p>We find this equitable doctrine laid down by the supreme court of this State: “ When silence becomes a fraud it will operate as an estoppel. But no precise definition of fraud has been attempted in equity, lest knavish ingenuity should avoid it, each case in which the doctrine of estoppel by conduct is invoked being left to be determined by its own peculiar circumstances.” Staton v. Bryant, 55 Miss. 261.</p> <p>2. We wish to refer the court to the case of Hilliard et al. v. Oagle et al., reported in 46 Miss. 309, and to show how exactly analogous to the case at bar it is, not only as to facts of the case, but in the principle of law, as announced by the opinion of the court, as being the rule that should govern in this case.</p> <p>Gatehings & Dabney, on the same side.</p> <p>Can the appellant be heard to set up a claim under the deed, if the consideration was in fact paid as claimed by her ?</p> <p>It has been shown that the appellant held the deed unrecorded until five o’clock p. si. on the day before the one on which the bank failed to open its doors and filed its assignment.</p> <p>It appears also that every step was taken to prevent the public from knowing of the sale which could have been taken.</p> <p>Consider also the fact that this was an absolute deed which must be recorded sometime. Why put it off? Why withhold possession after the sale ?</p> <p>If the deed was for security, and one which would become vacated by the payment of money or performance of other conditions, the failure to recoi’d would have been more easily explained.</p> <p>This is a stronger case than Hilliard v. Cagle, 46 Miss. 309. In that case it was a deed of trust which was not recorded. In that case there was no testimony to the effect that the other creditors relied on the property as a source from which to collect their debts; but the court assumed such to be the case. In that case it was undoubtedly a real transaction between two business men trading with each other, being in no way kin or connected, and having no. purpose to defraud another person.</p> <p>The consideration was not questioned, the conveyance was not absolute, but a mere security, hence there would be no change of possession. It did not appear in that case that the grantor was insolvent. The only difference between the two cases favorable to-the appellant is the fact that all the bank property was not conveyed. There are many differences against her.</p> <p>argued the case orally.</p>

Hon. J. H. Wynn, Judge. On January 23,1883, H. Krasnopolski insured against loss by fire for one year a certain stock of goods for three thousand dollars, with the Columbus Banking and Insurance Company, The policy of insurance contained the following condition: “ All fraud, or attempt at fraud, by false swearing or otherwise, shall forfeit all claims on this company, and shall .be a complete bar to any recovery/or loss under this policy.” On March 18, 1883, the stock of…

Hon. W. M. Rogers, Judge. On November 11, 1884, J. Pollock & Co., owners of a stock of merchandise, in Macon, insured the same in several companies, for the aggregate amount of fifteen thousand dollars, against loss by fire. The several policies were issued by the companies through their local agent, R. C. Patty, who countersigned and delivered them to the insured. One policy for four thousand dollars was taken in the Neyr- Orleans Insurance Association.

HoN. S. H. Terral, Judge. On March 11, 1886, the legislature passed an act entitled “An Act for preventing the evils of intemperance by local option in any county in the State by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of each county, to provide penalties for its violation, and for other purposes.” This act, in § 1, provides “That upon application by petition signed by one-tenth of the voters who are qualified to vote…

<p>1. Chancery Jurisdiction. Writ of assistance. Invoiced by grantee of purchaser.</p> <p>The chancery court may, upon the petition of the purchaser at a sale under a decree of that court, have a writ of assistance issued to put the grantee of such purchaser in possession of the land so bought, if such grantee, though not a party to the record, be entitled to possession as against him who has the possession.</p> <p>2. Chancery Practice. Petition for writ of assistance by purchaser. Might of stranger to interpose. Case in judgment.</p> <p>M., a purchaser of land under a decree of the chancery court, petitioned the court for a writ of assistance to put G., her grantee, in possession. PL, who was not a party to the original suit, interposed by a petition in which he set ’ out that one K. held a deed of trust on this land from G., the defendant in the original suit, prior to the purchase of M.; that he, H., had attached K. in the circuit court, and had garnished G., and had since obtained judgment against K.; that K. was not a party to the original suit. PI. asked that the prayer of M. be not granted, that the land be sold and the proceeds applied to the payment of his claim. On the motion of M. the petition of H. was, by order of the court, stricken from the files of the case. Held, that such order was correct.</p>

Hon. S. H. Terral, Judge. James Delk and Tony Carter, charged with stealing a jack, the property of D. H. Garner and J. W. Carter, were jointly indicted for grand larceny. Tony Carter having pleaded “ guilty,” testified on the trial of James Delk that Delk came to “ my house and said he wanted me to go with him and help kill the jack.

Hon.; Ealph North, Judge. Pompey Higgins bought a ticket at Vicksburg for Warrenton from the Louisville, New Orleans and Texas Eailroad Company. He boarded a freight train of the company and was carried nearly three-fourths of a mile beyond the usual stopping-place at Warren-ton. He requested the conductor to back the train to Warrenton, which the conductor, in a harsh manner, refused to do.

IJoN. WabeeN CoavaN, Chancellor, W. C. H. McKinney and W. H. Barnard filed this bill in equity against John Willis.

<p>1. New Trlae. Affidavit therefor. Newly discovered evidence. Practice.</p> <p>An affidavit for a new trial on the ground of newly discovered evidence is insufficient if it fail to sbow that such evidence could not have been discovered by reasonable diligence before the trial.</p> <p>2. Same. Newly discovered evidence. When cumulative. Impeachment of witness.</p> <p>A new trial will not be granted on the ground of newly discovered evidence if such evidence be cumulative merely; or if it simply tend to impeach the testimony of one of several witnesses of the successful party.</p> <p>3. Same. Case in judgment.</p> <p>V. brought ejectment against C. The sole question in dispute was the location of a certain road in 1860, the boundary between them. Several witnesses were introduced hv each, whose testimony on this point conflicted. The jury found for the plaintiff. The defendant moved for a new trial on the ground of newly discovered evidence which tended to show exactly where the road was in 1860; also that B., one of the witnesses for the plaintiff, was unworthy of belief. Held, that a hew trial should not have been granted on either ground.</p> <p>4. Same. Judgds discretion.</p> <p>The discretion of the circuit judge in granting a new trial must be governed by legal rules, gather than by his mere will or pleasure.</p>

Hon. Warren Cowan, Chancellor. On Angust 19,1876, Charles Peine gave his promissory note to George M. Klein, cashier of the “Mississippi Yalley Bank/’ for four thousand four hundred and thirty-one dollars, payable August 19, 1877, and thereupon executed a deed of trust on certain real property in Warren County to secure this note, which deed was duly recorded.

Host. Ralph North, Judge. Bell Gales was indicted in Sharkey County for an assault with, intent to kill and murder. He was arrested and then released on a bond for his appearance at the next term of the circuit court, and from day to day and term to term until discharged by law. He did appear, his trial proceeded, the jury retired to consider their verdict, and after remaining out about four hours they sent word to the judge that they were unable to agree.

Hon. Warren Cowan, Chancellor. In 1873 C. K. Marshall sold certain real property in Vicksburg to the Vicksburg and Meridian Eailroad Company, receiving from the eompany five promissory notes for five thousand four hundred dollars each, secured by a deed of trust on the property conveyed. In 1875 Philip Phillips, who was a creditor of Marshall at the time the above conveyance was made, obtained a judgment against Marshall for five hundred and seventy dollars and sixty cents.

Hon. Ralph North, Judge. This is an action for false imprisonment brought by Sam. Anderson against E. F. Beck, sheriff and jailer of Warren County, and the sureties on his bond.

Hon. T. J. Whabton, Judge. In September, 1884, Washington Newman brought this action against the Vicksburg and Meridian Eailroad Company before a justice of the peace to recover the value of a certain horse alleged to have been killed by the negligence of defendant in running its train.

Host. T. J. Whabtost, Judge. In August, 1885, James Wales, T. S. Wood, and G. P. Buckley, each owning an interest in a remnant of a stock of goods, sold the same to one L. N. Kiser, under an agreement that Kiser should pay the purchase-money out of the proceeds of the sale of the goods, which were to be disposed of by Kiser in the regular course of business at retail.

Hon. T. B. Gbaham, Chancellor. In March, 1879, J. W. Hudnall & Co., a mercantile firm,, executed a deed of trust in favor of one Cyrus Bussey, of Hew Orleans, on certain lands in Rankin County, and also on their stock of merchandise then on hand or thereafter to be acquired in the course of business.

Hon. W. M. Rogers, Judge. In 1863 Francis M. McGee died, leaving a widow and three children, two of whom have since died unmarried. In 1879 Mrs. McGee, the widow, died.

Hon. E. G. Payton, Chancellor. In 1854 Thos. J. Wells being about to leave the State on account of “ unpleasant circumstances,” made a deed to the land now in controversy in this suit to M.V. Stanley, trustee for the benefit of Nancy Wells, the grantor’s wife, and their two minor children, J. L. Wells and J. Dessama Wells. The deed expresses a consideration of “ ten dollars in hand paid,” and “ love and affection ” for the beneficiaries.

Hon. Warren Cowan, Chancellor. The Hanover National Bank and Andrew Kelly filed this bill on March 10, 1884, against Mrs. E. B. Klein and Geo. M. Klein. In 1868 there were taken out on the life of Jno. A. Klein two policies of insurance, and in 1875 a third policy, for the benefit of his wife, Mrs. E. B. Klein. J. A. Klein and Geo.

<p>1'. Disteess FOR Rent. Affidavit. Meaning of “ in arrear.” Amendment. Section 1302, Code of 1880. Case in judgment.</p> <p>The words “rent in arrear,” used in an affidavit in distress for rent, mean the same as “rent due and in arrear,” the words prescribed by § 1302 of the Code of 1880, even though the affidavit contain the allegation that the affiant “has cause to believe, and does believe, that the tenants will remove their effects from the premises before the rent will become due,” and the striking out of such allegation makes no change in the import of and legal effect of the affidavit in stating that the rent is due.</p> <p>2. Supreme Court Practice. Motion in lower court. Affidavits in record, but not in bill of exceptions.</p> <p>Affidavits in support of a motion to set aside an award, which are referred to in the bill of exceptions, but not there set out, will not be considered by this - court, though certain affidavits which appear to be the same are set out elsewhere in the transcript.</p> <p>3. ARBITRATION AND Award. Return of award into court. Judgment final, when to be entered. Section 2412, Code 1880.</p> <p>IT. sued W. The cause was submitted to arbitration, and an award made in favor of W. and returned into court several days before the term next thereafter. At that term H. moved to set aside the award. The court overruled the motion, and at the same term entered up judgment final on the award. Held, that H., having by his motion invited action upon the award, cannot complain that judgment was improperly entered at that term, because of the provision of § 2412 of the Code of 1880, authorizing the court to vacate such award on complaint “ made before the end of the term of the court next after such award be made and returned to such court.”</p>

IIoN. C. H. Cahpbell, Judge. In 1883- J. P. Mills was the clerk of the chancery court and Board of Supervisors of Attala County,, and W. T. Davis was his deputy clerk and had full charge and control of the office. Davis issued a series of nine false and fraudulent warrants against the county treasurer, aggregating one hundred and fifty-nine dollars.

J. T. Whartoh, Judge of tbe Ninth Judicial District. Held: as prayed for, on August 10, 1886, and appointed J. W. Peyton, 3). G. Howell, and J. W. Langley commissioners to hold the same.

HoN. C. H. Campbell, Judge. On December 12, 1885, Stix, Krouse & Co. shipped to Heed & Need a box of goods by a railroad company, to be delivered at Ackerman, a station on the line of the Canton, Aberdeen and Nashville Railroad, in this State. On December 21, 1885, Lang-staff & Co. levied an attachment on these goods in the hands of the agent of the railroad company at Ackerman.

<p>1. Disxeess eor Bent. Property claimed by third person. Remedy under § 1317, Code of 1880. Replevin.</p> <p>H., under a contract of sale, delivered to B. a safe, who paid a part of the purchase-money, and H. retained the title to the safe till payment of the balance of the purchase-money. &., as landlord, sued out a distress warrant for rent, and caused this safe, which was found on the leased premises, to be seized and sold thereunder. It was bought by P. At the time of the sale the balance of the unpaid purchase-money was not due. After it all became due H. brought replevin against P. for the safe. Held, that H. cannot maintain an action of replevin, but should have interposed his claim before sale under the distress proceedings, in accordance with § 1317 of the Code of 1880.</p> <p>2. Same. Property used in business of trader seized. Claim of third person. Section 1300, Code of 1880.</p> <p>In the above case B.- was carrying on the business of a jeweler for himself, and under a sign bearing his own name, and was using the safe in such business. Held, that the safe was liable for the rent of the premises in which B.’s business was conducted, under $ 1300, Code of 1880, which provides that if any person shall transact business in his own name as a trader “ all the property, stock, money, and choses in action used or acquired in such business shall, as to creditors of any such person, be liable for his debts, and be, in all respects, treated in favor of his creditors, as his property.”</p>

HoN. Baxter McFarlaND, Chancellor.' ' T. L. Airey & Co. obtained a judgment against W. M. Buchanan. This judgment was duly enrolled, execution issued thereon, and a return of nulla bona made. Buchanan at this time was living on his homestead, worth two thousand dollars. Afterward he conveyed this homestead to one Mrs. Baldwyn and daughter, and they in turn conveyed their five-eighths interest in six hundred and forty acres of land and two lots to the wife of ~W. M. Buchanan.

Hon. Baxter McFarland, Chancellor. Mary Y. Yerner filed this bill in chancery against George P. Yerner and Charles H. Yerner. The bill, after setting out complainant’s marriage with George P. Verner and his desertion of her, charges that he has fraudulently conveyed all of his property to his brother, Charles H. Yerner; that the conveyance was made in pursuance of a scheme of the two defendants to prevent her from obtaining alimony.

Hon. W. M. Rogers, Judge. Willie Trost and Ike Solomon were jointly indicted at the June term, 1886, of the Circuit Court of Lowndes County for unlawfully selling vinous and spirituous liquors.

Hon. F. A. Ceitz, Chancellor. From January 1, 1883, to February 5, 1886, W. H. Robertson & Co. were carrying on the business of merchants without a privilege license. During that time William Deans became indebted to them for goods bought in the sum of five hundred and ninety-three dollars and eighty-five cents.

'Hon. W. M. Rogers, Judge. Frank McNulty made an affidavit against C. K. Walker and one Brassfield, charging them with stealing his hog. They were arrested and tried and Walker was discharged. Thereupon he brought this action against McNulty for malicious prosecution.

Hoh. A. T. Roane, Judge. L. C. Lea was indicted at the April term, 1885, of the Circuit Court of Tate County for retailing vinous and spirituous liquors without license.

Hon. A. T. Roane, Judge. In 1884 Greenwood LeFlore sold conditionally a mule to Scott Withers, retaining the title thereto until the purchase-money should be paid. In 1885 there was still due on the mule twenty-nine dollars and seventy-eight cents, when Scott Withers induced the mercantile firm of Heal & Miller to assume this debt, and executed a deed of trust on the mule to Guy Hill, trustee for Heal & Miller.

<p>Crimutai, PRACTICE. Indictment for profane sweañng. What to contain.</p> <p>An indictment under a statute which makes it a crime to “ profanely swear and curse in a public place,” must set out the language upon which it is based.</p>

HoN. W. S. FeatherstoN, Judge. Cato McGuirk having lost a mule, borrowed a pistol and started in search of it. He went as far as one Clardy’s, where he left his pistol and returned home. A short time afterward Clardy sent word tp McGuirk that he had found the mule. McGuirk went to Water Valley, his market town, about twenty miles distant, returned by way of Clardy’s about twenty miles, got the pistol which he had left there, and concealing it carried it home, about ten miles.

HoN. E. W. WilliamsoN, Chancellor. P. B. Portwood filed the bill in this case against L. T. Baskett, sheriff and tax collector of Le Flore County, stating that the complainant had paid Baskett two hundred dollars for a license to retail vinous and spirituous liquors at Emmaville, in Le Flore County, in accordance with the general laws of the State; that Baskett still demands of eomplainant the further sum of one hundred dollars for a license to retail under an aet of the…

HoN. BaxteR McFablaND, Chancellor. On December 8,1885, Mrs. A. E. Flanneken leased “Greenwood Springs” to J. M. Wright for five years, the first installment of rent to be paid on December 15, 1885. Wright failed to pay this installment when it fell due, and on May 1, 1886, Mrs. Flanneken gave him written notice to pay the rent or yield possession. On May 6, 1886, she brought an action before a justice of the peace to recover possession, and judgment was rendered in her favor.

Hon. J. G-. Hall, Chancellor. During the years 1882, 1883, and 1884 one C. B* Robertson was carrying on the business of a merchant in Tunica County.. On November 1, 1883, Robertson’s privilege license for carrying on his business expired, and was not renewed until February 17,1884.

HoN. W. M. Rogers, Judge. Simon Kellum was indicted for grand, larceny. He was tried and convicted. Held: immaterial. State v. Dodson, 16 S. C. 453. The law does not require jurors to be philologists. , A verdict, therefore, finding the defendant guilty of “ mansluder ” was held to be valid. State v. Smith, 33 La. Ann. 33. A verdict fixing the punishment at two years in the State “peni-tenilery ” held valid.

Hon. W. S. Featheeston, Judge. J. W. Williamson was indicted in Union County for murder. The venue was changed to Tippah County on the application of the defendant, and he was there tried and convicted. He appealed to this court.

Hon. C. H. Campbell, Judge. George W. Bateman was indicted for an assault and battery on Vines M. Wells with an intent to kill and murder him. The evidence to identify Bateman as the guilty party was circumstantial.

<p>Appeal from the Circuit Court of Clay County.</p> <p>HoN. W. M. Bogers, Judge.</p> <p>Leinkauff & Strauss sued out a writ of attachment against one T. C. Smith and caused the same to be levied on a certain stock of goods. The sheriff who executed the writ required Leinkauff & Strauss to give him an indemnifying bond, the body of which is as follows : “We, J. H. Leinkauff and Leopold Strauss, partners in trade as Leinkauff & Strauss, as principals, and W. A. Bell and John Frenkel as sureties, bind ourselves to pay W. G. Stovall, sheriff of said county of Chickasaw, twelve hundred and three and ■eight one-hundredths dollars, unless the said Leinkauff & Strauss shall indemnify and save harmless the said W. G. Stovall, sheriff, as aforesaid, against all damages which he may sustain in consequence of the seizure or sale of a certain lot of goods, wares, and merchandise of the value of ■-dollars, levied on by said sheriff under a writ of attachment issued from the office of the ■clerk of the Circuit Court of Clay County, Mississippi, at the suit •of the said Leinkauff & Strauss, and against the estate, real and personal, of T. C. Smith, and directed to the sheriff of said county ■of Chickasaw, said writ issued and dated January 15, 1884, an inventory of said goods, wares, and merchandise, filed with and attached to said writ of attachment; and, moreover, that the said Leinkauff & Strauss will pay and satisfy to any person claiming title to said goods, wares, and merchandise all damages which such person may sustain in consequence of such seizure or sale.” J. R. Brinker interposed a claim to the goods and on the trial of that issue succeeded. Thereupon he began this action against the principals and sureties in the bond above set out to recover'damages. The declaration in its statement of damages demands three hundred •dollars attorney's fees, paid out in defending plaintiff's claim to the goods levied on under the attachment, and two hundred dollars for •hotel bills'paid out, and as compensation for loss of time occasioned by plaintiff's attendance on the trial of the claimants’ issue under this attachment. It is not charged in the declaration that there was any fraud, willful wrong, or oppression in the levying of the .attachment on the goods in question. The defendants demurred to the declaration. The demurrer was sustained. The plaintiff •declined to amend his declaration and judgment final was entered ¡up for the defendants. The plaintiff appealed. -</p> <p>We say, first, that we could not recover on the bond for a willful trespass, because an agreement to indemnify in case of a willful trespass would be in contravention of public policy and void. Stark v. Famey, 18 Cal. 622.</p> <p>What we .do contend is tbat attorney fees and expenses incurred at the trial of the claimant’s issue are actual and not exemplary damages ; that they are the legal, natural, proximate result or consequence of the wrongful levy, and being such, the indemnifying bond is an express CONTRACT agreeing to pay these damages, and the parties to this contract, the obligors on the bond, are bound by virtue of the contract to pay the damages sued for.</p> <p>Mr. Drake, in his work on Attachments, § 175, in speaking of the damages recoverable on attachment-bonds, says :</p> <p>“ What is this actual damage ? On general principle it must be the natural, proximate, legal result or consequence of the wrongful act. Remote or speculative damages, resulting from injuries to credit, business, character, etc., cannot be recovered.</p> <p>“Actual damages may be properly comprehended under two heads:</p> <p>“ First, expense and losses incurred by the party in making his defense to the attachment proceedings; second, loss occasioned by being deprived of the use of the property.”</p> <p>• This text is quoted- and approved by our own supreme court in .construing the term “actual damages” as used in §2430, Revised Code 1880. See Marqueze v. Southerner, 59 Miss. 442.</p> <p>•Mr. Drake in § 176 of his work, referring to the above classification of actual damages, says:</p> <p>“ Under the first head will be allowed fess paid to counsel for ■services in the attachment-suit.”</p> <p>In a leading case it was held, “ That the necessity of paying such counsel fees is an actual damage which the defendants have sustained.”</p> <p>It is not a mere matter of discretion, as the condition of the bond is imperative that the obligors shall pay such damages as the obligees may sustain by reason of the injunction. Edwards v. Bodine, 11 Paige 223.</p> <p>Counsel fees are regarded as a proper subject of consideration in estimating the damages incurred, the loss- being as direct as any ■other. High on Injunctions, § 1685.</p> <p>We refer also to Waple on Attachments 451; Baggett v. Beard, 43 Miss. 123; Garret v. Logan, 19 Ala. 344; Seay v. Greenwood, 21 lb. 491; Miller v. Garret, 35 lb. 96 ; Burton v. Smith, 49 lb. 293 ; Holmes v. Weaver, 52 lb. 516; Drake v. Webb, 63 lb. 596; Bolling v. Tate, 65 lb. 417; Corcoran v. Judson, 24 N. Y. 106.</p> <p>Are attorneys’ fees, hotel bills, and loss of time covered by a bond of indemnity ?</p> <p>The liability of the defendants is just what the liability of the sheriff would have been had he made the levy without taking the bond and nothing more. This has been frequently declared by this court. Moore v. Allen, 3 Cush. 363; Shattuck v. Miller, 50 Miss. 386; Sworn v. Alcorn, 50 lb. 323.</p> <p>The full extent of the sheriff’s liability is the actual damage occasioned to the rightful owner of the property — not remote or contingent damages — such is the unbroken line of authorities, and as far as I know is fully sustained by principle.</p> <p>In this State it is long since settled that the measure of damages for the wrongful taking of personal property, when there was no .fraud, malice, or oppression, is the value of the property and ten per cent, interest thereon from the date of the taking. Whitejield v. Whitefield, 44 Miss. 254; Burrage v. Melson, 48 lb. 237.</p> <p>. In Gowden v. Lockridge, 60 Miss. 385, this court said that an allowance for attorneys’ fees can only be made in actions of replevin under circumstances which would warrant the imposition of puni-tory or exemplary damages,- and even then is denied in some of the States. Black, Todd & Co. v. Robinson, 62 Miss. 68; Taylor v. Morton, 61 Miss. 24; Black v. Robinson, 61 Miss. 54.</p> <p>Ohio and quite a number of other States have held that attorneys’ fees and the expenses of the litigation can only be allowed or rather considered as punitory, and where punitive damages may be allowed, evidence may be given of attorneys’ fees, that the jury may have some guide in fixing damages.</p> <p>I think this question is no longer an open one in this State. It has been finally put to rest by Stauffer v. Garrison, 61 Miss. 67.</p>

HoN. F. A. Critz, Chancellor. In 1874 J. W. Jones, of Mobile, Ala., held a deed of trust on a certain tract of land in Noxubee County, the property of Connor & Kobinson, to secure a debt of five thousand seven hundred and twenty-sis dollars due from them to him. By mutual agreement between the parties, Connor & Robinson, in December, 1874, sold the land to J. S. L. Hambrick, who was to pay for t[ie same with the claim which Jones held against the land.

Hon. E. G. Peyton, Chancellor. In 1854 one Thomas J. .Wells .executed a deed of trust on certain real and personal property in Hinds County to one M. W. Stanley, trustee, for the joint benefit' of Nancy Wells, his wife, and their two children, James L. and J. Dessama Wells. See Boone v. Davis, ante 133.

Hon. F. A. Critz, Chancellor. A. S. Humphries, Sr., died in 1873, testate, having appointed his son, W. D. Humphries, and Abram Murdock his executors. W. D. Humphries was also made guardian of -the minor children, and W- D. Humpliries and H. G. Humphries trustees for the management of the legacies bequeathed to the children.

<p>1. Perjury. Indictment for. Materiality of false oath. How averred.</p> <p>It is sufficient in an indictment for perjury to charge generally that the matter sworn to in the false oath was material to the issue or point of inquiry upon which it was taken, without showing particularly how it was material.</p> <p>2. Same. Corroborative evidence. Instruction. Case in judgment.</p> <p>L. was indicted for falsely swearing that he had not unlawfully sold liquors to C., Gr., B., etc. The court instructed the jury trying his case that separate unlawful sales which different witnesses testified had been made by L. at different times might be treated as corroborative evidence of each other. Held, that this was error. Any one sale must be proven by two witnessesj or one witness and corroborating circumstances, and proof of one sale is no t corroborative evidence of another.</p>

Circuit Court of Lowndes County. Hon. W. M. Rogers, Judge. A. Y. Locke is a resident of supervisors’ district No. 5, Lowndes County. Mrs. V. A. Anderson is a resident of Clay County, near the Lowndes County line.

Hon. F. A. Critz, Chancellor. G. W. Foster was a member of the two firms of Sims, Foster & Co., and Sims, Foster & Ivy, commission merchants. These firms having failed, made an assignment of all their assets to one Peter Starke, assignee, for the benefit of creditors, and therein provided that all individual debts of the several partners should first be paid out of the individual assets of each. Starke, the assignee, appointed Foster his agent to collect together the assets.

HoN. W. S. FeatheestoN, Judge. The grand jury of Marshall County found an indictment against Rebecca Lea for gaming.

HoN. W. M. Rogers, Judge. J. J. Stockard sold J. G. Coggins a plantation for ten thousand dollars, taking Coggins’ promissory note for the purchase-money. He also sold Coggins certain mules and other property, taking his note for four hundred and fifty dollars therefor.

Hon. C. H. Campbell, Judge. Mrs. Eunice Moss having waived the tort, brought this action of assumpsit for the value of certain railroad cross-ties alleged by her to have been wrongfully converted by Goodman & Co. Suit was begun by levying an attachment on certain property belonging to Goodman & Co., who were non-residents.

HoN. J. W. BuchaNAN, Judge. B. L. Hatch, Jr., B,. D. Whitfield, Needham Whitfield, and M. C. McNairy owned a tract of land as- tenants in common. In 1880 R. D. Whitfield executed a mortgage on his undivided interest in the land to secure a note to become due in 1881. The condition of this mortgage was broken in 1881 on the maturity of the note, it not being paid.

Soto County. Hon. A. T. Roane, Judge. .On April 7, 1880, Dr. J. H. P. Westbrook was- duly appointed “health officer ” of De Soto County by the governor,- and at' the expiration of his two- years’ term was reappointed. - At. the J uly term, 1880, of the board. of supervisors the salary of the health officer was fixed at fifteen dollars per -month.

<p>Appeal from the Circuit Court of Panola County.</p> <p>Hon. A. T. Roane, Judge.</p> <p>The case is stated in the opinion of the court.</p> <p>The action of the court was erroneous in permitting the district attorney to propound interrogatories to the accused concerning his application for continuance. It may, however, be conceded, for argument’s sake, that the court only wished to elicit the one fact; whether or not the accused could prove the contents of his affidavit by any other witness. Then, when this fact was ascertained, the court should have interfered, and not permitted the district attorney to proceed any further in examining the defendant.</p> <p>Certainly the action of the court was fatally erroneous in compelling L. C. Standifer (of counsel for defendant), at the request of the State, to state to the jury what appellant had previously said to the district attorney in response to the interrogatories of the district attorney concerning appellant’s application for continuance.</p> <p>Even conceding that the district attorney had the right to so interrogate appellant about his application for continuance, he should not be allowed to use such statements for any other purpose than the one for which he had been permitted to interrogate appellant. The answers of the accused under such circumstances, time, and place can never be used against him on his trial.</p> <p>T. M. Miller, Attorney General, for the State.</p> <p>In the absence of defendant’s affidavit it is impossible to predicate anything concerning it. But in no view can this court consider an objection to testimony upon the admission of which the court was not asked to rule, and did not rule.</p> <p>The attention of the presiding judge does not appear to have been called to the circumstance_of the examination of counsel for the accused, and no ruling by the court was asked thereon. I do not understand that a question may be raised for consideration by an appellate court in that manner The exception was only taken to what the two lawyers did, without regard to what the court did or might have done.</p> <p>If this view be discarded as narrow and technical, still it does not appear what reason was assigned, or could have been assigned, for the exclusion of the question and answer.</p> <p>I submit there is no error.</p>

Hon. A. T. Roane, Judge. The grand jury of Panola County found an indictment charging that Elias Osborne “ did feloniously administer to human beings, to wit: Charles Hill and his wife and children, with intent to kill them, a certain poison, which poison was taken by said persons, but death did not ensue therefrom; the particular and technical name of said poison being to the jurors unknown, but it is commonly called ‘ Rough on Rat's/ ” On the trial there was evidence which…

Appear from the Circuit Court of Monroe County. Hon. J. W. Buchanan, Judge. Mary Y. Yerner brought this action for damages against Sallie J. Yerner, for slander. The declaration alleges that the defendant testified against plaintiff in a cause before the chanceiy court; in which plaintiff was seeking alimony from her husband, Geo.

Hoe. A. T. Roane, Judge. E. B. Gwynn was subpoenaed to appear before the grand jury of De Soto County at the September term, 1885, of the circuit court.

<p>1. Murder. Evidence, lies gestee. Case in judgment.</p> <p>At a social gathering at night, during which intoxicating liquors had been freely used, a fight occurred between A. and K. S interfered and A. received a wound from which he died. S. was indicted and put upon trial on a charge of having murdered A. The witnesses for the State testified that while A. and K. were fighting, S. ran in between them, threw his. arm around A., and cut him across the stomach with a knife, inflicting the wound from which death resulted. The witnesses for the accused testified that he did not inflict any wound on A., but only separated him and K., and that K. gave the fatal blow. H., a witness for the State, testified to a statement made by A. under these circumstances: When A. was cut he immediately ran a distance of from one hundred to one hundred and ten yards (pursued a part of the way by S., who repeatedly snapped a pistol at him, but who turned back before A. ceased running) into some woods and lay down. H. walked in the direction in which A. had gone, and while thus going one L. called to him, saying: “Here is A. out in the’woods with his guts cut out.” Before getting to A., H., heard him and L. talking. H. reached A. in about five minutes after the wound had been given, and A. then said to him, “ H., S. has cut my guts out; did you see him ?” This statement of the deceased, as testified to by H., was objected to by the defendant, but was admitted in evidence by the court, as a part of the res gestae. Held, that such statement was not a part of the res gestae, and was erroneously admitted in evidence.</p> <p>¡2. Criminal Practice. Eoidenee. Bule as to res gestae.</p> <p>It is improper fot a court to admit evidence of á statement as being a part of the res gestae on the ground that such statement will throw light upon the transaction under investigation, or that it was made so soon after the occurrence as to exclude the presumption that it has been fabricated, or that it was made under such circumstances as to compel the conviction of its truth. But thfe true rule for the admission of such evidence is that the statement testified to is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part. ^</p>

Hon.. W. M. Rogers, Judge. On August 26, 1886, John T. Brogan presented to the. Held: the code and acts amend-atory thereof govern. When an election is held they no longer govern, because the local option act makes every provision with the greatest particularity for the minutest details in the granting and issuing of license.

Appeal and Cross-Appeal from the Circuit Court of Tunica County. Hon. J. G. Hall, Chancellor. Eichard Abbay, who was the owner of two large plantations in Tunica County, and also a large amount of personal property, appointed his son, E. F. Abbay, his' agent, to conduct the planting and attend to all the business connected with these plantations.

HoN. S. H. Terral, Judge. In December, 1881, one M. S. A. Casanova conveyed the land here in question to ~W. K,. Seal, trustee, for the benefit of Mrs. Janette Lissa, to secure, to her one hundred and sixty dollars which she had lent Casanova, with interest thereon. The debt not being paid at maturity, on March 5, 1883, the trustee, Seal, sold and conveyed the land by virtue of the trust-deed to John Estapa for one hundred and eighty-seven dollars and eighty-six cents.

HoN. J. B. CheismaN, Judge. W. P. Cassedy made an affidavit before a justice of the peace of Pike County for an attachment for rent to become due by C. J. Monroe for certain lands situated in Franklin County. On this affidavit an attachment was issued under § 1302, Code of 1880, by a justice of the peace in Franklin County, and was levied on certain personal property. H. C. Mayer interposed a claim to the property.

J. H. WYNN, Judge of the Fourth Judicial District. Held: whether on the first Tuesday of August, 1886, or the first Tuesday in August, 1887. The first section of the, act provides that a special election be held on the “ first Tuesday in August next,” etc. It does not provide that the election shall be on the first Tuesday in August next after its passage or after it went into effect.

APPEAR from the Circuit Court of Harrison County. HoN. S. H. Terral, Judge. Celestine Ladnier instituted suit on a certain promissory note against Eli Ladnier before a justice of the peace and obtained judgment thereon. The entry on the docket of the justice is as follows: “ C: Assumpsit. “Summons issued July 9, 1885, returnable July 18, 1885; continued till August 8, 1885.

HoN. SylvaNus EvaNS, Chancellor. The case is stated in the opinion of the court. We would refer the court to Baldwin v. Tillery, 62 Miss. 378. The opinion in this case is decisive of the one at bar. There the debtor had a storehouse in one corner of his residence lot, and cut off from it by a fence. At most, the court below could only have ordered a sale of the whole property, to be good only for any excess it might bring at the sale over two thousand dollars.

<p>1.MANDAMUS. Tax-title sought. Power of auditor to determine validity of. Action, by whom to be brought</p> <p>An action of mandamus will lie to compel the auditor to convey to any one offering to comply with the requirements of law on this subject such title as the State may have to lands acquired under a tax-sale, whether such sale, in the opinion of the auditor, be valid or not. The auditor has no authority t,o determine as a matter of law the validity of a tax-sale, except that he may, with the advice of the attorney general, strike from his lists such lands as in the opinion of the attorney genera] are held by the State by invalid titles. And such action is maintainable by the party seeking the conveyance of the auditor.</p> <p>2. Same. Tax-title. Previous conveyance by auditor. Scope of adjudication.</p> <p>And if to such action of mandamus the auditor set up the defense that he has already conveyed the title of the State to the lands in question to another, this court v;ill determine whether such conveyance be a valid one, but will not pass upon the validity of the title under which the State held.</p> <p>3. AUDITOR’S Deed. Conveyance by auditor of lands of State without collecting taxes due thereon. Effect of. Act of March 14,1884, construed.</p> <p>Under an act approved March 14,1884, entitled “ An Act for the benefit of purchasers of levee lands sold under the decree of the Chancery Court of Hinds County, First District, in case of Joshua Green and others against Hemingway and Gibbs, treasurer and auditor, and ex offiaio liquidating levee commissioners,” if the auditor, by mistake of law, treat certain lands included in this act as exempt from taxation, when in fact such lands were not exempt, and thereby fails to demand and collect certain taxes due thereon as required by the act above referred to before executing a quit-claim deed thereto, as provided in that act, then such conveyance is void and of no effect.</p> <p>4. Railroad Company. Exemption from taxation. Outlying lands. Charter of M. & V. E. E. construed.</p> <p>Under a charter of the M. & V. R. R. Co., which exempts it from all taxes “ to which said company shall be subject,” taxes on outlying lands not used in the construction, operation, or physical maintenance of the road are not included in such provision.</p> <p>5. Constitutional Law. Legislative construction of charter. Act of March 12, 1884. Exemption from taxation. Judicial functions.</p> <p>By an act passed March 12, 1884, Acts of 1884, p. 29, the legislature, while declaring that all detached lands of. railroads should be liable to taxation notwithstanding any charter provision to the contrary, further declared “that the provisions of this act shall not have the effect to tax any of the lands of tire M. & V. B. B. Co. until February 1,1886.” Held, that if the above act be construed as exempting by its terms the lands of such company from taxation, then it could only refer to taxation arising after its passage; if it be a construction merely of the meaning of the charter of such company, then it is unconstitutional and without effect, as assuming to perform a judicial function.</p>

Hon. Waeeen Cowan, Chancellor. John M. Ryan and others are the owners of a narrow strip of land extending along the banks of the Mississippi river, in the , «city of Vicksburg. The strip contains about six acres. In 1884 the Louisville, New Orleans and Texas Railroad Company built its road across and over this strip from north to south, and •acquired title to about ten feet in width of the whole strip. Afterward the company desired forty feet more of the land in •question.

Hon. A. T. Roane, Judge. Brooks, Neely & Co. brought this action of assumpsit for three hundred and sixty-eight dollars and seventy-five cents against C. A. Grayson for the latter’s failure to ship them two hundred and ninety-five bales of cotton, as per his agreement, which is as follows: “ For and in consideration of amount already advanced in supplies to me, evidenced by note and open account, and the additional amount of eight hundred dollars in supplies, to be advanced…

HoN. Baxter McFarland, Chancellor. In 1881 one’Willoughby Bolen died, testate, leaving a widow, Margaret, and ten children, one of whom was J. H. Bolen, surviving him.

A. T. Roane, Judge. The case is stated in the opinion of the court. In this case Dr. Staten was in 1882 and 1884, when these debts were made, in the possession of the land and using it, making crops on it for himself, and it was by every one, particularly plaintiffs, supposed to be his. There was no written contract between him and his wife of record in regard to the terms under which he was operating it. She had inherited the land, hence had no deed or title of record.

HoN. W. S. Featherstok, Judge. Bob Lamar was indicted for the murder 'of one ¥m. Harmon. It appears that on the day of the killing, Lamar, Lock Bishop, and others were in the little town of Dallas, drinking and carousing. They became riotous, and Lamar shot one Ab. Ceasly. Thereupon Lamar and the Bishops started down a public road, apparently to leave the towm After they had gone several hundred yards they turned and seemed to be coming back.

HoN. A. T. EoaNE, Judge. E. J. Hill was indicted for the murder of one Henry Brown. Brown was wounded by a stab in the breast on Tuesday, and died from its effects on the next following Monday. On Sunday, the day before his death, a justice of the peace was sent for, and Brown made a statement which was taken down by the justice. This statement was offered by the State as the dying declaration of Brown, and objected to by the defendant.

Hon. S. H. Terral, Judge. Marguerite Renandine brought this action of ejectment against Auguste Campe.

<p>1. Bill of Exceptions. Power of municipal authorities to grant. Exercise of authority as to liquor license.</p> <p>A board of mayor and aldermen have no authority under the general laws of this State to grant and sign bills of exception when exercising the power to grant licenses to retail liquors.</p> <p>2. Liquor License. Certiorari. Errors of law. Questions of foot. Practice.</p> <p>Whete a board of mayor and aldermen grants license to retail liquors, no appeal is allowed from such action, and its decision is final as to questions of facts, though any error of law apparent on the face of the record of the proceedings may be corrected by certiorari.</p>

Hon. Lauch MoLaurin, Chancellor. The case is stated in the opinion of the court. 1. This is not a divorce case, it is a suit for alimony without a divorce; it is purely an equity suit. Certainly, under our Mississippi practice, all evidence must be given in by depositions, of the taking of which notice must be given. Section 1938, § 1943, § 1944, Code of 1880, are the exceptions to the general rule, and this case falls within none of them.

Hon. Laugh McLauein, Chancellor. On February 8, 1879, W. M. Connerly executed a mortgage on lot 8, square 14, town of Magnolia, on lots 3 and 4, square 19, town of Magnolia, and on certain lands in Pike County to J. T. Bond to secure certain notes given by the former to the latter. Afterward Connerly executed a mortgage on lot 8, square 14, town of Magnolia, to E. W. Millsaps, and sold the lands in Pike County to F. M. Lee.

Hon. Lauch McLaurin, Chancellor. In 1886 the Probate Court of Amite County granted to Samuel O’Neal, letters of guardianship of the person and estate of Eobert H. Day, then a minor. O’Neal executed a guardian’s bond with John H. Nunnery and Joseph Hughes as his sureties. On October 6, 1877, Eobert H. Day became of age. Hughes died soon afterward intestate, and no administrator of his estate has since been appointed.

HoN. S. H. Terral, Judge. Sampson W. Finch was indicted by the grand jury of Jackson County upon the charge that he “ Sampson Finch, in said county, on the first day of October, A. D. 1882, did willfully disturb the peace of Rebecca Jones, then and there by offensive conduct there, against the peace and dignity of the State of Mississippi.” The defendant moved to quash the indictment because it failed to set out the particular acts charged as offensive.

HoN. T. J. Wharton, Judge. A. J. Wheeler was indicted for selling whisk/ without license in violation of a local act in relation to Copiah County, passed by the legislature in 1884. On the trial he moved to quash the indictment, and then after conviction he moved to arrest the judgment because the act under which he was indicted and convicted had been repealed. Both motions were overruled and Wheeler appealed.

Hon. T. B. Graham, Chancellor. Charles H. Fox died in 1862 leaving a widow, now Mrs. Amanda M. Smith, and several heirs. Certain land now in controversy was set aside to the widow, who is still alive, as her dower. In 1876 she failed to pay the taxes on this land and it was forfeited to the State. In 1880 Robert. N. Fox, one of the heirs of Charles H. Fox, deceased, acquired the State’s title.

HoN. Laugh McLauriít, Chancellor. The bill in this case was exhibited by L. B. Moody against J. M. Hoskins, praying that complainant be allowed to redeem certain lands held by the defendant by virtue of a tax-title. The defendant demurred, and the Chancellor sustained the demurrer and dismissed the bill. The complainant appealed. The facts presenting the point in controversy are sufficiently stated in the opinion.

<p>Appeal from the Chancery Court of Hancock County.</p> <p>Hon. Sylvanus Evans; Chancellor.</p> <p>James Clark exhibited this bill in chancery against John V. Toulme, in which he set out that defendant, on May 16, 1884, executed a certain promissory note for one thousand dollars in favor of Messrs. Fairchild and Kellar, and secured the same by a mortgage on certain lands; that on September 4, 1884, this note and mortgage were indorsed to him by Fairchild and Kellar, and that he is now the bona fide owner and holder thereof; that defendant has paid complainant three hundred dollars on said note, and that the remainder is still due. The prayer of the bill is for a foreclosure of the mortgage. The bill is signed by the solicitor for the complainant and is not sworn to.</p> <p>The defendant answered, after making other defenses, as follows : “ And respondent denies upon information and belief that James Clark, the complainant, is the indorser of said note, and denies that he is the owner and holder thereof.” The answer is sworn to by the defendant.</p> <p>The original note with the indorsements thereon was filed as an exhibit to the bill.</p> <p>The cause was set down for final hearing upon the bill, exhibits, and answer. The Chancellor rendered a decree for the complainant. The defendant appealed.</p> <p>We submit that the Chancellor erred in decreeing for complainant because complainant wholly failed to establish any right to sue upon the note and mortgage. It is useless to cite the court to the well-known rule that where a material allegation in an un-sworn bill is confronted by a positive denial in a sworn answer, such answer can only be overthrown by the testimony of two witnesses, or one witness and corroborating circumstances. See Adams on Equity 91, note 1 and cases cited. The rule has been repeatedly announced in this State. Walker’s Reports 224; Parhhurst v. MoGhraw, 2 Cushman 134-140; Kearney v. Jeffries, 48 Miss. 359; Jades v. Bridewell, 51 Miss. 881; Walter v. Shannon, 53 Miss. 500; Fulton v. Woodman, 54 Miss. 174 ; Surget v. Boyd, 57 Miss. 485; Johnson v. Orippen, 62 Miss. 597.</p> <p>The allegation that Clark was either the owner, the holder, or the assignee is a necessary one. The note was not payable to him, and, unless he was either owner or holder, he could not sue.</p> <p>The fact that some of the denials are made upon information and belief does not affect the force of the answer as proof, or vary the general rule of evidence applicable to chancery practice. Magee v. White, 2 George Rep. 42, 46, 47.</p> <p>We are aware of the general rule which requires two witnesses or one witness and corroborating facts to overturn a sworn answer to an unsworn bill, but we think the rule has no application to the case at bar. The complainant was the owner and holder of a note payable to order and indorsed in blank, and he files the note and the mortgage securing it with his bill as exhibits, and alleges in the bill that he is the owner of the note, the same having been indorsed to him before maturity for a valuable consideration.</p> <p>The prima facie case of ownership was thus fully and completely made out. 55 Miss. 458; Daniel’s on Neg. Inst., § 663 et seq.; Abbott’s Trial Evidence 801.</p> <p>Now we insist that it would take more than a mere denial on information and belief to overthrow such a case, notwithstanding the fact that the answer is sworn to.</p> <p>The denial in any case must be positive. See Adams’ Equity 90.</p>

Hon. J. B. Chrisman, Judge. Phillips, Marshall & Co. brought this action of replevin against H. M. Gastrell to recover' possession of certain timber alleged to have been cut from the land of the former by the latter. A motion for a continuance was made by defendant.

Hon. J. H. Wynn, Judge. J. H. Brown brought this action of trespass against the New Orleans, Baton Rouge, Vicksburg and Memphis Railroad Company. It appears that in 1884 the defendant secured by condemnation proceedings a right of way through the plantation of plaintiff and paid him therefor about one thousand five hundred dollars.

Hon. Sylvanus Evans, Chancellor. The case is stated in the opinion of the court. Can it be said that the legislature may give to a municipal body the power to prevent the enjoyment of a lot of ground by the owner by putting up a house on it to live in ? What public right is abused or infringed by such use? It is a most unheard-of assumption that the right to put up a dwelling on one’s own ground can be taken away. The use is of all uses the most lawful. It is not a common.

<p>1. Land. Conveyance by husband before acquisition of title. Descent of title from wife. Effect as to grantee.</p> <p>If a husband execute a deed to land of his wife and afterward the wife dies, leaving him her heir to the land, the title to the interest thus acquired by the husband inures to the benefit of his grantee. Clarke v. Slaughter, 34 Miss. 65, cited.</p> <p>2. Same. Ejectment. Proof of 'heirship. Failure to raise objection m court below. Case in judgment.</p> <p>E. and wife executed to K. a deed to certain land belonging to the wife. The wife having died, K. brought an action of ejectment against E., who pleaded the general issue. On the trial E. claimed the land as heir of his wife and introduced evidence which tended to show that at the time the deed to K. was executed she was a lunatic, and contended that the deed was, therefore, invalid. JHeM, that K. ought to prevail in his action of ejectment, although the proof does not show that E. was the sole heir, as there was no objection made thereto in the court below, and if there be other heirs their title cannot be affected by the judgment herein.</p>

HoN, Laugh MoLauriN, Chancellor. In 1859 one John Evans conveyed a certain tract of land to F. D. Nettles, husband of Nancy Nettles, and the deed was duly recorded in that year. In 1862 Evans conveyed this same land to Nancy Nettles and the deed to her was recorded soon after its execution. In 1882 F. H. Hartman recovered a judgment against F. D.' Nettles, and in 1885 caused an execution thereunder to be levied on the land above referred to.

HoN. Baxter McFarland, Chancellor. On April 20, 1882, a corporation called the “Lee Mutual Fire Insurance Association ” was duly organized undet the laws of this State. Its charter provides as follows : “SECTION 1. That J. H. Miller, C. H. Clifton, F. M. Goar, their associates and successors, are hereby declared a body corporate to be known, etc. “ Sec. 2.

Hon. J. B. Chrisman, Judge. The case is stated in the opinion of the court. 1. The indictment contained an allegation as to the number of inhabitants of Woodville. It was a material allegation, and it was necessary to be proven. 2. The verdict was against the law and the evidence. There was nothing in the whole'evidence to show or that even tended to show that the accused kept a livery stable. As to the feed stable question, there is nothing shown.

James G. Leach, Esq., Special Judge, presiding by agreement of the parties, Hon. Kalph North being disqualified to preside. Adeline Farrar brought this action of ejectment against Louis Pipes, Mary S. Pipes, and William H. Swayzie to recover possession of a certain tract of land known as the “ Ireson and Sway-zie land,” containing about three hundred and thirty-three acres.

HoN, T. J. WhaetoN, Judge. George Beasley was indicted and tried for the murder of one Frank Starnes. The evidence presented by the State on the trial, which was circumstantial, tended to show that Beasley and Starnes were in the woods alone hunting when Beasley shot Starnes in the back of the head with his shotgun, and then took up the rifle which Starnes was carrying and shot him through the head with it, and that no shot was fired by Starnes.

HoN. Sylvanus Evans, Chancellor. In the latter part of March, 1884, D. T. Archibald delivered to one E. De Smet two barges, admitted to be water crafts, which the former had built for the latter. Soon afterward De Smet sold the barges together with other property, to A. Carriere & Sons, who executed a deed of trust thereon in favor of the Citizens’ Bank of Louisiana.

HoN. A. Gr. Mayers, Judge. Seabron McLaurin was charged with killing Anne Wright and was indicted for murder.

Hon. S, Evans, Chancellor of the Seventh Judicial District, presided in this case, having interchanged with Hon. F. A. Critz. In 1871 the legislature passed an act authorizing a new county to be created to be called Colfax, a certain part of the territory of ' Chickasaw to be included therein. This act contained a provision as follows : “Section 7.

Hon. T. J. Wharton, Judge. G. L. Ware owned a certain stock of goods on which he had executed a mortgage in favor of Allen, West & Bush. One J. B. Allen had recovered a judgment in the federal court against G. L. Ware, and'his interest in the goods as mortgagor was subject to the judgment of J. B. Allen.

Hon. A. T. Roane, Judge. On February 9, 1886, Boyd & Nesbit, merchants, made an assignment for the benefit of their creditors. J. W. Odom was named as assignee.

Hon. S. H. Terral, Judge. Mrs. Lydia Fonda and her minor children brought this action of trespass against Smith & Hambrick to recover damages for injuries inflicted on their premises by defendants floating logs down a certain creek known as “Red Creek,” which flows through their premises.

<p>1. Admististkatob’s Sale. Payment of purchase-money before confii~mation. Misappropriation by administrator. Whose loss.</p> <p>Tlie purchaser of land at an administrator’s sale is under no legal obligation to pay for the same until the sale has been confirmed by the court, and if before such confirmation he pay the administrator, who afterward misappropriates the money, as against the estate, the loss must be borne by the purchaser.</p> <p>2. Same. Misappropriation of purchase-money. Relief against estate. Subrogation.</p> <p>And in such case if the administrator use the purchase-money in payment of debts of the estate, the full measure of the purchaser’s relief against the estate is to be subrogated to the rights of the creditors whose debts have been paid with his money, as the same existed before payment of the debts.</p> <p>S. Same. Misappropriation of purchase-money. Subrogation to rights of administrator as creditor.</p> <p>And if in such case the administrator after receiving the purchase-money appropriated funds of the estate to his own use, the purchaser cannot as against the estate be subrogated to the rights of the administrator as an individual creditor of the estate, until the debts due from the intestate to the administrator have been first applied to the liquidation of the claims of the estate against the administrator for the funds misappropriated.</p> <p>4. Same. Purchaser in possession before confirmation. Purchase of tax-title. Rights as equitable mortgagee.</p> <p>And if in such case the purchaser go into possession of the land before a confirmation of the sale and use and occupy it, he cannot acquire a tax-title thereto, because if regarded as an equitable mortgagee in possession a purchase by him of the land at a tax sale will be treated as the. payment of a common charge made for the benefit of the whole estate.</p> <p>5. Administrator's Sale. Purchaser in possession before confirmation. Purchase of tax-title. Rights q¡s intruder.</p> <p>But, if such purchaser be regarded as a mere intruder in possession of land and receiving the yearly rents and profits thereof, which exceed in amount the taxes due thereon, he could not, as against the owner, acquire a title by a purchase at a sale for' taxes. Iiis purchase will be treated as a payment of such taxes. Gaskins v. Blake, 27 Miss. 675, cited. ■ And it is -immaterial, in such case, when the intruder went into possession, if he became liable for rents and profits in excess of the price paid for the tax-title before the expiration of the period allowed for redemption.</p> <p>6. Same. Disability to purchase at tax sale. Special statute of limitations.</p> <p>■Disability to purchase at a tax sale carries with it the disability to invoke the special statute of limitation provided for the protection of those who hold as purchasers at tax sales. McGee v. Holmes, 63 Miss. 50, cited.</p> <p>7. Limitation op Actions. Against executor or administrator after declaration of • insolvency. Effect of decree of insolvency.</p> <p>Since the adoption of the Code of 1857 there has been no statute prohibiting a creditor to institute suit against an executor or administrator who has taken steps to have the estate of the testator or intestate declared insolvent. But as a decree of insolvency prevents creditors from suing, it operates to suspend the running of the statute of limitations upon their demands.</p>

Hon. W. S. Featherston, Judge. The case is stated in the opinion of the court. 1. As to the condemnation of land for public use, it is sometimes said that “ due process of law” means that the State has provided a tribunal for the assessment of damages. Cooley Const. Lim. 700. It is essential, however, that this remedy be one to which the landowner can resort on his own motion.

HoN. Lauch MoLaubiN, Chancellor. A. P. Mason and R. G. W. Jewell filed their bill in the chancery court againt S. E. Martin and others, representatives and heirs of the estate of J. F. Martin, deceased. The Chancellor entered a final decree thereon ordering the sale of a certain tract of land containing four hundred and eighty acres. The land was sold under the decree on October 6, 1884, and was purchased by the wife of R. G. W. Jewell for forty-three dollars.

HoN. F. A. Critz, Chancellor. In 1855 one Moye was appointed guardian of Moses L. West-brook. In 1866 Moye died and letters of administration of his estate were granted by the probate court to one Adams.

<p>1. Railway Company. Opening standing train for public convenience. Action by person injured in passing through opening. Failure to exercise reasonable care.</p> <p>If, at a station where freight and passenger trains usually meet and pass, the railway company habitually make an opening between the cars of the freight train on the side track for the purpose of permitting the public to pass from the depot to its passenger train on the main track, it is the duty of such company to use reasonable care and prudence to protect persons from injury while crossing its track through such opening, whether it be under any obligation to make such opening or not.</p> <p>2. Same. Inability of for injury to one passing through opening in train. Duly of such person.</p> <p>And if one, before so crossing, take such precautions to avoid danger as a reasonable and prudent man would observe in such circumstances, he is entitled to indemnity for an injury occasioned by the employees of the railroad company closing the opening in the train, if such injury might have been avoided by ordinary and reasonable care on the part of the railroad company. Bardwell v. M. & 0. R. R. Co., 63 Miss. 674; V. & M. JR. R. Co. v. MeQmvan, 62 lb. 682; V. & M. R. R. Co. v. Alexander, 62 lb. 496, cited.</p> <p>3'. Same. Liability for injuring person passing through opening in train. Case m judgment</p> <p>A north-bound freight and a north-bound passenger train of a railroad company were aeoustomed to pass each other at a certain station, K. It was the custom to side-track the freight train, and to uncouple and open it at or near the depot; so that the public could pass over to the passenger train, and the freight train usually remained open and uncoupled until the passenger train had departed. On the day in question all this was done as usual, except that the opening made in the freight train was only about three feet instead of being about eight feet, the usual width. Several persons passed through and over to the passenger train. T., desiring to go over to the passenger train on business, it still being there, approached the opening, looked around, saw the freight oars were not in motion, and started through, when the cars suddenly came together without any previous warning which he could have seen or heard. Ilis pelvic bone was crushed, his thigh was broken in two places, his leg was broken, and he was otherwise seriously and permanently injured. Held, that the railroad company are liable in damages for the injury thus inflicted upon T.</p> <p>4. Same. Damages. Whether excessive. Case in judgment.</p> <p>And in the case above stated a verdict for fifteen thousand dollars is not excessive.</p> <p>5. Same. Practice. Statements of law by counsel in argument. Case in judgment.</p> <p>Counsel for plaintiff, in the case above set out, in his argument strfted “ that the railroad company was under an obligation to the general public, when the passenger train was at the depot, to open the freight train so that any one might pass through.” Held, that, if the proposition stated was not sound law, the defendant should have asked the court to instruct the jury properly on this point, but having neglected to do this it cannot obtain a reversal of judgment because of such conduct of plaintiff’s counsel, there being no such abuse of his privileges as calls for correction by this court.</p>

Hon. F. A. Critz, Chancellor. Dora Carpenter and others filed their bill against M. B. Edwards and others, in which they set out their title to certain lands under and by virtue of a lost deed, and prayed that certain pretended conveyances held by defendants be cancelled as a cloud upon their title. The defendants answered, denying, upon information, that complainants had any title to the land in question. The cause was set down for hearing upon bill and answer.

How. T. J. Wharton, Judge. W. H. Sims, trustee, brought this action of replevin against J. W. Roberts & Co. to recover possession of three certain bales of cotton, on which he claimed he had a prior lien by virtue of a certain deed of trust from one A. B. Sivley.

Hon. T. J. Wharton, Judge. Iii 1883 and 1884 the firm of Williams & Williams were carrying on a general merchandise business. On January 1, 1885, this firm was changed to Williams & Black, the latter having purchased an interest in the old firm. On March 22, 1884, Michael Harness opened an account with Williams & Williams, and continued the same until Williams & Black began ■ business, when this account was transferred to the latter firm.

<p>Appeal from the Circuit Court of Attala County.</p> <p>Hon. C. H. Campbell, Judge.</p> <p>This is an action for damages brought by J. H. Haynes against the Illinois Central Railroad Company for a failure to deliver a certain carload of cattle in New Orleans in a reasonable time after shipment. It appears that plaintiff shipped a carload of cattle by defendant’s road from Kosciusko to New Orleans; that the train on which they were shipped was delayed twenty-four hours on the road because of being overloaded and the engine getting out of repair ; that the cattle suffered for want of food and water, which resulted in loss to plaintiff by a decrease in the value of the cattle. The plaintiff contended that he twice tried to get the conductor of the train to side-track the car containing his cattle so that he could feed and water them. This the defendant denied, and on this point the evidence was conflicting.</p> <p>On the trial the defendant introduced evidence which tended to-show that the delay was unavoidable because of an unusual press of business, it being at the time of the year when the World’s Exposition of 1884 was being held in New Orleans.</p> <p>The plaintiff introduced as a witness one Woods, who testified in his behalf. On cross-examination the defendant asked him if he had not also sued defendant for damages done to his cattle shipped on the same train with plaintiff’s cattle. This question he answered in the affirmative. On his re-direct examination the witness, in-reply to a question, said that defendant had settled with him for the damages claimed- by him in his suit- against defendant. To. this question and the answer thereto the defendant objected, but the objection was overruled.</p> <p>The defendant introduced as a witness in its behalf one Ryan, a conductor in its employ. On cross-examination he was asked, “Did you not state to plaintiff in a conversation about this case, about one month ago, between McComb City and New Orleans, that you and other employees of the defendant had to tell a favorable tale, the best you could, in order to hold your job.-” To this he replied, “ I did not.” The defendant objected to both the question and the answer, but the court overruled the objection.</p> <p>The defendant having closed its evidence, the plaintiff testified in rebuttal that Rjmn had told him at the time and under the circumstances set out substantially what is embodied in the question above quoted.</p> <p>The court gave among other instructions for the plaintiff one as follows:</p> <p>“ 1. The court instructs the jury, that if they believe from the whole evidence in this cause that the railroad company is guilty of negligence in not permitting the said Haynes to feed and water his cattle if he desired to do so, and applied to the proper parties, and his cattle being damaged by reason of such refusal, the said railroad company is liable to him for the said amount of proven damages in this cause, with six per cent, interest thereon from the date of said damage to plaintiff’s cattle.”</p> <p>The effect of other instructions necessary to be known is stated in the opinion of the court.</p> <p>. The verdict and judgment were for the plaintiff, and the defendant appealed.</p> <p>1. The plaintiff was not entitled to interest as matter of law and right on his damages, and the instruction on this point is mandatory.</p> <p>2, The court should have explained to the jury that mere delay in delivery, though injurious to the cattle, would not entitle the plaintiff to recover if these delays were excusable. The principle is too well settled to call for argument or authority that the carrier does not insure as to time, and that the question as to reasonableness is made up of the conditions which excuse delay. The instruction upon this subject is misleading.</p> <p>3. The court erred certainly in permitting Woods to testify that “ his damages had been paid to him ” for the same alleged cause. If the answer had fallen from the witness when the defendant’s counsel asked if he had not sued defendant the court should have excluded it, but waiving that, it was gross error to allow the witness to state that the company had paid him his damages on a re-direct examination.</p> <p>It is not more allowable to permit such evidence on a “ re-direct ” examination than it would have been on the direct examination. Let it be conceded for argument’s sake that if the witness had said on the cross-examination, “ Yes, I had a controversy with the company, but we settled it and they paid me,” the defendant would not complain, as he had drawn the answer out. He would have been held to abide by the consequences of his question, and it might be said that the company compromised ; but the matter assumes a different shape when he is allowed to state for the party -calling him that the company had paid him his damages.</p> <p>4. In allowing the evidence of what conductor Ryan had said about the constraint under which he and other witnesses testified we think it very clear the court below committed a grave error. The principal issue was one of veracity, and this evidence tended to impeach the company as placing its servants under constraint in giving evidence, and also to discredit other witnesses testifying in the cause; not by proving intimidation as a fact proceeding from . the company, but by showing what the witness Ryan had said, not as respects his own feeling but as respects the conduct of the company in the suit, and as to the influence on the minds of other witnesses who had no opportunity to disavow the imputation. The fact of intimidation or of bribery may be proved as an independent fact by legitimate evidence, but not by this method.</p> <p>The well-thumbed case of Attorney General v. Hitoheoeh, 1 Excheq. 91, may be studied in vain for a doctrine which sanctions the action of the circuit court. See 1 Wharton on Ev., § 5.61. -</p> <p>1. The instructions for the plaintiff announce the correct rule of law. The instructions given for defendant are not only free from objection in submitting the correct principles of law to the jury applicable to its defense, but they are liberal and explicit.</p> <p>2. The action of the court in requiring witness Ryan to testify touching a conversation had between plaintiff and witness in presence of one John Carter is not error, since the statement only affects the credibility of his testimony, for which purpose it was given, and did not go to the jury as a declaration or an admission of the defendant company -to bind it, and cannot affect its interest.</p> <p>The sole'object was to lay the foundation to impeach the credit of witness Ryan, and show that he had made statements out of court contrary to what he had testified at the trial. 1 Greenleaf on Evidence 511, § 462 ; 1 Howard 281; 44 Miss. 751.</p> <p>3. It is shown that the attorney for defendant on cross-examination of Woods asked him if he ever had a suit against the railroad company for damages done his carload of cattle at the time Haynes’ cattle were injured, presumably for the purpose of showing that the witness had feelings of hostility against the defendant, and having answered in the affirmative, it was eminently proper that he should be allowed on re-direet examination to explain that the case was settled by the company’s paying him what he demanded. As the defendant propounded the question which drew out this explanation it is not just to plaintiff that he should be refused permission to explain the settlement, etc. The witness shows he entertains a kind feeling toward defendant.</p>

S. H. «Terral, Judge. The case is stated in the opinion of the court. The appellee, Warner, should have interposed his claim to the property in question1 in the suit now pending in the United States court in Jackson between Pollock & Co. and N. W. Hopper, and Jacob Meyer, claimant, under the claimant’s issue. The proceeding under the claimant’s issue is a statutory proceeding, and if it was not intended to cover cases exactly similar to this, what is the purpose of it ?

Appear from the Circuit Court of Holmes County. HoN. C. H. Campbell, Judge. . W. L. Red took out a policy of insurance on his own life in the New York Life Insurance Company, payable to him or his legal representatives. After paying the premiums thereon for several years he assigned the policy, in writing, in conformity with its provisions, for value, to R. M. Murphy, who had no insurable interest in the life insured.

Hon. C. H. Campbell, Judge. Appellee commenced this suit by certiorari to review and annul an ordinance or resolution of record, made by appellants, the town council of Lexington, to the effect that in accordance with the petition of a majority of the legal voters of thp town, against the issuance of license to sell liquor therein, no such license would be issued for twelve months from the 24th September, 1886, the date when the petition was presented.

<p>Appeal from the Circuit Court of Yazoo County.</p> <p>HoN. T. J. Whaeton, Judge.</p> <p>In 1884 Mark Stewart (white) and Hattie Brown (colored) were jointly indicted for unlawful cohabitation and living together in a state of fornication.</p> <p>On the trial each made an application for a severance, which was ■denied, and they excepted. The testimony for the State tended to ■show tha-t within two years prior to the time of finding the indictment they had been seen in bed together, that for five or six years “they lived near each other, and that during that time Mark Stewart was frequently seen at the house of Hattie Brown and in her bed; that he was at her house often, and especially on Sundays • that Hattie Brown had two mulatto children whom Mark Stewart had been heard to call his children. The State offered evidence to show .acts of criminal intercourse between the defendants fifteen or twenty months after the finding of the indictment. This evidence was first admitted by the court and afterward excluded. The evidence for the defendant tended to contradict most of the material testimony for the State.</p> <p>The district attorney in his argument appealed to the jury to discountenance miscegenation and denounced the same. This was ex - cepted to by the defendants.</p> <p>The jury found the defendants guilty, and from the judgment against them they appealed.</p> <p>1. The motion for a severance should have been granted. While it is ordinarily within the discretion of the court to grant or refuse a severance, this was a case in which a severance should certainly have been granted. The defendants should have been tried separately. And we say this for the reason that trying them together resulted greatly to the prejudice of defendants. To compel the defendants to sit together before the jury and to make a common defense associated them in the minds of the jury — caused the jury to look upon them as joint offenders — especially as the only charge against them was in effect that they were cohabiting, that is, associating, together.</p> <p>In the case of the United States v. Marehant, 12 Wheat. 486, Judge Story, delivering the opinion of the court, said : “In our opinion it (a severance) is a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence..”'</p> <p>2. This case appears to me to be less strong against the defendants than the Granberry case. 61 Miss. 440.</p> <p>3. “ It is said that all the evidence of facts after the finding of the indictment was excluded by his Honor. How can evidence be excluded from the mind that has once received it ? I protest against any such practice — the admittance of palpably improper testimony, and then attempting to avoid the commission of reversible error by telling the jury that they need not pay any attention to it.</p> <p>argued the case orally.</p> <p>T. M. Miller, Attorney General, and W. H. Harper, for the State.</p> <p>1. The question of severance was wholly within the discretion of the court by our statute. There is nothing in the argument of’ counsel for the appellant to show in any degree an abuse of this discretion. It may be admitted that it was in some degree prejudicial to appellants to be brought face to face on their trial, but if we admit that this single fact was sufficient to require a severance it would establish the rule that in every trial of parties for cohabitation a severance is a matter of right. In other words, there is ■nothing peculiar to this particular case, but the same prejudice •would exist in all cases of like kind.</p> <p>2. The record will show that evidence of subsequent conduct of appellants was only admitted on condition that a continuation of the unlawful relations would be shown from the date of the indictment. Had this been shown the evidence would clearly have been admissible. Bishop on Statutory Crimes, § 681 and § 682, and cases there cited.</p> <p>3. It seems to us that the only serious question in this case is the sufficiency of the evidence.</p> <p>An act of sexual intercourse within the time covered by the indictment is clearly shown. The only question then is, was there a cohabitation, a living together, secretly or otherwise?</p> <p>It has been held in Alabama, 14 Ala. 608, that in a case where a married man visits and remains with a lewd woman one night in every week for seven months at her residence, half a mile from his own, there is a “ living together” sufficient to bring the parties within the terms of a statute similar to our own. The court say: “It is not an indispensable element in the offense that he should have abandoned his own house and taken up his abode with the adulteress, or that he should have taken her to his own house, made her supreme in his affections, and excluded his wife from the conjugal hed. The sleeping under the same roof and in the same bed at stated nights must be regarded as a living together within ■the language and intention of the statute.”</p> <p>In cases like this, where one act of criminality is actually shown by positive testimony, and a frequent presence of the parties together is shown for a period of several years under circumstances, to say the least, affording opportunity for wrong doing, it is not a violent presumption from our knowledge of the weaknesses of the human kind that such parties perhaps carried on their wrong doing continuously. The jury drew its inferences from the. testimony, the instructions told them the law plainly, they took the responsibility, and this court will hesitate to reverse their judgment and conclusions on the facts.</p>

Hon. T. B. Graham, Chancellor. A. J. Frantz, a practical printer, was the publisher and proprietor of a weekly newspaper, the Brandon Republican. He owned a printing-press, which he used in printing his paper. Sol. Dobson, sheriff of Rankin County, levied on the printing-press and was about to sell the same for the taxes due thereon, when A. J. Frantz filed the bill in this case against Dobson, praying that he be enjoined from selling the printing-press.

HoN. T. J. WhartoN, Judge. ' Brumfield & Brumfield brought this action against the Yazoo and Mississippi Yalley Railroad Company to recover the value of two mules killed by the running of its train. The train was running at a speed of twelve or fifteen miles per hour.

HoN. T. J. WhartoN, Judge. N. D. Link, as administrator, obtained a judgment against T. P. Williams and caused a writ of garnishment to be served on Barks-dale & Johnson, a firm doing business as merchants. They answered, admitting their indebtedness in the sum of ninety-two dollars and eighty-nine cents.

Host. T. J. Whapton, Judge. In 1880 George Skates was indicted for murder. When his case was called at the February term, 1887, of the circuit court, he applied for a continuance, because of the absence from the State of the physician who attended deceased in his last illness, by whom he expected to prove that the wound inflicted on deceased did not cause or contribute to his death, but that he died of pneumonia.

Hon. Sylvanus Evans, Chancellor. In 1885 Mrs. Maggie Lee Fewell filed this bill against Robert Snell to remove clouds cast upon her title to certain land by reason of a claim thereto by the defendant.

How. J. H. Wynn, Judge. The case is stated in the opinion of the court. 1. There is no conflict in the authorities as to the rule of damages — causa próxima non remota spectatur — and that it is applicable to actions both in contract and in tort.

Hon. J. H. Wynn, Judge. The facts of this case are similar to those in the case of Merchants’ Wharfboat Association v. Wm. Wood & Co., just preceding, page 661, except as pointed out in the opinion of the court.

Appeau from the Circuit Court of Yazoo County. Hon. T. J. Wharton, Judge. In 1884 the legislature granted to the “ Silver Creek Navigation and Improvement Company ” a charter by which the company was authorized to dam up a certain creek, known as Silver Creek, at its mouth, and thus convert it into a stream navigable for small craft.

Hon. T. J. Wharton, Judge. Walter F. Lamar was indicted upon a charge of assault with intent to kill and murder Arthur C. Crane. Pie was convicted, and appealed to this court. The question presented for adjudication here will be found stated in the opinion of the court. The natural result of the proceedings in reference to Adams was to make the balance of the jury suspicious of him and destroy his influence.

HoN. T. J. Wharton, Judge. In August, 1885, the Vicksburg and Meridian Railroad Company ran an excursion train from Vicksburg to Jackson. The train was on the side track at Jackson, a brass band was inside of one of the cars playing, and the train began to move backward, preparatory to leaving for Vicksburg, when Jo. Brantley, a boy about eleven years old, attracted by the music, jumped on the train and entered the car.

HoN. C. H. Campbell, Judge. In.April, 1886, the Board of Supervisors of Le Flore County granted Gid Montjoy a license to establish a ferry across the Yázoo River at a certain point where he was a riparian owner. Fie did establish a ferry then, and has since continued it. In October, 1886, Walter Pillow applied for license to establish a ferry about one hundred yards from Montjoy’s ferry, at a point where he (Pillow) was owner of the soil contiguous to the river.

HoN. R. W. WilliamsoN, Chancellor. In September, 1885, Mrs. Sallie F. Barry filed this bill against her son, W. S. Barry, and his wife, Berenice Barry.

Hon. A. T. Roane, Judge. On March 18, 1884, John T. Owens brought this action of ássumpsit against the Memphis and Vicksburg Railroad Company.

Hon. B. T. Kimbrough, Chancellor. In 1876 one J. C. Robertson died testate, leaving a wife and five children. His wife was made executrix and not required to give bond. Among other provisions the will contained the following: “4.

HoN. W. M. Rogers, Judge. Sam Glenn was indicted for murder and was tried and convicted. The State introduced a number of witnesses. Glenn, the defendant, was the only witness in his behalf, and claimed to have committed the act in self-defense. The State obtained fifteen instructions, the eleventh of which was as follows: “ 11.

Appeal AND Cross-Appeal from the Chancery Court of Hinds County. HoN. E. G-. PeytoN, Chancellor. In March, 1875, the land here in controversy was sold to the State for the taxes of 1874. Held: and his decree was right if our title could not be maintained. The land was not exempt from taxation and the taxes were not paid. 58 Miss. 633. argued the case orally.

Hon. Laugh McLauein, Chancellor. Prior to the institution of this suit J. W. Bennett became the assignee of a certain judgment against one Sutton. This judgment was rendered against Sutton on July 27, 1876, and was duly enrolled. On August 14, 1876, an execution was issued thereon.

Appear from the Circuit Court of Coahoma County. Geo. F. MaynaRD, Esq., special judge, presiding by agreement, Hon. J. H. Wynn having been of counsel in the case. On March 2, 1885, H. Mask purchased a ticket at Memphis, Tenn., from the Louisville, New Orleans and Texas Railroad Company to Lula, a regular station on its line in this State, and took passage on the first train for Lula; his ticket was duly taken up and cancelled by the conductor.

Hon. F. A. Critz, Chancellor. In 1884 L. N. and H. C. Holberg were conducting a mercantile business in Macon under the firm name of L. N. Holberg & Bro. In December, 1884, the Holbergs began to fear their insolvency, and consulted and advised with their attorneys, Jarnagin & Bogle, in reference thereto.

HoN. Baxter McFarlaND, Chancellor. The case is sufficiently stated in the opinion of the court. 1. The object of this bill is not to subject a decree in which Anne Ward has an interest, a mere right or chose in action, but five hundred and seventy-five dollars in actual “money” belonging to Mrs. Ward in the sheriffs hands. In the case of Whitfield v. Ward et al., MS. opinion, the only thing the sheriff had was an execution on a decree — a mere right in action.

HoN. W. M. Nogees, Judge. Wellington Wood was indicted for assault and battery with intent to kill and murder Socratus Scott, called “ Crate Scott.” The evidence for the State tended to show that Wellington, his brother (Lee Wood), and others went to the house of “Crate” and Joe Scott and began a friendly conversation with them which shortly turned in reference to certain hogs; that during the progress of the conversation Wellington Wood charged the Scotts with marking in…

Hon. Ralph North, Judge. The case is stated in the opinion of the court. It is not necessary, in order to charge the city with responsibility, that its negligence should be the efficient or acting cause of the injury; if the injury would not have occurred but for such negligence that is enough.

Hon.. S. H. Terral, Judge. Mrs. Elvira Stroud brought this action against the Mobile and Ohio Eailroad Company to recover damages for the killing of her husband by the train of the defendant.

Hon. Ralph North, Judge. Theodore Mayer brought this action of assumpsit against the Western Assurance Company, on a certain policy of insurance issued by it in his favor, on a storehouse which was destroyed by fire.

Appeal-from the Circuit Court of Clay County. Hon. W. M. Rogers, Judge. Antoinette Gerdine was indicted upon a charge of assault with intent to kill and murder Dinah Perkins. The testimony of Dinah Perkins, supported in part by other witnesses for the State, tended to show that the accused had, without provocation, assaulted Dinah Perkins with a knife and seriously.and dangerously wounded her.

Hon. L. E. Houston, Judge. ■ James Knight, Jr., was indicted by the grand jury of Lee County in two counts, charging (1) that he did go “… Held: as the record shows, the only question involved with reference to the land was, “ Who was in possession ?” The statute under which appellant was indicted, I submit, does not bear the court out in this view, for it raises the question of title, the language of the statute being, “the inclosed land of another.” It does not say, “…

Hon. Laugh McLauein, Chancellor. The case is fully stated in the opinion of the court. The appellee’s bill presents no equity. She hasn’t been deceived by Rives or harmed by him in any way. He has surrendered possession of the land to her and put her in statu quo. True, he bought the legal title while in possession under a contract with her.

Hon. A. G. Mayers, Judge. The case is stated in the opinion of the court. 1. It has been several times enunciated by the .supreme court of this State upon similar statutes to the one now in force that a landlord’s lien for rent is a specific remedy, and must be pursued strictly in the manner prescribed by the statute creating such lien, and that the purchaser of the lien products for value is not liable to the landlord. 51 Miss. 825 ; 53 Miss. 662.

HoN. J. B. Chrism AN, Judge. The case is stated in the opinion of the court.

HoN. Latjch McLauriN, Chancellor. The tract of land here in controversy became delinquent for the taxes due thereon for the year 1884, but was not sold on the first Monday of March, 1885, as should have been done in pursuance of the law governing sales of land for taxes.

HoN. J. H. WyNN, Judge. Terrell & Bond had sawed and delivered to W. H. Noble a certain quantity of lumber, for which he owed them on May 29, 1883, seven hundred and thirty-eight dollars and twenty-seven cents. They filed a petition in which they alleged that the most of the lumber referred to had been used in the construction of certain described houses, upon which they claimed a statutory lien.

HoN. J. B. ChrismaN, Judge. ■ This action was brought by A. & J. Tronstine & Co. against the Illinois Central Railroad Company to recover damages for the loss of certain trunks and their contents, which belonged to the plaintiffs and which were destroyed by fire while in the defendant’s baggage-room in the city of Jackson in Mississippi.

HoN. J. B. Chkisman, Judge. Jesse Lusk, Vaitchel Clark, and Monroe Carter were jointly indicted by the grand jury of Amite County for arson. Held: or attempted to be held, at Glaster City, or in the woods, or in the town of Hog Eye, in said county, or at some beer saloon, there would be no argument admissible that there was a legal grand jury. The fact that the record fails to show where the court was held is equálly fatal.