Volume 65 — Mississippi Reports

Hon. Ralph North, Judge. George H. Smith brought this action against Eugene Martin to recover on the following instrument: $500.00. “ Vicksburg, Miss., December 28, 1881. “Ninety days after date pay to the order of George H. Smith, five hundred dollars. Value received, and charge the same to account of, as advised, “ Eug.

IIon. Lock E. Houston, Judge. This is an action of replevin brought by W. T. Adams against S. H. Berg, to recover possession of certain property, consisting of miscellaneous machinery.

Hon. T. J. Wharton, Judge. In 1886, Patterson, Henry & Co., sued out a writ of attachment against one James Priestly, which contained the statement that it had been suggested that A. T. Semmes was indebted to Priestly. The clerk failed to insert therein the command to the sheriff to summon Semmes to answer as to such indebtedness, as required by § 2422, Code of 1880.

Hon. Warren Cowan, Chancellor. Harris, Parker & Co., sued out an attachment against J. P. Hal-pin & Co., in 1883, and caused a writ of garnishment to be served thereunder on one Lewis Peters. Peters answered denying any indebtedness, and issue was joined on his answer. Judgment was rendered in the attachment suit against H'alpin & Co., in favor of Harris, Parker & Co., but no trial has ever been had on the issue joined on the answer of Peters.

IIon. T. J. Wharton, Judge. This is an action by W. G. Dorrah against the Illinois Central Railroad Company to recover damages for an alleged failure to stop its train so as to permit plaintiff to get off.

Hon. W. M. Rogers, Judge. The case is stated in the opinion of the court. 1. If there was fraud, it was well known to plaintiff before he performed the contract. He paid the purchase money after he knew all the facts. Under such circumstances he cannot be heard afterward to complain. He has by an unequivocal act waived the fraud and affirmed the contract.

Hon. T. J. Wharton, Judge. About January 1, 1885, J. N. Gilruth leased his plantation to one Smith for five years. A few days afterwards Gilruth loaned Smith two hundred and forty bushels of corn to be used by the latter in making the crop of that year, the same to be returned to Gilruth at the end of the year or paid for at an agreed price.

Hon. Ralph North, Judge. In 1885 Depeder & Brother executed a bond on which license was issued to them to retail vinous and spirituous liquors.

Hon. T. J. Wharton, Judge. Bernheim Bros. & Uri sued out a writ of seizure before a justice of the peace to retake a barrel of whiskey sold by them to one R. P. Howell, and sell it for the unpaid purchase money. Andrews & Bro. were the judgment creditors of R. P. Howell. An execution had been issued under their judgment and levied on the barrel of whiskey in question.

Hon. R. W. Williamson, Chancellor. A. Peterson exhibited his bill to the Chancery Court, praying that his title to a certain tract of land in Leflore… Held: and it is good practice, that a pro confesso properly obtained after due process (and due process was had in this case by publication made months before the day on which they were to answer), is a matter of right and one which the court shall not set aside unless for good cause, shown by affidavit or other sworn proof.

<p>1.Practice. Filing note with declaration. Effect of.</p> <p>A promissory note sued on and filed with the declaration, thereby becomes a part of the record by virtue of \ 1540, Code of 1880. Gale v. Lancaster, 44 Miss. 413, distinguished.</p> <p>2. Promissory Note. Interest fixed, to maturity of note. Effect.</p> <p>A promissory note which stipulates for ten per cent, interest per annum “ until ■ maturity,” will only draw the statutory rate after maturity.</p> <p>3. Same. Practice. Effect of verdict to cure errors. Case in judgment.</p> <p>And where such a note is declared on, and a verdict and judgment rendered for ten per cent, per annum after, as well as before, maturity, it cannot be assumed to support such verdict, that there was evidence tending to show a new promise to pay such rate after maturity, in the absence of an allegation in the declaration of such new promise.</p> <p>4.Same. Practice. Effect of verdict to cure defective averments in declaration. Section 1727, Code of 1880, considered.</p> <p>The statute, § 1727, Code of 1880, in providing that a verdict shall cure the omission of “the averment of any matter without which the jury ought not to have given such verdict,” must be limited to averments necessary to make out the cause of action attempted to be set out in the declaration, and cannot be extended to embrace a new and distinct cause of action, even though connected in some way with that declared on.</p>

Hon. T. J. Wharton, Judge. Moses Ellis was indicted and tried for arson. On the trial the State introduced in evidence the confessions of the defendant. The defendant adduced evidence before the jury which tended to show that the confessions were given under the influence of threats and fear. After all the evidence was in, the defendant moved to exclude the confessions on the ground that they were extracted by the use of undue influence. The court refused to exclude them.

Hon. T. J. Wharton, Judge. The ease is stated in the opinion of the court. These printed contracts in which one party has no voice, forced to accept the form tendered by the company, should be construed most strongly against the company. If the clause in question means, by legal interpretation, that a concurrent void policy, of which the company had notice, constitutes insurance upon the property, then the demurrer should have been sustained.

Hon.- T. J. Wharton, Judge. In 1883, Richardson & May, a firm of cotton factors doing business in New Orleans, La., as agents of Mrs. Mary McConnell, a resident of Georgia, applied to the Sun Mutual Insurance Company, a corporation organized under the laws of-Louisiana, for the insurance of certain property situated in Yazoo ■county, Mississippi, against loss by fire. The insurance was issued and continued in force until 1885, when the property was destroyed by fire.

Hon. E. A. Critz, Chancellor. W. P. Washington and others exhibited their bill against Charles E. Black and others, to have certain lands partitioned. The bill, among many other things, alleged that C. E. Black and Hannah Mallory were then, and had been in possession, of the lands for a number of years, and that they derived their title under and through a certain deed made in 1852 by Durant H. Davis-, who claimed the lands in question.

Hon. Sylvanus Evans, Chancellor. In 1883, W. F. Alford was elected treasurer of Lauderdalecounty for the ’years 1884 and 1885. On the first Monday of January, 1884, he qualified and executed his official bond as treasurer. One L. K. Latham was employed by Alford as his-agent to receive and disburse the finds of the county during this term.

Hon. F. A. Critz, Chancellor. Mrs. M. E. McGregor and her husband, G. T. McGregor, exhibited this bill against J. P. Long, T. B. Paulette, administrator of the estate of J. H. Paulette, and others.

' Hon. Ralph North, Judge. This is an action of ejectment brought by S. Spengler against P. T. O’Shea to recover possession of certain lots of land in Warren County. Both parties claimed through one George M. Klein. The plaintiff to support his title offered in evidence a writ of attachment sued out by one D. B. Bundle against John A. and Geo. M. Klein. This writ was executed by a constable by levying only on real estate, included in which were the lots in controversy.

T. J. Wharton, Judge of' the Ninth Judicial District, on habeas corpus. Mrs. M. O’Leary was arrested by the City Marshall of Jackson, under a warrant issued for the violation of the following ordinance of said city: “ 11.

Hon. S. H. Terral, Judge. This is an action of ejectment brought by Mrs. Mary K. Moore against Austin Clay. The plaintiff deraigned her title and rested.

Hon. E. G. Peyton, Chancellor. On January 12, 1879,1. Y. Enochs gave his note to one A. F. Andre for $120, with interest at 10 per cent, per annum, and due on the 1st day of March, 1880. On March 6, 1879, J. P. Enochs, the son of I. Y. Enochs, gave his note for $134 to Andre,, with a deed of trust on certain land, to secure the note of his father. This land did not in fact belong to J. P. Enochs, but to Mrs. Harriet Enochs, wife of I. Y. Enochs.

Hon. Sylvantjs Evans, Chancellor. The case is stated in the opinion of the court. 1. The assignment of a judgment carries with it the cause of action, together with all the beneficial interests of the assignor in the judgment and all its incidents. Freeman on Judgments, Sec. 431; Code 1880, See. 1749. All the parties are before this court upon their equitable rights, and they are not held to a strict compliance with the statutory provisions, as in a nisi prius forum.

<p>Appeal from the Circuit Court of Hinds County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>Walter F. Lamar was indicted in Yazoo county for “ assault and battery with intent to kill and murder.” He was tried and convicted, and appealed to this court, where the cause was reversed and remanded. He was then granted a change of venue to Hinds count}', where he was again tried and convicted. The evidence given on the first trial was taken down in writing, and on the second trial certain parts of the testimony of one Grilruth, given on the first trial, was read to the jury by agreement. The district attorney, in his argument, read parts of the testimony of this witness, which had not before been read to the jury and were not in evidence, The further facts necessary to be known are stated in the opinion of the court. The defendant was again convicted, and again appealed to this court.</p> <p>We submit that a great wrong was done appellant by permitting the use of language by counsel for the State, for which the fact that one of appellant’s counsel had taken a wide latitude in his argument,no matter how wide it was, could not afford the least excuse in the world.</p> <p>If appellant’s counsel had taken a latitude which, in the •opinion of the court, was too wide, the court ought to have confined him within bounds, and not have attempted to right the wrong committed by permitting him to go beyond bounds (if, in fact, he did go beyond bounds) by permitting counsel for the State to go beyond bounds.</p> <p>In this connection we refer to the case of Martin v. State, 63 Miss., 505, and authorities cited in the opinion of the court.</p> <p>The failure of'the court to prevent the district attorney from reading, in his argument to the jury, which was the final argument, certain testimony delivered on the former trial, but which it was agreed should not be read as evidence on the trial now in ■question, and which, in point of fact, was not so read, after .’having directed him, on objection urged by appellant’s counsel, ■ three, several times not to read the same until it had been settled by the stenographer, by examination of his notes of the ■testimony in the case, whether or not it had been read to the jury as evidence, was a serious error, for which we ask a reversal.</p> <p>In Smith v. People, 5 American Criminal Reports, 615, the •■Supreme Court of Colorado made some comments upon a like ■proceeding on the part of a prosecuting attorney, to which we invite the consideration of this court.</p> <p>The judgment in that case was reversed partly because of the conduct of the prosecuting attorney.</p> <p>We submit that the conduct of the district attorney in this case, now in question, not onty ma3>- have influenced, but, in all liklihood, did influence the jury against the appellant, and most improperly.</p> <p>It will not do to say that the forbidden testimony was immaterial, even if it were so; for if counsel, through mistake or zeal, break over the constitutional barriers and range outside the record, on what legal safeguard can the prisoner rely for a fair and impartial jury? The case of. Martin v. State, 63 Miss., and Lamar v. State, 64 Miss., are leading cases among the very few decisions on this point; and, while it is impossible to limit the range of argument with precision, it is equally important to hold the limit with certainty and firmness, as is often illustrated •since the days of Paul before Agrippa. If the prisoner is tried by the law, let him be judged by the law.</p>

T. E. Cooper, Chief Justice of the Supreme Court, on habeas corpus. On the 20th of August, 1887, a petition was presented to the Hon. A. Gf. Held: and gives jurisdiction to inquire into the fact as to whether the proof is evident or the presumption great.

E. Gr. Peyton, chancellor of the ninth judicial district, on habeas corpus. At about 10 o’clock on the night of the 5th of May, 1887, many persons residing near by, or being in the vicinity by chance, were attracted to the iron bridge over “ town creek ” on ■Capital Street, in tile citjr of Jackson, by a startling discharge of fire-arms.

<p>Appeal from tlie Circuit Court of Noxubee County.</p> <p>Hon. W. M. Rogers, Judge.</p> <p>The case is stated in the opinion of the court.</p> <p>The 2d, 3d, 4th and 5th assignments of error are predicated upon refusal of court to admit acts and declarations of Jeffries, the assignor, against Stewart, his assignee.</p> <p>In this cause Stewart, the claimant, was a nominal party, was claiming only as assignee of Jeffries under the deed of assignment, and it was Jeffrie’s fraud that was being tried.</p> <p>Any acts and declarations of Jeffries were admissible against Stewart. Graft v. Bloom, 59 Miss. G9; Wait’s Fraud. Cond., etc., § 319, and a long list of authorities cited.</p> <p>While the evidence must ascertain and establish the assignor’s intent at the time of the execution of the instrument,, yet all circumstances either prior or subsequent to the assignment should be considered by the court and. jury in arriving at the intent of the grantor. See authorities cited Wait’s Fraud. Cond., § 320.</p> <p>On an inquiry as to the state of mind, sentiments or disposition of a person at a particular period, his declarations and conversations are admissible. See several authorities cited by Wait Fraud. Con., § 206.</p> <p>We think the testimony offered was properly excluded, both because it was hearsay, and because it was not relevant to the issue being tried.</p> <p>First. It was hearsay. Jeffries was not a party to the ■suit, nor was any representative of his a party. There are numerous cases holding that declarations of persons in possession of land, explanatory of their possession, or in disparagement of their title, are admissible against a subsequent vendee; and some authorities extend this doctrine to persons in possession of personal property. In Dodge v. Freedman's Sav. and Trust Go., 93 H. S. 319, it is said, however, that this doctrine does not extend to personal property. However that may be, the testimony offered in this case does not come up to that rule; the declarations of Jeffries that were offered did not tend to disparage his title to the property, nor were they ■explanatory of his possession. 1. Greenleaf on Ev., Sec. 190 and 109.</p> <p>They were not a part of the res gestee, for they were made sometime before the execution of the assignment, not during the progress of any negotiations looking to the execution of the •assignment, nor in contemplation of it. The question is, are the statements of the assignor made before the assignment, and not part of the res gestee, in reference to the character of his business, admissible against the assignee ? The following authorities hold they are not: Bullís v. Montgomery, 50 N. Y. 353; Ghadwick v. Fonner, 69 N. Y. 404 ; Paige v. Gagwin, 1 Hill, 361; Dodge v. Freedman's S. & T. Go., supra-, Burrill on Ass., ■Section 404.</p> <p>In Bullís v. Montgomery, supra, the facts bore a strong likeness to this case. Walters bought goods from Montgomery, and about that time made the declaration that he intended to cheat Montgomery out of them. Afterwards Walters made an assignment for the benefit of his creditors. Montgomery sought to defeat the assignment, and offered against the assignee the declaration of Walters above quoted. The court says such testimony was hearsay, and came within none of the exceptions.</p> <p>Second. The testimony was irrelevant. Its tendency was to prove that the debt due plaintiff was fraudulently contracted ; but it did not tend to prove the assignment was invalid. It did not tend to prove that Jeffries executed the assignment to defraud his creditors, nor that there was any reservation of a benefit to Jeffries, nor a secret trust in his favor. These are the things that avoid an assignment that is valid on its face. ’Wilson v. Forsyth, 24 Barb.- 105; Estes v. Gunter, 122 IT. S. 450 ; Thompson v. Drake, 32 Ala. 100.</p>

Hon. Sylvanus Evans, Chancellor. The case is stated in the opinion of the court. 1. The goods of the appellants, having been obtained by false and fraudulent pretences, with no intention on the part of Baum & Co. to pay for them, did not pass ; that is, the property did not pass, and only a surreptitious possession was obtained. Consequently, the appellants promptly, upon discovery of the fraud, had the right to reclaim them, except as against an innocent purchaser for value.

I-Ion. Ralph North, Judge. G-. M. Klein was the owner of a certain tract of land in Warren County. In 1882 or 1883, the Louisville, New Orleans & Texas Railroad Company laid its track over and across the west end of this track, occupying a strip forty feet wide, without objection from Klein, and expecting to arrange the matter with him afterward. The company never received a deed from Klein, but continued to use and occupy the land with his knowledge and acquiescence.

Hon. A. G. Mayers, Judge. The case is stated in the opinion of the court. 1. It was the duty of the court to have excluded the testimony of Morris, after it appeared on cross-examination that his confession was induced by a hope of reward.

Hon. L. E. Houston, Judge. Alexander J ones, Dave Love and George Bowen were jointly indicted for the murder of Dave Wright. When the case was called the defendants asked the court to appoint counsel for them. Thereupon the court appointed T. J. Buchanan and W. D. Frazee to defend them. A severance was granted Alexander Jones and he was put on trial. Dave Love, amongst others, was examined as a witness for the State.

Hon. L. E. Houston, Judge. This is an action of replevin brought by Hall’s Self-feeding Cotton Gin Company against S. H. Berg to recover possession of two gin stands and feeders. It appears that one R. H. Adams was the agent of the plaintiff for the sale of their machinery, and had in his possession for such purpose the property in question.

Hon. A. T. Roane, Judge. B. E. Garrett sued out an attachment for rent against one Alex. Dolphin and caused the same to he levied on certain cotton. Thereupon J. E. Carlton & Sons, claiming the cotton by virtue of certain deeds of trust executed to one Minor, trustee, for their benefit, by certain tenants of Dolphin, sued out a writ of replevin to recover possession of the cotton so seized by virtue of Garrett’s attachment.

Hon. Baxter McFarland, Chancellor. E. C. Bell recovered a judgment against one J. A. Cole, but the same was not enrolled. Thereafter Cole conveyed a certain tract of his land to a third party, taking notes for the purchase-money. After this sale, Cole executed to Bell a deed of trust on this land to secure a stay of execution, Bell not knowing of its previous sale.

Hon. Baxter McFarland, Chancellor. A. A. Posey & Bro. exhibited this bill in equity against C. M. Maddox, George C. Paine, and Andy Wood.

Hon. Look E. Houston, Judge. This is an action of assumpsit, brought by W. R. NcNorton against T. M. Nagle.

Hon. W. S. Featherston, Judge. . This is an action brought by Randle Hawkins against the Illinois Central Railroad Company to recover damages for the killing of a mule. The mule was shown to have been in possession of plaintiff at the time it was killed.

Hon. W. M. Rogers, Judge. In December, 1886, A.H. Fox, a merchant, made an assignment of his stock of goods to one J. W. Heard. Thereupon Woolner & Lowenstein sued out an attachment against Fox and caused the same to be levied on this stock of goods, having first executed, on January 11,1887, to E. C. Spaulding, the sheriff, an indemnifying bond. The attachment suit was afterwards removed to the Federal Court at Aberdeen.

Hon. Lock E. Houston, Judge. This is an action of ejectment and was brought by Thos. W. Sims, as executor of the estate of Virginia P. Sims, deceased, against Mrs. Kate Hodges and others to recover possession of certain land in Chickasaw County. On the trial plaintiff introduced a copy of the will of Mrs. Sims, deceased, which had been duly probated in Chickasaw County, and in which Thos. W. Sims was named as executor.

Hon. J. G. Hall, Chancellor. In 1879, J. G. Wright executed a deed of trust on certain land for the benefit of Lake Bros. This deed was duly recorded. In February, 1881, Thos. W. Harper purchased this land from Wright upon the latter’s assurance that it was unincumbered, and the former executed his three promissory notes payable in one, two, and three years, respectively, in payment therefor.

Hon. W. S. Featherston, Judge. In December, 1879, J. R. Rutherford moved his family from his farm to the village of “ Blue Mountain ” for the purpose of educating his daughter. He there contracted for the purchase of a house to be paid for in five annual payments, and in default of payment of the notes which he gave therefor he was to be charged with rents. His wife and daughters moved into the house and remained there several years. The house was not paid for.

Hon. W. R. Trigg, Chancellor. Nicholas Grayson exhibited this bill against Mrs. M. E. Richardson and others, asking that his tax title to a certain tract of land be confirmed. On the trial the complainant introduced in evidence a list of the lands sold to the State in 1882, for the unpaid taxes of 1881, embracing the land in controversy, and a conveyance of the same from the State to himself.

<p>Appeal from the Circuit Court of Clay Countju</p> <p>Hon. W. M. Rogers, Judge.</p> <p>Richardson, Mason & Co., creditors of one Cohen, caused an attachment to he levied on a certain stock of goods as the property of the latter. Hirsch Bros. & Co., also creditors of Cohen, interposed their claim to the goods by virtue of a certain bill of sale previously executed to them by Cohen in payment of their debt. The court, in the trial of the claimants’ issue, instructed the jury in the 12th instruction for the plaintiffs, Richardson, Mason & Co., as follows:</p> <p>“If the jury believe from the evidence that I. B. Cohen made the sale of the goods in controversy to Hirsch Bros. & Co., for the purpose of defrauding creditors, and Hirsch Bros. & Co. knew or had good reason to believe that such was his intention, then the sale was void as to Cohen’s creditors and the jury will find for the plaintiffs.” The jury found for the plaintiffs and there was judgment accordingly. Subsequently a judgment was rendered in favor of the plaintiffs against the defendant in attachment. Thereupon the claimants and the defendant appealed.</p> <p>filed an elaborate brief, in which they discussed questions other than that passed upon by this court.</p>

Hon. J. G. Hall, Chancellor. One Stephen Williams was one of several sureties on the bond of a defaulting officer. Williams died. Mrs. M. A. J ordan, bjr inheritance and conveyance, came into possession of his estate. One Grayson, the son-in-law of Mrs. Jordan, was the administrator of William’s estate.

Hon. A. T. Eoane, Judge. At the May term, 1887, of the Circuit Court of Panola County, Gr. W. and H. E. Winterton were indicted, under the provisions of the Code of 1880, for retailing intoxicating liquors without license.

<p>Appeal from the Circuit Court of Grenada County.</p> <p>Hon. A. T. Roane, Judge.</p> <p>On Sept. 22, 1884, W: J. Parker bought from Snider & Son .an instrument as follows :</p> <p>“ Banking Horse oe M. O. Snider & Son,</p> <p>Grenada.</p> <p>Grenada, Miss., September 22, 1884.</p> <p>§200.00.</p> <p>Pay to the order of W. J. Parker, two hundred dollars.</p> <p>J. B. Snider, Cashier.</p> <p>To Latham, Alexander & Co., New York, N. Y.</p> <p>No. 50,665.”</p> <p>On the same clay Parker endorsed, this instrument and forwarded it to P. M. Lam on, Brooksville, Florida. On October 1, 1884, Lamon endorsed it to J. M. Reddick. On Oct. 3, 1884, Reddick endorsed it to A. N. Chelf. On Oct. 13, 1884, Chelf endorsed it to Hancock & Edrington, who endorsed it to Witz, Biddle & Co., who endorsed it to the Union Bank of Baltimore, who endorsed it to the “ Republic ” Bank of New York, who, on Oct. 21,1884, presented the same for payment, which was refused on the ground that Snider & Son had no funds in the hands of the drawees. The instrument was duly protested, and notice was forwarded to the endorser Parker, at Grenada, Miss., and also to the other several endorsers. All the indorsees of the paper in ques. tion resided in the town of Brooksville, Florida, except Witz, Biddle & Co., and the two banks referred to ; and it was held in that town until the endorsement to Witz, Biddle & Co., who resided in Baltimore, Marjdand. There were daily mails from Brooksville by which a letter could reach' New York in five days.</p> <p>J. M. Reddick, one of the endorsers as well as an endorsee, after having paid the amount of the check or bill of exchange to his endorsee, brought this action against J. B. Snider, surviving partner of Snider & Son, and W. J. Parker, to recover the value of said instrument.</p> <p>On the first trial the jury found for the defendants. This verdict was set aside by the Court. On the second trial the jury found for the plaintiff. The defendant, Parker, appealed from the judgment of the Court.</p> <p>1. In the case of bankers’ checks payable on demand, it is manifest that immediate payment is contemplated. If the party resides in a city other than the one in which the Bank is, the check must be forwarded on the same day, or at farthest on the second day after it is received, if there be daily mails between the places. This is settled law. Morse on Banking, 2d ed., p. ; Dan. on Negó. Ins., Yol. 2, Section 1590, et seq.; Story on Prom. Notes (0th ed.), Sections 493-4.</p> <p>Can it with reason and justice to Parker be said that the parties held the bill but a reasonable time ?</p> <p>From September 21th, when Lamon received it, until October llth, when Hancock and Edrington forwarded it by mail to Baltimore, there was a period of twenty-one days during which the bill remained in a town having daily mails. Why the delay?</p> <p>2. So far as Parker is concerned, it is settled that it passing through the said several parties hands, is the same as if only one party held the bill from September 21th till October llth. See Morse on Banking, 2d ed., p. ; Chitty on Bills, top pages 430, 431; Story on Prom. Notes, Sec. 494.</p> <p>3. The rules applicable to delay in notice of non-payment' will in general apply, and with more force to delay in due demand of payment. Byles on Bills, 1th ed. (Sharswood), side-page, 213; Smith v. Jones, 20 Wendell, p. 192; Strong et al. v. King, 35 Illinois, page 18.</p> <p>In Phoenix Insurance Co. v. Allen, 11 Mich., page 501, and the same case in 13 Mich., page 192, a delay of twenty-one days in presenting foreign sight bills for payment was lached. Chittyon Bills, top page 430, side pages 380, 381.</p> <p>In Vantrot v. McCulloch, 2 Hilton (N. Y.), p. 214, a. demand bill drawn in Ohio upon New York was held nine or ten days, the drawer failing two days before; it was held laches and the drawer discharged; and again, in Brady v. Little Miami R. R. Co., 34 Barb. (N. Y.), p. 251, it was held that a delay of four days in presenting bill drawn in Ohio upon New York was fatal, and discharged the drawer. Many other authorities from New York and other States could be cited of like effect; but the two New York cases above cited are decisive and controlling, however the authorities of other States maybe; because it is the well established rule that the law of the place of payment governs as to the time of payment. Peirce v. Indseth, 106 IT. S., 549; Aymar v. Sheldon, 12 Wendell,, page 459 (s. c. 27, Am. Dec., pages 139-141).</p> <p>Counsel for appellant argues that the bill was not presented within a reasonable time. This foreign bill of exchange is not to be treated as a bank check. A bill drawn here on a party in New York may be indorsed from hand to hand, put into circulation — used as money — when payable, too, on demand. Story on Bills, § 231, n. 2 at p. 255; § 344 and n. 4. I call the court’s special attention to this citation of n. 2, p. 255. And a month is not an unreasonable time for one endorser to hold it before endorsing it to the next. 1 American Leading Cases, p. 425 ; and months may.elapse before presentment for payment and yet there be no negligence. 1 Daniel Neg. Inst., § 470 and n. 5, and § 471; Wallace v. Agry, 4 Mason, 336; Robinson v. Ames, 20 John., 146; Gowan v. Jackson, 20 Johnson, 176; 1 Dan. Neg. Inst., § 472; Montelius v. Charles, 76 111., 305 ; Bridgeport Bank v. Dyer, 19 Conn., 136 ; Story on Bills, § 254. And more liberal time is allowed on foreign bills than on inland bills. Story on Bills, § 231; 2 Peters, 586.</p> <p>A bill 1-ike this is governed by wholly different rules as to the time within which it shall be presented and in other respects, from those applicable to a check. 2 Daniel Neg. Inst., p. 520, where the author says: “ And a cheek unlike a bill of exchange. . . . . is generally designed for immediate payment and not for circulation.”</p> <p>The whole of counsel’s argument, and every case he cites, are wholly irrelevant in a case where the paper is not a check, but a foreign bill of exchange.</p>

Appeal and Cross-appeal from the Chancery Court of Carroll County. Hon. R. W. Williamson, Chancellor. Dudley Stone died in May, 1884, testate, with W. T. and J. B. Stone as his executors. In May, 1886, Lizzie Morgan and others, legatees and devisees, filed a petition asking for a final settlement of the estate, and the executors were ordered to make such settlement. The executors then filed their final account, to which the petitioners excepted as follows: “ 1.

Hon. J. B. Chrisman, Judge. Cornelia L. Seibles brought this action of ejectment against E. Y. Lewis to recover possession of a certain tract of land in Lincoln County, on Dec. 10, 1885. On the trial in the court below the plaintiff introduced a tax collector’s deed in the statutory form, of date, Feb. 1, 1875, which purports to convey the land in dispute to her.

Hon. S.H. Terral, Judge. This is an action brought by T. M. Thornton against the New Orleans and North Eastern Railroad Company for damages for the killing of his horse.

Appeal and Cross-appeal from the Chancery Court of Adams County. Hon. Warren Cowan, Chancellor.

<p>1. Railroad Company. Fellow-Servants. Employees of different trains of same company. Case in judgment.</p> <p>The brakeman of a freight train and the conductor and other employees of a passenger train of the same railroad company are fellow servants, and an action for damages for the death of such brakeman, caused by the negligence of such conductor and other employees is nut maintainable against the railroad company.</p> <p>2. Same. Fellow-servants. Cause of action arising in Louisiana. Law of that state considered. Fiinciples applicable to case in judgment.</p> <p>M. brought an action against the I. C. Railroad Company to recover damages for the death of her son, a brakeman on one of the defendant’s freight trains, caused by the negligence of the conductor and other employees of a passenger train of such company. The accident and death occurred in Louisiana. The Supreme Court of Louisiana has held that a brakeman and the conductor of the same train are not fellow-servants. Held, that this action is governed by the laws of Louisiana, whose Supreme Court has decided that the conductor of a railway train is not the fellow-servant of the other employees of that train; hut such decision is not inconsistent with the doctrine of this court, that the conductor of one train is the fellow-servant of the employees of another train of the same company, and thus viewing the principles applicable to the case stated, the action is not maintainable.</p>

.Appeal from the Chancery Court of Adams County. Hon. Warren Cowan, Chancellor. In April, 1881, Polkinghorne & Lawrence, merchants, made a deed of assignment to one J. H. Carradine, assignee, for the benefit of creditors.

Hon. J. B. Chrisman, Judge. In September, ,188'i, D. H. Smith sued out au attachment for rent against J. C. Smith, alleging that $425 was due and in •arrears, before the mayor of the town of Port Gibson, and ex officio justice of the peace of Claiborne County; and caused the same to be handed to the sheriff, and by him levied on certain property found on the demised premises.

Hon. Ralph North, Judge. This is an action brought by A. Eltringham against I. Frank & Co. to recover damages for an alleged breach of contract. Held: if credit agreed on or a time of performance, the memorandum will be insufficient, if these parts of the bargain be omitted. Benjamin on Sales, p. 215 ; 14 Howard, U. S., 416.

Sylvanus Evans, Chancellor. In June, 1884, Cowart & King executed a mortgage to H. Buddig on certain land, a saw-mill and appurtenances thereon, and saw logs, to secure an alleged indebtedness of large amount. In March, 1886, a decree of foreclosure was obtained by Bud* dig, 'an account was stated by a master in chancery, who re* ported that the balance due Buddig on his mortgage was $10,099.92, and an order of sale made in default of payment within thirty days.

Hon. Warren Cowan, Chancellor, presiding by interchange with Hon. Lauch McLaurin, who was of counsel in the case. The case is stated in the opinion of the Court. 1. Was the adminstrator’s sale valid? The presumptions of law are in favor of its validity. The probate record of the administration is perfectly regular.

Hon. S. ,H. Terral, Judge. The case is stated in the.opinion of the Court. Granting the indictment to be good, then very clearly it is good only under Code, Section 2713, construed together with the latter clause — not the first clause — of Code, Section 291$. In other words, under this indictment the age of the female cuts no figure.

Hon. T. J. Wharton, Judge. The case is sufficiently stated in the opinion of the Court. Held: etc. If this statute unconditionally prohibited the sale, this indictment would be free from objection ; but it only prohibits after an election has been held. The election and its results are facts entering into and forming the very basis on which the prosecution must proceed.

<p>Appeal from the Circuit Court of Copiali County.</p> <p>Hon. T. J. Wharton, Judge.</p> <p>This is an action on a policy of life insurance brought by M. C. Matthews against The New Orleans Insurance Association.</p> <p>It appears that defendant, in February, 1885, issued plaintiff a policy of insurance against loss by fire on a certain wooden store building in the town of Hazlehurst. This policy contained a stipulation that, “ In case of loss the assured shall give immediate notice thereof, and shall render a particular account of ¿aid loss under oath, stating the time, origin and circumstances of the fire, the occupancy of the building insured or containing the property insured, other insurance, if any, and copies of all policies; the whole value and ownership of the property and the amount of the loss or damage; and shall produce the certificate under seal of a magistrate, notary public or commissioner of deeds nearest the place of the fire and not concerned in the loss or related to the assured, stating that he had examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount claimed by the assured.” The policy also contained another stipulation as follows : “ It is further expressly covenanted by the parties hereto that no officer, agent or representative of this association shall be held to have waived any of the terms and conditions of this policy unless such waiver shall be endorsed hereon in writing.”</p> <p>On Nov. 16, 1885, the house insured was burned. None of the requirements of the first stipulation above set out was ever complied with.</p> <p>On Oct. 1, 1886, this action was brought. On the question whether there was a waiver of the provisions of the condition in relation to proofs of loss, the evidence was as follows :</p> <p>L. H. Matthews, a witness for plaintiff, testified that he was the agent of plaintiff, and managed her business ; that G-illaspie, agent and adjuster of the insurance company, came to Hazlehnrst within a week or ten days or more after the fire to adjust the loss; that Gillaspie employed one-Gilland, a carpenter, whom he caused to be sworn, to estimate the cost of replacing the building burnt by a new one; that measurements were taken under witness’ direction, and all the information in his possession as to the house destroyed was furnished by witness to Gillaspie ; that Gilland estimated that a new house of same proportions would cost $2183 ; that he told Gillaspie all he knew about the origin of the fire; that Gillaspie at first seemed to want to settle on that valuation, to which witness agreed, when Gillaspie said: “ No, there is something else to do. He said they had the right to put a new budding there just like the old one ; but if they did, the new building would be worth more than the old one, and they wanted me to deduct the difference. I said it was a total loss, and I ought to be paid for it.” This witness further testified as follows:</p> <p>“ Q. Did you make any other proof of loss?. If not, why not?</p> <p>“ A. I thought his coming down here and getting a mechanie and making an estimate, and both of us agreeing to it, was sufficient, and did not make any further proofs.</p> <p>“ Q. Explain fully why yon did not make any further proofs.</p> <p>“ A. Because, when, I gave them the dimensions of the house and we went into that estimate, I considered that proof of loss.</p> <p>“ Q. Upon what ground did Mr. Gillaspie decline to pay the loss ?</p> <p>UA. He wanted to leave it to an arbitration — wanted to let Mr. Gilland say what was the difference between that old house and a new one. I said the house was in good repair and was worth §2000 to me. I was not willing to let arbitrators say what difference there should be, because that house was as good as new to me.</p> <p>“ Q. What did Mr. Gillaspie say about requiring any other proof of loss?</p> <p>“A. He never said a word.”</p> <p>The plaintiff introduced certain letters from the agents of the defendant, addressed to L. H. Matthews, agent of plaintiff, as follows:</p> <p>“Vicksburg, Miss., March 29,1886.</p> <p>“We have your valued favor 27th inst., touching papers in the hands of our Captain G. We send your letter to him to Jackson by first mail, that he may comply with your request.</p> <p>“Doherty & Gillaspie.”</p> <p>“Macon, Miss., April 1,1886.</p> <p>“ Your letter to our office received, and I answer that we are strongly inclined to be accommodating and send you the estimate, to be copied for your use with the Pelican (Insurance Co.), but would like to hear from you first, to know what you are going to do as to our company ? Do you make us concessions as a difference between a new house, as per Mr. Gilland’s estimate, and an old one not architecturally in shape ? I will make you an offer for our policy of 81000. Let me hear from you promptly.</p> <p>“Yours truly,</p> <p>“Doherty & Gillaspie,</p> <p>“ By W. M. Gillaspie.”</p> <p>“Jackson, Miss., April 15,1886.</p> <p>“Your favor of the 12th inst. received on my return here this morning. You say the company is doing Mrs. M. a wrong to require her to go to law and lose $125, after having received her money for years under a contract to-pay her $2000 in case of a loss. The contract is to pay her not two thousand dollars in case of a loss, it is to pay her exactly what the property destroyed was worth at the time it burns, not exceeding $2000, or the insurance. We-might also reply that you are doing the company a big wrong to require them to go -to law to keep from paying for property insured more than they should do.</p> <p>“ I am sure Mrs. M. is not taking into consideration the fact that lawyers are sometimes mistaken as to what they can do. Her lawyers have only one side of the story. If the company should go into court, but they don’t want to do it, the case would not get out of the shackles of the law maybe for three or five years. And can she be certain of success? I will write you definitely in as short a time as possible, not more than five or six days.</p> <p>“Yours truly,</p> <p>“W. M. Gillaspie.”</p> <p>“Vicksburg, Miss., June 3,1886.</p> <p>“ Mrs. M. G. Matthews, Hazelhurst, Miss.</p> <p>“ Dear Madam — Your favor yesterday just received and carefully noted-We agree wi'h you perfectly that an amicable settlement is better in every way than litigation. Your proposition is for the two companies to pay you $1875, and then apportion same between themselves. This you will see is impracticable, for the reason that our policy contains conditions not in the other. But we will pay our proportion of whatever amount may be agreed on.</p> <p>“ If you will calculate the expense of litigation, and if you succeed in getting a judgment, as you will, you will not forget that the doubts are on your side of not collecting $1875, as the cash value of the house at the time of the fire ; then, if it is appealed, there will be delays and costs added. We wish to avoid all this. We will write you again as soon as we can hear from the other company. “ Very respct.,</p> <p>“Doherty & Gillaspie,</p> <p>“ By W. M. Gillaspie.”</p> <p>W. M. Gillaspie, witness for the defendant, and general agent and adjuster for defendant, testified as follows: “The first thing I did was to come down here and get the plans and specifications of Mrs. Matthews’ building from Mr. Matthews, who occupied the building, and who was her agent. After I came here, I got a man who was engaged at the time in putting up a brick building for Major Millsaps. I asked Mr. Matthews ■if he thought Mr. Grilland was competent, and if his estimate was satisfactory. He expressed no objection to his being engaged to make the estimate. After we had got the ground measurement and such information as was given us by Mr. Matthews as to the way the building was put up, we went forward and made the estimate, which we showed to Mr. Matthews. He said that certain things had been left out: show windows, skylights, front gallery. We then asked him to give us a corrected plan, embracing everything. He took the matter under consideration, and the next day he furnished us with a more detailed plan; and upon that we completed another estimate and submitted it to Mr. Matthews. Mr. Matthews said he could not settle by that if any depreciation was to be made between the value of the old building and a new one. He could not submit to that, because he considered the building worth to him the amount of the policy, and he thought he ought to be paid $2000. In other words, what he stated on the stand was correct.</p> <p>We discussed it; I endeavoring to come to an understanding as to the value of the property and to get at a settlement. We discussed the whole matter, but came to no conclusion. I left then; but returned twice afterwards to trjr to settle the matter with Mr. Matthews; he standing to the amount of the insurance, and would make no concessions. Then occurred the correspondence; and there the matter ended.”</p> <p>The defendant moved the court to instruct the jury to find as in the case of a non-suit, because there was no evidence tending to show that proofs of loss were furnished, or that the same were waived. This the court refused to do. The cause was submitted to the jury, and there was a verdict for the plaintiff, and judgment accordingly. The defendant appealed.</p> <p>1. If a party determines at the outset that he will insist on certain terms or sue, and the terms aré rejected, it- is inadmissible in law that he claim that any right or demand of the other party is lost by the rejection of the terms. If a party has determined, on entering into a negotiation, that he will have certain terms nolens volens, and if he cannot get them in the negotiation that he will enforce them by suit, he must prepare to fortify himself for the suit by taking every necessary step to enable him to recover. He neglects them at his peril; he had time to prepare. Every offer to settle a claim of this kind, whether that offer relates to the basis of fixing the sum to be paid, or merely to the payment of a fixed sum, involves, necessarily, as well an offer to waive all other matters of possible dispute. If the offer is accepted the matter ends, but if rejected the waiver is rejected also. This is not more a matter of law than of common sense; and in a business world, as this is now, no man who undertakes to manage or settle anything can be heard to say that although he rejected the proposal, the proposer had nevertheless lost his right, or any right, by his rejected offer. Courts will do nothing to deter parties from, attempting peaceable settlement in an amicable spirit, and it is one of the oldest and most approved of all rules, that an offer to settle, to compromise, whatever it may in-, volve, if accepted, involves nothing if rejected. The parties remain in statu quo.</p> <p>What Gillaspie did was in performance of a duty as an adjuster ; the means he resorted to were appropriate ; after he had ascertained the cost of a new building, he then and there fully explained to Matthews what he proposed to accomplish. What Gillaspie did in performance of his duty as adjuster, whether by Matthews’ assistance, whether with or without his consent, constitutes no waiver, and no court and jury, certainly after Ins. Co. v. Sorsby, can make it so. If Matthews misinterpreted it the insurer is not to be affected by his mistake. What did Gillaspie say ? What he said was that he would settle the loss and pay it, if settled on a particular basis. This offer, like the offer of the $10,000 in Ins. Co. v. Sorsby, was rejected, and everything it involved or proposed to waive or concede was rejected with it, and no court or jury can make the rejected offer a waiver. The worn-out phrase sometimes resorted to in avoidance of judicial responsibility, “A question particularly in the province of a jury to decide,” is not to be taken as meaning that waiver is something so completely the subject of jury power that that reliable tribunal may make waiver out of any sort of material that may be presented to it. There is nothing peculiar about a waiver or an estoppel that puts it beyond the control of the court. True, it is for the jury to say whether a man of ordinary prudence and circumspection would have been mislead by some act or declaration tending to show a purpose to waive, or rather not to insist on the performance of a certain stipulation. 'But, first, the act must be such as is incompatible with a purpose to insist on the performance, or import clearly a disregard of the stipulation. It has been distinctly decided, however, that the means employed by an adjuster of losses, to fix the amount of loss as a guide for his principal, is not of this character, and again that an offer to settle rejected does not import such purpose. A jury cannot invest these acts and declarations with the force of waiver. It is difficult to see how this case can escape the influence of Ins. Go. v. Sorsby, 60 Miss., 313.</p> <p>The conclusion of Matthews that his going with the mechanic and describing the old building was sufficient, was no better than the conclusion he formed that a total loss entitled him to the full sum for which he was insured. The getting of the dimensions from any other source would mean the same.</p> <p>The letters were mere offers to compromise and an urgent persuasion to avoid litigation, and written several months after the transactions at Hazlehurst, after the attempt to settle at that time had completely failed by the obstinate refusal of Matthews to abate a jot in his demand — after he had plainly evinced the purpose to sue a few days after the fire. He had said plainly, “ I intend to stand on my legal rights, and you can assert yours,”— a determination which required of him to take steps to fix the liability of the insurer whose terms of settlement he rejected. He does not put the waiver on these letters. They simply amount to efforts to move the plaintiff in her fixed determination — an effort which failed.</p> <p>2. .There is another question raised below of great importance and a vexed question. There is in the face of the policy, and therefore known to the assured, first: a detailed stipulation and requirement to fix liability, and among them is the proof of loss, and at their close the stipulation that no agent is authorized to waive any of the foregoing except in writing endorsed on the policy.</p> <p>How this stipulation is to he regarded, its value and effect is discussed in Conover v. Ins. Co., 42 Am. Rep., 619 and the note at page 21.</p> <p>We have up to this point considered whether there was a waiver, not whether it was authorized.</p> <p>There are cases to the effect that a general agent of an insurance company has the inherent power to waive breaches of conditions and requirements, and cannot be restricted. True, he may settle, pay or compromise, and this involves waiver. But the better view seems to be that his powers may be restricted by conditions in the face of the policy, or brought to the actual knowledge of the insured.</p> <p>The particular stipulation as to writing was inserted obviously to avoid the confusion and uncertainty into which the subject of implied waiver, not amounting to estoppel as defined in the books, had become involved by judicial casuistry as well as waiver expressed by parol.</p> <p>1. It is for the jury to say whether the facts and circumstances, any one alone or all combined, amount to a waiver.</p> <p>3 Sutherland on Damages, 11, and cases cited ; 2 Wood on Insurance, 1116; lb., 952, 936, note; lb., 985, 986, note. See, also, Swan v. L. L. & G. Ins. Co., 52 Miss., 104; Rivara v. Queens Ins. Co., 62 Miss., 120.</p> <p>We do not apprehend that this court will invade the province of the jury, even though counsel for appellant has denominated the phrase, “A question particularly in the province of the jury to decide,” as “ worn out,” and “ as sometimes resorted to in avoidance of judicial responsibility.”</p> <p>What amounts to a waiver ?</p> <p>(1.) Any act which has the effect to mislead the insured into the belief that the proof will not be required. 3 Sutherland on Damages, 11.</p> <p>(2.) Applying for plan and specifications of the insured house. Webster v. The Phoenix Insurance Company, 36 Wis., S. C., 61; 11 Am. Rept., 419. See Bigelow on -Estoppel, 518; quoted in Webster v. The Phoenix Insurance Company, supra.</p> <p>(3.) An adjustment. Levy v. Peabody Insurance Company, 10 W. Ya., 560 ; S. C., 21 Am. Rep., 598. See particularly the note at the end of the case in the American Report.</p> <p>(4.) Investigation by an agent. 4 Wait’s Actions and Defences, citing Owen v. Farmers' Insurance Company, 51 Barb. (N. Y.), 518, and Roumage v. Mechanics' Insurance Company, 13 N. J., 110. True that in Sorsby’s case, 60 Miss., 302, it was' decided that (in the Hanover case) where the insured had not acted upon the idea of a waiver of proofs, and where the company had called for more perfect proofs, an investigation by itself was not a waiver. See 2 Wood on Insurance, 936 ; Ib.r 940 ; lb., 985 ; lb., 988.</p> <p>(5.) Placing objections to payment on other grounds. Sorsby's Case v. Home Insurance Company, 60 Miss., top of page 314; Flanders on Fire Insurance, 542, and authorities there citdd.</p> <p>See also Franklin Insurance Company v. Updegraft, 43 Penn. St., 350 ; Insurance Company v. Parisot, 35 Ohio St., 35 ; Hoyesv. Washington County Mutual Insurance Company, 30 Yt., 659; The H. & H. Y. T. Company v. West Mass. Insurance Company, 34 Conn., 561; 102 Penn. St., 529 ; lb., 568 ; May on Insurance, sec. 468; McPikev. The Western Assurance Company, 61 Miss., 31; Insurance Company v. Sorsby, 60 Miss., 302.</p> <p>We desire to say in regard to the last case cited (Sorsby’scase), that the distinguishing feature therein consists in the fact that the insurance company, upon the receipt of Sorsby’s defective papers, “ promptly wrote to the insured, calling his attention to their insufficiency, and referring him to the condition of" his policy ” as indicating the proofs required. It is said by the court with distinctness that Sorsby did not understand that the proofs had been waived. “ He was not misled in any way by what occurred, and did not consider that he was relieved from his obligation to make the proofs of loss.”</p> <p>We see by reference to the testimony in this case that the jury were not only warranted in concluding that the waiver was established, but that their verdict was in accordance with the-weight of the evidence. We see that the' proof makes out each of the foregoing five points, either of which alone, according to authority, constitutes a waiver. Their conjoint effect is irresistible.</p> <p>We clo not claim that the insurance company lost any right or demand because of the rejection of its terms of settlement; but we do insist that it so dealt with the subject-matter of the contract in suit, it so conducted itself toward Matthews that the insured was misled and deceived, and that, too, as the jury have found, or had a right to find, under circumstances sufficient to charge the insurance company with notice that Matthews was misled and deceived, and that it wholly failed to undeceive him, thereby waiving proofs of loss.</p> <p>Mr. GHllaspie was under a duty to speak, in our judgment, if he intended to insist upon want of proofs of loss, and having kept silent when he should have spoken, his company will not be permitted to take any advantage of his silence.</p> <p>2. We come now to the second argument on this subject of waiver; the contention that under the terms of the policy the waiver, if made, was void because not in writing.-</p> <p>The terms of the policy, upon the subject of a writing, like any other stipulation thereof may itself be waived. Surely the validity of a contract must be determined by the law and not by the stipulations of the parties; although the parties may agree that a waiver shall alone be in writing, yet the law is to the contrary, and an insurance company may estop itself from insisting on proofs of loss by parol.</p> <p>See Home Ins. Go. v. Gaddis, 10 Ins. Law Journal, 774, 777; Westchester F. Ins. Go. v. Marie, 33 Mich., 153.</p> <p>Parties cannot bind their hands by an agreement that will prevent them from having afterwards the full power to contract with themselves which they would have had but for their previous agreements. A change in the terms of a cpntract by parol, between two parties able to contract, would be binding in spite of a provision to the contrary in the contract thus altered, no question of the statute of frauds intervening.</p> <p>Certainly any thing which a man may contract to do or not to do, he may estop himself by his conduct in the same way. A man may estop himself by his conduct in a matter which would seem to infringe the statute of frauds; he may loose his lands by his conduct, though he cannot contract it away except in writing. If the doctrine of estoppel arises superior to the statute of frauds itself, the law of the land, why may it not override any question, or terms, involved in a private contract? See Gans v. The St. Paul F. and M. Ins. Co., 43 Wisconsin, 113.</p> <p>The second answer to the proposition is that the terms of the instrument under consideration have no application to the question of proofs of loss. It is said in the case of Blake v. Exchange Mut. Ins. Co:, 12 Gray, 265, by the Supreme Court of Massachusetts: “ It seems to us that the question is not as “ to the provision of the contract, but as to the performance of “ the provision. Plaintiff is not seeking to set up a contract “from which a material provision has been omitted by the oral “ consentment of the officers of the company.”</p> <p>' We are told by the Supreme Court of Maryland in the case of Franklin Fire Ins. Co. v. Chicago Ice Co, 36 Md., 102, 119, 120, “ According to our construction of the last clause in the “ eighth condition of the policy, it refers to those conditions and “ provisions of the policy which enter into and form a part of “the contract of insurance, and are essential to make it a bind- “ ing contract between the parties, and which are properly designated as conditions; and that it has no reference to those “ stipulations which are to be performed after a loss has occurred; “ such as giving notice and furnishing proofs of loss. These are “ no conditions inherent in the contract itself.”</p> <p>And both of these courts were considering the very question now before us, and had the same provision in the policy requiring, or attempting to require, all waivers in writing.</p> <p>The same doctrine is re-announced and emphasized in the case of Bolees v. Amazon Ins. Co., 51 Md., 512.</p>

Hon. T. J. Wharton, Judge. This is an action of assumpsit, brought by William Morrow, surviving member of the firm of Cherry, O’Connor & Co., against A. F. Andre, to recover on a certain promissory note executed by Andre, in favor of Cherry, O’Connor & Co., on Feb. 1, 1885, for $300.

Hon. W. S. Featherson, Juclge. This is an action brought by P. C. Person against the Illinois Central Railroad Company to recover damages for the killing of a mule of the former by a train of the latter.

Hon. Sylvanus Evans, Chancellor. The case is stated in the opinion of the Court. Held: is to protect the possessor from the acts of others who do not derive title from him, not to protect him against his own deed.

<p>1. Criminal Law. Cruelly to animals. Section 2918, Code of 1880, construed. Case in judgment.</p> <p>S. was indicted for killing a hog, under Section 2918, Code of 1880, which makes it a misdemeanor for any person to “ cruelly beat, abuse, starve, torture or purposely injure any horse, ox or other animal belonging to himself or another.” On the trial there was evidence which tended to show that S. shot and killed certain hogs while depredating on his crop. The defendant asked the court to instruct the jury that they should find him not guilty, if they believed that he killed the hogs while depredating on his crop and to protect it, and not out of a spirit of cruelty to the animals. The court refused such instruction. Held, that this was error. If the defendant was not actuated by a spirit of cruelty, or a disposition to inflict unnecessary pain and suffering, he was not guilty under the statute.</p> <p>2. Same. Cruelty to animals. Intent and purpose.</p> <p>It is immaterial in such case, whether the accused had a lawful fence, or whether the hogs killed were his property or that of another, or whether ■ he is liable in a civil suit for a trespass. His guilt or innocence is determinable by the intent and purpose which prompted his act.</p>

Hon. W. S. Featherston, Judge. Charles Roberts employed J. H. Kimmons to sell a certain tract of land in Coahoma .County, upon an agreement, as the latter says, that Roberts should pay him a commission of “ 2],-per cent, on amount of price of land; ” but Roberts says he agreed to pay Kimmons “ 2J per cent, commission on the amount the place sold for.” Roberts gave Kimmons a letter of introduction to one Eldridge, suggesting at the time that he would probably be able to sell…

Hon. J. G-. Hall, Chancellor. lu 1884, the Board of Commissioners of the Yazoo-Mississippi Levee District caused a levee to be constructed across the plantation of Mrs. Kate Dancy, without having… Held: “ An appeal from the judgment of a justice of the peace has the effect to vacate the judgment, and brings the case into court for a retrial. The appellate court is not a court of errors.” Britton v. Fox, 39 Ind., 369; see also Wachsteller v. State, 42 Ind., 166.

Appear from the Chancery Court of Pontotoc County. Hon. B. T. Kimbrough, Chancellor. The case is stated in the opinion of the Court. This signed decree is nothing more than an unauthorized memoranda found among the papers, which the Supreme Court in the case of Shackelford v. Levy, 63 Miss., 127, says cannot even in such case be considered.

j&rpeaIi from the Circuit Court of Harrison- County; Hon; S. H. Terral, Judge. This is an action of unlawful entry and detainer brought by, Corinne Reach against. Mrs.-Dora -Benjamin to-recover possession of certain land in Harrison County. There was s verdict and judgment in the Circuit Court for the plaintiff. The-defendant appealed. The other facts in the case are sufficiently stated in the opinion of the court.

Hon. Warren Cowan, Chancellor. John Robson died in 1856, leaving a will certain provisions of which are as follows: “I bequeath to my beloved wife-all that lot of ground situated in Natchez, on Commerce street [¡property here fully described], the above described premises . adjoining a lot conveyed this day to Mary and Jane N. Flintoff; and,,I also bequeath, to my beloved wife, all my lands known-as the Prospect Hill ’ plantation, containing nine hundred and fifty acres,…

Hon. J. B. Chrisman, Judge. One Mrs. Farrar was in possession of and claiming as her own certain land lying on the south bank of the Homochitto river, when in November, 1879, she was granted' a license to maintain a ferry across this river for ten years from Jan. 1,1879. In January, 1880, Mrs. Farrar assigned her license, boat and attachments, to B. F. Swayze, retaining the right of free ferriage for herself and employees.

S. H. Terral,. Judge. I-n-. the; year 1840,.William Kirkwood.died intestate, .,leáv¡ii%. a widow, and five children, namely, Henry, Alexander, William R., Margaret and Nancy. On the 16th of May, 1848, a patent to a certain tract of.land was issued to William Kirkwood, the deceased, by the United States government. And on the 20th of July, 1848, a patent to a certain other tract of land was issued to James Baker by the United States government.

Appear from the Circuit Court of Wilkinson County. Hon. J. B.-Ciirisman, Judge. In August, 1883, W. A. Fitts and one Alston jointly purchased from-the state certain land 'held.under a sale for taxes. In January, 1884, J. B. McGehee sued out an attachment against Alston and caused the same to be levied on his interest'is this land.

Hon. S. H. Terral, Judge. In 1883 the city of Meridian purchased a tract of forty acres of land near its limits, and erected thereon a few small houses to be used as pest houses. This land was duly assessed to said city, the assessment was approved by the board of supervisors without objection, and in March, 1886, the land was sold to the State for the unpaid taxes of 1885.

Hon. S. H. Terral, Judge. On the 26th of January, 1881, Wilder & Co., cotton buyers, delivered at the town of Meridian in the county above mentioned, 20 bales of cotton to the Alabama Great Southern Railroad Company, to be transported to New York, under consignment to Copeland & Co., but subject to the order of Wilder & Co. Wilder & Co. transferred the bill of lading, taken for the cotton to the People’s Bank of Meridian.

Hon. T. B. Graham, Chancellor. The case is stated in the opinion of the Court. 1. I could cite a great multitude of authorities in support of the proposition that it is an essential prerequisite to the rescisión of a contract, for fraud, that the party seeking the rescisión should restore, or tender to restore, whatever consideration was received by him under ,the contract.

Hon. Ralph North, Judge. Charles Ehrman took passage at New Orleans, on a car of the Pullman’s Palace Car Company, for Yicksburg. It was a sleeping and buffet car. Ehrman paid for a berth, and about 83? o’clock p.m. asked the porter to make down his berth. The porter replied that he had three orders for lunches that he must first fill before he could make down the berth. Ehrman, thereupon, angrily demanded that his berth be made down at once.

Hon. Ralph North, Judge. This is an action for damages brought by T. C. Bedford against the Louisville, New Orleans & Texas Railroad Company. The declaration alleges that defendant by carelessness and negligence in running its trains killed two mares and a colt, on Feb. 2T, 1881, and injured a gray mare, on March 3, 188Í, all the property of plaintiff.

Hon. E. G. Peyton, Chancellor. In 1877, W. L. King purchased a certain tract of land. The conveyance thereof was to “ W. L. King and his wife, Selina King.” In 1881, Mrs. King died, leaving as her heirs, her husband, and one son by a former marriage, W. F. Gresham. Thereafter, W. F. Gresham, as heir of his mother, set up a claim to a one-fourth interest in the tract of land above referred to.

Hon. Warren Cowan, Chancellor. This suit was instituted by a bill in equity exhibited by the “ New Orleans Seed Company,” a corporation located in New Orleans, La., against the “ Warren Mills,” a corporation located in Yicksburg, in this State.

<p>1. Chancery Jurisdiction. Substitution of record in court of law. Case in judgment.</p> <p>W. brought an action of trespass against S., and there was judgment in the Circuit Court for the defendant. A bill of exceptions was duly made out and an appeal taken, but before transmission of the transcript to the Supreme Court the record and all papers connected with the case were burned. Thereupon W. filed a bill in chancery setting out that the record could not be substituted from memory; that the then presiding judge had retired from the bench; that a new action at law could not be brought because of the bar of the statute of limitations; and that the complainant, as plaintiff in such case, had meritorious grounds for an appeal. The bill asks that the Circuit Court be required to reinstate the ' case and to try the same anew. Held, that chancery has no jurisdiction to supply lost records of a court of law.</p> <p>2. Substitution of Record. Remedy in court of law. See. 2293, Code 1880.</p> <p>The remedy in such case is in the court of law, under Section 2293, Code of 1880, which provides that “when the record of any judgment has been lost or destroyed, the plaintiff may have the same substituted against the defendant, upon motion, and such notice to the defendant as is required in actions in the court in which such motion is made,” etc. And without this statute the Circuit Court has the power to restore its records, which have been lost or destroyed.</p> <p>3. Same. In court of law. Retirement of judge.</p> <p>And the fact that the judge who tried such case is no longer on the bench is no obstacle to a proceeding to restore the lost records, since the result of the proceeding must depend upon proof, and not upon the memory of such judge.</p>

Hon. R. W. Williamson, Chancellor. The caséis stated in the opinion of the Court. John E. Saunders owed appellant, as both state, more than $1000 for taxes alone, besides being indebted for borrowed money. This land was all he had left with which to pay, and he intended this to cover all.

Hon. E. G. Peyton, Chancellor. On January IT, 1882, Plummer Yaughan executed a deed ■of trust for the benefit of Henry Powell on a certain tract of land, which was his homestead, the personal property thereon, and the crop to be grown thereon during the year 1882. The wife of the grantor, Angelina Yaughan, joined in this deed.

Hon. W. S. Featherston, Judge. J. H. Stephenson sued out an attachment against T. B. Sloan. One of the grounds for the attachment was, as alleged, that defendant “ has removed or is about to remove himself or his property out of this state. ” The grounds for the attachment were traversed.

Appeals from the Circuit Court of Lafayette County and the Chancery Court of Union County. Hon. W. M. Rogers, Judge. Hon. Baxter McFarland, Chancellor.

Hon. T. J. Wharton, Judge. L. H. Polk was tried before a justice of the peace and convicted on a charge of causing to be removed certain cotton, encumbered by a deed of trust executed by him, from the county of its location, without the consent of the beneficiary in such deed, and without discharging such incumbrance. He appealed to the Circuit Court,and there he was again convicted; whereupon he appealed to this court.

Hon. W. S. Featherston, Judge. J. O. Bryant was indicted under the “ Local Option ” Act (Acts of 1886, p. 35), for selling liquor in Union county contrary to its provisions. He was tried and convicted. It was not shown on the trial that the act above referred to had ever been put into operation in Union county. The defendant moved for a new trial on the ground that “ the jury found contrary to the law and the evidence.” The court overruled the motion. The •defendant appealed.

Hon. A. T. Hoane, Judge. John Prewitt was indicted for, tried and convicted of, assault and battery.

Hon. E. Gr. Peyton, Chancellor. N. Birmingham died in May, 1882.

Hon. J. H. Wynn, Judge. One H. A. Toney was the owner of a certain lot in the town of Clarksdale. There was a parol agreement entered into about the 1st of December, 1887, between him and Chas. McCray by which the former was to erect a livery stable on the lot, the same to be occupied by McCray for one year from and after Jan. 1, 1888. The stable was not complete and ready for delivery by the first of January, as expected.

' Hon. L. E. Houston, Judge. S. A. Brooks was indicted for selling liquor in violation of the provisions of the “local option” act, approved March 11, 1886. On the trial the evidence showed that defendant, a licensed druggist, sold alcohol to one Miller for medicinal purposes, and that it-was bought by the latter for medicine, and so used, except a small part which he drank as a beverage; and that Miller had no prescription or certificate from a physician.

Hon. Baxter McFarland, Chancellor. The bill in this case was filed, September 19,1883, by Martha Hignite and another, against Needham Hignite and others, seeking partition of a certain tract of land which had descended to all the parties, complainants and defendants, as heirs of John Hignite, deceased.

Hon. S. H. Terral, Judge. At a meeting of stockholders of the Meridian Grange Cooperation Association, a contract was made with H. F. Broach in the following language: “Meridian, Miss., July 7th, 1886. “ Be it known unto all men that a quorum of the stockholders of the Meridian Grange Co-operative Association, being in session, have accepted the following proposition from H. F. Broach: That he agrees to pay to each stockholder forty per cent, of the face value of his or her…

Hon. A. G-. Mayers, Judge. Virginia V. Dunlap, executrix of the last will and testament of D. B. Dunlap, deceased, sued out an attachment against A. Q. Clay.

Hon. C. H. Campbell, Judge. On the 4th of January, 1888,the Board of Supervisors of Attala County made an order to the effect, “ that Allen & MeCool and H. C. Niles be employed and retained as county attorneys.” On the 9th day of that month the attorneys mentioned brought an action in the name of the State, for the use of Attala County, against John T. Riley, ex-treasurer of that county, and the sureties on his official bond, to recover the value of certain United States…

Hon. S. H. Terral, Judge. Hahn & Pidal sued out an attachment against Hall Bro’sr which was levied on three barrels of whiskey in the possession of one Danheiser. Bernheim Bro’s & Uri claimed the whiskey as their property. The plaintiffs in attachment having obtained judgment against the defendants therein, the issue presented by the claim of Bernheim Bro’s & Uri came on for trial.

Hon. S. H. Terral, Judge. This is an action of assumpsit brought by Thomas G. Hewlett against the Cincinnati, New Orleans and Texas Railway Company to recover damages for breach of a contract.

Hon. Lauch McLaurin, Chancellor. On March 18, 1884, J. A. Henderson borrowed from one Davis $150.00, for which he gavehis promissory note for $180.00, payable Jan. 1, 1885, with ten per cent, interest after maturity. On April 14, 1885, a settlement was had between the parties, and a new note executed by Henderson in favor of Davis for $241.82, payable Oct. 1, 1885, with ten per cent, interest after maturity. This amount was claimed to be due on the original loan of $150.00.

Hon. W. M. Rogers, Judge. The case is stated in the opinion of the Court. There was error in rendering judgment in this case when •defendant’s plea of non-joinder was unanswered and undisposed of. Griggs was a party to the bond and ought to have been sued, but irrespective of whether he is or not, our plea of non-joinder was in and called for an answer or replication and in default of issue being made upon this plea, the judgment is erroneous.

Hon. B. T. Kimbrough, Chancellor. On February 1, 1887, an execution was issued from the 'Chancery Court of Yalobusha county in favor of Mrs. E. Steen against T. H. Hamblet, and the same was levied on certain horses, mules, buggies, harness and other personal property, used in carrying on a general “livery” stable business. Mrs. R. A. Hamblet, wife of T. H. Hamblet, interposed 'a claim to the property in the manner provided by law.

Hon. J. B. Chrism an, Judge. W. P. Quin was indicted upon the charge that he, “ on the 9th day of January, 1888, in the county aforesaid, unlawfully, •did enter the yard of Bob Jones, and, did then and there unlawfully, in the presence, and' in the hearing, of the family of the said Bob Jones (he, the said Bob Jones, and family then and there being the occupants and owner of said yard and dwelling house therein situated), unlawfully make use of abusive, profane and vulgar…

T. Otis Baker, Esq., Special Judge, by agreement of the parties, Hon. Ralph North, Judge, having been of counsel in the case. On April 12,1861, MaryM. Morrison recovered a judgment for $16,501.33 in the Circuit Court of Adams County, against W. L. Jackson. This judgment was duly revived in April, 1814; and on the 14th of May, 1814, and the 22d of December, 1880, respectively, execution was issued thereon.

Hon. Ralph North, Judge. In January, 1888, Isaac Sloan was a duly elected and qualified justice of the peace for Adams County. On Jan. 24,1888, he tried, convicted and fined in the sum of $25 one R. Demarco, on a’ charge of retailing vinous and spirituous liquors in less quantities than one gallon, without license, and, upon payment of fine and costs, discharged Demarco without requiring him to give bond for his appearance to await the action of the grand jury.

Hon. Ralph North, Judge. On January 2, 1888, Tuttle Bros., a firm engaged in the business of confectioners, executed a deed of trust on certain real estate and on their stock of goods, being used by them in their business, in favor of one Benoist, trustee, to secure a note then executed in favor of Eltringham.

Hon. T. J. Wharton, Judge. In April, 1883, Ida A. Aired and her husband, Ellison Aired,, lived on and occupied a certain tract of land as a homestead. The land was the property of the wife, and the husband was partially insane. In that month they moved some eighteen or twenty miles to the home of a mother of Mrs. Aired. Whether to remain permanently or only temporarily is in dispute.

Hon. Warren Cowan, Chancellor. On the 29th of May, 1882, William J. Davis filed a bill in the Chancery Court of Adams County against Hugh L. Davis, stating that complainant and defendant, as partners in the business of farming, under the firm name of H. L. Davis & Co., bought a tract of land known as the “ Duncan Homochitto ’ ’ plantation, which had been paid for with the assets of the firm; but that the deed thereto had been taken by the defendant in his individual name…

Hon. J. B. Ohrisman, Judge. This is an action of ejectment, brought by F. H. Hartman, to recover of J. C. Hardy and others a certain tract of land. The plaintiff, in support of his claim of title, put in evidence a patent from the State to himself, dated October 1,1885, and conveying the land sued for.

<p>Appeal from the Circuit Court of Union County.</p> <p>Hon. W. S. Featherston, Judge.</p> <p>The case is stated in the opinion of the Court.</p> <p>I maintain that the suit which the auditor caused to be instituted upon the bond for moneys due on final settlement on the face of the assessment rolls could not be concluded by the action brought by the State’s revenue agent to recover moneys collected by the sheriff and fraudulently concealed. By the act •creating the office of revenue agent I take it that it was the purpose of the Legislature to have an expert with power to detect frauds and to recover money fraudulently concealed and withheld, and not otherwise to interfere with the geneial duties of the State’s fiscal agent. I think a close analysis of the act of 1880 (Acts 1880, pp. 94 and 95} will disclose the correctness of this position. That being true, the revenue agent had no power to sue for such demands, and thereby to conclude the regular action of the auditor. Certainly he was under no duty to hunt up an indebtedness by the auditor shown to be due, and was under no duty to sue for it. That was the auditor’s affair. Hence the principle of estoppel involved in the plea of res judicata ought to have no application, viz.: That one party should not be permitted to harrass another by separate actions when one is sufficient for all purposes. Inasmuch as the exhibits were part of the declaration, and it there appeared that the claim was not of the character the revenue agent was charged with the duty of looking after, the plea itself was bad, and the •demurrer should have been extended back to it. Wherefore I ■submit the judgment should be reversed.</p> <p>1. We do not admit that there was no such officer as revenue agent when the suit in which the former recovery was had was instituted; but, be that as it may, still the judgement of the court below in this case should be affirmed.</p> <p>The State of Mississippi was the plaintiff in said former suit, and Adams was not the plaintiff. Indeed, Adams was no party at all to the suit. The State of Mississippi is competent to sue in her own name, without suing “by” any official; and the allegation in the replication that the former suit was brought by Adams as revenue agent and Dalton as attorney for the State of Mississippi is an averment that the State was the real party.</p> <p>An infant sues by its next friend, but the infant is the real party, and the next friend may be displaced at any time by the court and another appointed in his place and the suit progress as before.</p> <p>This court has decided that in a qui tarn, action brought by the State on a liquor bond, the informer is not a party to the suit and cannot be made liable for costs. The State ex rel. Chandler v. J. W. Albrecht et al., (MS. opinion).</p> <p>In the former suit, the State of Mississippi has sued and recovered a judgment, and that judgment is valid and binding, although Adams may not be de jure the State’s revenue agent.</p> <p>2. If this court shall hold that the interposition of a State official was necessary to enable the State to institute and prosecute the former suit, then we hold that Adams was at least a de facto revenue agent of the State, performing the functions of said office or position under claim and color of title, and his official acts are valid and binding upon the State and upon all persons whose rights have been affected thereby. ■</p>

Hon. Sylvanus Evans, Chancellor. The bill in this case, hied on the 1st day of June, 1888, by R. H. Jamison against E. M. Thompson and R. M. Bordeaux, states that, on the 1st day of March, 1886, the defendant Bordeaux, as sheriff and tax-collector, sold certain town lots in the city of Meridian and county of Lauderdale, for delinquent taxes of the years 1885 and 1886 ; and “that, at said sale, L. A. Rags-dale became the purchaser of said lots ; and that the said R. M..

Hon. T. B. Graham, Chancellor. In February, 1888, the bill in this case was filed for William Robinson, a non compos mentis, by his guardian, R. C. Patty, against Mary K. Burritt, Fannie J-. Ridley, Charles T. Robinson and Winston Jones.

Hon. S. H. Terral, Judge. On the 21st of February, 1871, Magnolia Walker, a married woman, jointly with her husband, executed a deed of trust to R. E. Y. Yates, trustee, for the benefit of Buck & Beau-champ, merchants, upon a tract of land constituting a plantation, and being her separate property.

Hon. S. H. Terral, Judge. L. N. Holberg and H. C. Holberg, partners, composing the firm, of L. N. Holberg & Bro., and merchandizing in the town of Macon in this State, failed in business in the month of February, 1885. They 'confessed judgments in favor of some of their creditors, and other creditors sued out, severally, attachments against them.

Hon. C. H. Campbell, Judge. On the 4th of April, 1888, A. A. Woods brought an action against Peter James, before a justice of the peace, upon a demand for $143.50. The defendant was summoned to appear on the 14th day of that month. He did not appear at that time, but sent by his son who did attend, an appeal bond and a petition for an appeal to the Circuit Court.

Hon. E. G. Peyton, Chancellor. In March, 1883, James Rivari, doing business in the city of Natchez, lost by fire a stock of goods, upon which he held two policies of insurance against lire, issued by the Western Assurance Company, of Toronto, Canada. The policies, numbered, respectively, 289,913 and 332,213, were both in force at the time of the loss ; but the former was dependent upon a certificate of renewal.

Hon. Ralph North, Judge. J. S. Acuff being the owner of a certain tract of land, on the 24th of March, 1881, executed a deed of trust to J. T. McCown, as trustee for the benefit of W. H. Andrews & Bro.’s, upon the cotton to be grown on that land during the year 188*7.

<p>Carrying Concealed Weapon. Section 2985, Code of 18&0, amended by Act of. March 9, 1888. Ex post facto lam. Case in judgment.</p> <p>In December, 1887, L. was indicted under Section 2985, Code of 1880, which made it a misdemeanor for any person to carry concealed certain weapons except when “ having good and sufficient reason to apprehend an attack,” or in some other specified circumstances; and which prescribed as the penalty for such offence a fine, not exceeding one hundred dollars, and in the event the fine and costs be not paid, then work at hard labor, not exceeding two months. An act of the legislature, approved March 9, 1888, amended Section 2985 of the Code by striking out the words “having good and sufficient reason to apprehend an attack,” and providing, without any saving as to past offences, that the punishment for carrying concealed weapons shall be a fine, not exceeding one hundred dollars, “nor less than twenty-five dollars,” and in the event the fine and costs be not paid, then hard labor, not exceeding two months, “nor less than one month.” In May, 1858, L. was tried, convicted and sentenced to pay a fine of thirty dollars. Meld, that L. could not be punished under the original statute, because the vindicatory part thereof had been repealed, and he could not be punished under the amended law, because, as to him, it was ex'post facto and unconstitutional, for the reasons (1) that it precluded the defence of “having good and sufficient reason to apprehend an attack,” and (2) changed, but did not mitigate, the punishment originally prescribed.</p>

Hon. T. J. Wharton, Judge. On the 26th of March, 1879, W. G. Yerger, as trustee of the legal title, together with Rebecca Yerger, the cestui que trust, and her husband, James R. Yerger, executed to John L. Hebron a deed of conveyance of a certain tract of land, in consideration of $7,500 in cash, paid to Rebecca Yerger.

Hon. Warren Cowan, Chancellor. Under an act of the legislature, approved April 3d, 1888, entitled, “ An Act to provide for the assessment and collection of past due and unpaid taxes on railroads which have escaped the payment of taxes,” an ad valorum tax, for the years 1885,1886 and 1887, had been assessed against the property of every description belonging to the Yazoo & Mississippi Valley Railroad Company, and the tax collectors, severally, of the counties of Hinds,…

Hon. Balph North, Judge. This is an action of ejectment, brought, Sept. 26, 1887, by Ellen Tierney against King Brown, for the possession of a tract of land described in the plaintiff’s declaration, as “ the south part of section five, in township fourteen, range four east, containing two hundred and twenty-five acres, more or less,” and lying in Warren County of this State.

<p>Married Woman. Agency of husband. Not restricted by Section 1177, Code-of 1880.</p> <p>As a married woman is under no disability to contract, she may, either expressly or by a course of dealing, include within the scope of her-husband’s agency matters not provided for in Section 1177, Code of 1880, which declares that, “ all business done with the means of the wife by the-husband shall be deemed and held to be on her account, and for her use,, and by her husband as her agent and manager in business.”</p>

Hon. Ralph North, Judge. In July, 1888, Robert King was indicted on the charge of' having, on the 12th of May, 1888, killed and murdered one Gus-Cox. He was tried, convicted and sentenced to be hanged.. From the judgment against him he appealed to this Court.