Volume 66 — Mississippi Reports

Hon. Baxter McFarland, Chancellor. This was an injunction suit brought by the board of supervisors of Lee county against the fence commissioners appointed under the act approved March 5, 1878 (see Acts 1878, p. 305). The object of the injunction was to prevent the commissioners from wrongly locating and constructing a fence, which they were causing to be constructed outside of the township line.

Hon. S. H. Terral, Judge. The facts are stated in the opinion. After the evidence was all introduced the defendant asked for a peremptory instruction in its favor, which was refused. The main question here is, was it the duty of the engineer to stop the train until the cow got upon the track, or was there apparent necessity for stopping ? This question has been answered in the negative by this court in Y. & M. V. R. R. Co. v. Brumfield, 64 Miss. 637.

Hon. Look E. Houston, Judge. This suit was brought in the circuit court of Clay county, by the state of Mississippi, upon the information of B. H. Payne, against T. O’Flinn and the sureties on his bond, as a licensed retailer in the city of West Point. The breach of the bond assigned is the sale of liquor by the defendant,'O’Flinn, to a minor, the son of Payne.

Hon. Look E. Houston, Judge. Appellant, Cox, was tried and convicted for the crime of forgery.

Hon. Baxter McFarland, Chancellor. The lot in controversy was originally owned by Atkinson Stewart, who, in 1840, conveyed it by deed duly recorded, to trustees for the use of Mary Stewart for her life, and after her death to his children then living. Appellee Matheny obtained title and possession of the lot under successive conveyances from the life tenant, Mary Stewart, which deeds purported to conyey the fee.

Hon. Lock E. Houston, Judge. The facts are stated in the opinion. The act of March 9, 1888, in reference to carrying concealed weapons, has recently been held to be ex post facto as to offenses committed prior to its passage. Lindzey v. The State, 65 Miss. 542. An indictment for carrying a pistol on January 30, 1888, is, therefore, fatally defective.

<p>Appeal from the circuit court of Madison county.</p> <p>Hon. T. J. Wi-iarton, Judge..</p> <p>One Middleton, executed a deed of trust upon a mule to secure an indebtedness of one hundred and twenty-five dollars due to Palmer. This deed of trust was transferred for value to appellant Hiller. Middleton was also indebted to Palmer for rent of land, and his note for one hundred dollars therefor was also transferred by Palmer to Hiller. After the transfer Hiller made other advances to Middleton upon a credit.</p> <p>Subsequently, Middleton paid Hiller in cotton and money more than the amount secured by the trust deed upon the mule, but less than the aggregate indebtedness due Hiller, and these payments were, by consent of both Middleton and Hiller, applied to the indebtedness not thus secured, so as to retain the lien upon the mule.</p> <p>This is an action of replevin by Levy, a subsequent purchaser of the mule from Middleton, against the latter. Hiller interposed his claim under the trust deed. The contention on the part of Levy is that the payments made by Middleton should be applied by the court to the debt secured by the trust deed so as to release Hiller’s lien upon the mule.</p> <p>The instructions of the court were in favor of Levy, and from a judgment for him the claimant appeals.</p> <p>In the application of payments the court will give éffect to the intention of the parties. Wait’s Ac. & Def. 1, p. 176. Legal presumptions as to the application may be rebutted by circumstances showing that such could not have been the intention. Ib. 178 and' 587 ; Pauten v. Rowan, 59 N. H. 215; Hansen v. Rounsavell, 74 111. 238 j Poindexter v. Be Roche, 7 S. & M. 713. Such application may be inferred from proof of a course of dealing, equivalent to an express contract. Gwin v. McLean, 62 Miss. 124.</p> <p>The debtor and creditor were both satisfied with the appropriation as made, and Levy cannot be heard to object. Wait’s Ac. & Def. 7, p. 414; Gordon v. Hobert, 2 Story (C. C.) 243.</p> <p>Not even a surety of the debtor can control the appropriation. Robson v. McKoin, 18 La. An. 544.</p> <p>There was no specific direction by Middleton to ^Hiller as to the appropriation of the payments, nor did Hiller make any application of them to any particular debt. The question then is what appropriation will the law make of the payments, to the secured or unsecured debt ?</p> <p>The rule is that delivery of mortgaged property operates as a satisfaction eo instanti of the secured debt pro tanto. Ogden v. Harrison, 56 Miss. 743. In this state the civil law is followed, and payments are applied most beneficially to the debtor. McLaughlin v. Green, 48 Miss. 175 ; Neal v. Allison, 50 Miss. 175; Windsor v. Kennedy, 52 Miss. 164.</p> <p>The delivery of the cotton, therefore, operated eo instanti as a 'payment of the secured debt, and no subsequent agreement between Middleton and Hiller could affect Levy’s right.</p>

Hon. J. H. Wynn, Judge. The case is shown in the opinion. The Emma Sims, being the same in both indictments, and the act being the same, sexual intercourse with Emma Sims was incest, whether she was his daughter or step-daughter. Code 1880, §§ 1Í46, 2701. The record shows the first indictment, arraignment, and judgment of acquittal.

Hon. W. M. Eogers, Judge. The plaintiff, Gill, and his wife were passengers upon the train of defendant, with tickets to Senatobia, their home. Upon the arrival of the train at that station they arose to leave the car, but were prevented from alighting by the crowding into the coach of a large number of excursionists, who desired to get on board, and for the most part sought to enter at the end of the coach at which plaintiff and his wife were seeking an exit.

Hon. S. H. Terral, Judge. The appellant was indicted and convicted for the offense of keeping a boarding-house in a town without paying the privilege tax prescribed by the act of March 18, 1886. The proof showed that appellant kept a boarding-house in Mississippi City, which is not an incorporated town.

Hon. T. J. Wharton, Judge. The agreed statement of facts shows the following case : The appellee, J. W. Tufts, sold to appellant, Burnley, a soda-water apparatas, taking therefor the several notes of the latter, due at intervals of thirty days consecutively.

Hon. J. W. Buchanan, Judge. Appellant, Mosely, brought an action against appellee, Jamison, claiming damages for personal injuries sustained by him by reason of his having been unlawfully shot and wounded by appellee.

From the chancery court of Clarke county. Hon. S. Evans, Chancellor. Appeal from a decree sustaining a demurrer to a bill.

From the chancery court of the second district of Hinds county. Hon. Warren Cowan, Chancellor. In 1876 the appellee, Nancy W. Hedrick, owned certain property in the town of Bolton, where she resided, and a plantation near by. She was, and is yet, the wife of H. A. Hedrick.

Hon. W. R. Trigg, Chancellor. By an act of the legislature, approved February 10,1860, entitled, “ An act for the better security of titles to lands held and claimed under tax sales and tax-titles,” it is provided that any person claiming land under any tax-deed may, “ after the period limited by law for the redemption thereof,” proceed to have the title made “ perfect and valid against all parties claiming or having any interest in such lands which existed at the time the…

From the chancery court of the second district of Chickasaw county. Hon. Baxter McFarland, Chancellor. The Okolona Savings Institution was an incorporated bank, and owned the lands in controversy. In the year 1882 these lands with others were sold by the bank, the purchase-money being paid. Deeds were executed which were signed by the president and cashier, but no corporate seal was attached as the charter required. The purchasers went into possession.

Hon. S. H. Terral, Judge. The opinion states the facts sufficiently. The regulation of a railroad company is reasonable which permits a conductor to demand the presentation of a ticket, or check given in lieu thereof, at any time and as many times as he may think necessary or desirable. Eeasonable rules and regulations are binding upon the passenger. 2 Eorer on Eailroads, §§ 979, 980, 982, and 986; 3 Wood Eailway Law, §§ 347, 352; Norfolk and West.

Hon. Ralph North, Judge. Appellant was indicted, jointly with another, for the murder of' one Logan Tingstrom. A severance was had and he was/tried separately. The proof developed that, at the time of the killing, a charge of grand larceny was pending against Tingstrom, and that Jackson had been specially deputized by the justice of the peace to make the arrest.

From the chancery court of the second district of Panola county. Hon. J. G. Hall, Chancellor. The appellee, C. E. Taylor, was administrator of an estate in Panola county. At a sale made by him as such administrator, J. B. Pate & Co., merchants, doing business at Water Valley, Yalobusha county, bought certain personal property, amounting in value to two hundred and eighteen dollars and twenty-five cents.

From the chancery court of Yalobusha county, second district. Hon. J. G. Haul, Chancellor. Appellee, Hervey, filed a bill against the appellant, M. A. Jones, to enforce a vendor’s lien. Process tvas issued, returnable before the clerk at rules, September 3, 1888, and was duly executed. More than five days afterward, before the next succeeding monthly rule day, to wit, on the 17th day of September, a regular term of the chancery court in said county began.

Hon. Sylvanus Evans, Chancellor. The appellant, Juliana Hart, exhibited her bill in the chancery court of Harrison county, against the appellee, Bloomfield, in which she alleged as follows : That she was the real owner of two certain lots of land in said county; that the defendant asserted a pretended claim to the lots by virtue of a deed from the state of Mississippi, executed in 1887 ; that this deed is wholly illegal and void, and casts a cloud and suspicion upon the…

Hon. S. H. Terral, Judge. The facts are sufficiently stated in the opinion. It was manifestly error for the circuit judge to order the “ cases” to be consolidated, and proceeded with as one case. The matter came to the circuit court on one judgment, with one appeal-bond, in a suit in which only one summons had been issued, and no consolidation could there be had.

Hon. C. PI. Campbell, Judge. The facts appear, in the opinion of the court. contended that the two suits were independent of each other, arising out of two separate contracts, made at different times, and the case of Pittman v. Ohrisman, 59 Miss. 124, and cases cited therein, are conclusive of the right to maintain separate suits.

Hon. Baxter McFarland, presiding as chancellor by interchange with Hon. J. G. Hall. The property in controversy, together with other property, title to all of which was in Mrs. Hamblet, was levied on in 1887 by appellant, Mrs. E. Steen, under a judgment against T. H. Hamblet. The property was being used in his business by T. H. Hamblet, who was a trader, and it was sought to be subjected as if his property by virtue of § 1300, code 1880.

Hon. T. J. Wharton, Judge. There is an agreed statement of facts. Parsons rented land for-the year 1887 to Bartley, taking a note for the rent. Afterward he transferred the note by indorsement to appellant, Gross, who,, upon default of its payment, distrained for the rent, and seized certain cotton of the tenant. The note evidenced the only agreement between the landlord and tenant in reference to the renting.

Hon. A. G. Mayers, Judge. This was attachment for rent, and replevin by the tenant. Held: and that said lease was never assigned. It was fully established, and no attempt was made to controvert it, that Mrs. Smythe was simply the assignee of the rent debt, and the verdict should, therefore, have been in favor of the plaintiff in replevin in accordance with the doctrine laid down in Cross v. Bartley, decided at this term,…

Hon. A. G. Mayers, Judge. This was an attachment suit brought by appellants, J. F. Baum & Co., against appellees, A. F. Burns, Robert Burns, and A. G. McLaurin, in the circuit court of Lauderdale county. All of the defendants resided in Smith county, where they were found and summoned. The plaintiffs suggested in their affidavit for attachment that Marks, Rothenburg & Co., residents of Lauder-dale county, were indebted to defendants, and they were served as garnishees.

Prom the chancery court of Harrison county. Hon. S. Evans, Chancellor. The facts are stated in the opinion of the court. 1. The chancery court had no jurisdiction. The complainant had a complete remedy at law. Code 1880, §§ 826, 830 ; 54 Miss. 259. 2.

<p>From the chancery court of Warren county.</p> <p>Hon. W. R. Trigg, Chancellor.</p> <p>Decree for complainants below. Defendants appeal. The opinion states the case.</p> <p>1. Complainants cannot establish the right of way by parol testimony. If they can, what has become of the statute of frauds, and the doctrine of this court that exceptions will not be engrafted on it? The cases cited with reference to the dedication of public highways have no application. An easement is an interest in land and cannot be granted by parol. 2 Wash, on Real Prop. 27 and 28.</p> <p>2. There is no sufficient proof of adverse holding or use, and certainly not for the length of time required to acquire the interest by limitation. The proof shows continued and adverse holding on the part of defendants, and not on the part of complainants.</p> <p>3. The equitable doctrine that where one sells land to another he impliedly grants a way over his other land, if necessary to have access to the granted land, has no application here, because the granted lot fronts on Washington street and the right of way is not essential or necessary to its enjoyment.</p> <p>4. There is no force in the position of counsel that Emanuel, in the use of lot 93, passed over lot 91 and thereby fixed a servitude on the latter. He was the owner of both lots. Besides, the proof is insufficient on this point, and there is no allegation of the fact in the bill.</p> <p>5. Complainants wholly fail to show any contract right, and. they also fail to establish a claim by adverse holding.</p> <p>If a right of way ever existed, defendants had no notice of it,, by record or otherwise, and they are innocent purchasers.</p> <p>The complainants’ testimony shows permissive holding on the: part of defendants.</p> <p>We ask for a reversal and a decree here dismissing the bill.</p> <p>1. While Emanuel was the owner of both lots, he burdened number 91 with an easement in favor of 93. This burden, by the use of' 91, was open, notorious, visible, and obvious. When he conveyed 93 to Duff, Green & Co., they took it with the easement in the' other lot, and this was recognized by all the parties.</p> <p>Where the owner of land makes one part of it subservient tO' another by an alteration, which is obvious and permanent, and then conveys one of the parts, his grantee takes such part benefited, or burdened, as the case may be, by the easement which the alteration created. Kelly v. Dunning, 10 At. Bep. (N. J.j 276.</p> <p>The usage subsequent to the conveyance b)r Emanuel and the-conduct of all the parties shows conclusively the construction placed on the conveyance, and that the easement existed. TI. S. v. Apple-gate, 1 Sumner 492.'</p> <p>2. Prior to the purchase by Duff, Green & Co., Emanuel, wlioi • was owner of both lots, subtracted an easement from lot 91, which he added to 93. When he conveyed these lots, this fact was open,, notorious, visible, and obvious, and was well known to both purchasers.</p> <p>There was no restriction in the deed to Duff, Green & Co., and they took the easement just as if it had been specified.</p> <p>Especially 'is this true, as the purchasers of the other lot knew of the existence of the easement and assented to such a construction, of the conveyance.</p> <p>We, therefore^ have an easement by implied grant.</p> <p>3. If the court is of opinion that there is no written conveyance' of the easement in the deeds referred to, then we contend, nevertheless, that the evidence conclusively shows that such a right did exist, and the court, after the great lapse of time, will presume that, a written grant was made and has been lost or destroyed.</p> <p>4. The evidence of a parol easement is overwhelming.</p> <p>If it is held that there is no written grant, and the court will not presume one, on the fads the decree is right any way.</p> <p>That a deed or writing is not necessary to the creation of a valid easement, see 1 How. (Miss.) 379; 55 Miss. 613; 2 Wash. B. Prop. 306-319; 2 Dill, on Mu. Cor., § 494.</p> <p>5. If wrong in all these propositions, then we claim that we have shown such possession as the law requires in case of ease-ments, continued for ten years under a claim of right, and that we have acquired a title by prescription. Ryan v. Ry. Co., 62 Miss. 162.</p> <p>6. Defendants are not innocent purchasers. The construction of the two buildings, the alley way, the arches, and the absence of doors in the building on the corner lot and other things distinctly visible, were sufficient to have put the parties on inquiry, and constituted notice of the easement. 2 Pom. Eq., § 600, note; Bandelin v. Baxter, 44 Am. B. 165.</p>

Hon. Baxter McFarland, Chancellor. Bill for specific performance of contract of sale of land. Wm. Perry sold the land in question to A. J. McLain in 1882, taking therefor five installment notes and giving to McLain bis bond for title, conditioned to make deed upon payment of the notes. During the years 1883 and 1884 McLain made payments on the notes sufficient to discharge the first note and pay a small amount on the second.

Hon. Look E. Houston, Judge. The agreed statement of facts in this case shows as follows: “Plaintiffs, Evans & Bright, recovered a judgment for three hundred and four dollars and eighty-four cents against Geo. L. Carroll, and had execution issued and levied on Geo. L. Carroll’s interest in a stock of fancy groceries in Aberdeen, in a store owned by Henley & Carroll. The firm was composed of C. A. Henley and Mrs. B. Carroll, wife of the defendant, Geo. L. Carroll.

From the circuit court of Union county. Hon. W. S. Featherston, Judge. Appeal from judgment sustaining a demurrer to a declai’ation. The opinion states the case. The declaration states that the injury was caused by the negligence of the defendant, and that was sufficient.

<p>From the circuit court of Jackson county.</p> <p>Hon. S. H. Terral, Judge.</p> <p>On April 27, 1888, appellant, E. B. Smith, sued out an attachment in the court below against Louis Cromer, which was executed by levying upon the schooner “ Robert Delmas,” and a partial cargo of charcoal, and by summoning several persons as garnishees. Afterward the property was released, the plaintiff failing to give an indemnifying bond. On May 30, 1888, plaintiff filed his declaration in the case, containing three counts, based on the following instrument:</p> <p>“$365.74. “ Moss Point, Miss., April 16, 188S.</p> <p>“ Received on board schooner ‘ Robert Delmas,’ from E. B. Smith, two thousand two hundred and twenty-four barrels of charcoal, for which I promise to pay to the order of John J. Driscoli,, at New Orleans, the sum of three hundred and sixty-five dollars and seventy-four cents.</p> <p>“ New Orleans, La. “ Louis Cromer.”</p> <p>In the first and second counts it was alleged that Louis Cromer,. Dora Cromer, Sophie Cromer, Christian Cromer, Elizabeth Brights, and Fritz Cromer, were the owners of the schooner “ Robert Delmas,” engaged in the business of running the same .and buying and selling cargoes, and that Louis Cromer was master of said schooner, and that the instrument in suit was executed by him for said “ firm,” for a lot of charcoal received of plaintiff. The third count alleged that “ said firm of Louis Cromer ” was indebted to plaintiff in the sum of three hundred and sixty-five dollars and •seventy-four cents, for goods sold, etc.</p> <p>Afterward the declaration was amended so as to 'make the suit •one in the name of John J. Driscoli for the use of E. B. Smith, the real party in interest.</p> <p>Judgment by default was entered sustaining the attachment issue.</p> <p>The defendant, Louis Cromer, pleaded in abatement that the -debt was not due when the suit was instituted.</p> <p>The other defendants also appeared and pleaded to the action as follows: 1. Non est factum. 2. Denying their partnership liability. 3. The general issue.</p> <p>On the trial it was shown that Louis Cromer was master of the schooner, and gave the instrument in suit to plaintiff for a cargo of charcoal which he expected to carry from the Pascogoula river to New Orleans, and that the schooner was owned by all the defendants jointly. It was also shown that Driscoli had no interest in the debt, and that it was owned by Smith, the plaintiff, who had made demand for payment before suit.</p> <p>The following is an extract from the bill of exceptions relating to the testimony of the plaintiff: “ The court allowed witness to testify that Louis Cromer was acting as master of said schooner with the consent and approval of all the other owners, and refused to allow plaintiff to show that any one else was liable for the debt sued on except Louis Cromer, for the reason that the attachment writ had only been sued out against Louis Cromer.”</p> <p>To this the plaintiff excepted.</p> <p>It was shown the schooner was wrecked, and that the charcoal was being transferred to another vessel'to betaken to New Orleans, when the attachment was sued out; that the charcoal was to be paid for by defendant when he sold it in New Orleans, and that no demand for payment had been made in New Orleans.</p> <p>The court refused several instructions asked for on behalf of plaintiff, and as to all the defendants except Louis Cromer in.structed the jury to find for them, because they were not included in the attachment writ. Then, as to the other defendant, the following instruction was given : “ As it clearly appears from the ■ evidence that a bill of exchange for the debt sued on was given, payable to John J. Driscoli, at New Orleans, La., and that.no demand was ever legally made for the payment of the bill of exchange by any person entitled or authorized to make such demand, the jury will find for the defendant, Louis Cromer.”</p> <p>Plaintiff excepted to the action of the court on the instructions.</p> <p>From a judgment in favor of all the defendants, the plaintiff .appeals.</p> <p>1. The testimony shows that all the defendants were owners of the schooner at the time the debt was contracted by Louis Cromer, the master of the vessel. This made them all liable. Desty’s Shipping and Admiralty (Ed. 1879), §§ 38 and 116. The suit is against the firm of “ Louis Cromer.” The court, therefore, erred in holding that it could be shown that only one defendant was liable for the debt. •</p> <p>2. The proof shows that a proper demand was made for the payment of the debt before suit brought. Demand in New Orleans was unnecessary.</p> <p>3. There had been sufficient time for the schooner to make the •■trip to New Orleans before suit, and hence the debt was due. Bandall v. Johnson, 59 Miss. 317.</p> <p>1. The attachment was sued out against Louis Cromer individually. The other defendants deny any partnership liability, deny making the instrument sued on, and deny indebtedness to the plaintiff. No evidence was offered going to show that they were liable for the debt.</p> <p>The declaration counts od the instrument given by Louis Cromer, and on an open account for the same amount. But this-does not change the case, for each count relates to the same debt.</p> <p>2. The plaintiff never made any legal demand for the payment of the bill of exchange. But he attached the cargo of charcoal before it could be gotten to New Orleans, and thus by his own act prevented the defendant from realizing on the charcoal, except a small amount. The instructions were correct.</p>

From the circuit court of Oktibbeha county. Hon. Logic E. Houston, Judge. The case is stated in the opinion of the court. 1. It was not necessary that the authorization of Carothers, the agent, should be in writing. See Tenn. statute of frauds, code of Tenn., 1884, § 2423 and note.

From the circuit court of Tishomingo county. Hon. Lock E. Houston, Judge. The opinion states the case. Counsel for the respective parties filed briefs, discussing various questions in respect to the title to the land in suit, as controverted below. But, as the court, of its own motion, reverses the judgment on a question of pleading alone, the briefs are not given.

Aureal from the circuit court of Clay county. Judge W. M. Rogers presided upon the trial of the cause on the merits. Judge Look E. Houston presided upon the application for attorney’s fee. The appellants sued out attachment in the circuit court of Clay county against one O’Flinu, and caused garnishment to be served on appellee Brogan.

<p>Appeal from the circuit court of Clay county.</p> <p>Hon. Look E. Houston, Judge.</p> <p>The facts are stated in the opinion.</p> <p>We submit that the true rule should be, in all these cases, to exclude the allowance of attorneys’ fees as an element of actual damages, and that such fees should only be allowed as vindictive or exemplary damages except when specially provided for by statute. Waples’ Attach. 452, 453 ; Oelrichs v. Spain, 15 Wall. 211; Turner v. Miller, 42 Tex. 418; Stauffer v. Garrison, 61 Miss. 67 ; Cowden v. Lochridge, 60 lb. 385 ; Brinher v. Beinhauf, 64 lb. 240.</p> <p>Attorneys’ fees are allowed, of course, on injunction bonds in this court only by the rule sta.re decisis. In all other cases of statutory bonds they are disallowed except in oases proper for punitive damages. If fees are not allowed on bonds where the obligors contract to pay actual damages, certainly the court will not allow them as an element'of cost or by way of costs, unless the statute had by express language so provided.</p> <p>The “ additional compensation ” “ in exceptional cases ” is allowed the garnishee by the court “ for his attendance.” See code, §2448.</p> <p>This is to cover any additional expense to mileage he has incurred in going to and from court. The compensation is recoverable in the nature of costs and is to be taxed in the bill of costs. In ordinary cases the statute fixes the costs. In exceptional cases the court fixes the allowance. In all cases of damages arising out of tort the right to trial by’jury is guaranteed by the constitution. The party affected can only waive this right by and with the consent of the court. Code, § 1705.</p> <p>Counsel for the garnishee have furnished several authorities from other states in which a small fee was allowed the garnishee to pay counsel fees for the preparation of an answer; or to see that the proper order discharging him has been entered. This was under statutes which permitted such fees, and the allowance was not limited, as it is in our state, to compensation “ for attendance.”</p> <p>We do not think our statute contemplates an allowance for preparation of the answer, as the code prescribes a form for an answer and requires the officer executing the process to give the garnishee a written form of the answer lie is to make. Code, § 2443.</p> <p>Certainly the most appellee can claim is a small fee for the preparation of his answer, or for having a proper order of discharge. ¥e find no authorities that go beyond this.</p> <p>The same question is presented in the case of A. Senior efe Sons vi Brogan, appealed from the same court, and to be decided at this term.</p> <p>No bill of exceptions was taken, and it, is to be presumed that the allowance was right, if under any circumstances the court had the power or discretion to make the allowance.</p> <p>The prompt garnishee is allowed by the code the pay and mileage of a juror, “ and in exceptional cases rendering it proper the. court may allow the garnishee reasonable compensation, additional to the foregoing and to be obtained in the same way.” This mode of obtaining it is out of the debt or effects in his possession, or if he has no debt or effect, then “ against the plaintiff in attachment.”</p> <p>Even if there had been a bill of exceptions the allowance is discretionary with the court, and it is not properly subject to review. It is allowable without the intervention of a jury, and the judgment recites on its face that it is, in the words of the statute, “ a reasonable allowance,” and that- this is a“ proper case” in which to allow it. Johnston v. Blanks, 68 Tex. 495; Hawkins v. Graham, 128 Mass. 20; Waples Attach. 385, 386, 387; Mattingly v. Boyd, 20 How. 128, 133; O’Reilly v. Oleary, 8 Mo. App. 186; Griffiths v. Stackmuller, 14 Phila. 236; Vandusen v. Schrader, lb. 132; McKeloy and Sterreti’s Appeal, 108 Pa. St. 615.</p>

Hon. C. H. Campbell, Judge. Appellant was indicted and tried for murder. He was convicted of manslaughter, and appeals. The opinion of the court is confined to the consideration of the single instruction set out therein.

Hon. Lock E. Houston, Judge. • Appellant was indicted and convicted upon a charge of assault and battery with intent to kill.

Hon. Look E. Houston, Judge. Appellants were tried and convicted before a justice of the peace upon an affidavit charging a violation of § 2770 of code 1880, in reference to the use of profane, vulgar, and indecent language near the dwelling-house of another, and in the presence or hearing of the family of the occupant.

<p>1. Practice. Hutting witness under rule. Sight of party to be present.</p> <p>The rule authorizing witnesses to be excluded from hearing the testimony of others, does not apply to parties to the cause. If a party proposes to testify in his own behalf, the extent of the court’s power is to require himi first introduced. In case of joint claimants, it is error to exclude one while: the other is testifying. It is the right of both to be present during the entire trial. French v. Sale, 63 Miss. 386, cited.</p> <p>2. Fraud. Evidence of other transfers about same time.</p> <p>In case of an alleged fraudulent transfer, evidence of what the grantor did at or about the time of mating it is admissible. It is not essential that the acts should be contemporaneous with the one under investigation. If they' are so closely related in time, before or after, that the intent governing in the one transaction may fairly be inferred to be the intent which controlled in the other, the evidence is competent.</p> <p>3. Same. Question for jury.</p> <p>If the intervening time is short, it is not for the court, as matter of law, to say that the one act does not shed light on the other. It is for the jury, in the light of all the competent evidence, to pass upon the question of the motive in making the transfer.</p> <p>4. Fraud. Claimant’s issue. Grantor’s insolvency.</p> <p>On the trial of a claimant’s issue, in such case, as the fraud of the grantor is a fact necessary to be proved by an attacking creditor, it is permissible to show that the debtor, at the time of making the transfer, owed more than the value of all his visible property subject to execution; and this, whether the purchaser knew of such debts or not.</p> <p>5. Peremptory Instruction. IIHien improper.</p> <p>Peremptory instruction to find a certain way is improper unless the court, • on the evidence, would set aside a contrary verdict.</p>

From the circuit court of Hinds county, second district. Hon. T. J. Wharton did not preside in this case. D. S. Fearing-, Esq., acted as judge pro hac vice. The opinion sufficiently states the facts. The court below instructed the jury to find for defendants, and judgment was entered accordingly, from which plaintiff appealed. 1. There was conflicting evidence, aud the case should have been submitted to the jury under proper instructions. 2.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. The opinion states the case. Section 1177 of the code is applicable to other business as well as farming, and the words, “or any of her means,” are not to be restricted to things of the same character as those enumerated in the preceding part of the section.

Hon. T. B. Graham, Chancellor. The bill in this cause was filed by Mary A. Stewart, Kittie A. Jeffries, and Mary V. Stewart, seeking to enjoin the appellee, Frances A. Jeffries, from selling under execution certain lands which the latter had levied upon under a judgment against Mary A. Stewart.

<p>From the chancery court of Coahoma county.</p> <p>Hon. W. E. Trigg, Chancellor.</p> <p>This was a bill filed by appellant, Alcorn, to enjoin the appellee, Sadler, from digging a large ditch to drain a lake or body of water situated partly on his land but mainly on the land,of Alcorn. The material facts -deemed necessary to be stated, in so far as they are admitted, or are established by the evidence, are these : Alcorn and Sadler are adjacent owners of large bodies of valuable land situated in Coahoma county, devoted principally to agriculture. Alcorn purchased his land about twenty-five years before the commencement of this suit, Sadler at that time being the owner of his tract. Near the centre of Alcorn’s land is a natural depression, which forms the bed of a shallow lake, or, it may be termed, a cypress brake, which is in the shape of a horse shoe, about three miles long, and, on an average, about four hundred yards wide, covering an area of about five hundred and twenty acres, about four hundred and ninety acres being on Alcorn’s land, and the remainder, near the northern end, being on the land of Sadler. About the centre of this brake (on Alcorn’s land) is a body of water, covering several acres, which at lowest water is from five to eight feet deep, and is devoid of timber, the body of the brake being thickly studded with cypress trees and generally covered with very shallow water. The only outlet from this brake is near the southern end, on Alcorn’s land, through a small but well defined bayou, called Sheps bayou, which runs a long distance through Alcorn’s land and empties into another bayou. This body of water is an accumulation of surface water which comes down from the adjacent lands, including the land of Sadler. It has never been dry, and Alcorn claims that it is a natural and well defined lake, while Sadler claims that it is only a marshy place, covered in rainy weather with surface water, most of which comes from his land. This body of water is delineated as a lake on a map of Coahoma county, made in 1872, that was introduced in evidence, but is marked “ cypress,” aud is not expressly designated as a lake. On Hardie’s official map of Mississippi, antedating the former, it also appears to be represented as a lake. Appellant, Alcorn, resided on his land and used the water in this lake or body of water, and that passing through Sheps bayou, when running, for his stock and other purposes. About 1867 or 1868 he conceived the idea of utilizing the numberless valuable cypress trees that filled the brake, and, as the water, outside of the deeper basin, was too shallow to float logs, he built a dam across Sheps bayou, near its mouth, the effect of which was to increase the depth of the water in the brake. It also increased the submerged areas, banking the water further up on the surrounding land, including that of Sadler. Appellant then erected and equipped, at considerable expense, a large milling establishment, and immediately began felling the cypress trees and floating them down to his mill to be converted into lumber, shingles, etc. Each year he confined the waters by means of his dam for a sufficient time and to a sufficient depth to enable him to float the requisite amount of timber to his mills for consumption, and then, by means of flood-gates, he would release the surplus waters through Sheps bayou. The mill was burned in 1872 or 1873, but it was immediately rebuilt and equipped without causing any material interruption of this use of the water. In this way appellant continued to back the water up on Sadler’s land each year from the time the dam was built, about the year 1867 or 1868. There is a conflict in the evidence as to the time it was completed, appellant claiming that it had been built more than twenty years before this suit was commenced, and appellee denying this.</p> <p>In April, 1888, Sadler began digging a large ditch across and through his own land, for the purpose of draining all the water off the fraction owned by him, both the water that would stand there naturally, if any, and that which is caused by appellant’s dam when closed.</p> <p>On April 17,1888, appellant, Alcorn, filed the bill in this case to enjoin the cutting of the ditch. In his original and amended bills he alleges the foregoing facts as to the location of the alleged lake, his erection of the dam, and his use of the water for more than twenty years. In addition to this, he alleges thatj owing to the conformation of the surrounding lands, his large and valuable plantations are naturally protected from overflows of the Mississippi river, and that the proposed ditch or canal leading into a deep bayou would soon wash out and become an immense crevasse, and that the defendant would in this way not only destroy the lake and his natural water-course through Sheps bayou, but in case of overflow would let, in on complainant’s lands the flood waters of the Mississippi river, to his very great damage. It was further alleged that the proposed ditch would not only let off the water that was backed up on defendant’s land by the dam, but would destroy the lake or body of water entirely, and thus render valueless the extensive milling establishment of complainant, besides depriving him of the use of the water for other purposes. Complainant also asserted that he had acquired an easement by an uninterrupted use of more than twenty years in backing the water up on defendant’s land; and further, that defendant, after the long lapse of time, knowing of the erection of the mills and other improvements and the use of the water by complainant, was estopped to question his right so to use it.</p> <p>The answer of the defendant, filed May 14, 1888, denies many of the material allegations of the bill; denies the existence of the alleged lake, and avers that naturally it was only an accumulation of surface water that gathered there in the rainy season; explicitly denies that any such natural lake extends to the land of defendant, and says that but for the wrongful act of the complainant in erecting the dam across the natural outlet, defendant’s land would be free from water the greater portion of the year; denies that the cutting of the ditch would interfere with the water as it would exist but for the dam, and avers that even with the dam the whole of defendant’s land is often entirely free from water; denies that the dam had been built more than twenty years, and asserts that defendant never had any knowledge that complainant claimed any easement or right to back the water up on his (defendant’s) land; avers that he did not know until 1871 that any part of his land was being flooded, and that he then informed complainant that he intended to drain his land for pasturage, and that Alcorn did not object and did not claim any easement. The answer also denies that Coahoma county is subject to overflow by the Mississippi river, and says that it is protected by levees; denies that complainant’s land is protected by a natural ridge or elevation, and denies that the opening of the ditch would cause a crevasse, or that any of the complainant’s rights would be affected thereby.</p> <p>On filing his answer, the defendant made a motion to dissolve the injunction on bill, answer and affidavits, and the affidavits of a number of witnesses were read on behalf of each party on the hearing of the motion. The motion was sustained and the injunction was dissolved in advance of a hearing, and before the expiration of the time allowed for taking testimony. From the decree dissolving the injunction, the complainant appeals.</p> <p>The testimony was conflicting as to many of the controverted questions above stated. As this court only passes upon one question of fact, and that only to the extent of declaring that the evidence tends to establish the proposition stated in the opinion, without adjudicating anything, except that the injunction should have been retained until further investigation, it is not deemed necessary to set out the evidence, or to make any further statement of the facts.</p> <p>1. The water on appellant’s land has formed a well marked basin, and has become permanently settled. The bed of the lake has always been covered with water, as far as the memory of the oldest witnesses extends. There is a vast difference between the right the owner has to direct the flow of mere surface water squandering over the face of the earth, and in water after it has lost its casual character and assumed definite, regular and permanent form. The water rights of appellant in this case are not based upon the recent creations of new-born rivulets, “ a mere child of the passing storm and destined to vanish in the night.” They are of definite form and stable character. Such a body of water is recognized by the law and protected by it. Goddard on Easements, pages 70, 240, 241; Gould on Waters, §§ 79, 83; Mohr v. Gault, 10 Wis. 513 ; Buclclen v. Truell, 54 N. H. 122 ; Schaefer v. Marthaler, 34 Minn. 487. In the line of these authorities is Boyd v. Conklin, 54 Mich. 590.</p> <p>2. Sheps bayou, the natural outlet of this body of water, is a stream or water-course, which cannot be interrupted or diverted. Earle v. DeHart, 12 N. J. Eq. 280; Wasburn on Easements, pages 308-314; Gould on Waters, § 41; Ferris v. Wellbourn, 64 Miss. 29 ; Angelí on Water-Courses, § 108 ; Goddard on Easements, p. 241.</p> <p>If the natural outlet be obstructed, the right of appellee, if he has any still remaining, must be directed, if at all, to the removal of the obstruction. Mohr v. Gault, 10 Wis. 513; Bennett v. Murtough, 20 Minn. 151; Railway Co. v. Dyche, 31 Kans. 120.</p> <p>3. The appellee, in the motion to dissolve, bears the burden, and must prove to the satisfaction of the court the lack of all equity in complainant’s bill. High on Inj., §§ 1467, 1470. So far from this, the evidence is conflicting, and the most that can be said is that the questions are in doubt. For this reason alone, the injunction should have been retained. Ib., § 1510.</p> <p>The injunction should be continued until a full hearing on the merits. If complainant is right, the dissolution will cause irreparable injury to him; whereas, if the statements of appellee are true throughout, he will not be prejudiced by a continuance of the injunction to the hearing, as his damages will be a mere moneyed demand protected by the injunction bond. High on Inj., §§ 1491, 1509, 1512, 1524.</p> <p>4. In any view of the case, appellant is entitled to a modification of the decree of dissolution, to the extent of requiring that the appellee in digging the ditch shall preserve, without diminution, the water in the lake at its normal height when not confined by appellant’s dam, and so as not to interfere with the natural flow of the water through Sheps bayou.</p> <p>So far as mere surface water, outside of and distinct from the lake, is concerned, there is no controversy. Appellant does not complain that the digging of the ditch by appellee will cause the loss of surface tauter that otherwise would flow into the reservoir, but that its certain effect will be to destroy the lahe itself. Bearing this distinction in mind, we deem it unnecessary to consider the authorities cited by opposing counsel, which discuss the subject of surface water.</p> <p>(Counsel also made an elaborate argument and cited numerous authorities in the effort to show that appellant had acquired an easement in the land of appellee by the-use of the water, and that the appellee, after remaining silent so long, is estopped to interfere with such use, or to do anything to the prejudice of appellant’s rights in the premises; but, inasmuch as the court does not expressly pass upon these questions, this portion of the brief is omitted by the reporter.)</p> <p>It is plain from the record in this case :</p> <p>1. That Sadler’s land is higher than Alcorn’s.</p> <p>2. That the water in Alcorn’s cypress brake or swamp, when there at all, is but an accumulation of surface water, descending from the higher adjacent lands. In fact, it is but a marsh.</p> <p>3.- That Alcorn, about twenty years ago, constructed a dam on his own land, so as to prevent the natural outflow of this water over his land,, thus backing it up in his brake and on Sadler’s higher land and the higher land of one Bridges.</p> <p>4. Bridges objected, and this compelled Alcorn to buy his land,. less than tioenty years ago. But the water was still backed up on Sadler’s land, he being then, and for several years afterward, absent and not cognizant of the dam.</p> <p>5. Alcorn is in the habit of opening this dam and letting off the water in summer, and closing it again at his pleasure. ,</p> <p>6. The object of constructing this dam was to bank up surface water for his private benefit, and it was to the damage of all. other landowners upon whose land the water was so backed.</p> <p>7. Alcorn asked nobody’s consent to do this, and he acknowledges in his bill in equity that it was, as to the others, a merely lawless trespass which, in a court of conscience, he claims to have become a right by prescription within the memory of man. He wants equity to sanctify his own wrong, and to prevent others from putting their land in condition for proper tilth.</p> <p>8. Sadler, not understanding that such claim would be made, or indisposed to acquiesce in it when made, was cutting a ditch to redeem some of his own land from the overflow resultant from Alcorn’s Avrongful act, Avhen he was enjoined at Alcorn’s suit.</p> <p>9. Alcorn, once each year since he built his dam, has been opening it to let off the water, and closing it again at pleasure, thus committing a fresh trespass every time he closes it.</p> <p>There is a broad distinction betAveen the right to the use of waters of a stream which has a definite channel and banks, and any right to surface water. In the former case the proprietor above cannot unreasonably interfere with the fall, but with his surface water, that which falls generally on his lands from rains and snows, he may do as he pleases for the better tilth of his own land, and no lapse of time gives the loAver proprietor any right to an easement or property in such water. To hold otherwise would be to give the owner of the reservoir proprietorship, in time, of the entire Avater-shed which feeds it. Gould on Waters, §§ 263, 298 ; Angelí on Water-Courses, § 108 et seq.; Wheatley v. Baugh, 25 Pa. St. 531, a very important case, where the court, among other things, says : “ To entitle a stream to the consideration of the law, it is certainly necessary that it be a water-course. Small as it may be, if it have a clear and well-defined channel, it cannot be diverted to the injury of the proprietor below, whether above ground or subterranean; neither can the proprietor below so obstruct such as to throw the water back on his neighbor above. But percolations spread in every direction, and it is impossible to avoid obstructing them without relinquishing the necessary enjoyment of the land.” * * * “ Silence or acquiescence, where one is not being injured, can never deprive him of his rights on the ground of presumption of grant.” To the same effect are the following cases : Woodbent v. Ramsbotham, 11 Exch. 602 ; Ramstron v. Taylor, lb. ■380 ; Walcott v. Gashing, 11 Cush. 195 ; Lather v. Winnisiment, lb. 171; Parks v. Newberryport, 10 Gray 28 ; Qodale v. Tuttle, 29 N. Y. 459; Buffone v. Harris, 5 B. I. 243; Booth v. Driscoll, 20 Conn. 533, which is exactly in point, and where the court says that no advantage can result in such case from long use, as “ each owner has an equal and complete right to the use of his land and to the water which is in it.”</p> <p>In Bawlsley v. Speer, 31 N. J. Law 352, the court says : “ It is not one of the legal rights appertaining to land that the water falling upon it from the clouds shall be discharged over lands contiguous to it. There is no such thing known to the law as the right to any particular flow of surface water.”</p> <p>The only case we find squinting at any right in appellant is Schaefer v. Marthaler, 34 Minn. 487, and in that case there was a dissenting judge, and the case has reference to a lake (not a mere marsh or swamp) partly on the land of both parties to the suit, mutually enjoyed for thirty years, and the case acknowledges there is no authority to sustain it.</p> <p>The general proposition is that the lower lands are necessarily subservient to the higher lands in receiving the surface water flowing down upon them. The lower proprietor may avoid this by all proper means, but he may not bank the water up on the higher lands.</p> <p>The bill does not allege the existence of a water-course, but it, and all the testimony, show that the land was flooded by surface water strictly. Washburn on Easements 279, 280, 465 et seq.; Angelí on Water-Courses, §§ 108, 379 ; Goddard on Easements 134; Gould on Waters 263 ; 9 Am. R. 284 ; 13 lb. 213; 52 lb. 831; 56 lb. 80 ; 58 lb. 220 j 59 lb. 242.</p> <p>Consider the condition of our swamp country. If the court shall announce a rule that the owner of the higher lands — all being swamp — cannot ditch so as to put them in condition for tilth, one man, by a dam, may render worthless many thousands of acres of valuable soil. He may acquire rights by prescription as against men having outlying wild lands, with no knowledge of the dam, who would thereby be prevented from ever putting their lands in cultivation, and without which cultivation their lands might not be worth a dam.</p> <p>It seems all right to appellant to erect a dam and flood his neighbors. By putting it down he can avoid all trouble from the Mississippi river waters. But his patriotism is actively excited as soon as his neighbor tries to avoid the waters he has unjustly backed up on him.</p> <p>In this case there is no lake, but only a marsh, and it is questionable if our ditch harms any one. The testimony as to all the material facts is conflicting, and as the chancellor decided for us, we claim all the presumptions arising from his decision.</p>

Hon. Ealph North, Judge. The appellant, as sheriff of Lauderdale county, acting under a capias from the circuit court of Warren county, which capias was returnable forthwith during the term of court at which it was awarded, arrested a prisoner and took bond for his appearance.

From the circuit court of Coahoma county. Hon. J. H. Wynn, Judge. On December 15, 1887, appellant, McCroy, by a verbal agreement, rented certain land from appellee, Toney, the term of the lease to begin January 1, 1888, and to continue one year. Pursuant to the contract, McCroy went into possession of the land January 2, but on January 8, was forcibly dispossessed of the premises by appellee, who 'leased it to others.

Hon. Warren Cowan, Chancellor The testimony in this case is very voluminous. Some time prior to 1867, H. D. Wilson died testate, giving his property, real and personal, to his widow, Isabella, who was his only heir. Said Isabella qualified as executrix, and as such, on April 25, 1867, recovered judgment in the circuit court of Copiah county for eight hundred and sixty-nine dollars and forty-one cents against R. S. Hartley, administrator of H. J. Wilson deceased.

Hon. J. H. Wynn, Judge. With the exception of the instructions in reference to the measure of damages, the case is sufficiently stated in the opinion. The instructions in reference to the measure of damages, given for the plaintiffs, were as follows : “ 1.

Hon. Ralph North, Judge. Ejectment by appellant, Julia Madden, against the appellee, The Louisville, New Orleans and Texas Railway Co. The defendant’s title to the land in controversy depends upon the validity of certain proceedings by which it was condemned, and under which condemnation proceedings defendant took possession and claims title.

From the circuit court of Warren county. Hon. Ralph North, Judge. This was an action of trespass brought in 1888 against the Louisville, New Orleans and Texas Railway Company by the appellant, Theobold, the owner of a lot of land situated on Levee street iu the city of Vicksburg. The defendant owns and operates a line of railroad extending from Memphis, Tenn., to New Orleans, passing through Vicksburg and over Levee street.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrism an, Judge. Held: and what his objection was, if any, to the payment.

Hon. Warren Cowan, Chancellor. The complainants in this bill, Amos Woodruff, trustee, the German Bank, of Memphis, Tenn., and B. Richmond, are owners and holders of a large number of bonds issued by the levee board of the state of Mississippi, district no. 1. The bonds were issued and negotiated by the said board under the act entitled “ An Act to redeem and protect from overflow from the river Mississippi certain bottom lands herein described,” approved March 17, 1871.

Hon. R. B. Campbell, Special Judge, by consent. The material facts which throw light upon the instructions considered by the court are as follows : Appellee was a passenger upon the train of appellant, and was injured by a- fall while alighting from the train at Burdette Station. According to her own testimony, the train did not come to a full stop at the station, but was moving very slowly when it reached the platform of the station upon which passengers alight.

Hon. J. H. Wynn, Judge, The appellee, B. F. Bigger, shipped from Memphis, Tennessee, over the appellant’s railroad a lot of mules to be delivered at Greenville, Mississippi. This suit was brought by him to recover damages for the injury to one of the mules by having its hoof torn off, by reason of which it was rendered valueless. The proof shows that the mules, two carloads in number, were loaded into two ordinary stock cars at Memphis.

Hon. W. it. Trigg, Chancellor. The facts are stated in the opinion. Held: possibly against the weight of authority. Jones on Liens 577.

<p>1. Steamboat. Mechanic’s lien. Electric light. Jurisdiction of circuit court.</p> <p>A plant for generating electric light on a steamboat is “ material furnished about the erection and construction, alteration or repairs ” of the boat within the meaning of $ 1378, code 1880, in relation to the lien of mechanics; and the circuit court has jurisdiction under this statute to enfore a lien on a . boat for material so furnished and attached to it as a part of the boat,</p> <p>2. Instructions. Contract price. Quantum valebat. Immaterial error.</p> <p>Where a contract is made for the sale of certain articles at a fixed sum, and a portion of the articles are delivered, the seller, though failing to deliver the others, is entitled to recover on a quantum valebat for the articles so delivered, if retained and used by the buyer; and a verdict for the reasonable value of such articles will not be disturbed, even if there are improper instructions for the plaintiff as to the contract price.</p>

From the chancery court of Madison county. Hon. Warren Cowan, Chancellor. One Covington was the pastor of the African Methodist Episcopal Church, at Canton, Mississippi. In 1883 he purchased lumber from the appellant, Priebatsch, to erect a church building on a lot in Canton, used by the church, but owned by one Vh’den. The house was erected for the church, but Covington bought the lumber in his own name.

From the chancery court of Sunflower county. Hon. W. E. Trigg, Chancellor. Appellant Andrews, administrator of the estate of William Eodgers, had in his possession a mule belonging to the estate. After the death of Eodgers, this mule at one time had been in possession of N. T. Jackson, against whom one Smith had recovered judgment in replevin for the possession of the mule.

Hon. Warren Cowan, Chancellor.' The appellants, complainants in the chancery court, exhibited this bill against their mother, Ellen Johns, and Williams & Black. The bill alleges that complainants are minors, except one of them who has just became of age, and that they have not had a guardian; that the land in controversy was originally owned by one Moffett, and was by him conveyed in 1873 to Ellen Johns, in trust for the use of her children.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor. Appellant Robinson is a person non oompos mentis and a nonresident of this state owning lands in Noxubee county. By his guardian and next fri'end, R. C. Patty, he filed the bill in this case April 30, 1886, and obtained an attachment in chancery against the defendant, his sister, who is also anon-resident, but who owns land in said Noxubee county, and the attachment was levied on these lauds.

Appear from the circuit court of Washington county. ITon. J. H. Wynn, Judge. On the 15th April, 1887, defendants purchased from plaintiff’s agent the soda water apparatus, for the value of which this suit was instituted.

From the chancery court of Grenada county. Hon. J. G. Hall, Chancellor. The appellants filed their bill in the chancery court to set aside a sale of land made by the trustee in a deed of trust, alleging, among other reasons for avoiding the sale, that the loan which the trust-deed was given to secure was usurious. Whether the contract was usurious is the only controversy presented in this court.

Hon. J. B. Chrisman, Judge. Iu an action brought in the circuit court of Yazoo county by appellees against Castleberry & Jones, the appellant, a resident of Panola county, was subpoenaed as a witness in behalf of the defendants. He attended several terms, and received from the clerk witness certificates aggregating sixty-six dollars.

Hon. S. H. Terral, Judge. Appellant, Nick Jones, was indicted for assault and battery with intent to kill and murder one Tom Thomas, and upon the trial was convicted of a simple assault. It was shown by the proof that appellant was engaged in a fight with one Lloyd, and that while so engaged Thomas rushed in and participated, as he claims, in the capacity of a peacemaker, but, as the defense claims, in the capacity of a combatant.

From the circuit court of Lafayette county. Hon. W. M. Rogers, Judge. The opinion recites the facts. The first instruction having reference to previous threats was plainly erroneous and misleading, and must have been very prejudicial to defendant. There was no proof of any threats by the accused. The only mention of threats in the case was in the testimony of Brown, who was allowed to tell what the witness Sadler had told him.

Motion in supreme court. Pink and James Lum were convicted of assault and battery in the circuit court of Lincoln county, and after sentence were released on bail under § 2339, code 1880. The bond was in all respects regular, reciting an appeal to the supreme court, and being conditional for the surrender of the parties to receive judgment in case of affirmance. It was approved by the clerk of the circuit court.

Hon. C. H. Campbell, Judge. Upon the trial of this cause defendant objected to the introduction of the note sued on as evidence, because it was payable to W. H. and W. P. West, and indorsed only by W. P. West. Thereupon the court permitted W. P. West'to write the name.of W. H. West, his wife, across the back of the note, and it was then read in evidence in behalf of the plaintiff, who was the owner and holder thereof.

<p>Appeal from the circuit court of Hinds county, first district.</p> <p>Hon. J. B. Chrisman, Judge.</p> <p>This suit was begun by attachment against the appellant, R. C. Terry, alone, returnable to the January term, 1889, of the circuit court of Hinds county, first district, to convene January 7, 1889. The writ of attachment was duly served upon R. C. Terry, and his lands and goods levied upon. The affidavit for attachment recited that the debt of said defendant was not due. The appellant, Mrs. Emma Terry, was not mentioned in the affidavit or writ. On the 2d day of January, 1889, plaintiff filed its declaration in the cause against R. C. Terry and Mrs. Emma Terry, and a summons in the usual form was served on Mrs. Terry the same day. The declaration alleged that the debt sued on, and upon which attachment had been issued against R. C. Terry, was a joint liability of said R. C. Terry and Mrs. Emma Terry. It further appeared from the declaration and exhibits that the debt was not due when the declaration was filed, but would mature at given intervals, beginning January 4, and ending March 4,1889.</p> <p>Both defendants failed to appear, and judgment by default was entered on January 10, 1889, against R. C. Terry, sustaining the attachment, and on the same day judgment for the amount named in the declaration was entered by default against R. C. Terry and Mrs. Emma Terry. This appeal is prosecuted by both of the said defendants, who have joined in giving a supersedeas bond.</p> <p>The declaration was both against the defendant in attachment and "Mrs. Terry, and was filed in and constituted part of the attachment proceedings. It was the only declaration in the suit, and no summons issued on it save for Mrs. Terry. It did not inaugurate an independent suit in assumpsit, but was part of the attachment suit, and, in a measure, dependent upon the result of that proceeding. Had Mrs. Terry been called on to plead to the attachment she might have traversed successfully the affidavit, and never been called upon to defend as to the debt. At all events, she could not be required to plead to the debt until judgment had been rendered against her on the attachment issue. Code 1880, § 2431. She has had no opportunity of tendering issue as to the existence of the grounds of attachment.</p> <p>In addition to the reason that the suit was one in personam, there is an insuperable objection to the maintenance of the writ against Mrs. Terry. None of the debt was due when the declaration was filed, and a considerable part of it did not become due until long after the rendition of the judgment and the adjournment of the court. This appears in the declaration itself.</p> <p>Mrs. Terry has lost no right to object to the judgment because she suffered default. The declaration shows a total absence of a cause of action at the time against Mrs. Terry.</p> <p>The supreme court will, in such cases, make no distinction between judgments by default and those upon issue joined. HaMock Vi Jaudin, 34 Cal. 167. By § 1405, code 1880, the supreme court shall hear and determine all manner of pleas, plaints, motions, causes, controversies civil and criminal, which may be brought before it, and which are cognizable in such court according to the law and constitution of the state. There is no restriction in the constitution upon the power of the court to hear any appeal. A judgment by default only admits the facts alleged in the declaration where they show a cause of action. This declaration shows no cause of action against Mrs. Terry.</p> <p>But the judgment is invalid as to both defendants for another reason. The remedy by attachment is a harsh and summary one, and cannot be extended beyond the terms of the statute. Attachments for debts not due are only authorized in a special class of cases, and in these due proof of the justice of the debt is made a prerequisite to the rendition of judgment by the court. This statute precludes the rendering of a judgment by default as much in an attachment for debts not due as a similar statute does in proceedings for divorce. As the judgment here was by default for debt not due and without proof, it must be reversed. Hopkins v. Grissom, 4 Cush. 143; Rankin v. Dulaney, 43 Miss. 197; Code 1880, § 2459.</p> <p>There is no authority for this proceeding, so far as Mrs. Terry is concerned. Our statute authorizes an attachment as ancillary to a suit in personam, but not a suit in personam as ancillary to an attachment. The affidavit did not aver a joint indebtedness. In this the case is different from Smith v. Cromer, ante 157. In that case the defendants, who were not embraced by name in the attachment, appeared and plead to the declaration ; and the defendant in attachment was liable at all events and the plaintiff offered to prove that the other defendants were his partners, doing business with him under his individual name. Here there was no waiver by appearance, no averment of joint liability or partnership, and no proof of the justice of the claim. The judgment is certainly erroneous as to Mrs. Terry, and should be reversed as to Terry, because there was no proof of the justice of the debt.</p> <p>Where several persons are liable for the same debt, the creditor may proceed by attachment against any one or more of them in relation to whom any ground of attachment exists without so proceeding against the others. Drake on Attach., 5th ed., § 37, a; Chittenden v. Hobbs, 9 Iowa 417 ; Austin v. Burgett, 10 Iowa 302; 6 Iowa 54. Under these authorities it was not proper or necessary to join Mrs. Terry in the attachment proceedings. As there were no grounds for attachment against her, plaintiff could allege none; but this did not deprive plaintiff of the right to attach the joint debtor, who had laid himself liable. Mrs. Terry cannot complain of our attaching the joint debtor. The fact that the creditor attached his property and prevented his putting it out of the way, and thus forcing him to pay his portion, at least, of their joint debt, should be a matter of congratulation rather than subject of complaint on her part. The code, § 2431, has no application, so far as she is concerned. No judgment on the attachment issue was taken against her, and she cannot be heard to complain that the property of the joint debtor was attached and held for the debt.</p> <p>The declaration alleged that they both jointly and severally owe the debt, and asks judgment against both. She was duly summoned, and thus had full notice of what was demanded of her. She did not even plead that the suit was prematurely brought, but allowed judgment to go.</p> <p>No proof of the debt was required. The evidences of debt were filed, the note and the sworn accounts. By making default, defendants confess the allegations of the declaration ; that is, they confess the legal effect of the instrument sued on, and no proof is needed at the trial.</p> <p>Objection to the want of a bill of particulars or document or contract sued on must be made in the lower court, and cannot be availed of for the first time on appeal. Tierney v. Duffy, 59 Miss. 364; 7 How. 371; 4 How. 293 ; 64 Miss. 38.</p> <p>Section 2459, code 1880, does not, in such cases as this, require “ due proof of the justice of the debt.” It has reference to a case where there is a contest as to the debt on the attachment issue. Besides, it is presumed that the lower court had all the proof necessary before rendering judgment. There is no bill of exceptions nor anything else in the record to show that the proof did not justify the judgment. 2 Geo. 119, 578, 704, 587 ; 10 Geo. 784; 4 How. 293; 64 Miss. 38.</p> <p>If a defendant permits judgment by default, it is per se an admission of a cause of action, though the declaration should not show it, by failing to aver the existence of a fact essential to defendants’ liability, which, however, he might waive. Having failed to plead or demur, he cannot gainsay the judgment. 2 How. 727, 902; W. 334; 12 S. & M. 550.</p> <p>If it be urged in behalf of Mrs. Terry that the debt was not due, we say that this objection should have been made by proper plea or motion for non-suit. Such objection cannot be urged here for the first time.</p> <p>The statute provides for suing on a debt not due in attachment. Mrs. Terry and her husband were joint debtors. We have seen that one of such may be attached and the others not; and this rule is not confined to cases where the debt is due. If so, a solvent debtor could fraudulently dispose of his property with impunity, and leave the creditor, after the debt is due, to his recourse against insolvent debtors, one, perhaps, honestly insolvent, and the other made so by his fraudulent sale before the debt became due.</p> <p>It certainly cannot be claimed that there is error as to R. C. Terry. The affidavit, writ, and service and judgment were regular and in accordance with, § 2459 of code. If the judgment is good as to one appellant, this court will not reverse as to him (Code 1880, § 1440), but will render judgment against him and the sureties on the joint supersedeas bond.</p>

Hon. Warren Cowan, Chancellor. The land in controversy was sold in 1886, under a decree of the chancery court of Madison county, rendered January 21, 1886¡ The land was sold in tracts exceeding a hundred and sixty acres, and the sale was, therefore, in violation of § 18, art. xii, of the constitution, which is as follows : “ All lands sold' in pursuance of decree of courts or execution shall be divided into tracts, not to exceed one hundred and sixty acres.” The appellees…

Hon. George Winston, Judge. At the time when the appellant was seen with the pistol concealed he was twelve or fourteen miles from his home, in the same county, and was in pursuit of his daughter, a girl twelve or thirteen years old, who had either run away or been abducted from home; He was in company with a neighbor, whose daughter was likewise missing, and who was aiding in the search and pursuit.

From the circuit court of Washington county. Hon. J. H. Wynn, Judge. This was an action of ejectment brought by the appellee, Ferguson, May 27, 1887, to recover possession of ten acres of land. The suit was based upon a tax-deed, executed March 2, 1885. The appellant, Richard Price, a minor, about fourteen years of age, by his guardian ad litem, was admitted to defend as owner of the land.

From the chancery court of Madison county. Hon. Warren Cowan, Chancellor. In 1869 L. A. Smith died in Madison county intestate, leaving a widow and two children, the elder, L. A. Smith, being about two years old. He left no estate for administration, and only some exempt personalty.

From the circuit court of Grenada county. Hon. C. H. Campbell, Judge. Winter owed Hughes a debt of fifteen hundred dollars, secured by trust-deed on certain land. After certain payments had been made there was a difference between the parties as to the true amount due on this indebtedness, Winter claiming that he had made a payment of five hundred dollars, which payment was disputed by Hughes.

From the circuit court of Grenada county. Hon. C. H. Campbell, Judge. This was an action for personal injuries, and resulted in a verdict and judgment for one thousand dollars against the defendant, the railroad company. The injury to plaintiff was caused by a fall sustained by her while alighting from the train at her stopping-place, Garner Station.

From the circuit court of Yalobusha county. Hon. W. M. Eogers, Judge. The facts are stated in the opinion. This is a personal, not a real action. It is not a suit for land, but to recover damages for flooding land. It is not a local action under code 1880, § 1498. Even in the two actions made local by said statute, if the land is in two or more counties, the residence of the defendant, if in one of them, controls.

<p>1. Taxation. Remedy for collection.</p> <p>If the statute which creates a tax provides a special remedy for its collection, such remedy is exclusive, and an ordinary action to recover the tax will not lie, unless it is so expressly provided.</p> <p>2. Sale oit Liquors. Privilege tax, how collected. Code 1880, § 1109.</p> <p>A suit will not lie in behalf of the state to recover the amount of unpaid privilege tax imposed by $ 1109, of the code of 1880, upon retailers, who sell or give away liquors in less quantities than one pint. The summary remedy for its collection by the sheriff, and the penalty provided by said section, must be deemed sufficient to secure the payment of such tax.</p> <p>3. Statutes. Construction thereof. Courts will not supply omissions.</p> <p>It is beyond the power of courts to supply by judicial construction what is palpably omitted in a statute.</p> <p>4. Statutes. General rules of law. State bownd thereby.</p> <p>While the state is not ordinarily bound by a statute, unless expressly named therein, or included by necessary implication, yet there is no good reason for exempting it from the operation of general rules of law, or the fair interpretation of language in statutes.</p>

From the circuit court of Lowndes county. Hon. Lock E. Houston, Judge. The opinion of the court contains a statement of the case. 1, The law required the county contractor to settle with the clerk of the board of supervisors, who is county auditor, and obtain his receipt warrant, to pay the amount due by him into the county treasury, aud he is to pay the money accordingly. On doing this he is entitled to credit. In no other way can he get it. Code 1880, §§ 3158, 3161.

Appeal, from the circuit court of Washington county. Hon. R. B. Campbell presided as special Judge by consent of parties. Appellees, Shafer, Schwartz & Co., sued in this action of assumpsit Henry Dreyfus, Jacob Simon, and Henrietta Hirsch, alleging a partnership between them under the firm-name, H. Dreyfus & Co., and an indebtedness by said firm to plaintiffs.

Hon. Sylvanus Evans, Chancellor. Appellant obtained a decree in the chancery court of Lauderdale county against the appellee, Cameron, for the partition of certain personal property, The decree ordered the defendaut, Cameron, to deliver the personal property in controversy to commissioners, named in the decree, in order that the decree might be executed.

From the circuit court of Leflore county. Hon. C. H. Campbell, Judge. Appellant was indicted for the murder of James Smith, and was convicted of manslaughter. A special venire of thirty jurors was drawn and summoned, but the list of the venire served upon the prisoner with the copy of the indictment contained only twenty-nine names.

Hon. Ralph North, Judge. This was a petition to the circuit court of Warren county by the appellants, to obtain an execution upon a judgment against a defendant after one year from the death of the said defendant.

Hon. T. B. Graham,-Chancellor. The facts sufficiently appear in the opinion. The sale of the land by the executor was made to satisfy a debt for which we insist the evidence shows the separate estate of A. P. Stokes was liable. There is no doubt that the will confers the power to sell for cash or for money and on credit perhaps. Now if he could sell for money, will this court not sustain a sale made for the equivalent of money?

Hon. Warren Cowan, Chancellor. The appellee, Viola B. McLaurin, was engaged in mercantile business in Yazoo City, Mississippi, under the style of McLaurin & Co., and became largely indebted, and, among other creditors, to the appellants. The business was closed by attachments at the suit of various creditors, and the assets proved insufficient to pay her liabilities.

<p>From the chancery court of Noxubee county.</p> <p>Hon. Warren Cowan, Chancellor, presided by interchange.</p> <p>This is an appeal from a decree sustaining a demurrer to a bill, which seeks to enforce a parol agreement to reconvey land ; or, failing in this, to obtain a cancellation of the deed made at the time of the agreement to reconvey, on the ground of fraudulent representations made by the grantee.</p> <p>The material allegations of the bill are in substance as follows : That John W. Cotton, the grandfather of complainants, died in 1867, the owner of certain land, including that involved in this suit; that his widow, the defendant, H. W. Cotton, became administratrix of his estate, and this land was set apart as her dower • that the said John W. Cotton left three children, John A. Cotton, M. J. Cotton, and Mrs. Taylor, the mother of complainants, said John A. Cotton being a minor; that in March, 1868, H. W. Cotton represented to her daughters, Mrs. Taylor and M. J. Cotton, that, as the negroes had been freed, and their brother John ivas quite small and delicate, it might probably be necessary for her to dispose of some land for his maintenance and education, and that, having only a life estate, she could not sell to advantage unless they would first convey to her their interest in the reversion ; that she said she would use the title so obtained only to enable her to support and educate their brother during his minority, promising also that in case she should not be compelled to sell the land during his minority, she would reconvey their interest to them as soon as John should become of age ; that Mrs. Taylor and M. J. Cotton were then young and inexperienced, and relied implicitly on their mother in all matters, and believed these representations, and were thereby induced to execute a deed to her for their interest in the land without any further-consideration; that, without this deed the income of the property of their mother and brother, if properly managed, was amply sufficient to maintain and educate the latter, but this fact was not known to the grantors; that the said representations were made by IT. W. Cotton for the sole purpose of obtaining the title in fee to a two-thirds interest in the lands, and that in securing the deed she practiced an imposition and a fraud on said grantors; that it did not become necessary to sell any part of said land for the support and education of said John A. Cotton, and that he has long since arrived at his majority ; that after he became of age, the said H. W. Cotton was induced to comply with her promises, so far as to reconvey to M. J. Cotton her interest in said land, this being done December 11, 1885; that said H. W. Cotton now holds the interest conveyed to her by Mrs. Taylor, and refuses to reconvey it.</p> <p>The bill is filed by complaiuants, the heirs of Mrs. Taylor now deceased. The prayer is in the alternative for a decree compelling a reconveyance, or for a cancellation of the deed as having been obtained by fraud and imposition.</p> <p>The complainants, declining to amend on demurrer sustained, prosecute this appeal.</p> <p>Considering the relationship that existed between the parties, the representations that were made, and the confidence that the grantors had in Mrs, Cotton, their mother, the demurrer should certainly have been overruled, because, under the facts, appellants were entitled, at least, to cancellation of the deed. It is inequitable for Mrs. Cotton to hold it. Dickerson v. Mays, 60 Miss. 388.</p> <p>It is a principle too well settled .to require citation of authorities that no one shall be permitted to use the statute of frauds in order to perpetrate a fraud.</p> <p>This case is clearly distinguishable from Jordan v. Moore, 65 Miss. 229, cited by opposite counsel. ’Tis true there is no written declaration of trust, but here there was imposition practiced on the grantors by a grantee, who occupied a position of trust and influence. In Jordan v. Moore this court said : “We do not ignore or deny the proposition that a court of chancery will not permit a fraud to be consummated by reliance upon the statute of frauds, as when one takes advantage of a relation of trust or confidence.” Certainly under the reasoning of that case, appellants are entitled either to a reconveyance or cancellation. This is clearly a case of trust ex melefieio, and the statute of frauds does not apply. Pomeroy’s Eq., § 1055.</p> <p>The allegations of fraud are insufficient to justify any relief. As to the promise of Mrs. Cotton to use the land only for the support and education of the minor, and to reconvey to the daughter if the sale did not become necessary, there is no allegation that she did not, at the time she made the promise, intend to carry it out. So far as the allegations of the bill go, the promise was made in good faith. In this view of the case there could be no fraud in the promise to reconvey, unless the failure to carry out a parol agreement of that kind is of itself a fraud. If that is such a fraud as authorizes the court to interfere, the statute of frauds is a nullity. But this court has held that a failure to comply with a verbal agreement to convey land is not such a fraud as authorizes equity to interfere. Jordan v. Moore, 65 Miss. 229.</p> <p>Then the only fraud charged is the representation that it might become necessary to sell some of the land for the education and support of the minor. That was not a statement of fact, but a conjecture of what might become necessary or convenient in the future — a conjecture that appeared reasonable at the time. A fraudulent representation must be of an existing fact, and it should be a statement likely to impose upon one exercising common prudence. Sawyer v. Priokett, 19 Wall. 160.</p> <p>The promise to reconvey is clearly within the statute of frauds. If there had been an allegation that Mrs. Cotton, at the time of making this promise did not intend to carry it out, but made it for the purpose of deceiving and defrauding the grantor, and that it was relied on by the grantor, and the inducement to the conveyance, then it might probably be considered such a fraud as would take the case out of the statute; but the bill contains no such allegation. The fraud must co-exist with the conveyance — must infect it at its execution. Jordan v. Moore is decisive of this case. See, also, Leman v. Whitley, 4 Nuss. 423.</p> <p>The pleader attempted to show that the parties occupied a confidential relation, such as would prohibit the grantee accepting the conveyance; but no such case is made out.</p> <p>It is also alleged that the grantors were of - “ tender years,” yet it appears that the ancestor of complainant, Mrs. Taylor, was over twenty-one years of age and married, and had the protection of her husband, who joined in the deed. We are at a loss to understand what is meant by the term “ tender years,” — -what limit it has, if it applies here.</p>

From the circuit court of Adams county. Hon. Ralph North, Judge. This suit was brought by the appellant upon an indemnifying bond executed by appellees. The goods, for the seizure and detention of which this suit is brought, were seized by the sheriff of Adams county under a writ of attachment in th^suit of the Peters-Calhoun Co. against Mrs. Mary Smokey.

Appear from the circuit court of Madison county. Hon. J. B. Chrisman, Judge. The appellees, E. H. Chase & Co., were creditors of one Richards, a'retail liquor dealer in Canton. Before the payment of the debt Richards made a sale of his entire stock in trade, consisting mainly of liquors, to appellant for the alleged consideration of eleven hundred and twenty-five dollars in cash.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. The facts are stated in the opinion of the court. The court below determined the case adversely to the bank on the theory that Gattman & Co. got no title to the draft, because, being insolvent, it was fraud on their part as against Strauss, to discount the draft. We think this conclusion wrong.

Prom the circuit court of Claiborne county. Hon. Ralph North, Judge. The property in' controversy, eleven bales of cotton, valued at four hundred dollars, was seized by the appellee, J. P. Martin, as constable, under an execution issued by a justice of the peace, directed to him and returnable before the justice. This action of replevin was brought in the circuit court against said officer by the appellants, Bernheimer & Sons, who claim to be owners of the cotton.

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. This suit originated before a justice of the peace. The appellant,. Nethery, sued out an attachment against the appellee, Belden, to-recover an alleged indebtedness of eighty dollars. The writ was served by garnishing a debtor of the defendant, who answered admitting an indebtedness greater than the plaintiff’s demand.

From the chancery court of Chickasaw county, first district. Hon. Baxter McFarland, Chancellor. The conclusion of the chancellor upon the merits having been affirmed in general terms, it is unnecessary to set out the evidence. The facts touching the matters of practice passed upon by the court are sufficiently stated in the opinion. The brief of counsel is chiefly taken up with a discussion of the merits of the cause.

From the circuit court of Lincoln county. Geo. S. Dodds, Esq., presided as special judge by consent. Appellants brought suit in 1882 against appellees I. W. Hoskins & Bro., before one Baggett, a justice of the peace. The defendants were summoned, but the return of the constable was merely that the summons was “ executed.” A judgment by default at the return term was entered against them, which is conceded to have been void because the return failed to show personal service.

<p>1. Sale oe Liquors. Local act for district No. 1, Copiah county, construed. Indictment.</p> <p>Under the act of the legislature approved February 29,1888, entitled “An act to prohibit the sale of intoxicating liquors in supervisor’s district No. 1, Copiah county, state of Mississippi,” it is unnecessary for an indictment to aver that a sale was made in a “ public place,” or “ for the purpose of inducing trade.” These terms apply only to giving away.</p> <p>2. Criminal Law. Evidence of distinct offenses under one'indictment. Prosecution, must elect.</p> <p>Where there are several offenses, for either of which the accused may be-convicted under the indictment, the prosecution should elect the offense which it will pursue, and the testimony should be confined to that offense, unless the case falls within some of the exceptions which render the proof of other distinct offenses admissible.</p> <p>8. Criminal Practice. Proof of several offenses. When prosecution should elect.</p> <p>Justice is best promoted by allowing the prosecution to proceed only far enough to identify one distinct offense, and the evidence should then be restricted to that offense.</p> <p>4. Criminal Intent. When immaterial.</p> <p>When an act is prohibited by law without reference to the intent or purpose with which it is done, the doing of the act is a violation of the law. The intent is immaterial.</p> <p>5. Sale oe Liquors. Knowledge by seller of intoxicating properties not material, when.</p> <p>When the statute makes the selling of intoxicating liquor unlawful, a seller thereof is not protected by his ignorance of the fact that it is intoxicating or his belief to the contrary.</p> <p>6. Same. Unlawful sale, how proven. Prima facie case.</p> <p>Proof of the sale by the defendant, and that the liquor was intoxicating, makes a prima facie case against him, and devolves on him the burden of showing that the liquor was a medicine and not a beverage.</p> <p>7. Unlawful Sale. What are deemed intoxicating liquors.</p> <p>The laws cannot be evaded by selling as a beverage intoxicating liquor containing drugs, bark, or other ingredients that have medicinal qualities > but if these ingredients are medicinal, and the alcohol is used either as a necessary preservative or vehicle for them, and they are sold as a medicine, the sale is lawful. The use to which the compound is ordinarily put, the purposes for which it is usually bought, and its effects on the system are material matters determining the character of the sale.</p>

From the circuit court of Panola county, second district. Hon. W. M. Rogers, Judge. The appellant, Pearson, was convicted for violation of the “local ■option law” in Panola county. The evidence showed that Pearson was the owner of a saloon in Memphis, Tenn., and was accustomed to travel in certain portions of this state, including said county, and solicit orders for whisky, to be shipped in jugs from the saloon in Memphis to the purchasers by express.

From the circuit court of Lee county. Hon. Lock E. Houston, Judge. Appellant, a retail liquor dealer, was convicted of selling liquor to a minor. One Stovall, an adult, requested Beene, a minor, who was passing his home to tell the clerk of appellant to send him a quart of a certain brand of whisky. The minor did as requested, telling the clerk at the time that the whisky was for Stovall.

From the circuit court of Pike county. Hon. J. B. Chrism an, Judge. This was an action of ejectment brought by the appellee on a tax-title acquired from the state. The land was sold to the state in March, 1876, for the delinquent taxes of 1875, and was purchased from the state by the appellee’s vendor.

From the chancery court of the first district of Hinds county. Hon. Warren Cowan, Chancellor.

From the chancery court of Tunica county. Hon. J. G. Hall, Chancellor. The original bill in this cause was filed in 1879 by J. B. Sigman,. appellant, against Tamlin Avent, and all other persons claiming-any interest in the lands in question, and sought to confirm the tax-title of appellant to the same. Publication was made as required in such cases by the statute.

From the circuit court of Pike county. Hon. J. B. Chrisman, Judge. The appellant, Hinson, was convicted of the murder of W. F.. Simmons, and sentenced to life imprisonment. The facts connected with the homicide, so far as it is necessary to-¡state them, were as follows : On the clay of the killing the' appellant came to the store of the deceased, and while near the door,was. requested by the deceased to leave. A short time prior to that Simmons had had a difficulty with Con.

From the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge. At the June term, 1888, of the circuit court, the appellant, on plea of notguilty, was put on trial under an indictment for murder, before a legally constituted jury.

<p>1. Telegraph Companies. Negligence. Liability to sendee.</p> <p>A telegraph company in assuming to transmit and deliver a message assumes a duty not only to the sender hut also to the person to whom it is addressed, and for negligent delay or other breach of duty in reference thereto an action will lie in favor of the sendee, although he has paid nothing for its transmission.</p> <p>2. Negligence oe Telegraph Companies. Statutory penalty.</p> <p>If any telegraph company shall neglect, fail, or refuse to transmit and deliver, within a reasonable time, without good and sufficient excuse, any message delivered to it for such purpose, the person injured shall recover the sum of twenty-five dollars in addition to such damages as are now allowed by law. Acts 1886, p. 91.</p> <p>8. Same. Act of March 18, 1886 ; in whose favor applicable.</p> <p>This statute applies in favor of the sendee as well as the sender of the message.</p>

Erom the circuit court of Clarke county. Hon. S. H. Terral, Judge. This action was brought by appellee against the Baltimore & ■Ohio Express Company for damages sustained because of the negligent failure of said company to promptly forward an article delivered to it for shipment.

From the circuit court of Clay county. Hon. Lock E. Houston, Judge. This is an appeal from a judgment sustaining a demurrer to the declaration of appellant, who was plaintiff in the court below. The action was for damages against the railroad company for personal injuries to the plaintiff. Several pleas were filed, to which a demurrer was interposed. The demurrer was extended to the declaration, and sustained, and the case dismissed.

From the circuit court- of Lauderdale county. Hon. S. H. Terral, Judge. Appellant sued the city of Meridian for damages on account of' an injury received by her in consequence of a defect in the sidewalk of one of the public streets in the city. The declaration contains two counts. In one it was alleged that the city carelessly and negligently graded the streets known as 13th street and 24th avenue, so as to make the place where the injury occurred dangerous.

<p>From the chancery court of Harrison county.</p> <p>Hon. Sylvanus Evans, Chancellor.</p> <p>The facts appear in the opinion.</p> <p>1. The amendment to the bill was repugnant to the former pleadings and not only changes the character of the suit but makes a new one. The original case, as set down for final hearing, involved the validity of the first trust-deed and bonds alone. The amendment presents the issue of the validity also of a second •series of bonds and the trust-deed to secure them. No action was being taken or threatened on the second trust-deed. No breach of its condition had occurred. The beneficiaries in it were passive and did not propose any action relative to it. Appellees were aware of its existence when the original bill was filed, yet they did not enjoin as to that. So the amendment introduces a new case, different from that stated in the original and first amended bills. This cannot be done. Brown v. Bank, 31 Miss. 454; Wright v. Franks, 61 lb. 32; Clark v. Hull, 31 lb. 520; Miazza v. Yerger, 53 lb. 135; Story’s Eq. PL, §§ 885 and 886.</p> <p>2. The amended bill is multifarious. It seeks relief on different grounds against parties between whom there is no privity. Boyd v. Swing, 38 Miss. 182. Complainants do not assert a common right against persons having a community of interest in all •or any of the subject-matter. Roberts v. Starke, 45 Miss. 257 ; MoNeal v. Burton, 1 How. 510. Complainants, as existing creditors, may have a right to attack the second, deed of trust, which would not exist as to the first, they not being creditors at the time of its execution. It is multifarious because, as creditors, appellees are not estopped from attacking either trust-deed because of having participated in the proceeds thereof, while as stockholders they would be estopped by such participation.</p> <p>The matters united in one bill by this amendments are distinct and unconnected equities against different defendants. Columbus Ins. Co. v. Humphries, 64 Miss. 258.</p> <p>3. The'president of the company was authorized to negotiate these loans and borrow the money. He had charge of the business of the company, with knowledge of its directors and members. It is not necessary for us to show a vote or other corporate act authorizing him to act. The company ratified his acts by accepting and using the money. Bank of U.S. v. Dandridge, 12 Wheat. 79 ; Burgess v. Pue, 2 Gill. 254; McCullough v. R. R. Co., 4 Gill. 58; Topping v. Bickford, 4 Allen 120; Angelí & Ames on Corp. 108. It does not make any difference that the bonds were bought by the corporate officers. Man. Co. v. Bradley, 15 Otto 175 and 183 ; Hotel Co. v. Wade, 7 Otto 13.</p> <p>4. Neither creditors nor stockholders are real owners of the •estate of a corporation so as to maintain an áction to remove clouds from title. Code 1880, § 1883.</p> <p>Upon the points presented by this brief counsel submitted the following authorities, not cited above: Cook on Stock and Stockholders 675; Pulían v. R. R. Co., 44 Biss. 35; Story Eq. Jur., § 1539; Zabrinski v. R. R. Co., 23 How. 381; Merchants’ Bank v. State Bank, 10 Wall. 645; Union Mining Co. v. Bank, 2 Col. Ter. 248 ; Taylor v. R. R. Co., 4 Woods (U. S.) 575.</p> <p>1. It will hardly be questioned that the complainants could have embraced both the deeds of trust in their first bill; and, if that be conceded, then why cannot they enlarge the inquiry proposed by the bill as to the first deed of trust, by embracing by way of amendment the second deed of trust ? The law abhors a multiplicity of suits.</p> <p>The main object of the bill by complainants is to reach and subject certain property of the Mexican Gulf Hotel Co. To do this properly they find it necessary to remove certain obstacles that lie in the way. These are the two deeds of trust described in the original bill and the amendment. Complainants, during the progress of the suit, ascertain the existence of the second trust-deed, which embraces apparently the same property, and they seek to amend by including both trust-deeds in one suit as objects of attack.</p> <p>The allowance of the amendment was a matter of discretion, to be used to promote justice. Tanner v. Hicks, 4 S. & M. 294; Truly v. Lane, 7 lb. 332; Pass v. McRae, 36 Miss. 147 ; Hardin v. Boyd, 113 U S. 756 ; Neale v. Neale, 9 Wall. 1.</p> <p>2. The main objects and purposes of the bill and the amendments are the same. Ingraham v. Foote, 31 Ala. 123 ; Larkins v. Biddle, 21 lb. 252.</p> <p>3. The amended bill is not multifarious. It is not necessary that all the defendants should have an interest in- all the matters involved in a suit. It will be sufficient if each party has an interest in some matters in the suit, and they are connected with each other. Story Eq. PI., § 271; Waller v. Shannon, 53 Miss. 500; Taylor v. Smith, 54 Miss. 500; Brown v. Brinkerhoff, 7 Johns. 154; 64 Miss. 711 ; Barry v. Barry, 64 lb. 263.</p> <p>4. Complainants, as stockholders, had the right to file this bill. It is not merely a bill to remove clouds, but a bill to enjoin and cancel two void deeds of trust. As stockholders they had the right to protect the corporate propei’ty.</p> <p>1. The amendment to the bill did not change the nature of the suit, the parties to it or their interests. The relief sought remained the same, viz., the cancellation of incumbrances on the corporate property. New matter in support of the same relief against the same parties was introduced by way of amendment, to avoid multiplicity of suits. Candler v. Pettit, 1 Paige 628; Stafford v. Howard, lb. 201; Greenleaf v. Queen, 1 Pet. 148; Daniels Ch. Pr., vol. 2, 15 and 16.</p> <p>2. The amended bill is not multifarious. We need only cite authorities of our own court. McGowan v. McGowan, 46 Miss. 553; Waller v. Shannon, 53 Miss. 500. No definite rule can be relied on to determine multifariousness. But, under the rules usually applied, the objection does not lie to this amended bill. Every defendant has an interest in’some matters embraced in the suit, and these matters are connected, and also connected with the relief sought.</p>

From the chancery court of Oktibbeha county. Hon. T. B. Graham, Chancellor. The appellees, B. M. & J. M. Brooks, citizens of the state of Georgia, contracted on June 9, 1888, with the appellant company to build and construct for it eleven miles of railroad in this state.

From the chancery court of Washington county. Hon. W. E. Trigg, Chancellor. Bill filed by appellant, Wilczinski, for reformation of a written contract and for an injunction. A preliminary injunction was granted; but on final hearing a decree was entered in favor of defendants, and the- injunction was dissolved, from which decree complainant appealed. The facts are stated in the opinion of the court.

From the circuit court of Wilkinson county. Hon. Ralph North, Judge. Ejectment by appellee against appellants. The land in controversy is described in the declaration as “ The southwest part, part in south part Spanish claim, Sec. 30, Township 1, Range 3 west, containing 261.25 acres.” The plaintiff introduced the list of land sold to the state in 1876 for the taxes of 1875, and the state’s deed to him in 1888. .

From the chancery court of Harrison county. Hon. Sylvanus Evans, Chancellor. Appellant, Margaret Soria, by this bill in chancery alleged that she was the true owner of forty acres of land described in the bill> and sought to cancel as clouds upon her title the claims of defendants, Hunt, Stowe, and Mrs. Eisetter. A pro oonfesso decree was taken against Hunt.

From the chancery court of Tate county. Hon. J. G. Hall, Chancellor. The facts are sufficiently stated in the opinion of the court. Cooper, J., delivered the opinion of the court.

From the circuit court of Harrison county. Hon. S. H. Terral, Judge. In November, 1887, George W. Champlin, an insolvent merchant, executed an assignment of all his stock of goods and assets of every description to the appellee, H. J. Meaut, as assignee, for the benefit of his creditors. The assignment was in the usual form and provided for certain preferences.

Prom the chancery court of Jones county. Hon. T. B. Graham, Chancellor. . Appellees, Bonner and wife, filed the bill in this case to enjoin a sale under a deed of trust executed by them, and for cancellation of the deed. On final hearing the court decreed in favor of complainants, and defendants appealed. The opinion of the court states the facts and the questions of law involved. 1.

<p>1. Deed. Registration. Consideration. Recital of payment. Prima facie true. Innocent purchaser.</p> <p>In a conveyance of land duly recorded the recital of payment of the consideration is to be taken as prima facie true, and the deed itself is competent evidence of such payment. A purchaser from the vendee may rely upon the truth of the recital, and it devolves upon one who questions his title to show that he had notice of facts inconsistent with the statements in the recorded deed.</p> <p>2. Notice. Possession under secret unrecorded deed. Subsequent purchaser not affected, when.</p> <p>Possession of land under an unrecorded deed is equivalent to registration while the possession under it lasts. But a purchaser of the land, where the . record shows a good title, is not bound to look beyond the record to a former occupancy of it under a deed of which he is not shown to have had notice.</p>

From the chancery court of Lowndes county. Hon. T. B. Graham, Chancellor. This is an appeal from a decree dissolving an injunction. Appellant, Davis, bought a piano from the appellee, Hart, in ■October, 1888. The price was four hundred dollars, of which ■amount he paid cash, November 1, 1888, fifty-five dollars, and gave twenty-three notes for fifteen dollars each, one being made payable on the first of each succeeding month until all were settled.

From the chancery court of Yazoo county. Hon. Warren Cowan, Chancellor. E. M. Hogan & Co. owned land in Yazoo county, and on February 15, 1885, they executed a mortgage on the same to appellee, the Union National Bank, of New Orleans, but the mortgage was not filed for record until July 4, 1885.

From the chancery court of the first district of Panola county. Hon. J. G. Hall, Chancellor. D. P. Wall, a citizen of Panola county, died July 8, 1877, the owner of a considerable estate real and personal situated in said county, leaving a widow but no children nor descendants of children surviving him.

<p>From the circuit court of Tunica county.</p> <p>Hon. J. H. Wynn, Judge.</p> <p>The facts are stated in tbe opinion. After the passage of the statute under construction in this cause and under which the appellant was indicted, an act of the legislature was passed and approved March 14, 1888, which was amendatory of the general act of 1884, known as the “railroad supervision bill.” Section - 3 of this act is as follows : “ Every conductor of trains carrying passengers in this state is hereby authorized to assign passengers to any car or to seats in a particular part of any ear on his train; provided, that equal accommodations are given to passengers holding tickets of the same class, and any forcible resistance'to such assignment shall be deemed a breach of the peace.” Acts 1888, p. 46. This is the act and section referred to in the concluding sentence of the opinion.</p> <p>We submit that the enforcement of said act would have the effect to impose a burden upon interstate commerce; that to subject appellant to its provisions is an attempt on the part of the state to regulate interstate commerce, a power belonging exclusively to congress. Constitution U. S. art. i, § 8; Gibbons v. Ogden, 9 Wheat. 1; Passenger Cases, 7 How. 283; Ex parte McNeil, 13 Wall. 236; Case of State Freight Tax, 15 Wall. 232; R. R. Co. v. Fuller, 17 Wall. 560; Henderson v.Mayor of New York, 92 U. S. 259; Chy Fung v. Freeman, lb. 275; R. R. Co. v. Husen, 95 lb. 465; Mobile v. Kimball, 102 lb. 691, 697 ; Brown v. Houston, 114 lb. 622; Walling v. Michigan, 116 lb. 446 ; Pickard v. Pullman Southern Car Co., 117 lb. 534; Wabash Ry. Co. v. Illinois, 118 lb. 557.</p> <p>The statute under which this indictment was found is analogous in its requirements to that of Louisiana, considered by the supreme court of the United States in the case of Hall v. Decuir, 95 U. S. 485. It falls so fully under the denunciation of unconstitutionality as pronounced by the court in said case that we do not feel that we could do more than to refer to that case to show that the act of March 2, 1888, is unconstitutional and void, so far as it affects interstate commerce.</p> <p>Clearly under this decision the defendant had the right to make such reasonable regulations for the disposition of passengers upon its trains while making their trips within this state or without as seemed to it best. The statute in question seeks to take away from the railroad company this right, while in the state of Mississippi.</p> <p>As said in the case of Hall v. Decwir, supra, if the public good requires that the whites and blacks be separated while traveling on railroads in Mississippi that are engaged in the carrying of interstate passengers, such legislation must come from congress.</p> <p>It is just such a case as this that the provision of the constitution aforesaid was intended to meet. Suppose that by the laws of the states of Tennessee and Louisiana, the appellant is forbidden to separate its passengers of the white and colored races, while in Mississippi they are required to separate them, what, inextricable confusion, inconvenience and new burdens upon its interstate passenger business would ensue.</p> <p>In Bobbins v. Shelby Taxing District, 120 U. S. 489, the court says: “ In a word, it may be said that • in the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulations and not to a multitude of systems. The doctrine of the freedom of that commerce, except as regulated by congress, is so firmly established that it is unnecessary to enlarge further upon the subject.” See also Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 204.</p> <p>It cannot be contended with force that the act in question is a police regulation by the state. It does not concern the security of the lives or the health of its people, nor provide safeguards against the introduction of contagion. The only reason for the separation of the passengers is that of their color, which we submit, under the law of the land, is not sufficient.</p> <p>The special plea should have been sustained, the case dismissed and the appellant discharged.</p> <p>By the demurrer the allegations of the special plea are admitted to be true, and among these is the allegation that the law hinders,, delays and obstructs the defendant company in its interstate business, and imposes burdens and restrictions upon it, which hamper and trammels it in such business, and add greatly to the cost of carrying interstate passengers.</p> <p>It will not be denied that to congress belongs the power to regulate commerce among the states. Constitution of U. S., art. I, § 8 ; Stone v. R. R. Co., 62 Miss. 633. It will also not be denied. that transportation of passengers is commerce, and that the carrying of passengers from one state to another is commerce between the states, and that the power to regulate interstate commerce embraces within it all the instrumentalities by which the commerce is carried on, and the means by which it may be aided and enlarged; that transportation by railroads is as much a subject of control by congress as transportation by shipping upon the navigable rivers of the United States, or "upon the high seas.</p> <p>In support of these propositions, we here cite, in addition to the authorities already given in the brief of our associate counsel, the following cases: Clinton Bridge Case, 1 Woolworth 151; R. R. Co. v. Maryland, 21 Wall. 456 ; Peak v. R. R Co., 94 U. S. 164 ; R. R. Co. v- Illinois, 118 lb. 557; Interstate Commerce Act, U. S. Statutes at Large, 1886 and 1887, 379; R. R. Co. v. Dower, 94 U. S. 155 ; Murrn v. Rlinois, lb. 173.</p> <p>The commerce clause of the constitution, as it is called, was fully discussed and passed upon by this court in Slone v. R. R. Co., 62 Miss. 607. In that case this court held that the state had the right to regulate charges for the carriage of freight and passengers in this state over railroads created by the state, and lying wholly within the state.</p> <p>Beginning with the celebrated case of Gibbonsv. Ogden, 9 Wheat. 1, and coming down to Asher v. Texas, 128 U. S. 128, scarcely a term of the supreme court of the United States has passed at which the commerce clause aforesaid has not been under discussion, until now it can, we think, be safely said that the whole ground has been covered. Since the decision by our supreme court in Stone v. R. R. Co., supra, many apparent conflicts in the decisions of the supreme court of the United States on the subject have been reconciled, and points treated by our court as unsettled have been decided adversely to the view then taken by the supreme court of this state. Besides, since then congress has assumed active control of the subject of interstate commerce by positive legislative regulation.</p> <p>Even without this legislation, and in the light of the decisions of the supreme court of the United States and of this state in Stone v. R. R. Co., supra, this act of March 2, 1888, is an invasion of the province of congress, and is void.</p> <p>(Counsel cited and reviewed at length the authorities already cited in the brief of associate counsel for appellant as to the definition, extent, and subjects of regulation of interstate commerce, in support of the doctrine that interstate transportation of passengers is beyond the reach of state legislation.)</p> <p>Another point well settled by the decisions is that the inaction by congress on the subject of interstate commerce is equivalent to a declaration that it shall remain free and untrammeled. Smith v. Alabama, 124 U. S. 473; Robbins v. Shelby Taxing District, 120 U. S. 433; Machine Co. v. Cage, 100 U. S. 276. The above authorities and those listed in the brief of associate counsel settle the following propositions:</p> <p>1. The transportation of passengers from one state to another is a subject national in its character.</p> <p>2. Being national in its character, the power to regulate it rests exclusively with congress.</p> <p>3. The power resting exclusively in congress, the absence of any express exercise of the power by congress must be taken as an indication of the will of congress that it shall remain free and untrammeled.</p> <p>4. Such being the manifest will of congress, any legislation operating on this subject by the state is in contravention of this will and invalid, unless, as was said in Robbins v. Shelby Taxing District, supra, the action of the state relates “ to matters of local concern only.”</p> <p>In determining what are matters of local concern only, the rule is that whenever the statute of a state invades the domain of legislation which belongs exclusively to congress it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to states. The validity of the state law does not depend so-much upon the nature of the power it purports to exercise as upon the subject with which it attempts to deal, and the extent to which it attempts to exercise that power. Henderson v. Mayor of New York, 92 U. S. 271 ; JR. JR. Co. v. Husen, 95 U. S. 471; Sherlock v. Ailing, 93 U. S. 104; Smithy. Alabama, supra; Nashville My. Co. v. Alabama, 128 U. S. 100 ; Kidd y. Pearsons, 128 U. S. 1.</p> <p>But the case that is decisive of the one at bar is Hall v. Decuir, 95 U. S. 485. In that the precise question here involved was presented, with this difference: The instrument of commerce was a steamboat plying the navigable waters and in this case the instrument of commerce is a railway. In that case the races were required to be kept together, in. this ease they are required to be kept separate. In Stone v. M. M. Co., 62 Miss. 607, this court reviewed the case of Hall v. Decuir, and among other things said: “ It may be conceded that a state law requiring railway companies to give equal accommodations on cars going from state to state to all passengers would fall under the condemnation of the decision in Hall v. Decuir.” y</p> <p>In Wabash M.ailway v. Mlinois, 118 U. S., supra, the court said : “ The applicability of the language in Hall v. Decuir to transporation by rail is obvious.”</p> <p>There cannot be one set of rules for Mississippi and another for Louisiana and yet another for Tennessee, applying to the same carrier. “ It is a matter of history that the object of vesting congress with the power to regulate commerce among the states was to insure uniformity of regulation against conflicting and discriminating state legislation.” Walling v. Michigan, 116 U. S. 457; Mobile Co. y. Kimball, 102 U. S. 697.</p> <p>It is admitted that the defendant was engaged in interstate commerce, operating an interstate road. The act of 1888 is therefore invalid so far as it affects the appellant and other interstate roads.</p> <p>The proposition advanced is, in short, that where a corporation is created by the state, primarily for the benefit of her own people, to serve as a common public carrier of freight and passengers, such a corporation is emancipated from state control, in the public interest, the very moment that, by connecting its line of railway with another extending beyond the state limits, it becomes engaged in interstate traffic: that the creature may thus lift itself above its creator. Hall v. JDeeuir is chiefly relied on. But in spite of the fact that congress has since assumed control of interstate railway traffic, I am bound to insist that the view taken of that case by this court is correct. That is to say, the right to navigate the great commercial highways of the nation, not being derived from the state, its regulation was beyond the power of the state; and that the steamboat in question was, so to speak, an institution of the United States.</p> <p>That this railway company was and is amenable to the laws of this state in respect to its business within the state, cannot be questioned in view of the decision in 8tone v. R. R. Co., 62 Miss.</p> <p>Upon what pretense can it be maintained that in respect to the transportation of passengers, as authorized by its charter, within the state, the company may not be subject to regulation in the interest of the public convenience and comfort ?</p> <p>The appellant is a Mississippi corporation enjoying a virtual monopoly under her laws. It is as such a corporation, dealing with its business in this state, that the act of 1888 comes in. Can it escape her authority by becoming something more besides ? Can the company by running its trains across state lines escape the duties it may owe within the state creating it ? How is commerce between the states hampered or burdened by requiring the appellant to provide separate but equal accommodations in the state for passengers within the state ? Upon the same principle contended for by counsel it might be maintained that because the company is engaged in interstate traffic it may not be compelled to establish and stop its trains at stations in the state.</p> <p>Interstate passengers are not embarrassed by requiring the company to provide, in the state, separate cars or compartments no more than interstate traffic is embarrassed by the requirement that the locomotives of the company while in the state shall be operated by engineers duly licensed under state authority. “ Many acts of the state,” (and this is one of them) “ may indeed affect commerce without amounting to a regulation of it in a constitutional sense of the term, and it is sometimes difficult to define the distinction between that which merely affects or influences and that which regulates.”</p> <p>The very propositions of counsel. deduced from the cases of Sherlock v. Ailing, Smith v. Alabama, and Nashville Ry. Go. v. Alabama, are against their position here, because by this sort of legislation interstate commerce is only remotely and indirectly affected, and indeed need not be at all. It is a mere assumption that impediments are created or conditions prescribed in accordance with which such commerce is required to be conducted.</p> <p>There is a marked distinction between the Louisiana statute and the act of the Mississippi legislature. Besides the explanation of the decision in Hall v. Decuir, furnished by this court, see the opinion of Mr. Justice Bradley in Wabash Ry. Go. v. Illinois, supra. According to the latter, the Louisiana statute was invalid because it compelled the proprietors of steamboats to place colored persons, traveling from one place to another in Louisiana, in a cabin set apart for white persons, many of whom were bound for other states Therefore its operation was the regulation of .interstate commerce. Nothing of this kind is attempted by the statute of this state. It is perfectly immaterial what use is made of the particular cars required after the state line is passed, and immaterial whether they pass the state line at all.</p> <p>It is deemed unnecessary to argue in support of the power attempted to be exercised by the legislature. This court cannot close its eyes to the condition of our people, the racial differences and distinctions, and the public history on this subject. Every one knows that the purpose of the law was to secure equal and exact justice to the negroes in traveling upon the public railways in the state. Colored people who paid full fare were compelled by railroad officials to ride in second-class coaches, and justice demanded that colored people should have equal accommodations. The civil rights bill has been declared unconstitutional, and this state of things must continue unless the states take up the subject as was done here. Congress might make similar regulations so far as interstate carriage is concerned, but- is powerless when the whole journey is within the state.</p> <p>In the exercise of the general police power of the state, persons and property may be subjected to all kinds of restrictions and burdens in order to secure the general comfort, health and prosperity of the state. Thorpe v. JR. R. Co, 27 "Vt. 150 ; JR. JR. Co. v. JMJills, 55 Pa. St, 209 ; JRy. Co. v. Williams, 55 111. 185.</p> <p>There is no conflict between the two acts of the legislature of 1888. The two will be construed together, and the seating of passengers as provided for in the latter act will be taken with reference to the separation prescribed in the earlier. No. repeal was intended.</p>

From the circuit court of Jefferson county. Hon. Ralph North, Judge. This is an ejectment suit instituted in 1884 by the appellee, Mrs. Marshall, against the appellant, Geohegan. It has been several times tried and the record is very voluminous. The first, as likewise the second trial, resulted in favor of the defendant, Geohegan, the verdict in each case being set aside and a new trial awarded.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. Appellants, Byan & Sons, of Dubuque, Iowa, sold B. A. Honea, a merchant of Aberdeen, Miss., a carload of meat, and drew on him for the price, one thousand five hundred and forty-nine dollars and ninety-five cents, through the bank of Gattman & Co., at Aberdeen.

Fjrom the circuit court of Lincoln county. Hon. J. B. Chrisman, Judge. The appellant is a judgment creditor of the defendant, Ratcliff, the judgment being rendered in 1885 for a principal sum of two hundred and sixty-eight dollars.