Volume 67 — Mississippi Reports

<p>Feom the circuit court of Warren county.</p> <p>Hon. Ralph Noeth, Judge.</p> <p>The facts are stated in the opinion. The plaintiff recovered a verdict and judgment for $1000, and, after motion for a new trial was overruled, defendant appealed.</p> <p>There was a total lack of evidence to show that the lumber pile was an object of attraction to children, and that Spengler knew it. It was necessary to prove these things. It was necessary to aver them in the declaration, and being averred there must be proof to sustain them. There cannot be any presumption that children would play about the pile, and that Spengler knew this.</p> <p>The proof shows that the street was an unfrequented one, terminating in a deep hollow, and being so little used there was no negligence in leaving lumber piled in it. Surely the court cannot say that a bare pile of lumber in such a place possesses such qualities, and to that extent that it was unnecessary to have some proof that it was attractive to children, and that Spengler was aware of this. Plaintiff failed to make out the case, and the verdict should have been set aside.</p> <p>How could it be proved that the lumber pile was attractive to children, and that Spengler knew it? That it was attractive to them is shown by the fact that four little boys were playing around it when the child was killed, and one of defendant’s witnesses had previously seen eight or ten boys playing on it. That Spengler knew this is to be deduced from the common knowledge and experience of mankind. We know from observation and experience the habits, customs, instincts, and tastes of children, and we understand that anything out of the usual order of things is calculated to entice and fascinate them.</p>

From the circuit court of Warren county. Hon. Ralph North, Judge. The allegations of the declaration in this case are set forth in the opinion of the court. The truth of these averments were substantially established by the evidence at the trial.

From the circuit court of Tunica county. Hon. George Winston, Judge. This suit was begun by appellee in the justice court to recover the value of a mule killed by the engine of appellant. Apart from the evidence of value and the fact of killing, the only testimony in the case was that of the plaintiff and the engineer. The former testified that he found his mule after it was struck lying near the track of appellant’s railroad.

From the circuit court of Leflore county. Hon. J. B. Chrisman, Judge. Appellee recovered a judgment against appellant in the court below for one hundred and twenty-five dollars, damages for a mare killed and injury to a mule, struck by a running train. No point is made in this court as to the amount of the recovery. The only controversy is as to the liability of the company for the injury to the stock.

<p>1. Railroads. Right to establish depots and schedules for trains.</p> <p>Railroad companies are permitted to establish depots and to arrange their own schedules for the safe and proper management of trains.</p> <p>2. Same. Stopping place for trains. Right of company.</p> <p>In the absence of a special contract, a passenger who embarks on a railroad train supposing it will stop at a certain place, cannot complain of the refusal to stop there if it is not a depot or stopping place.</p> <p>3. Evidence. Allegations. Declarations of ticket agent.</p> <p>In a suit against a railroad company the plaintiff will not be permitted to prove the statements of a ticket agent to establish a contract for passage, where there are no averments in the declaration giving notice that such statements will be relied on.</p> <p>4. Same. Declarations of station policeman. When not binding on company.</p> <p>A mere railroad policeman engaged in the duty of assisting persons on and off trains, and in preserving order about the depot, has no implied authority to make contracts or to bind the company by his admissions. Therefore his statements to a passenger boarding a train that it will stop at a certain point are not admissible in a suit against the company for failure to stop at such place.</p>

From the circuit court of Clay county. Hon. Lock E. Houston, Judge.

Feom the circuit court of Lee county. Hon. Lock E. Houston, Judge. The car-load of machinery in question was shipped from Grand Rapids, Michigan, to Tupelo, Mississippi.

From the circuit court of Panola county, second district. Hon. W. M. Rogers, Judge. The facts are stated in the opinion.

<p>1. Constitutional Law. Taxation. Subjects of. Power of legislature.</p> <p>The legislature may select the subjects of taxation, and everything not designated as taxable is for the time being exempt.</p> <p>2. Taxation. Equality and uniformity. Legislative discretion. Const., Art. XII. § 20.</p> <p>The subjects of taxation may be classified at the discretion of the legislature, and if all of the same class are taxed alike there is no violation of the constitutional requirement of equality and uniformity.</p> <p>3. Same. Constitutional law. Power of the legislature. Privilege tax.</p> <p>The legislature may impose a specified tax upon a business and may provide that it shall be a substitute for all other taxes on the means employed in it.</p> <p>4.Same. Legislative discretion. Constitution, Art. XII. § 20. Judicial interference.</p> <p>A large discretion is given to the legislature in enforcing the constitutional requirement that taxes be equal and uniform, and unless it has plainly violated this provision the courts will not interpose.</p> <p>5. Exemption from Taxation. Legislative power. Const., Ait. XII. §16. Right of counties to tax.</p> <p>The power of the legislature to exempt property from taxation is not abridged by the above section of the constitution, which provides that no county shall be denied the right to raise by special tax money sufficient to pay for the building and repair of courthouses, jails, bridges, and other necessary conveniences for the people of the county. The right of the counties is limited to a levy of a certain per cent, on all tax levied by the state, and the subjects of taxation may be determined by the legislature.</p> <p>6. Constitutional Law. Banks. Taxation thereof. Privilege tax. Act of March 8, 1888.</p> <p>The provision of the revenue act of 1888 (Laws 1888, p. 16), which imposes upon banks a tax, to be measured by their capital stock and assets, and to be in lieu of all other taxes, state, county and municipal, upon their shares and assets, does not violate any provision of the constitution of the state.</p> <p>7. Same. Banks. Sufficiency of privilege tax. How measured.</p> <p>The privilege tax upon a bank under the act of 1888 aforesaid, to be effectual as a release from liability for all other taxes, must be measured by the capital stock and entire assets or wealth of the bank, including profits, surplus, undivided profits, or its assets by whatever name called.</p> <p>S. Banks. Exemption. Act of Mo/rch 8, 1.888. Real estate. Privilege tax.</p> <p>Real estate bought with the funds of a bank was exempt under said act of 1888, from ordinary ad valorem taxes, but was part of the assets of the bank to be considered in fixing the basis of its privilege tax.</p> <p>9. Same. Taxation. Right to hold real estate. Collateral inquiry.</p> <p>In a proceeding to determine the liability of a bank to pay taxes on its real estate, the right of the bank to acquire and hold such real estate will not be considered.</p>

From the chancery court of Hinds county, first district. Hon. Warren Cowan, Chancellor. As will be seen from the statement of facts in the opinion, the controversy arises mainly over the action of the appellee, the Capital State Bank, in applying the funds on deposit to the credit of P. T. Baley to the payment of the $500 note given in the-firm-name of W. C. Rogers to the bank.

From the circuit court of Bankin county. Hon. A. Gr. Mayers, Judge. This suit was brought by the appellees, Bernheim Bros. & Uri, against the defendant, John Ohleyer, on the following bill of exchange :— “$721.47. Brandon, Miss., March 16, 1887. On the first day of January, 1889, pay to the order of ourselves seven hundred and twenty-one j4^ dollars, with 8 % interest from January 1, 1888, value received, and charge the same to account of Bernheim Bros. & Uri.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. This is an action of ejectment brought by the appellants against the appellee for the possession of seventeen acres of land in the S. E. cor. of E. J, S. E. J, sec. 19, T. 6, E. 1, which is traversed by the right-of-way and track of the railroad company. Plaintiffs claim under a tax title obtained through the state, the land having been sold March 7, 1881, for the taxes of 1880.

<p>From the chancery court of Lauderdale county.</p> <p>Hon. S. Evans, Chancellor.</p> <p>This is an appeal from a decree overruling a demurrer to a bill which was filed December 8, 1888, by S. A. Ragsdale to enjoin the collection of a tax alleged to have been illegally assessed and laid on certain real and personal property of the complainant by the city of Meridian for the fiscal year 1887-8.</p> <p>The bill sets out that the property of complainant was assessed by the city assessor for the fiscal year, being valued at $80,100, and the assessment was lodged with the city clerk as required by the charter; that afterwards, in disregard of the city charter, a committee of three aldermen and three councilmen, assuming to act as a “ board of equalizers,” without evidence.and without legal notice, reviewed this assessment and valued the property for taxation at $148,150, which greatly exceeded the true value; that the action of these equalizers was adopted at á joint meeting of the two boards subsequently held, and the books were closed, and that notice of these proceedings was not given as the charter provides. It is further shown in the bill that the levy of taxes was made at a joint meeting of the boards of aldermen and councilmen, presided over by the mayor, whereas the charter requires the levy of taxes to be made by ordinance passed by each board separately, and approved by the mayor. These irregularities in the proceedings of the municipal authorities are set out at length in the bill, and there are other objections to the proceedings, but it is not deemed necessary to state them at length, as it is not contended on behalf of appellant that the taxes were legally laid. The levy was one per cent., making the amount of tax on the original valuation, as fixed by the assessor, $800.50, while, according to the increased valuation, the amount ivas $1481.50, and this amount the authorities were proceeding to collect when enjoined. The tax sought to be enjoined was $681, the difference between the two sums. Among other things, the bill makes this allegation: “And complainant further shows and states that she has tendered to James A. Gully, city collector, the taxes due on the property hereinbefore described, according to the valuation put upon the same by the city assessor, but that said collector has refused to receive said sum in discharge and payment of the taxes due on said property.” The bill also states that the tax laid on the property of complainant is under the law a lien or an apparent lien on the same, and casts a cloud upon her title: and that a still further cloud will be cast upon the title to the real estate if the collector sells and conveys the same, and that complainant would be involved in law suits with the purchasers. In accordance with the prayer of the bill, a preliminary injunction was granted against the collection of the tax, except the said sum of $800.50.</p> <p>A demurrer was interposed, setting up various objections to the relief sought, the grounds of demurrer being substantially as follows: 1. That complainant had a plain and adequate remedy at law, and therefore the chancery court had no jurisdiction to enjoin collection of the tax. Í. That it is not shown that the tax complained of is illegal, the errors complained of amounting only to an irregularity in the assessment and levy. 3. That the complainant failed to tender the amount of the tax admitted to be due.</p> <p>The demurrer was overruled and the defendant, without answering, appealed. Pending the suit, the complainant died, and the cause was revived in the name of W. W. George, executor of her will.</p> <p>The power of the city to levy the tax is not disputed, the only objection urged by complainant being illegality in the proceedings of the municipal authorities, and the over-valuation of her property.</p> <p>1. Complainant had a plain and adequate remedy at law, and having failed to avail of it, equity will not enjoin the collection of the tax. Coulson v. Harris, 43 Miss. 728; Noxubee County v. Ames, MSS. Op.; Cooley on Taxation, 762; High on Inj., § 371; 69 Am. Dec. 204, note; 45 Miss. 710; 51 lb. 27; Anderson v. Ingersoll, 62 lb. 73.</p> <p>It is settled in Mississippi, that a party having a legal remedy against an illegal tax will not be heard in equity, except in one or two cases of imperious necessity.</p> <p>Complainant could have paid the tax under protest and recovered it from the city or the tax collector. 56 Miss. 72; 59 lb. 389; 1 Pom. Eq. 288, note; 2 Dill. Mun. Cor., p. 921, note; State R. R. Tax Cases, 92 U. S. 575 ; Arnold v. Cambridge, 106 Mass. 352.</p> <p>No appeal was given, but the common law remedy by certiorari existed. No matter what the legal remedy is, the tax-payer must avail of it. That the remedy by certiorari existed, see Holberg v. Maeon, 55 Miss. 112 ; 2 Dill. Mun. Cor., § 926 ; Whiting v. Boston, 106 Mass. 93.</p> <p>The case of R. R. Co. v. Moseley, 52 Miss. 137, is not in conflict with our view.</p> <p>Under the rule laid down in some states and by the supreme court of the United States, an injunction lies only where there is a want of authority to levy the tax, and not where the power has been exercised in an irregular or illegal manner. High on Inj., § 355, and note 3.</p> <p>2. Before a complainant can have the aid of a court to be relieved of a tax, that which is legally due must be paid. State R. R. Tax Cases, 92 U. S. 575 ; 8 Wait’s A. & D., p. 322; 52 Miss. 137; 1 Pom. Eq., § 393; 16 Mich. 176; 60 Miss. 903; 103 U. S. 732.</p> <p>Complainant must do equity.</p> <p>There is no cloud cast upon title which equity will relieve where the clouding grows out of the neglect of the tax-payer to pursue a legal remedy. 2 Dill. Mun. Cor., p. 921, note; Noxubee Co. v. Ames, supra. In McDonald v. Murphree, 45 Miss. 710, there was a threatened sale of all the land in the county, to pay a tax, yet this court held that, there was an adequate remedy at law, and refused to grant relief in equity.</p> <p>This court has leaned to a liberal policy in favor of the state and its subdivisions, and denies to tax-payers the right to tie up by injunction the funds out of which protection is afforded to the persons and property of all.</p> <p>1. The provisions of the charter in relation to the assessment and collection of taxes are for the benefit and protection of the tax-payer, and must be obeyed. Cooley on Taxation, pp. 280-7 ; lb. 362-366; French v. Edwards, 13 Wall. 506; Welty on Assessments, §§ 3, 220; Black, on Tax Titles, §§ 27 — 29.</p> <p>(Counsel here made an elaborate argument, citing various provisions of the city charter and numerous authorities showing illegality of the assessment and levy of the tax in question. But, as the departure of the authorities from the requirements of the charter was so great, and the invalidity of the tax so manifest, it is not deemed necessary to give these authorities.)</p> <p>2. Admitting by the demurrer all the charges of the bill, as to the illegality of the tax, it is claimed by opposite counsel that appellee had an adequate remedy at law. Holberg v. Macon, 55 Miss. 112, is no authority for the position that certiorari was an adequate legal remedy in this case. That writ has never been used or suggested as a remedy in this state for reviewing an illegal assessment or levy of taxes. It lies only to review judicial action and is not applicable to a case like this. Cooley on Taxation, pp. 753 — 7; Alien v. Levee Commissioners, 57 Miss. 166; 63 lb. 308; 64 lb. 446. Many of the facts stated in the bill do not appear of record, and consequently they could not be reviewed by certiorari. On this point see the very able opinion of the supreme court of Michigan, delivered by Judge Cooley, in the case of Whitbeclc v. Hudson, 14 N. W. Rep. 708.</p> <p>The authorities cited by opposite counsel do not sustain the position that the remedy of complainant was to pay the tax and sue to recover tbe money. On this point see Cooley on Taxation, 772, 773; High on Inj., §§ 359, 367-70; Woodman v. Auditor (Mich.), 17 N. W. Rep. 227; Earl v. Duras (Neb.), 13 lb. 206 ; M. & O. 12. JR. Co. v. Moseley, 52 Miss. 137.</p> <p>To defeat the jurisdiction of equity, it must appear not only that the party has a remedy at law, but that it is plain and adequate. Irwin v. Lewis, 50 Miss. 363; JRiehardson v. Broolcs, 52 lb. 118; State use, etc. v. Brown, 58 lb. 835; 3 Peters, 210; 5 "Wall. 78; Cooley on Taxation, 761; 2 Dill. Mun. Cor., § 738 ; 17 Am. Dec. 582.</p> <p>Equity has jurisdiction to prevent a cloud upon the title that would be caused by a tax deed which is presumptively good. Cooley on Taxation, 779-80; High on Inj., § 367; 2 Dill. Mun. Cor., § 738.</p> <p>The injunction in this case is to be regarded with more favor since the tax in question does not constitute part of the revenue of the state. State JR. J2. Tace Cases, 92 IT. S. 615; High on Inj., § 369.</p> <p>3. The bill shows the amount of the excess of tax claimed to be illegal, and only asks to have the collection of such illegal excess restrained. It cannot be dismissed for want of a formal offer to pay the legal tax. The amount legally due or assessable was tendered to the collector before suit, and he declined to receive it in full satisfaction. On this point see Cooley on Taxation, p. 763, note 1; Clement v. Everest, 29 Mich. 19; 12.12. Co. v. Moseley, supra.</p>

From the chancery court of Lauderdale county. Hon. S. Evans, Chancellor. The bill in this case was filed by appellants December 17, 1888, to enjoin the collection of certain taxes alleged to have been illegally assessed and levied by the city of Meridian on certain real estate of the complainants in said city, for the fiscal year 1887-8.

From the chancery court of Sunflower county. Hon. W. R. Trigg, Chancellor. This is an appeal from a decree overruling a demurrer to a bill exhibited by the Valley Land Company, Limited, against the appellant, A. J. Paxton, December 3, 1888, seeking the cancellation of his claim of title to certain wild land in Sunflower county. It is averred that complainant is the real owner of the land, and that the assertion of title by defendant is unjust and injurious to complainant.

From the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor. In the year 1878 the appellee, the Alabama Great Southern R. R. Co., owned ten acres of land in Lauderdale county, being part of the S. W. J of the N. W. J, sec. 17, and L. A. Ragsdale owned the remainder of the forty acres.

From the circuit court of Warren county. Hon. Ralph North, Judge. The opinion sufficiently shows the facts. The point involved here was not properly before the court, in Bowman v. Roe, 62 Miss. 513, and the language relied on by appellee was obiter. The question here is, whether the proceedings of the board were governed by § 1353, code 1871, or by the provisions of the revenue act of 1878 ? The latter act repealed the former, and was the law governing the board.

From the circuit court of the second district of Yalobusha county. Hon. W. M. Rogers, Judge. Appellant, Lee Jones, and one H. W. Atmore, were jointly indicted. The indictment contained two counts, in the first of which they were chai’ged with selling spirituous liquor to Anderson Brooks, a minor. The second count charged them with selling liquor to Anderson Brooks without a license.

Fkom the circuit court of Tallahatchie county. Hon. Geo. Winston, Judge.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Appellant, a negro, was convicted of the murder of his child, who died from the effects of punishment inflicted by the accused. The circumstances and manner of the infliction of the punishment are stated in the opinion of the court. Finding that the injuries were fatal the accused fled, but was arrested in another state and brought back for trial. The court appointed counsel to conduct his defense.

From the circuit court of Warren county. Hon. Ralph North, Judge. Appellant was indicted for receiving stolen goods, a lot of car brasses, knowing them to be stolen. The property was proved to have been stolen from the receiver of the Vicksburg and Meridian Railroad Co. The appellant kept a junk shop in the city of Vicksburg, and after the larceny an agent of the railroad company called with the chief of police on Frank to learn if he had purchased or seen the brasses.

From the circuit court of Attala county. J. A. Davis, Esq., special judge, presiding by consent.

Erom the circuit court of Lee county. Hon. Lock E. Houston, Judge. This was a suit instituted in the circuit court by appellee, Mabry, against the Kansas City, Memphis & Birmingham Railroad Co. to recover the sum of $600, damages to land and crops, caused by the negligent construction of its railroad track by said company, whereby the water of a natural stream was diverted and overflowed the land of appellee.

From the circuit court of Sunflower county. Hon. George Winston, Judge. Appellant Collier, as trustee for G. W. Faison & Co., brought this suit of replevin to recover from appellee, White, eight bales of cotton, upon which Faison & Co. held a trust deed executed by one Tanner. The cotton was part of the crop of Tanner, raised upon land rented from the appellee, and the trust deed was given to secure advances and supplies furnished during the year by Faison & Co. to Tanner.

Feom the chancery court of the first district of Chickasaw county. Hon. Baxter McFarland, Chancellor. From the agreed statement it appears that Richard Duncan owned a homestead upon which he resided with his family, and gave trust deeds on the same to secure debts to C. C. Moore and others.

From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. Rhyne, the appellant, being a householder and having a family, was the owner of a tract of land situated partly in the town of Lexington, upon which was situated his residence, stables, a storehouse and other buildings, all within the corporate limits. This land, with the buildings thereon, was worth more than two thousand dollars.

From the circuit court of Bolivar county. Hon. J. H. Wynn, Judge. The appellants brought this suit against the appellee to recover the amount due upon an acceptance of Trager & Noble, a firm of •which appellee was a partner.

From the circuit court of Leake county. By consent, Edward Currie, Esq., presided in the trial of this case. The facts are stated in the opinion of the court. 1. Appellee’s tenth instruction is erroneous. It entirely ignores intent, and told the jury that all interest was to be forfeited if the “ effect” of the transaction was an excess in charge of interest. If it is the law, a man may be ruined by accident or mistake.

<p>From the circuit court of Newton county.</p> <p>Hon. A. G. Mayers, Judge.</p> <p>In 1887 Israel and Daniel Williams in Scott county shot and mortally wounded Griffith and McCraney, who shortly afterwards died in Newton' county. They fled before arrest, were captured by appellees Wells and Doolittle and duly delivered to the sheriff of Scott county for trial. The circuit court of Newton county allowed appellees the rewards authorized by § 3035, code 1880, and made the same payable out of the treasury of that county. Thereupon appellees petitioned the board of supervisors of Newton county for payment of the same, but the petition was denied, on the ground that the homicide occurred in Scott county, and that it was liable for the reward. On appeal to the circuit court, the order of the boai’d was reversed, and judgment was entered against Newton county for the amount of the rewards. From said judgment the county appealed. Section 3035 of the code, under which the allowanee was asked, provides that the reward shall be paid “ out of the treasury of the county in which the homicide occurred.”</p> <p>In rendering judgment against Newton county, the court doubtless supposed that, because of § 2996 of the code, the offenders might have been tried there as well as in Scott county, therefore, under § 3035, Newton could be considered the county in which the homicide occurred. It is submitted that this view is untenable, and that Scott alone is liable for th'e reward, it being the “ county in which the homicide occurred.”</p> <p>Now a homicide is the killing of a human being, the act of one person that causes the death of another. When it is undertaken to fix the locality of the crime, the mind naturally takes in view the place where the act was done. On this point, see State v. Carter, 3 Dutcher (N. J.), 499.</p> <p>In a case like this, at common law the county where the death occurred had no jurisdiction. 2 Whart. Cr. L., § 1052.</p> <p>There is a difference between the thing done and the evidence of it. See the views expressed as to this in 1 Bish. Cr. Pro., § 51.</p> <p>Treating of jurisdiction as depending on the locality of the crime in cases like this the author says : “ In other states the provision is that the indictment shall be in the county where the offense is committed generally, and by the better view, construed to be the county of the blow.” Ib. § 52. And, see code 1880, § 2991.</p> <p>If the locality of a homicide is the place where death occurs, then no reward could be paid to the captor of a slayer where the mortal stroke is given here and the injured person dies in another state. Yet, under § 2993 of the code, our courts would have jurisdiction of such a homicide, and the necessity for a reward would be as great as in other cases.</p> <p>Where the injury is in one county and death occurs in another, the offender may be tried for the homicide in either county. Code 1880, § 2996. In this respect our statute changes the common law, for formerly jurisdiction only existed in the county where the mortal stroke was given. We insist that the statute fixing the venue for the trial in either county fixes also the liability of either county for the reward authorized by § 3035. The language of this section is that the reward is to be paid “ out of the treasury of the county in which the homicide occurred.” The homicide having occurred in either county, it is manifest that either is liable for the reward.</p>

From the circuit court of Warren county. Hon. Balph North, Judge. Finley Starks was convicted of murder at the March term, 1889, of the circuit court of Warren county, the jury fixing the punishment at imprisonment in the penitentiary for life. He prosecuted an appeal to the supreme court in forma pauperis, giving no bond to secure payment of jail fees. He remained in jail in custody of the appellant, W. O. Worrell, sheriff and jailer.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. One J. C. Gilmore, having contracted with the board of supervisors of Noxubee county for the building of two bridges, obtained from appellant Foote the money needed in the prosecution of the work, and to secure appellant gave him written orders on the board of supervisors for the issuance to him of warrants for the amounts specified out of the sums to be allowed for the building of the bridges.

From the circuit court of Warren county. Hon. Ealph North, Judge. On January 21, 1885, Philip Gilbert, a merchant of Vicksburg, being indebted to various persons, sold and delivered to certain of his creditors a stock of goods. On the 23d of January other creditors sued out an attachment against him, which was levied upon these goods.

<p>1. Replevin. Confusion of goods. Seizure of part of common lot.</p> <p>Where one person unlawfully cuts the timber of another and converts the same into staves, which he mingles with others of like character, the owner, not being able to identify his property, may maintain replevin against the wrongdoer for part of the common lot equal to the number of staves taken from his land.</p> <p>2. Measure of Damages. Wilful trespass.</p> <p>In such case, when the defendant gives bond and retains the property, on a recovery by the plaintiff, if it appears that the defendant wilfully and knowingly cut plaintiff’s trees, or negligently omitted reasonable precau- ' tions to ascertain the ownership, the measure of recovery is not the value of the trees but the value of the staves at the time and place of seizure under the writ.</p> <p>3. Same. Innocent talcing. Instruction criticised.</p> <p>It was announced below that if the trees were taken through an innocent mistake, the measure of damages would be the value of the staves, less the cost of cutting, hauling, and converting the timber. This is not approved ; but what the rule is in such case, and whether' the dictum in Heard v. James, 49 Miss. 247, is correct, the court does not decide, since the defendant has no cause to complain of the verdict that was rendered.</p> <p>4. Instruction Unnecessary. Properly refused.</p> <p>If the court is asked to instruct the jury that the burden of proof as to a certain point is on the opposite side, and the evidence in support of such point is so conclusive as not to leave the question debatable, it is proper to refuse the instruction.</p>

From the circuit court of Attala county. Hon. C. H. Campbell, Judge. Appellee brought this ejectment suit to recover certain land bought by him at trustee’s sale under a trust deed given by appellants to secure a debt due to him by them. The trustee, who lived in another county, was unable on account of sickness to attend and conduct the sale in person, and directed his brother as his agent to make it. This was done, and the trustee ratified the sale and made the deed.

From the chancery court of Warren county. Hon. W. R. Trigg, Chancellor. Prior to November 21, 1883, George M. Klein and Julius M. Klein were partners in the insurance business in Vicksburg, under the name of Julius M. Klein & Co., and as such held the agencies for several insurance companies which had a well-established business in that city. These agencies were held under the appointment of the companies, and were terminable or transferablé at the will of the companies.

From the circuit court of Hinds county, first district. Hon. J. B. Chrisman, Judge. Eliza L. Platt brought .this ejectment suit to recover from Martha Lorance, tenant of Duffin & Bro., a lot and residence in the city of Jackson.

From the circuit court of Warren county. Hon. Ralph North, Judge. One H. L. Bond in his lifetime owned three lots in the city of Vicksburg. One of these he purchased from Uriah French, and another adjoining it he bought from Martha Knox. By the will of said Bond, executed in 1886, the last mentioned lot was devised to appellee, Grace Hoskins.

From the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor. The appellant filed her bill for divorce against appellee, a nonresident of this state. Proper publication was made as required by the statute, but the defendant failed to appear. The proof developed that the marriage as well as the causes for divorce occurred in the state of Alabama.

From the circuit court of the second district of Hinds county. Hon. J. B. Chrisman, Judge. The opinion states the facts. By § 1736, code 1880, it is made the duty of the circuit clerk to enroll all judgments within twenty days after adjournment of the term in the order of their entry on the minutes, giving the amount, date of rendition and date of enrollment.

From the circuit court of Madison county. Hon. J. B. Chrisman, Judge. This case was tried by the court without a jury on an agreed statement of facts as follows: In 1886 Gross owned a tract of land in Madison county, and contracted to sell it to Jones, giving him a bond for title, binding himself to make a deed on payment of two hundred dollars.

From the circuit court of Lee county. Hon. Lock E. Houston, Judge. On the. 8tb of March, 1888, W. A. Smith sued out, in the circuit court of Lee county, an attachment against T. F. Archer, and on the same day appellants, Clark, Hood & Co., were summoned therein as garnishees.

From the circuit court of Clarke county. Hon. S. H. Terral, Judge. In March, 1888, the appellee, Huckabay, applied to Martin Seegers, agent of the appellant, Yolking, to buy a mule owned by the latter. Seegers agreed to sell him the mule for $85, on credit, and Huckabay executed a trust deed on the mule to secure payment of the amount, due October 1, following, but it was not acknowledged or recorded.

From the circuit court of Amite county. Hon. J. B. Chrisman, Judge. Appellee, H. C. Rogers, owned a plantation in Amite county, and on the 8th of December, 1885, made a written lease of it to T. H. Rogers, for the years 1886, 1887, and 1888, for the gross sum of three hundred dollars, to be paid January 1, 1886, and the lessee went into possession and made crops on his own account, during the years 1886 and 1887.

From tbe chancery court of He Soto county. Hon. J. G. Hall, Chancellor. J. C. N. Robertson, the owner of a large estate, real and personal, died testate, in De Soto county, Miss., in 1880. Among a large number of devises and bequests to his numerous children and grandchildren, the testator gave to his granddaughter, Margaret West, and her six minor children, one hundred and seventy acres of land in said county, and about $3200 in money.

Appeal and cross-appeal from the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge, presided on the trial of the case against the sureties. Hon. C. H. Campbell, Judge, presided on the trial of the case as against the principals. Hamilton, Allen and Hoskins were lessees of the state penitentiary, and contracted to pay the state $39,420 per annum for the same.

From the circuit court of Wilkinson county. Hon. Ralph North, Judge. This was an action by the appellee, J. J. Day, against the appellant to recover damages for cutting certain trees on land claimed by the plaintiff. The declaration contained two counts, in one of which plaintiff claimed $500 for the alleged value of the trees, and in the other $2250, the statutory penalty.

From the circuit court of Amite county. Hon. J. B. Chrisman, Judge. This was a suit for damages brought by the appellant, Wilkinson, against the Taylor Manufacturing Company, of Chambers-burg, Pa., for the non-performance of an alleged contract for the purchase of certain machinery.

From the circuit court of Monroe county. Hon. Lock E. Houston, Judge. The appellant, W. T. Adams, brought this action of replevin against the appellee, S. H. Berg, to recover certain machinery and tools alleged to be unlawfully detained. The property was sold by appellant on credit to one B. H. Adams, who, to secure the price, executed a trust deed upon the property to appellant.

<p>From the chancery court of Lawrence county.-</p> <p>Hon. Warren Cowan, Chancellor.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>Before complainants can obtain partition they must show; (1) that Mrs. Prestidge died seised and possessed of the land,' and (2) that complainants and defendants have a joint interest in the land. If they fail on either of these points, they lose.</p> <p>The testimony of impartial and disinterested witnesses establishes that John W. Prestidge and William Cooper took possession of the land in their own right, and paid the administrator, Dickerson, for it. They have occupied the land openly and notoriously under claim of ownership since 1854. Their possession ripened into title by prescription long before the death of Mrs. Prestidge, and it is immaterial whether they received the deeds or not, as they went into possession in their own right, and not as tenants of Mrs. Prestidge, and were not trespassers. Niles v. Davis, 60 Miss. 750; Davis v. Bowmar, 55 lb. 671; Jones v. Branclon, 59 lb. 585.</p> <p>In fact the chancellor decided that the legal title to the property in controversy was in William Cooper by prescription, and it was for this cause alone that he rendered a decree for defendant, William Prestidge. Complainants have not appealed from the decree in favor of Prestidge, and this is strongly suggestive of the slight faith the solicitor for appellees has in his cause. The chancellor thought that the legal title was, outstanding in William Cooper, and the reason assigned by him for a decree against Mrs. Cooper was that she was a joint tenant with complainants in the land, and therefore could not set up an outstanding title against them. When it is determined under the facts of this case that complainants and William Prestidge are not tenants in common, it follows that the complainants’ cause against Mrs. Cooper also is gone, for the reason that, according to their own claim, it destroys the unity of possession and title between them and Mrs. Cooper, as well as between them and William Prestidge. They rely on the same facts to recover of the one that they do to recover of the other. Before complainants can recover, they must show a clear and undisputed title to the land. This is the rule in equity, except where changed by the statute. Ingram v. War, 5 S. & M. 746; Shearer v. Winston, 33 Miss. 149.</p> <p>The only change in the rule by our statute (Code 1880, § 2576) is that as between the parties to the suit, the legal and equitable title may be tried in a determination of a partition suit. The object of this statute is to avoid the necessity of resorting to a court of law to settle the legal title. As to the necessity of complainants proving title and other joint relations with defendant to the property, the law remains unchanged. When complainant files his bill for partition, the right to such relief will depend upon a joint ownership between the complainant and the defendant. Spight v. Waldron, 51 Miss. 356.</p> <p>The rule of law prohibiting an assailment of the common source of title or the proving of an outstanding paramount title in a stranger applies only where there is a relation of some sort between the parties to the property, and where the assailant is in the possession of the property. If any such relation exists, and the defendant is not in the possession of the property, and does not claim it, then the rule has no place and the defense is maintainable. See Nugent & MeWittie v. Imoell, 63 Miss. 99.</p> <p>But for one line in the answer the complainants would be entitled to a decree on the pleading. That line is the flat denial that the parties to the suit are tenants in common. This is overcome by the record evidence, and the admitted fact that complainants and defendants are the heirs of Anna Prestidge, deceased. The only way this case is sought to be met is by setting up an outstanding title in a stranger. Had the case been set for hearing on the bill and answers, it would have probably been parallel with Ingram v. War, 5 S. & M. 746.</p> <p>In that case the petition did not make out a prima fade case, as does the case now before us. We have presented here the question whether in a partition suit brought by one or more of several heirs of a decedent against another or others, the defense can set up a paramount outstanding title in a stranger, with which they do not connect themselves, and thereby defeat a partition. Eeason and authority answer negatively. Complainants are entitled as against defendants to have allotted to them a separate tract of land that they may use if necessary, in ejectment for such part only. The law will not force complainants to bring an ejectment for a particular interest in the whole. Some of the heirs, as in this case, might not desire a maintenance of ejectment, and might greatly delay and embarrass it. . No harm can come from a partition. Defendants are but denying their own title for the benefit of a stranger. In an action of ejectment the outstanding paramount title could not be used as a defense, and there is no reason applicable in such a suit that is not applicable here. As between the litigants and parties to the suit, they are tenants in common having at least the right of possession. See, Freeman on Cotenancy and Partition, § 152, and cases cited; Burleson v. Burleson, 28 Tex. 383.</p> <p>As to the question of fact involved, if I am mistaken on the leading proposition stated, it will be found that there is abundant testimony in the record to show that William Cooper’s possession was not adverse, but in subserviency to Mrs. Prestidge’s title, and he could not acquire title by prescription.</p>

From the circuit court of De Soto county. Hon. W. M. Kogers, Judge. This suit originated in a justice court, where the appellant, McCain, sued the appellee, Will. O. White, the statement of plaintiff’s claim being as follows: “To damages done, shooting two mules, $150.” There were two mistrials before juries in the justice court.

From the circuit court of He Soto county. Hon. W. M. Rogers, Judge. The appellant, W. E. Howard, brought this suit against the Louisville, New Orleans & Texas Railway Company, to recover the value of a mare killed by one of its trains. There is no material conflict in the evidence.

From the circuit court of De Soto county. Hon. W. M. Rogers, Judge. Action against the railroad company for killing stock.

From the circuit court of Wilkinson county. Hon. Ralph North, Judge. Appellee, Petty, a brakeman in the employ of the Louisville, New Orleans & Texas Railway Company, brought this suit in the court- below, to recover of said company damages for an injury received by him while in the discharge of his duties as brakeman on a south bound freight train November 8, 1888.

From the circuit court of Lowndes county. Hon. Lock E. Houston, Judge. The facts are stated in the opinion. The trial resulted in a verdict and judgment for plaintiff for $2000, and defendant appealed. The plaintiff did not exercise reasonable care, as appears from his own testimony. He was in a public street and neither he nor the vehicle had any superior right. It was his duty to look and listen for'any approaching vehicle.

From the circuit court of Warren county. Hon. Balph North, Judge.

From the circuit court of Amite county. Hon. J. B. Chrism an, Judge. The plaintiff, A. J. Lazar, instituted this ejectment suit against A. S. Caston, E. A. Caston and Mary E. Caston, to recover one hundred and sixty acres of land.

<p>From the chancery court of Itawamba county.</p> <p>IIon. Baxter McFarland, Chancellor.</p> <p>Appellee, claiming under a tax collector’s deed which conveyed to him “ 80 acres of the S. E. J, Sec. 10, T. 8, B. 8, in Itawamba county,” filed his bill in this case to confirm the tax title, alleging therein that said deed conveyed to him all the N. J of the S. E. ¿ of said section, this being the land intended by the description in the deed.</p> <p>The main controversy is as to whether the assessment of the land is void for uncertainty. The sale for taxes was made on the first Monday of March, 1881, for the delinquent taxes of 1880. The assessment, therefore, under which the sale occurred was that of 1879, and this quarter section is assessed on the roll for that year as follows:—</p> <p> </p> <p>The bill of complaint, after setting out the assessment and purchase of the aforesaid deed, alleged that the taxes on the S. J of the S. E. \ of said section were paid for 1880, by the owners thereof, and that the N. J of the S. E. of the said section was the land on which the taxes were delinquent, and to which the sale was intended to apply. The appellants were made parties to the bill, and interposed a demurrer which was overruled. Whereupon they answered, averring that the assessment was void for uncertainty, and the sale for taxes conferred no title.</p> <p>One Morris testified that he was the owner of the S. W. J of S. E. ‡ of said section, and paid, the taxes on said land for that year. Another witness, Cummings, testified that he was the owner in 1880, of the S. E. -J- of S. E £ of said section, and that he paid the taxes thereon for that year. Both these witnesses exhibited their tax receipts, each of which shows the payment of the taxes for 1880 upon “40 acres of the S. E. ‡ section 10, T. 8, R. 8.” They also testified that appellants owned, and were in possession in 1880, of the N. of the said S. E. J.</p> <p>The decree of the court was in favor of the complainant, confirming his tax title, and from this decree the defendants appeal.</p> <p>The deed presents a patent ambiguity. Whether the description is good or bad is to be determined in the first instance, from the face of the deed and the assessment roll. Then, if extrinsic evidence is admissible at all, there is no limit to the means that may be used to identify. Bowers v. Andreios, 52 Miss. 596.</p> <p>We are not called on to discuss whether under the evidence, the complainant has identified the tracts which Morris and Cummings intended to pay on, and inferentially to judge as to what parcel the tax collector intended to sell. There is nothing on the face of the deed or the assessment roll that furnishes a guide to conduct us to the tract really sold. The only certain thing on the roll is the description of the quarter section. The description in the deed is, “80 a. of the S. E. What 80 acres is meant? Can we find from the roll ? There are only two assessments in that quarter section, the one assessing, 40 acres to W. A. Stephens, and the other 120 acres in blank. If we assume that this 80 acres is a part of the 120 acres assessed in blank, we would still have to know what 120 acres was thus separately assessed. There is nothing in its description to show.</p> <p>We would next look to -find if the 40 acres comprising the rest of the quarter section are identified in any way; but we find that the description of this is as uncertain as that of the 120 acres, except that the name of the supposed owner is mentioned. But even if it were permissible to take the name of “ Stephens” as a clew, we find that Stephens is a myth, and no one by that name owns any of the land in the southeast quarter. Practically we have the whole quarter section assessed in blank.</p> <p>Even if the description was curable, the evidence wholly fails to identify the 80 acres sold. Neither Morris nor Cummings can show what they paid on. Merely knowing what their deeds called for, or what they owned, does not identify what was actually paid on. Their tax receipts are as uncertain as the description in the roll or the deed.</p> <p>The power of sale does not depend on the purpose of the owner. Dodds v. Marx, 63 Miss. 443. Mere intention cannot make facts. We look to facts to make certain the intention, and not the intention to make certain the facts; otherwise there is an end to all patent • ambiguities.</p> <p>Surely whether the deed or assessment is certain or uncertain in its description cannot depend on a mere mental process. Suppose these witnesses should swear that the land they intended to pay on was that which included the most valuable land in the quarter section. Who could deny this intention? How could they be convicted of perjury? The description would be uncertain, movable and shifting anywhere over the 160 acre tract, until Morris and Cummings should refresh their memory, and tell what was in their minds when they paid their taxes. See Brame v. Moore, (MS. op.).</p> <p>Even under the act of 1878, relied on, this description cannot stand without more to identify the assessment than the section, township and range. There could in most cases be no definite ascertainment, and we doubt if a forfeiture under such an assessment would be due process of law.</p> <p>The W. A. Stephens tract is assessed at $2.50 per acre, while the rest of the quarter section is assessed at $1. An examination of the amount of taxes paid by Cummings will show that he paid as much state taxes as was due on the 120 acres separately assessed, whereas, if he intended to pay on the W. A. Stephens tract, the amount paid does not correspond with the amount due on it. This illustrates the impossibility of identifying either the lands paid on or the land sold under this assessment.</p> <p>It is immaterial whether land is assessed to the owner, to unknown, or in blank. No failure to observe any statutory requirement as to the manner of assessing land will vitiate the assessment if it is described so that by aid of parol evidence it can be identified. Any description that will furnish a sure guide for its ascertainment is sufficient. Code 1880, § 490 ; Acts 1878, 34.</p> <p>This land was assessed in 1879, and the assessment must be construed under the provisions of the revenue act of 1878. Among other provisions of this act is that no failure to observe any of the requirements of the statute in reference to describing land shall affect the assessment or sale, if the section, township and range on which the land is situated is properly entered upon the roll, and it may be shown by parol testimony to what particular subdivision an assessment or sale was intended to apply. In this case, not only the section, township and range are correctly given, but the particular quarter section, and, if the part of the quarter section which was forfeited can be shown by parol, then the very case is presented Avhich the statute, allowing parol testimony was intended to embrace. Manifestly that portion of the quarter section on which the owners had paid their taxes could not be delinquent, while that part on which no taxes had been paid for 1880, was delinquent; and such delinquent land was the land intended to be sold, and to which the sale and deed were intended to apply.</p> <p>The bill avers that the north half of the south-east quarter was the land delinquent, and to which the sale was intended to apply. These allegations are neither admitted nor denied by the answer, and therefore, are to be taken as admitted. Code of 1880, § 1892; Colbert v. Henley, 64 Miss. 375.</p> <p>The testimony of Cummings and of Morris, each owning forty acres of this quarter section, shows that each of them paid their taxes for 1880. Their testimony also shows that the north half of said quarter section was owned by and in the possession of appellant in 1880.</p> <p>Payment of taxes by the owner on land assessed by an imperfect description is sufficient to protect the land owner, because the parol proof applied the payment and identified the land intended. Dodds v. Marx, 63 Miss. 443. That the evidence to identify was competent in this case, see Deber v. Dowling, 65 Miss. 259.</p> <p>When the entire tract is entered upon the roll (regardless of the land in which its various subdivisions may be listed), the charge is fixed, and when the taxes on any portion of the land are unpaid, the delinquency of the unpaid portion occurs. The point of investigation is not as to how the land is subdivided on the roll, nor as to the land being listed to its owners, nor as to how many persons owned the entire tract, but the real inquiry is, was the land described on the roll by section, township and range, or by any description that will furnish a sure guide for its ascertainment. I submit that the proof clearly identified the land that was sold.</p>

From the circuit court of Wilkinson county. Hon. Balph North, Judge. Ejectment by appellee against appellant. The facts are sufficiently stated in the opinion. On the trial the plaintiff introduced the deed of the tax-collector to E. H. Beaumont, and from the latter to himself and rested. The defendant offered the evidence as shown in the opinion all of which was upon the motion of plaintiff, excluded. The plaintiff had verdict and judgment, and the defendant appeals.

From the circuit court of Perry county. PIon. S. H. Terral, Judge. This action was brought before a justice of the peace by A. M. Dozier, a physician, to recover of the Western Union Telegraph Company damages for failure to deliver a message.

From the chancery court of Aclams county. Hon. W. R. Trigg, Chancellor. The appellant is the executor of L. B. Field, who died in 1884. At the time of his death L. B. Field was indebted to O. K. Field in the sum of $4000, secured by mortgage on land.

<p>Prom the chancery court of Tunica county.</p> <p>Hon. W. E. Trigg, Chancellor.</p> <p>The appellee, Pointer, owned a valuable plantation in Tunica county, Mississippi, and in 1886, leased it to C. A. Cox, for the three following years, but reserved the right to cancel the lease as to 1888 and 1889, by giving the lessee notice on or by November 15, 1887. After this he authorized A. J. Martin, of Memphis, Tenn., to act as his agent until November 14, 1887, to sell the plantation for $25,000, of which he required that $5000 should be paid cash. On said 14th of November, 1887, as authorized, said Martin, in the name of his principal, made a valid contract in writing with appellant, J. P. Thurman, for himself and son, by which they became purchasers of the plantation on the terms above stated. Eeferring to the payments and the possession of the land, this contract contains the following language: “ $5000 to be paid cash on the 1st of January, 1888, when possession of the place shall be given to me.”</p> <p>The contract closed with this language: “ provided title is found good, and taxes paid up to 1st of January, 1888.”</p> <p>About mid-day on the 15th of November, 1887, Pointer, who was then in Memphis, was informed of the contract of sale of the plantation by his said agent. Cox resided on the plantation thirty-three miles south of Memphis, only a mile and a half from Hollywood, a station on the railroad. A regular passenger train left Memphis on this road at 4.45 in the afternoon of each day, arriving at Hollywood at 5.59, all of which was known to Pointer, and he knew where Cox was, for he had left him on the place that day, having gone to Memphis on the morning train. Pointer, therefore, had ample time and opportunity to cancel the lease of Cox on that day, as was his right. But he neglected to cancel it, and Cox remained on the plantation, his lease for the years 1888 and 1889 having become absolute.</p> <p>Prior to making said contract of purchase, Thurman knew that Cox was in possession under said lease. On November 18, 1887, Pointer showed Thurman the written lease, and agreed to carry out the contract of sale if Thurman would accept the plantation with the lease. Thurman declined this and insisted that the lease should be annulled. On the 21st of November, Thurman & Son wrote Pointer that they had caused the title to be examined, that it was satisfactory, and that on January 1, 1888, they would be prepared to make the cash payment and execute all proper papers, and would expect him to comply with his part of the agreement.</p> <p>To this Pointer answered that he would make no deed to the property unless Cox was satisfied.</p> <p>Thurman & Son replied by letter that they demanded to be put into possession January 1, 1888, freed from the Cox lease.</p> <p>On December 31, 1887 (January 1, being Sunday), the parties met at Memphis, and Thurman & Son tendered to Pointer $5000, the cash payment, together with notes and a trust-deed properly executed to secure the deferred payments, and demanded a deed with general warranty, in accordance with the contract. Pointer tendered them such a deed, but stated that he would not deliver it unless they would accept the same with the Cox lease and notes, which he offered to transfer and deliver with the deed. The Thurmans declined this, but offered to accept the deed without the lease, if delivered unconditionally. This being refused, the parties separated and nothing more was done towards the execution of the contract. On Monday January 2, 1888, the bill in this case was filed by Thurman & Son for specific performance, and for damages on account of the two unexpired years of the lease. The rent notes of Cox were for $2200 for each year, and he was to keep the property in repair. The bill alleges that the rental value of the plantation is $5000 per annum, but that more could be made by cultivating it with hired labor and croppers, as complainants had expected and arranged to do.</p> <p>Defendant demurred to the bill. The demurrer being overruled, he answered admitting substantially the facts as above set forth, except as to the time and opportunity for cancelling the lease on November 15, 1887, after the defendant was informed of the contract of sale made by his agent. The testimony shows that he had such time and opportunity. It further shows that the rental value of the plantation had increased 15 or 20 per cent, after the execution of the lease to Cox.</p> <p>On September 25,1889, the cause was finally heard on pleadings and proofs, and the court entered a decree in favor of the defendant dismissing the bill. From this decree complainants appeal.</p> <p>1. A valid contract for the purchase of the land was made between the parties November 14, 1887. It stated all the terms. The rights of the parties must be decided by their respective duties and obligations under that contract as they existed on that day.</p> <p>2. If a vendee' contracts for the delivery to him of possession, when it is known to both parties that constructive possession only can be given, then only such possession is required. But that is not the case here. At the time of making the contract of sale Pointer had the power to cancel the lease, so as to be able to deliver actual possession. It was not necessary for Thurman to stipulate specifically for the cancellation of the lease. It ivas incumbent on Pointer to cancel it as a part of his agreement. A contract to do a thing includes an agreement to perform every act that is necessary and incidental to it.</p> <p>3. If there is any doubt as to the fact that the words of the contract meant the delivery of actual possession, this is settled against the defendant by the construction which the parties themselves placed upon the language. Pointer limited the time within which his agent might sell to the 16th of November, 1887, the last day within which he might cancel the lease. He also construed Thurman’s letter of November 21, as a demand for actual possession, not because of any express stipulation, but because the letter referred to the contract which meant that. Where language is doubtful, the interpretation of the parties is of great weight. Chicago v. Shelton, 9 Wall. 50; 2 lb. 728; 10 lb. 367.</p> <p>4. The proviso, “ If the title is found to be good,” etc., settles the meaning of the word possession, because the title would not be good without possession. The word possession got into another part of the contract solely for the purpose of fixing the time wdien actual occupancy should begin.</p> <p>5. The argument of the opposite counsel is inconsistent. They claim that Thurman knew of the lease, but not of Pointer’s right to cancel. M'go, Thurman contracted for constructive possession. And yet they say that, as the lease had two years to run and Thurman knew this, it was but fair, if he wanted the place free from the lease, that he should have so stated in his offer. How could he expect to get the place free from the lease unless he knew that Pointer had reserved the .right to cancel it ?</p> <p>Counsel do not rest on either theory, but claim the benefit of both, and the two are at variance. But this is immaterial. Pointer, by making the contract, represented that his title was good and that he could deliver possession on January, 1888, and Thurman relied on this. And, as a matter of fact, Cox did not have an absolute lease, and Pointer could have cancelled it.</p> <p>6. The case of James v. Lichfield, L. B. 9 Eq. 51, was relied on by defendant in the court below. Mr. Pomeroy says that case was overruled in Cabellero v. Henty, L. P. 9 Ch. 447. See Pom. Specif. Perf. § 443, note 2.</p> <p>Equity has jurisdiction to award specific performance, with compensation or damages in cases of this character. Ib. §§ 434-437.</p> <p>We seek damages, not as independent relief, but as incidental to the principal relief. Ib. § 436.</p> <p>Counsel uses the expression, “ one who knowingly buys a bad title,” and that language correctly represents the line of authorities relied on by them. But Thurman bought a good title. It was good when he purchased. If Pointer had cancelled the lease as he bound himself to do, could Thurman have rejected the title ?</p> <p>7. Thurman did not by implication or otherwise bind himself to take the place subject to the lease. Even if he had done this in his letter of November 21, as insisted, he could have fallen back on the original contract, if Pointer had not changed his position by reason of the letter. Tremer v. Halsted, 23 Wend. 66.</p> <p>8. Grant that the words, “ provided title is found to be good,” stood for the benefit of the vendor as well as for the vendee, they certainly did not justify the vendor in so dealing with a good title as to make it invalid.</p> <p>1. One seeking performance of a contract which he knows cannot be specifically performed, has no standing in a court of chancery. Hatch v. Cobb, 4 Johns. Ch. 559 ; 5 Ib. 193; 11 Paige, 277.</p> <p>Specific performance cannot be invoked to allow compensation to him who knowingly buys a bad title or an encumbered estate.</p> <p>Thurman proposed to buy the land, knowing of the lease, and did not stipulate in regard to that. Under those circumstances, the law is settled that he must take the property with the burden, or not at all. Pom. Specif. Perf. § 442 ; James v. Lichfield, L. B. 9 Eq. 51; Peeler v. Levy, 26 N. J. Eq. 330 ; 75 111. 100.</p> <p>2. The provision that possession was to be given by January 1, 1888, was not a stipulation that Pointer would cancel the lease. It is not shown that Thurman knew that the right of cancellation existed. If Thurman wanted the place free from the lease, he should have so stated in his offer of purchase.</p> <p>Possession could have been given by assigning the lease and having the tenant attorn. Bouvier’s Law Die., “ Possession.”</p> <p>On November 21, Thurman writes Pointer that he finds the title good, and accepts. He then knows that the time has passed for cancelling the lease, and yet says nothing about it in his letter. He then takes the place with the lease, and is not entitled to specific performance with damages.</p> <p>3. Nor are complainants entitled to simple specific performance. On November 21, they accepted the title, knowing they could not get actual possession. If the contract means actual possession, the proviso that the title should be good relieved both parties. Complainants found the title not good, according to their interpretation, and accepted it, but now propose to force the defendant to make it good according to the way they interpret the contract. This is too one-sided to be equitable. On this point see Williams v. Edwards, 2 Sim. 78; Pom. Specif. Perf. 163.</p> <p>4. Pointer offered to do all that the terms of the contract required of him. Complainants, by refusing to accept the deed and rent notes, lost their right to that which was offered them. Benedict v. I/yneh, 1 Johns. Ch. 376.</p> <p>5. It must be borne in mind that the circumstances have materially changed since the tender of performance by Pointer. The property has enhanced, and the rental value has considerably increased. Certainly it would be inequitable as against defendant now to enforce specific performance. Pom. Specif. Perf. §§ 384, 485; Brazier v. Grats, 6 Wheat. 528.</p>

From: the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor.

From the circuit court of the first district of Yalobusha county. Hon. W. M. Rogers, Judge. By an act of the legislature, approved March 7, 1888 (Laws 1888, p. 56), it was provided that county superintendents of education for certain counties named in the act should be elected as other county officers, and that in all counties in the state not named in the act the office should be filled by appointment by the state board of education under the law then in force.

From the chancery court of Marion county, first district. Hon. Sylvanus Evans, Chancellor. The bill in this case was filed by appellees, John Foxworth and other tax-payers in Marion county, seeking to enjoin the appellant, Cowart, tax-collector of said county, and the board of supervisors, from enforcing and collecting a certain tax alleged to have been illegally levied by the board of supervisors in 1888.

<p>From the circuit court of Adams county.</p> <p>Hon. Earph North, Judge.</p> <p>On April 19,1889, appellant was indicted for carrying concealed a pistol in February, 1889, and he was tried and convicted. On the trial he admitted that he carried the pistol, but claimed that he was justified in so doing. With this admission, the state closed. Thereupon the defendant introduced one David McClure, who testified that in the latter part of January he had a conversation with one William Tuttle, who was angry, and who stated that the defendant, Earhart, “ was a sneak, and that he, Tuttle, would get him yet that he, witness, on the same day informed the defendant of what Tuttle had said. Counsel for defendant then asked the witness what else Tuttle said to him about defendant on that occasion. Objection being made, the court refused to allow this question to be answered. Witness was then asked if he had not told Earhart to arm himself, because Tuttle was very angry with him, and he answered yes; but this was excluded by the court. Counsel for defendant then asked witness whether or not, from his knowledge of Tuttle’s character, he, Tuttle, would eai'ry out any threat he might make. To this question the court sustained an objection. This was all the evidence. Defendant excepted to the action of the court in excluding his testimony.</p> <p>The following instruction was given to the jury at the instance of the state: “ The court instructs the jury that words testified to by the witness in justification of carrying the pistol are not sufficient to authorize the defendant in carrying a pistol, and they will find the defendant guilty as charged.”</p> <p>A motion for a new trial was overruled and defendant apppealed.</p> <p>1. If appellant honestly believed that his life was in danger or that he was in danger of great bodily harm from the prosecutor, Tuttle, he was justified in the act complained of. This being true, he had the right to prove the threats made and all that Tuttle said.</p> <p>2. The court ei’red in the interpretation of § 2985 of the code, as amended by the act of 1888. This court will not attribute to the legislature a frivolous intention in the effort to amend the code. We protest against the unreasonable and jocular construction placed upon the amendment by the learned judge of the circuit court.</p> <p>3. In any view of the statute, the charge is erroneous, as it is an instruction on the weight of the evidence. In effect, the court told the jury that what McClure testified to was no threat. This should have been left to the jury.</p> <p>The- manifest purpose of the act of 1888 was to take away the common defense, that the accused apprehended an attack. The object was to compel one, though threatened with attack, to carry his weapon exposed, if he meant to rely upon this defense. According to the rules of grammar, however absurd it may appear, the words “ threatened with” in the section as amended, relate only to travelling. What technical significance that may have had in the minds of the legislature we do not know. Certain it is that the act of 1888 negatives the idea of a threatened attack requiring the use of a deadly weapon. If this view is not correct, possibly it was error to rule out the defense set up by appellant. But I protest that it would not be a fair or reasonable construction of the statute as amended to allow this defense.</p>

From the circuit court of the first district of Chichasaw county. Hon. Look E. Houston, Judge. The indictment in this case alleges that the appellant, “ did unlawfully play at cards and dice on Sunday.” A motion to quash the indictment on the ground that it charged no offense was overruled. The defendant was tried and convicted, and a motion to set aside the verdict was overruled. The evidence is not set out in the record.

From the circuit court of Harrison county. Hon. S. H. Terral, Judge. Appellant was indicted for knowingly altering the mark of a sheep, the property of one Davis. The only evidence adduced on the trial was that of Davis and two other witnesses, who testified that they found a lamb running in the open woods, between the home of Davis and that of the accused, and that the mark of the lamb had been altered from that of Davis, its owner, to that of the appellant.

From the circuit court of Monroe county. Hon. Lock E. Houston, Judge. The appellants, Eagan and Campbell, were indicted for selling malt liquors at the town of Nettleton, in Monroe county, in violation of a special statute, approved February 1, 1888, entitled “an act to incorporate Providence College, in Lee county, and for other purposes.” This act makes it a misdemeanor to sell liquors within three miles of said college.

From the circuit court of Copiah county. Hon. J. B. Ci-irisman, Judge. The indictment in this case averred that appellant wilfully and unlawfully sold spirituous and intoxicating liquors within five miles of the corporate limits of the towns of Wesson and Beauregard, in the county of Copiah.

From the circuit court of Grenada county. Hon. C. H. Campbell, Judge. The facts sufficiently appear in the opinion. 1. It was error to refuse the application for a change of venue. The affidavit of the defendant, supported by the oath of three credible witnesses, made a prima fade case, and to support this several witnesses were introduced and testified in the most unequivocal manner that a fair and impartial trial could not be had.

Fbom the circuit court of the second district of Marion county. Hon. S. H. Tebbal, Judge. The opinion states the case. As the judgment is reversed because of the insufficiency of the indictment, it is unnecessary to set out the facts. For the same reason, the arguments of counsel as to many points presented by the record are omitted. 1. The indictment is fatally defective.

Trom the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. The appellant has been, convicted of assault, with intent to commit rape. The prosecutrix testified that she was riding in the daytime alone and on horse-back along the public road, about two miles from the town of Hazlehurst, when reaching a place where the public road crosses the railroad, she noticed a negro man standing on the crossing.

<p>1. Criminal Law. . Former conviction; specially pleaded.</p> <p>Defense of former conviction must be pleaded specially.</p> <p>2. Same. Former conviction; plea. Identity of offense.</p> <p>A conviction on an indictment charging drunkenness and swearing at a public place, in the presence of two or more persons, is no bar to a subsequent indictment for disturbing religious worship, though at the same time and place, when the evidence shows that the worship was disturbed by other means than being drunk and profane. Smith v. The State, ante, 116.</p> <p>3. Same. Disturbing religious worship. Verdict. Sufficiency of evidence.</p> <p>Where several are jointly charged with disturbing religious worship at a camp-meeting, and the evidence shows cursing, shooting, and other disturbances at night, of which some' of the defendants are unquestionably guilty, and one of the defendants is arrested at 2 o’clock at night, having a pistol in his possession, and, being in company at the time with one of the parties causing disturbance, fails to explain his being out at that hour in such company, and there are other circumstances indicating his participation in the disturbances, a verdict convicting him will not be disturbed.</p> <p>4.Same. Joint offense. Indictment.</p> <p>Two persons cannot be convicted of distinct and independent offenses upon an indictment charging a joint offense. Strawhern v. The Slate, 37 Miss. 422, is not an authority for the contrary of this. The ground upon which the conviction here is sustained is that the evidence warrants a verdict of guilty as to both defendants, a common participation in the unlawful disturbance.</p>

From the circuit court of Lincoln county. Hon. J. B. Chrism an, Judge. To a scire facias on a forfeited bail bond, appellants, the sureties, pleaded that after its execution and before its forfeiture the grand jury returned in the circuit court of the same county other indictments against their principal, under which he had been arrested and taken into custody. It was not averred that the accused was still in custody.

Prom the circuit court of Pike county. Hon. J. B. Chrisman, Judge. The appellant was indicted under § 2976, code 1880, for attempting to obstruct the course of justice.

From the circuit court of Pike county. Hon. J. B. Chrisman, Judge. The facts are stated in the opinion. We contend that as the act of March 16, 1886, was subsequent to, and by express provision repealed, the local option act passed at the same session, the putting into force of the local option act by the county of Pike did not abrogate the act of March 16th.

From the circuit court of Marshall county. Hon. W. M. Rogers, Judge. Action by appellee, Fite, against appellant for damages. Plaintiff purchased a ticket and boarded a passenger train to go from Byhalia to Miller’s station, a distance of six miles, on defendant’s road. Miller’s was a flag station, where the trains stop when there are passengers to get on or off.

From tbe circuit court of Benton county. Hon. W. M. Eogers, Judge. Action by appellant against the appeilee for damages. On the evening of December 12, 1888, appellant, Aaron Eoyston, a colored man, purchased of the agent of the Illinois Central E. E. Co. at Holly Springs, Miss., a ticket, entitling him to transportation over the line of its road to Water Valley, Miss.

From the circuit court of Oktibbeha county. Hon. Lock E. Houston, Judge. This case was before this court on appeal from a judgment sustaining a demurrer to the declaration, where it was held that the declaration showed a good cause of action and the case was remanded for a new trial. See 66 Miss. 161.

From the circuit court of Jefferson county. Hon. Ealph North, Judge. This is an action by the Natchez, Jackson & Columbus E. E: Co. for the use of the Phoenix Insurance Co. of New York to recover from the Louisville, New Orleans & Texas Ey.

From the circuit court of Wilkiuson county. Hon. Ralph North, Judge. J. Y. Jones brought this suit against E. F. McKee to recover the value of certain horses and mules, which he claims died of the glanders imparted to them by a horse which he purchased of McKee. Plaintiff offered to show that on- a certain Sunday, McKee called at his home in the state of Louisiana, having two horses which he offered for sale.

From the chancery court of Carroll county. Hon. T. B. Graham, Chancellor. The appellees, D. P. Ricketts, Sr., and Marcus Askew, exhibited this bill, seeking to enjoin the sheriff of Carroll county from levying execution issued upon a final judgment against them as sureties upon a bail bond.

From the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor. On the 16th of October, 1886, the appellant, Annie E. Chiles, filed the original bill in this case, alleging that she was the owner of twenty acres of land in the city of Meridian, and seeking to remove clouds from her title thereto. The appellees, Gallagher, Cameron, Watkins, and Champenois, were made defendants. They demurred to the bill, and after their demurrer was overruled they answered.

From the chancery court of Lowndes county. Hon. T. B. Graham, Chancellor. The opinion states the facts. 1. The devise to Robert E. Cady lapsed by the death of Adella prior to the testator’s death, and therefore the legacies in item 6 of the will lapsed. The devise to him and Julia Riddick in item 6 was a joint personal charge and not a charge upon the land specifically devised; nor was it a charge upon the residuary estate.

<p>1. Estate op Decedent. Necessity for administration. Decree. Collateral attack.</p> <p>Even if it be essential to a valid grant of administration that the decedent had property subject to be administered (which the court does not decide), the order of the proper chancery court granting letters of administration, and reciting that the intestate had such property is an adjudication of the fact, and such finding cannot be attacked collaterally.</p> <p>2. Grant op Administration. Appointment of administrator. Informality.</p> <p>Although the order upon a petition for administration does not formally and by apt words commit the estate to the person named therein, if it directs him to take out administration, and lie proceeds to exercise administrative authority, which is recognized by the court in subsequent orders, the appointment of such administrator is sufficiently established, though no letters were issued.</p> <p>3. Same. County administrator. Qualification and bond. Letters.</p> <p>The county administrator, being under an official bond and oath, is not required by law to execute a bond and qualify as administrator in each estate committed to him; and letters of administration, which are intended merely to authenticate the grant and to show qualification thereunder, need not in any case he issued to such officer.</p> <p>4. Administrator in Dual Capacity. Character of account, how determined.</p> <p>Where one is both administrator de bonis non of an estate, and administrator of the deceased administrator, and files an account purporting to be his final account in the latter capacity, but which in reality is the account of the former administrator with the estate, and is referred to as such throughout the subsequent proceedings, a decree thereon will be valid which fixes liability upon the deceased administrator and his sureties for the amount shown by the account to be due by him to the estate.</p> <p>5. Administrator de bonis non. Power to sue on bond of,former administrator. Code 1880, § 1998.</p> <p>Under the act of April 11, 1873 (Acts 1873, p. 70), the administrator de bonis non could only bring suit upon the bond of the former administrator where the estate had been declared insolvent, but under the code of 1880, § 1998, this right exists where the estate is insolvent, and where such suit and recovery may be necessary for the payment of the debts of the estate.</p> <p>6. Recovery on Bond of former Administrator. Distribution thereof.</p> <p>An administrator de bonis non entitled to bring suit upon the bond of the former administrator should have recovery for the full amount due by the latter, and so much thereof as remains after payment of the debts of the estate will be held for distribution.</p> <p>7. Same. Right to sue, how terminated. Survival thereof to distributees.</p> <p>Where the right of the administrator de bonis non to sue upon the bond of a former administrator depends alone upon the necessity to recover the sum due to pay the debts of the estate, it will be lost if the debts due by the estate are paid or become barred; and the right thereupon survives to the distributees.</p> <p>8. Statute op Limitations. Death before bar complete. Code 1880, § 2683.</p> <p>This section provides as follows : “If any person entitled to bring any of the personal actions hereinbefore mentioned, or liable to any such action, shall die before the expiration of the time herein limited therefor, such action may be commenced by or against the executor or administrator of the deceased person, after the expiration of said time, and within one year after the death of such person.” Held, that this section applied where the deceased person died before the adoption of the code, if the death occurred within the last year of the period limited for bringing the suit, and the right has not been barred under former statutes ; and its effect in such case was that such action was not barred until the expiration of one year from the adoption of said code.</p> <p>9. Same. Statute once begun continues. When rule not applicable.</p> <p>The rule that the statute of limitations, having once begun, runs uninterruptedly, notwithstanding the absence of a person competent to sue, does not apply where the statutory right of an administrator de bonis non to sue upon the bond of a former administrator terminates because there are no longer any debts of the estate to be paid. But, since there can But one recovery on said Bond, the time during which, the statute ran against the administrator de bonis non will Be computed against the distributees, as provided in § 2694 of the code of 1880.</p> <p>10. Same. Trustee barred, beneficiary barred. Application of rule. Code 1880, § 2694.</p> <p>This section of the code which provides under certain circumstances that when a guardian or other trustee is barred, the Beneficiary shall Be Barred, applies only where the legal title or right of action at law or in equity is in the guardian or trustee, and a mere equitable right in the Beneficiary; it does not therefore apply to the ordinary cases where the right is that of minors to be asserted By the guardian in their name.</p>

From the chancery court of Copiah county. Hon. Warren Cowan, Chancellor. This suit originated in a bill of interpleader filed by one Calvin Blue against Mary Buie, the appellee, and Robert M. Buie and others, the appellants.

From the chancery court of Bolivar county. Hon. W. E. Trigg, Chancellor. In July, 1885, F. C. Webb, administrator, and the heirs-at-law of J. W. Lyman, deceased, filed their bill in the chancery court of Bolivar county, against Godfrey Frank, Henry Frank, and Joseph Sugarman for an accounting of the partnership business of J. W. Lyman & Co., a firm lately before then engaged in trade, composed of said Lyman, in his lifetime, and the defendants.

From the chancery court of the first district of Yalobusha county. Hon. J. G. Hall, Chancellor. The facts are sufficiently stated in the opinion.

<p>. 1. Homestead. Partly without a town. Single tract.</p> <p>The homestead, exempted under § 1249, code 1880, to- the householder having a family, may consist of land lying partly within and partly without a town, if all comprises one tract.</p> <p>2. Statutes. Construction thereof.</p> <p>While the general rule is that statutes should be so construed as to give some meaning to every provision, it is not permissible to absorb the statute in the rule, or to overturn the legislative will. Courts should look at the statute from every point of view ; the collocation of words and sentences should be changed, if necessary, and the general purpose and history of the legislation on the subject should be considered in the effort to ascertain the legislative intent.</p>

From tbe chancery court of the first district of Hinds county. Hon. Warren Cowan, Chancellor. One Mallett was in the drug business at Edwards, Miss., and was involved in debt. On the 15th day of April, 1885, he executed a bill of sale of his stock of drugs, etc., to the appellants, Redfield & Co., merchants of that place, for the expressed consideration of $1106.95, cash, and the goods were delivered to the purchasers.

From the circuit court of Adams county. Hon. Ealph North, Judge. Appellee, Earhart, sued Eltringham, claiming one thousand dollars, damages for an assault and battery. The evidence for the plaintiff showed that he was attacked by defendant and another (both being stronger than plaintiff), and severely beaten, and was thereby disabled for about two weeks.

From the circuit court of Monroe county. Hon. Lock E. Houston, Judge. Matheny, a furniture dealer, of Aberdeen, Miss., had a stock1 of goods. The appellees, T. W. and E. B. Stewart, recovered a judgment against him February 22,1889, for $465.86. While the suit was pending, on January 26, 1889, Matheny executed to W. H. Vassar, as trustee, a trust-deed, to secure Clifton & Eckford a debt of $750, due thirty days from that date.

From the chancery court of Claiborne county. Hon. L. McLaurin, Chancellor. Appellees, S. Bernheimer & Son, had a mortgage for $945.77 on certain cotton, executed by one Boren, which cotton was seized under execution on a judgment in a justice court, in favor of appellant, Conn, for $108.03 against said Boren.

From the chancery court of Pike county. PIon. Lauch McLaurin, Chancellor. The lot mentioned in the pleadings upon which is situated the residence of Sinnott and wife, containing about three acres, which was excepted in the conveyance to Atkinson, is situated about the middle of the tract so conveyed^, and is entirely surrounded by it. The court below refused to cancel the instrument, and entered a decree in favor of Mrs. Sinnott, enforcing a lien for $1500 and interest.

From the chancery court of Tunica county. Hon. W. R. Trigg, Chancellor. The facts are stated in the opinion of the court. It is only necessary to add that Jacques, after receiving the deed from J. E. Stone, kept it as directed, and that the said Stone did not return, but died while in Florida, whereupon Jacques delivered it to J. W Stone, the grantee therein named. There was no delivery of the deed; it never passed beyond the control of the grantor.

From the circuit court of the first district of Chickasaw county. Hon. Lock E. Houston, Judge.

<p>From the circuit court of Madison county.</p> <p>Hon. J. B. Cheisman, Judge.</p> <p>The opinion states the case.</p> <p>It was a part of plaintiff’s duty to show that the goods were subject to the attachment, and, to do this, he must show that Ward sold in fraud of his creditors, and that Richards bought with a knowledge of such fraud.</p> <p>The first instruction told the jury that Richards was presumed to have purchased from Ward with a knowledge of his fraud. This is contrary to all law, and the presumption is that Richards bought in good faith.</p> <p>Plaintiff should be required to show the liability of the property to attachment. To do this it is necessary to show that the sale was fraudulent and void, and that Richards participated in this fraud. Having failed to show that Richards participated in the fraud, plaintiff must fail. Butler v. Lee, 54 Miss. 477 ; Liohnan et al. v. Williams, 50 lb. 500; 3 S. & M. 42; 1 lb. 372; 7 How. 42. See also Hirsh v. Bichardson, 65 Miss. 228 ; Tuteur v. Chase, 66 lb. 476 ; Bigelow on Frauds, 123.</p> <p>Section 1774, code 1880, fastens the burden of proof on the plaintiff. This means that plaintiff must show the transaction fraudulent as to the purchaser. The party on whom the burden of proof rests must make out such a case as would entitle him to a verdict if the defendant offered no evidence at all. Richards was not called on to offer any evidence until the plaintiff had in some way fixed the fraud on him or a knowledge of it, or that he was in possession of such facts as would have led to knowledge.</p> <p>Sales of personalty are caveat emptor, and a purchase for value and without notice is a defense which may relieve from the vendor’s fraud. Thompson v. Furr, 57 Miss. 484; Fulton v. Woodman, 54 lb. 172; Portwood v. Lee, 41 lb. 109. The burden is on plaintiff at the commencement, but he has met that burden when he shows the sale fraudulent on the part of the vendor. Then, if the claimant is protected by equities from the effect of such fraud, this is an affirmative defense, and he must show it. Carter v. Allen, 21 Gratt. 241; Carr v. Callahan, 3 Litt. 365; Hair v. Little, 28 Ala. 236; Bailey, Onus Probandi, 303; Williams v. Hill, 19 How. (U, S.) 246; Hosldns v. Warren, 112 Mass. 527.</p>

From the chancery court of Itawamba county. Hon. Baxter McFarland, Chancellor. Appellee, who was complainant in the court below, obtained a decree, and his injunction was made perpetual. Defendant appeals. The court considers it necessary to pass on only one of the questions discussed by the counsel. The' facts as to this are fully stated in the opinion. The new promise was sufficient, and prevents the bar of the statute. Hart v. Boyt, 54 Miss. 547.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor. The appellee, Anna Holberg, exhibited this bill, seeking to enjoin the sale of the land in controversy under execution upon a judgment in favor of appellant, Charles E. Levy. The facts are stated in the opinion of the court. The decree' of the court was in favor of complainant, enjoining the execution, and from this decree the defendant appeals. 1.

From the chancery court of Marshall county. Hon. J. G. Hall, Chancellor. By the will which is contested in this case the testator, W. W. Walker, gave his estate, consisting of five or six thousand dollars, to his mother for life, and at her death it was to go to his three sisters. He had two brothers, John and Rufus. To the former he gave five dollars, and to the latter a horse.

<p>1. Jurisdiction. Distinct demands. Separate suits. Justice of the peace.</p> <p>A creditor may not divide a cause of action, though consisting of different items, and bring several suits. Having distinct demands against the same debtor, he may unite them in one suit, but he is not compelled to do so, and may maintain a separate action on each. The holder of two bills of exchange, each less than $150, maturing at different dates, may, at the same time, sue out an attachment before a justice of the peace on each demand, though the aggregate of the two exceeds $150, and a single suit.therefor was maintainable in the circuit court. Mc-Lendon v. Pass, 66 Miss. 110, cited.</p> <p>2. Attachment. Levy on land. Return. Presumption. Code 1880, § 2424.</p> <p>In a bill to vacate a judgment in attachment, where the return on the writ is sufficient as showing a levy on wild or unoccupied land, and insufficient to show a levy on land that is occupied or cultivated, if the character of the land is not made to appear, it will be assumed that the land was unoccupied, and the return will be upheld as showing a valid levy on such land.</p> <p>3. Same. Notice. Failure to file affidavit of defendant’s address. Void judgment. Cancellation.</p> <p>In an attachment case based on the non-residence of defendants, where there is no return showing service of process on him, and no affidavit is filed showing his post-office address or diligent inquiry to ascertain it without success, as required by § 2437, code 1880, although publication is made and notice is mailed to the address of the defendant in another state, a judgment by default will be void, and a conveyance of land thereunder will be cancelled as a cloud at the suit of the defendant.</p>

From the circuit court of De Soto county. Hon. W. M. Rogers, Judge. In the latter part of 1888, L. D. Lewis and A. F. Foster jointly purchased on speculation a lot of Texas horses. Being unable to sell the horses, they took them to the place of H. W. Foster, mother of A. F. Foster, where they were kept for some time. On Friday, December 7, 1888, by agreement, the horses were divided, Lewis taking seven and A. F. Foster ten.

Prom the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Action on an open account for goods sold, by Marks, Rothenberg & Co. against Maggie McElroy (formerly Roberts). It was shown that the defendant was a minor at the time the debt was contracted. Witnesses testified to the correctness of the account, and that defendant, while a minor, promised to pay it. There was no direct evidence of the value of the goods, or that they were necessaries.

From the chancery court of Bolivar county. Hon. W. R. Trigg, Chancellor. Appellant, J. W. Person, owned a plantation in Bolivar county, Mississippi, known as the Parks Place, containing 1040 acres. On the 15th day of March, 1882, he gave a trust-deed on the same to secure a debt to the appellee, Leathers. A trustee was named, and he was given power of sale to satisfy the trust-deed on default in the payment of the debt.

<p>From the circuit court of Yazoo county.</p> <p>Hon. J. B. Chrism an, Judge.</p> <p>Appellant, Fullwood, owned and ran the bar on the steamer Katie Robins, which navigated the Yazoo river, and was indicted for selling liquor in Yazoo county in violation of the local option law, which had been put into operation by an election held in that county. One Wade, as a witness for the state, but whose name' was not on the indictment, testified that he bought a drink of whisky at the bar of said boat while at a landing in said county. Fullwood did not sell it, and was not present. The name of the person who sold the liquor was not shown; but it was sold by a person in charge as bar-tender, and it was shown that Fullwood ;had bar-tenders on this and other boats running on said river. When arrested on this charge he stated that he did not know that his bar-tenders had been selling liquor in Yazoo county, but that if they had he would stand by them and was responsible for it. The precise date of the sale was not shown. Defendant offered no evidence to explain or contradict this testimony on behalf of the state.</p> <p>The state also introduced the order of the board of supervisors directing the local option election and appointing three commissioners to hold it, in pursuance of the statute. The certificate and ■affidavit accompanying the returns of said election were made by only two of the commissioners, the record being silent as to the other commissioner after the appointment. Defendant objected to the introduction of this record in evidence.</p> <p>At the instance of the state, the court gave the following instruction :—</p> <p>“ If the jury believe from the evidence, beyond all reasonable doubt, that William Fullwood, at any time between the 22d day of August, 1886, and the finding of this indictment, was the owner ■of the bar where liquor was sold on the Katie Robins, and that during the time of his ownership Mr. Wade purchased whisky from the bar of the steamer, then William Fullwood is guilty as charged, and the jury will so find.”</p> <p>Defendant was convicted, and was sentenced to pay a fine of $50 and to be imprisoned sixty days. After motion for a new trial overruled, he prosecuted this appeal.</p> <p>1. The election return was made by only two commissioners, and so of the affidavit required by the statute. The statute is explicit in requiring “their” affidavit, meaning the affidavit of all three. This cannot be construed to mean a majority merely. The duties of the commissioners are ministerial, and the statute contemplates the individual action of each. We submit that the evidence is not sufficient to show the adoption of the local option law.</p> <p>2. Under the instruction of the court, the jury was not permitted to pass upon the question whether the person selling the liquor, was the servant of defendant? It is immaterial, how the jury might have decided this question; the court had no right to invade its province. To say the jury would have inferred that the person selling was the servant of defendant, is to assume that if this was not so, defendant could have shown it. Selling liquor from defendant’s bar may be a stronger circumstance against defendant than the possession of goods recently stolen ; but it is only a question of degree, and the jury must be the arbiters. Would the jury have acted improperly in rejecting a presumption that might ordinarily be indulged ? Did the court have the power to determine the question of fact that the person selling was defendant’s agent ?</p> <p>Ordinarily it is said that the proof of the precise time fixed in an indictment is not necessary; but we submit that the doctrine is not applicable to a case of this character, where the defendant is prosecuted for the act of another. Either the time must be proved as laid or the identity of the other person must be fixed. This case is distinguishable from Whitton v. The State, 37 Miss. 379; Riley v. The State, 43 lb. 397; Gathings v. The State, 44 lb. 343, and Teasdale v. The State, recently decided by this court. These decisions were made under the general law against retailing under the codes of 4857, 1871, and 1880, respectively. Under the local option law of 1886, it must be shown that the defendant directly or indirectly sold the liquor.</p> <p>There was no testimony that defendant ever authorized any one to sell liquor in Yazoo county. The presumption of innocence was therefore not overcome. Commonwealth v. Putnam, 4 Gray, 16; Commonwealth v. Dunbar, 9 lb. 298Commonwealth v. Briant (Mass.), 8 N. E. E. 338.</p> <p>1. It is unnecessary to consider -the instruction. One . leaving his bar to be run by another must be responsible for the acts of that other. O’Minn v. The State, 66 Miss. 7. See, also, Teasdale’s Case (MSS. op.), where the court held the defendant liable for the act of a clerk in selling liquors, even against orders.</p> <p>2. It was sufficient for a majority of the election commissioners to certify the returns. The law cannot be frustrated by a failure of the minority of such a body to perform a duty which the majority is ready and willing to perform. While, as a rule, applicable to authority of a private nature, power given to three may not be executed by two, the contrary is true if the authority is of a public nature. Bouvier’s Law Die., “ Authority9 Watts (Pa.), 466; 9 S. & E. (Pa.) 99; Commissioners v. Reeky, 6 lb. 170; State v. Canvassers, 17 Fla. 29 ; Opinion of Justices, 70 Me. 560.</p>

Ekom the circuit court of Attala county. Hon. C. H. Campbell, Judge. The case is stated in the opinion. It «tnnot be the law that nothing is “ duress” but a fear of being killed or receiving some serious bodily harm while testifying court. If so, there can be no legal duress to protect a wit whose evidence is untrue, since there, is not an example in all ji prudence to support such a view. Antecedent circumstances preying on the mind of the defendant at the time he testified.

From the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge. In 1887 the appellant, Helm, was indicted in the court below for the murder of one King. At the June term, 1888, he was tried, and the jury failing to agree upon á verdict, were discharged. At the next term he was again put upon trial, and was convicted of manslaughter. He prosecuted an appeal to this court, and obtained a reversal.

From the circuit court of the second district of Yalobusha county. Hon. W. M. Rogers,' Judge. In the indictment in this case it is charged that the defendant Woods “unlawfully did shoot and discharge a certain gun on the Water Valley and Coffeeville road, the same being then and there a public road and highway. Defendant was the only witness in his behalf, and as such denied his guilt. The court gave the following instruction for the state: “1.

From the circuit court of Lee county. Hon. Lock E. Houston, Judge.

From the circuit court of Hinds county, first district. Hon. J. B. Chrism an, Judge. On the 7th day of October, 1887, the Vicksburg & Meridian Eailroad Company instituted this action-of ejectment against the appellees, Tom Barrett d al., for the possession of a strip of land in the city of Jackson, adjoining the railroad, and claimed by the company as a part of its right of way, under a conveyance from Perry Cohea, made in March, 1837.

From the chancery court of Jackson county. Hon. S. H. Terral, Judge. Ejectment by appellants against appellee. The facts necessary to an understanding of the only point passed upon by the court are sufficiently stated in the opinion. Verdict and judgment for defendant. Motion for new trial overruled, and plaintiffs appeal.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. This suit was brought against the Mobile & Ohio Railroad Company by the appellant, W. T. Lagrone, for damages on account of an injury received by him while in the service of the company as a section hand engaged in track repairing.

<p>1. Contributory Negligence. Practice. Instruction for defendant.</p> <p>In actions of damages for negligence, the alleged negligence is a mixed question of law and fact, the facts to he found "by the jury ; hut where the evidence does not prove or tend to prove liability, or if the evidence and inferences therefrom make it clear that plaintiff’s negligence produced the injury or contributed as the proximate cause thereof, it is proper for the ootirt to direct a verdict for defendant.</p> <p>2.Same. When plaintiff’s negligence need, not be pleaded.</p> <p>Where contributory negligence is shown by plaintiff’s own proof, it will avail defendant, and it is no objection to the defense that it was not specially pleaded.</p> <p>3.Same. Railroads. Attempt to board macing train. Injury. Case in judgment.</p> <p>On a dark night, while snow was falling, defendant’s passenger train, signalled at a flag station, either did not stop or failed to stop long enough, and while it was moving out, plaintiff, an old man who was numb with cold, in attempting to get on, seized the platform railing with his left hand, holding a valise in his right. By a sudden jerk of the train he lost his footing, but clung to the railing. The train porter, the only employé who saw him, took his valise, and repeatedly urged him to turn loose, but he held on, the speed constantly increasing, and was dragged 150 yards, when he fell and was injured. No effort was made to stop the train. Plaintiff testified that he held tenaciously to the railing because he thought he would be crushed to death if he fell. Held, that he was guilty of such contributory negligence as debarred a recovery for the injury, and that an instruction to find for the defendant was proper.</p> <p>4.Same. Failure to stop sufficient time. Plaintiff’s negligence.</p> <p>Although the failure of the train to stop a reasonable time was a breach of defendant’s duty, this £oes not relieve plaintiff from the consequences of his own rash and negligent conduct.</p>

From the circuit court of Sharkey county. Hon. George Winston, Judge. The case is stated in the opinion. The question of negligence should have been left to the jury. Even in the absence of the statute, the facts could raise a prima facie case. No explanation is given by the engineer why he failed to see the animal until his train was upon it. It cannot be affirmed as a matter of law that there was no negligence. The case comes properly within the principle of Bedford v. By.

From the circuit court of Madison county. Hon. J. B. Chrisman, Judge. The package for the loss of which this suit was brought was shipped by the appellee from Canton, Miss., to one Felix in New York. When he delivered it the agent of defendant signed and delivered to him the receipt set out in the opinion of the court, first inserting therein that the value of the package was not given.

From the circuit court of Harrison county. Hon. S. H. Terral, Judge. The facts are sufficiently stated in the opinion. The assessment of the lands in controversy was made under the act of March 8, 1888, entitled “An act to equalize assessments in different counties .of the state,” section 3 of which is as follows:— “ Sec. 3.

From the Chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. The land in controversy was sold in 1888 to pay the taxes due for the year 1887.

From the circuit court of Tate county. Hon. W. M. Rogers, Judge. Appellees, T. B. and W. B. Bowdre, sued the Phenix Insurance Company, of Brooklyn, New York, on a policy issued May 17, 1888, insuring the residence of plaintiffs in Tate county, near Senatobia, Miss., against loss by fire to the amount of $2000. The building was burned September 6, 1888. The two defenses relied upon by the company in this court are set forth in the opinion.

From the chancery court of Wilkinson county. Hon. W. R. Trigg, Chancellor. Appeal by complainants from a decree in favor of defendants. The facts as found by the court from the record are stated in the opinion. Curry first attempted to buy the land in his own name, but was advised that such a purchase would enure to the benefit of all the heirs. Pie then set to work to buy for his children.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. By § 585, code 1880, the state imposes a privilege tax of $50 a year “ on each agency for sewing machines,” and, as authorized, the city of Meridian, by ordinance, imposed a tax of $25 on this privilege. The Singer Sewing Machine Company rented a building at Meridian, Miss., where it sent sewing machines for distribution among its agents who sold in that vicinity.

<p>1. Penal Statute. Recovery upon. Strict construction.</p> <p>To authorize a recovery upon a statute highly penal in its character a construction rising above plausibility will be required.</p> <p>2. Railroads. Failure to erect depot. Action for penalty. Acts 1884, p. 38 ; Acts 1888, p. 45.</p> <p>Under the act of March 14, 1888, amending the act of 1884, a railroad company cannot be subjected to the penalty of $50, a day named therein, for neglecting to comply with an order of the railroad commissioners to erect a new depot, where the order fails to ‘ ‘ prescribe the number and dimensions of the rooms therein for passengers,” as required by the statute.</p>

From the chancery court of Tunica county. Hon. W. B. Trigg, Chancellor. Tbe opinion states the case. We contend that the only proper construction of the deed is that it conveys the land for the use of a county site only. This appears from the preamble, which recites a donation for the purpose stated, and the other part of the deed relates back to it. See Daniels v. Jaehoway, Freeman’s Ch. E. 59. The cases are very similar.

From the chancery court of Pike county. Hon. Lauch McLaurin, Chancellor. Prior to December, 1886, the appellees, Mrs. M. A. Whitney and her husband M. M. Whitney, had become indebted in a large sum to appellant, Atkinson, a merchant at Summit, Miss., and this debt, alleged by appellant to be about $2000, was unsecured. Mrs. Whitney was at that time the owner of the place in controversy, containing about 680 acres, and this was unencumbered.

Fbom the circuit court of Lee county. Hon. Look E. Houston, Judge. The opinion states the case. Under § 1 of the act of 1888, all actions ex contractu are triable at the return term if the defendant has had thirty days’ notice. Under § 2, suits to enforce mechanics’ liens are triable at the return whether thirty days’ notice has been given or not; five days’ notice under the general law is sufficient in such cases.

From the circuit court of Lee county. Hon. Look E. Houston, Judge. The appellant, Cole, being indebted to W. H. Gardner, executed and delivered to him a note, which he afterwards endorsed and transferred to M. E. Gardner. After the death of W. H. Gardner this suit was brought on said note by the assignee, M. E. Gardner, and the defendant pleaded payment.

From the chancery court of Adams county. Hon. W. E. Trigg, Chancellor. Mary J. Mullins sued the appellant, The Natchez Cotton Mills Company, a corporation, for the death of her husband, Henry Mullins, who was killed by an explosion in the mills of defendant, and recovered a judgment for $6000. The deceased left two minor children, Lizzie O. and Henry Mullins.

From the chancery court of Webster county. IIon. Baxter McFarland, Chancellor. This bill was filed by S. E. Elkins against F. N. Arnold, to enjoin the sale under execution of a steam engine and fixtures, including a gin feeder and. wagon scales. These articles had been levied upon under a judgment in favor of Arnold against the husband of plaintiff, and are claimed by the latter as her separate property.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. The Louisville Banking Company exhibited this bill against appellee as the receiver of the insolvent bank of Gattman & Co., to establish and enforce a trust upon the assets of the bank for the sum of $2000 and interest.

<p>From the -chancery court of Madison county.</p> <p>Hon. Warren Cowan, Chancellor.</p> <p>The case is stated in the opinion of the court.</p> <p>The record shows that at the election in question 1067 votes were cast in favor of the subscription, whereas there were over 3000 registered voters in the county. The bill charges that this was well known to the board, but that it fraudulently suppressed the fact, and made the entry declaring that more than two-thirds of the voters had favored the subscription, for the special purpose of making the record and the face of the bonds show an apparent conformity to the constitutional requirement. The injunction here, is upon the ground that the board of supervisors had no right to make any declaration except as to matters of fact, and was not empowered to make deductions therefrom; and, therefore, that the county is not estopped by the recitals of the order of the board from setting up the invalidity of the bonds.</p> <p>Under the decision of this court in HavMns v. Carroll County, 50 Miss. 735, the measure of the constitutional limitation upon the loaning of the credit of counties, is the assent of two-thirds of the qualified voters, and the evidence of the right to vote is the registration book, unless it is shown that the voter has died or removed. It is competent, then, for the board to determine these facts, namely, the number of legal voters, the number voting for and the number voting against the subscription. This it did not do, but evaded making a statement which would have rendered the bonds invalid on their face, and confined itself to the general statement, not of fact but a deduction from what was assumed to be true, that two-thirds of the legal voters had favored the subscription. The question as to the effect of such declarations, not of fact but mere deductions, upon the validity of bonds in the hands of holders for value, is carefully considered in the two cases of Dixon County v. Field, 111 U. S. 83; and Lake County v. Graham, 130 lb. 674. These cases squarely decide that in such a case there is no estoppel on the county against setting up the original invalidity of the bonds.</p> <p>They also decide that where there is a constitutional limitation on the loaning of credit, and, to determine whether it was complied with, reference must be had to another record, holders of bonds must always look to such record for the authority to issue, and that they always have constructive notice of the contents of the same; and, further, that neither the legislature nor any other tribunal can by any finding or determination relieve from this. Such being true, the bondholders here have always had notice that the requirements of the law were not complied with, and that the bonds are invalid.</p> <p>1. The only defect in the bonds complained of in this case, is the fact that they were not issued upon a two-thirds vote. This question was fully settled in favor of the validity of the bonds by this court in Cutler v. Madison County, 56 Miss. 115, the bonds in question being the same issue as those passed upon in that case. The point is now made that the legislature had no power to delegate to the board of supervisors the power to determine the question of fact as to whether there was a two-thirds vote in favor of the subscription, the requirement as to the two-thirds vote being a constitutional one. In other words, it is claimed that the legislature had no power to designate any method of determining the question whether the necessary condition had been complied with; but, in the language of the bill, that this question must remain forever open and undetermined. . The proposition is, to say the least, a novel one. It has the merit of being a new discovery, and it seems to have been overlooked by Dillon, Cooley, Dwarris, Potter and others supposed to know something of constitutional law. It is settled that the legislature may authorize a county to-issue bonds and may require, as a condition, the performance of some act, as a two-thirds vote, and that it may appoint a tribunal to determine as to the performance of such condition. And it is immaterial that the condition is imposed by the constitution. Without any provision in the constitution as to this, the legislature would have the authority to authorize the subscription, and it may impose the condition of a two-thirds vote, or any other deemed proper. It may also designate a tribunal to determine whether the conditions have been complied with, and necessarily the decision of the tribunal would be binding on the county. The cases citéd by opposite counsel are not in conflict with our decisions, but simply hold that where the power to issue bonds depends upon the existence of some fact of record, the officers of the county cannot bind it by a recital that such fact existed when the record showed the contrary • that in such case thé purchaser of bonds must at his peril take notice of the contents of such a record. If the constitution or statute makes the power'to issue dependent upon the existence of a fact (“ ascertainable by reference to express records of public character”), the purchaser must see to it that the fact is shown by the record; but where the power to issue depends upon facts to be ascertained and determined by a tribunal charged with the power, then its determination is binding on the county, and the purchaser need look no further than the record made by it and the recitals in the bonds themselves.</p> <p>2. But concede, for the sake of argument, that the cases relied upon by opposite counsel hold the doctrine contended for by him, this court is not bound by these decisions.: They are persuasive only. And suppose, that they are sufficiently persuasive to induce this court to recede from its former decision and overrule cases, what then ? The supreme court of the United States has announced the doctrine that two-thirds of those voting answered the constitutional requirement. Therefore, in any view of the case, the demurrer was properly sustained.</p> <p>1. The power of the legislature to. authorize counties to issue bonds was full and unrestricted when the present constitution, requiring a two-thirds vote, was «adopted. It was competent for the legislature to prescribe this condition. There is nothing in the fact that the registration of voters and the two-thirds vote are constitutional, instead of legislative, requirements. Bradley v. Villere, 66 Miss. 399.</p> <p>The process indicated by the constitution involves the essential idea of official supervision, inquiry, judgment and conclusion by some person or tribunal appointed to declare the result and authorize the issuance of bonds. That the legislature may appoint such tribunal and vest it with the requisite authority, is a necessity implied from the very method fixed by the constitution in the ascertainment of the public will. Town of Coloma v. Eaves, 92 U. S. 484.</p> <p>There is a distinction between a constitutional provision, which fixes an abolute limit of power by a fact which appears in a public record speaking for itself with absolute verity, and the ascertainment of the public will by means of an election. Dixon County v. Field, 111 U. S. 83.</p> <p>In Balee County v. Rawlins, 130 U. S. 662, the court decided that the constitution of Colorado had fixed an absolute limitation upon the power of the county, as also the power of the legislature, and had named a limit, to wit, a certain percentage on the assessed value of taxable property of the county. This stood as a public record and spoke for itself, and put the purchaser upon notice. So in the case of Lahe County v. Graham, 130 U. S. 674, where it was held that the standard of validity was created by the constitution, and it was held that it was not within the power of the legislature to dispense with the requirement. The reference there was to a certain per cent on the assessed value of property. The assessment spoke for itself; ivhether true or false, it stood as a record and required no investigation or decision.</p> <p>The registration of qualified voters is prima fade evidence that the persons named are qualified to vote. Code 1871, § 373. In ascertaining whether a two-thirds vote had been cast, the registration books are competent evidence as tending to show what has been done, but it is not conclusive of the fact. Hawkins v. Carroll County, 50 Miss. 735</p> <p>In Viclcsburg v. Lombard, 51 Miss.' Ill, this court decided that where the condition of subscription was an election to ascertain the assent of the majority, the decision of the officers appointed to determine the result was conclusive in favor of innocent holders, adopting the then current doctrine on the subject. The next case was Cutler v. Madison County, 56 Miss. 115, important and decisive, because it involved the issue of bonds of which those in controversy are a part. There the court decided that a holder of one of these bonds was prima facie a bona fide holder, and as to such the actual state of the polls and the number of votes were not open to investigation, after determination by the board of supervisors, in view of the recitals on the face of the bonds.</p> <p>The question of the validity of these bonds was again before the court in Madison County v. Paxton, 57 Miss. 701, in which the cases of Lombard v. Vicksburg and Cutler v. Madison County were brought to the attention of the court, and it was assumed that if Paxton had been a bona fide purchaser, he would have been protected for the reasons above stated. In 1877, prior to the decision in Cutler v. Madison County, the question of the validity of these bonds was passed upon by the United States circuit court for the southern district of Mississippi, and the court decided the bonds valid for the reasons before noted, and no appeal was taken. Thus it will be seen that indeed we are threshing old straw.</p> <p>2. If we admit that the decisions of the supreme court of the United States were obligatory and binding here, the plaintiff would be no better off, for in Carroll County v. Smith, 111 U. S. 556, it was said that our constitutional provision required no more than two-thirds of the votes cast.</p> <p>3. We are not left in doubt about the position of the supreme court of the United States on the line of cases where the assent of majorities is required before the issuance of bonds, and the effect of the official act of those to whom the duty to examine and decide and then to issue bonds is assigned. On this point, see the case of Bernards Township v. Morrison et al., 133 U. S. 523. In that case the court, quoting the language of Morúdear v. BoundseU, 107 U. S. 147, said that all a bond-holder was required to show in a case of this kind was that the commissioners were appointed. It is not necessary to show that he was a holder for value, or that the conditions were performed; that the one was presumed, and the other was established by the act itself. The court also cited 47 N. J. L. 401; 42 lb. 235; 117 U. S. 336; 109 lb. 341. Also, especially, Oregon v. Jennings, 119 lb. 74. Cutler v. Madison Comity is on the line of all the adjudications on the subject, and is conclusive. It has stood for ten years, and has been the basis of dealing with these very bonds. It is unassailable; but, if not, under it the holders of these bonds would be protected on the doctrine of stare decisis.</p> <p>If the constitution had provided that two-thirds of the votes, as shown by the boolcs of registration, should be required, this might have brought the case nearer to that where the constitution fixed the standard, as in the case of a reference to an assessment roll.</p>

From the circuit court of Montgomery county. Hon. C. H. Campbell, Judge. The appellants, Armstrong, Cator & Co., sued out an attachment in the justice court against the appellee, P. W. Guenther, and caused a writ to be levied upon certain goods which the latter had assigned for the benefit of his creditors, and which plaintiffs allege were conveyed in fraud of his creditors.

From the circuit court of Covington county. Hon. A. G. Mayers, Judge. Appellant, Baum, sued out an attachment against Pearce & Co., who traversed the grounds of attachment. On the trial of this issue, the plaintiff introduced an assignment for the benefit of creditors made by the defendants shortly before the suing out of the attachment, and he relied on the provisions of this instrument and certain facts proved in connection therewith to sustain the attachment.

From the circuit court of Jackson county. Hon. S. H. Terral, Judge. The facts are sufficiently stated in the opinion.

Erom the circuit court of Clarke county. Hon. S. H. Terral, Judge. Appellee, J. C. Dunn, had a judgment against his son-in-law, George B. Oliphant, who had no property out of which the money could be made. Oliphant, desiring to engage in the business of getting out cross-ties for certain railroads, applied to J. E. Buckley & Son for advances to enable him to carry on the business.

Feom the chancery court of Noxubee county. Hon. Sylvanus Evans, Chancellor. The facts as found by the court from the record are stated in the opinion.

Prom tbe chancery court of Harrison county. Hon. Sylvanus Evans, Chancellor. The opinion states the case. Filed an elaborate brief, making, as to the questions decided by the court, the following points:— 1. The levy in the attachment suit of West was void and created no lien. Sherman v. Bank, 66 Miss. 648. 2. The creditors bill of the Peoples Bank was filed on July 1, 1884, after the attempted levy, but before the judgment in the attachment suit.

From the chancery court of Leflore county. Hon. Warren Cowan, Chancellor. The land in controversy was sold to the state July 6, 1868, for the taxes of 1867. The sale was irregular because the board of police in levying the taxes exceeded the limit allowed by law. While the land was held by the state under this tax sale, on the 9th day of May, 1870, it was sold to the liquidating levee commissioners for the levee taxes due thereon for the years 1867 and 1869.

From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. The opinion states the facts. There is no hint in the record that the parties to the contract intended to fraudulently evade the payment of any taxes. The sole evidence in the case shows that the transaction was intended to be a sale with right to repurchase. We therefore will discuss the contract as it appears on its face and in the light of the evidence.

Edom tbe circuit court of Madison county. PIon. J. B. Chdisman, Judge. Action of ejectment by appellee, Gaddis, against W. B. Jones and Nului'a Bradley. Trial by jury waived, and case tried by the court. Judgment in favor of plaintiff for possession of the land in controversy, allowing the defendants $100 for improvements. Defendants appeal and plaintiffs prosecute a cross-bill. The facts as found by the court from the record are stated in the opinion.

Appeal and cross-appeal from the chancery court of Washington county. Hon. W. R. Trigg, Chancellor. The facts of this case may be found stated at length in the opinion of the court on the former appeal. See Newman v. Bank of Q-reenville, 66 Miss. 325. On the return of the mandate to the lower court, additional evidence was taken upon both sides, and several new elements of controversy were introduced.

From the chancery court of Coahoma county. Hon. W. E. Trigg, Chancellor. The facts as found by the court from the very voluminous record are stated in the opinion. 1. It was necessary for the complainant seeking to reopen the settled account to specify facts that might be put in issue, and the evidence to prove errors should be positive. McLoskey v. Gordon, 26 Miss. 270; Cahit v. Markham, 3 How. (Miss.) 343; Hunt v. Gordon, 52 Miss. 197; 1 Daniel Chy.